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April 07, 2014

Supreme Court Refuses to Review Case of New Mexico Photographer Forced to Take Pictures at Gay Wedding


A "victory for gay rights," and a loss for all other rights.

The Supreme Court refused on Monday to be drawn into the spreading controversy over the right of business firms to refuse to serve gay and lesbian customers, turning aside the appeal of a New Mexico photography studio and its owners. The Court made no comment as it denied review of Elane Photography v. Willock, involving a refusal to photograph a lesbian couple’s wedding-style ceremony.


The Elane Photography case had gained some prominence on the Court’s docket because it was the first to reach the Court, in the wake of new successes in achieving legal equality for gays and lesbians, to test whether homosexuals can be turned away as customers of ordinary businesses that are open to the public.


At one point, the business in Elane Photography case also raised religious objections, but the studio’s lawyers dropped that issue when they took the case to the Supreme Court. Instead, they argued that, since photography is a form of expression, the government should not be allowed to compel the use of that freedom in ways that the business owners find objectionable.

Courts do not explain why they don't grant certiorari (review), and they didn't make an exception in this case.

Update: The brief submitted by Eugene Volokh and Ilya Shapiro.

They rely heavily on a Supreme Court case called Wooley v. New Hampshire, in which someone sued, objecting to the "compelled" messaging of putting a license plate on his car which read "Live Free or Die." There, the court recognized that compelling someone to speak (or endorse sentiments he objected to) was the same offense as forbidding someone to speak.

They argue, persuasively, that the New Mexico Supreme Court's decision "directly contrary to" the Supreme Court's ruling in Wooley. In Wooley, the Court had recognized an "individual freedom of mind;" the New Mexico ruling -- and now the Supreme Court's refusal to review it -- establishes the contrary proposition.

Apparently our collective freedom of mind trumps it. (My words, any court's, though Breyer's dissent in McCutcheon did attract three other votes.)

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posted by Ace at 06:42 PM

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