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What To Make Of The Supreme Court’s Decision Not To Hear That Anti-Gay Photographer’s Case

By Ian Millhiser

"What To Make Of The Supreme Court’s Decision Not To Hear That Anti-Gay Photographer’s Case"

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Elane Photography, a New Mexico company that refused to photograph a same-sex commitment ceremony in violation of that state’s anti-discrimination law, will not have its case reviewed by the Supreme Court of the United States. This means that a New Mexico Supreme Court decision ruling against the company will stand. For the time being, at least, New Mexico wedding photographers may not engage in anti-gay discrimination.

Nothing more can be read into Monday’s announcement that the Supreme Court will not take this case with any degree of certainty. The Elane Photography case was listed on a long list of cases the justices decided not to hear without any explanation of their reason for rejecting the case. As a general rule, the Court’s decision not to take a case says nothing about how the justices view the case on the merits. The justices may deny a petition seeking Supreme Court review because they thought that a case had a jurisdictional problem, because they want the issue to spend more time developing in lower courts, or even because they just find a case uninteresting. So there is no guarantee that the Court won’t decide to hear a very similar case the next time a professional photographer refuses to take pictures of a gay couple.

That said, it is difficult to ignore the political context surrounding the Elane Photography case. Elane Photography played a central role in the recent debate over whether to expand Arizona’s religious liberty law in a way that could have given anti-gay business owners a license to discriminate against gay customers. One Arizona Republican lawmaker said that this bill was intended as a response to Elane Photography and similar cases where an anti-gay business owner was “punished for their religious beliefs” because they were required to comply with anti-discrimination law.

Although Elane Photography made a religious liberty argument in the lower court, they did not bring this claim to the Supreme Court. Instead, they argued that complying with New Mexico’s ban on anti-gay discrimination would “require them to express messages that conflict with their religious beliefs” in violation of the First Amendment’s free speech guarantees.

It’s not difficult to guess why they chose to frame their case in this way. Although Justice Anthony Kennedy, the likely swing vote in any gay rights case, has mostly been friendly to LGBT litigants, he joined the 5-4 majority opinion in Boy Scouts v. Dale holding that the First Amendment exempts the Boy Scouts from New Jersey’s anti-discrimination law. There are important differences between the way that the First Amendment treats private membership organizations, like the Boy Scouts, and the way it treats businesses that provide services to the general public, like Elane Photography. So Kennedy’s vote in one case does not necessarily predict how he would vote in the other. Nevertheless, Boy Scouts provides some window into Kennedy’s mind — he’s been willing, in the past, to set aside his sympathy for gay rights when someone claims that their free speech rights are being violated. Elane Photography was betting that Kennedy would bring a similar sensibility to their case.

If anything can be read into the Court’s decision not to hear the Elane Photography case, however, it is probably that the Court’s conservative wing was unwilling to take this bet. The Court’s four more liberal members had no reason to disturb the New Mexico Supreme Court’s decision — they probably agree with it — and the four most conservative justices may have decided to give this case a miss because they were worried that Kennedy would join the liberals if forced to decide Elane Photography.

During last week’s oral arguments in Sebelius v. Hobby Lobby, a case which directly presents the issue of how far religious business owners can go when they seek exemptions from federal law, Kennedy seemed inclined to side with the plaintiffs, but he also expressed concerns that a too-broad rule granting religious business owners sweeping legal immunities could intrude too far on the rights of third parties. A religious business owner’s employee, Kennedy noted, “may not agree with [the]­­ religious beliefs of the employer,” and he seemed concerned about a regime where “the religious beliefs just trump.”

There are broad ways to decide Hobby Lobby, and there are somewhat narrower ways to do so. The specific issue in Hobby Lobby is whether a religious employer who objects to birth control can refuse to comply with a federal law requiring them to include it in their health plan — and Kennedy seems likely to say that they may refuse to follow this law. But there are ways to decide Hobby Lobby that are bad for women’s reproductive health without necessarily permitting businesses to ignore anti-discrimination law.

While Elane Photography is technically a free speech case and not a religious liberty case, it also presents the question of whether a religious business owner can ignore a business regulation. So if Kennedy was unwilling to decide Hobby Lobby in a way that would allow religious objections to trump anti-discrimination law, it is likely that he would have had the same concern in Elane Photography. That may have been enough to convince his fellow conservatives to avoid Elane Photography.

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