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Supreme Court again takes no action on Elane Photography case

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The Supreme Court, for the second time has held a conference in which it looked at Elane Photography v. Willock, and the Court has yet to decide whether to grant or deny review. The case was relisted after no action was taken last week. The Court first looked at the case on March 21 and then on March 28.

Elane Photography involves a photography business in New Mexico who refused service to a same-sex couple who wanted their commitment ceremony photographed by the business. Elane Photography is challenging the application of the state’s public accommodations law (prohibiting discrimination in public accommodations on several grounds, including sexual orientation and gender identity) as it applies to their photography business. They argue that photographing the ceremony is “compelled speech” and is unconstitutional.

Presumably, the case will be relisted again for a later conference.


  • 1. Tim  |  March 31, 2014 at 7:23 am

    When this happens repeatedly, do the cases usually end up getting granted?

  • 2. Ragavendran  |  March 31, 2014 at 7:52 am

    Not sure, but look at this case, which has (so far) been considered SEVENTEEN times, with still no decision on whether to grant cert or not.
    From the case record, it can be seen that the Justices, after months of deliberating (or not deliberating), decided that they needed additional information from lower court(s). But, as Scottie and others surmise below, it could be delayed for a number of reasons.

  • 3. Scottie Thomaston  |  March 31, 2014 at 7:55 am

    It varies. Sometimes it gets granted after a few relists. Sometimes they're holding it for something. Sometimes someone's writing an opinion respecting denial or a dissent from denial. Etc.

  • 4. Eric  |  March 31, 2014 at 8:36 am

    They could be waiting for Thomas to write something. 🙂

  • 5. DaveM  |  March 31, 2014 at 9:00 am

    Another reason is that there's a pending opinion that will, in some way, render the decision below moot.
    E.g. Gill v. OPM was held without grant or denial until after Windsor came down.

  • 6. Chris M.  |  March 31, 2014 at 9:08 am

    It seems very plausible to me that they hold this until the Hobby Lobby case is decided.

  • 7. Dr. Z  |  March 31, 2014 at 9:16 am

    At which point they may return it to the circuit court to reconsider how it squares with whatever SCOTUS decides in Hobby Lobby.

  • 8. JayJonson  |  March 31, 2014 at 10:48 am

    Wouldn't they return it to the New Mexico Supreme Court? If I remember correctly, this is an appeal directly from the NMSC.

  • 9. Reformed  |  March 31, 2014 at 9:18 am

    I think this was coverer before, I think by brain is full, and for every new piece of information that enters, another one gets deleted to make room . . .

    Does each case have be granted or denied specifically? Is there a time limit where a case is effectively denied without action, or a time after which a case would have to be re filed?

  • 10. DaveM  |  March 31, 2014 at 9:42 am

    SCOTUS makes its own rules. 😀

    Yes, each case is acted on individually. The results of this are the "Orders List", typically posted every Monday that the Court is sitting. (e.g.
    They are the results of the cases the Court reviewed the previous Friday at their conference. The vast majority of cases come back "Certiorari Denied", meaning the Court will not hear the case, and the decision below stands. If certiorari ("cert") is granted, the case goes to briefing and argument.

    The Court can also summarily reverse, invite the government to weigh in, or just sit on the petition as long as they want.

  • 11. Scottie Thomaston  |  March 31, 2014 at 9:46 am

    A specific action has to be taken, yeah. There are a lot of different types of ways to get rid of a petition but it all involves action. If they are sitting on it without doing anything that means they're still considering it or holding it or someone's writing a statement or dissent from denial.

    As far as a time limit goes, there's really not one for cert petitions. One current case has been relisted like 17 times. And there had been a petition the Court held for ten years until the person died, if I recall. I'm trying to find it but can't remember. But I don't think that would be the case here. At most, it's being held for Hobby Lobby, but there's no way to know.

  • 12. Christian  |  March 31, 2014 at 11:16 am

    There's every possibility they could say " 'Romer' and 'Reitman' controls here. Nothing in the NMHRA is any different than the non-discrimination ordinances in Colorado or in the Rumsfeld Act of California, to which there are no protections that were extended via said laws that also stripped anyone else of their right to free expression. Cert denied."

    Considering this case has been before the SCOTUS roughly twice (admittedly with some differences, but reasonable extrapolation of court law is one of the benefits of a common law system), wouldn't they (especially the 4 liberal justices and Kennedy) feel more obliged to simply deny cert as in the example provided?

    And would that not also set a national precedent, or am I being thick?

  • 13. Scottie Thomaston  |  March 31, 2014 at 1:13 pm

    Well no, this has reached the Court as a First Amendment case. The photography business is challenging the law as it applies to them, on First Amendment grounds. So there aren't any Equal Protection issues like in Romer. The law isn't being challenged as completely unconstitutional, they just think they have a right, as a photography business, to refuse service and to discriminate on whatever grounds they want to.

    I am HOPING cert is denied because if it's granted, that probably means four conservatives think they have five votes to overrule the unanimous New Mexico Supreme Court. But denying cert would just mean that the photography business isn't exempted. They had argued that if they have to serve gay and lesbian customers, that's "compelled speech" and so a cert denial would likely mean the Court just doesn't want to mess with the issue.

    And a denial wouldn't set a national precedent at all – it only applies in New Mexico, since it comes from their state supreme court.

  • 14. Christian  |  March 31, 2014 at 2:07 pm

    Ah I see now, I was under the impression that the appellants in Reitman cited the 1st Amendment for upholding Prop 14. And I cannot find where they did so, if they did so. Nor were the arguments used here regarding the 1st amendment used anywhere along the appeals process for Romer.

    Seems I was under a factual misimpression :p

    But, even if they granted Cert Kennedy found nothing objectionable in the civil rights ordinances of Colorado. And I'm sure, if he didn't in the more conservative day and age of 1996, that he wouldn't today either.

    But you're right, I would prefer them to deny cert altogether than risk a loss.

  • 15. Randolph Finder  |  March 31, 2014 at 12:05 pm

    Would someone please tell me why a House Joint Resolution to study the effect of No-fault divorce (the very last thing in the document) is relevant in any way to this case at all?

  • 16. Supreme Court again takes&hellip  |  March 31, 2014 at 1:23 pm

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    […] Supreme Court again takes no action on Elane Photography case […]

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    […] Supreme Court again takes no action on Elane Photography case […]

  • 19. anotherview2  |  March 31, 2014 at 7:26 pm

    Perhaps the SCOTUS sees a slippery slope here in forcing a photographer to take pictures, regardless of subject.

    For my part, if I objected to taking pictures of a homosexual wedding, then I'd likely give the work to another who didn't mind.

  • 20. bayareajohn  |  March 31, 2014 at 8:16 pm

    The same slippery slope that worried restaurants and hotels about forcing them to serve customers, regardless of their color.

    For your part, you'd think telling Blacks to go to another business who didn't mind would be enough..

    You'd be wrong.

  • 21. Guest  |  April 3, 2014 at 5:56 pm

    This isn't rocket science. If a gay couple is discriminated against by a business, including a bigoted photographer, fine, let the photographer be. The gays have no interest in being associated with a bigot; however, the bigot must pay the penalty under the law. After the photographer's discriminating actions, it's up to the gay couple to report the bigot to the proper authorities, and let the wheels of justice operate as they do for everyone else.

    Don't flatter yourself, bigot. The feeling is mutual. If I could snatch your rights away, I would do it in a second because I think you're a naive wimp and deserve the discriminatory treatment, but I can't. Instead, I simply think your religion is pathetic, and so are its dumb followers.

  • 22. Hypo  |  April 5, 2014 at 11:27 pm

    So you think might makes right?
    Very enlightened you are.
    Totalitarian in the house.

  • 23. Guest  |  April 7, 2014 at 8:09 am

    Wow. Throwing around all the bigot language really makes you shine.

    I find it disingenuous that this couple was ever interested in this photography business in the first place. There are plenty of photographers who enjoy capturing gay couple events as much as heterosexual events, and are very talented and would do any occasion justice. It appears to us to be just another bogus shakedown. It isn't just heterosexuals who have this perception, either. We are blessed with some wonderfully intelligent, fun and loving friends in our years together. They come from various backgrounds, including different religions, race, bi-racial couples, agnostics, and many of whom are homosexual. This topic has been discussed a few times, and I can report there are plenty of homosexuals who are not in any way ashamed of being homosexual, but are disgusted with, and ashamed of the hate and shakedowns the LGBT communities initiate and promote.

  • 24. Zack12  |  April 7, 2014 at 8:14 am

    Actually, the couple in question went to another photographer. They simply reported her to the state's human rights comission before doing so, as is their right under New Mexico's discrimination laws.

  • 25. Keith  |  April 7, 2014 at 8:27 am

    The NOM trolls are having a field day with this site.

  • 26. Keith  |  April 7, 2014 at 8:30 am

    Sorry my comment about NOM trolls posted in the wrong thread.

  • 27. Kevin  |  April 3, 2014 at 5:57 pm

    Because that someone is offering a service to the public at large. If they are uncomfortable taking photographs of gay weddings, then the solution is not to discriminate against gay customers, but rather to find a different line of work. Freedom works both ways.

  • 28. Guest  |  April 3, 2014 at 5:59 pm

    Nobody is forcing anyone, know-it-all. You're really clueless and no matter how much sense anyone will enlighten you with, you'll continue to be a willful idiot. The photographer deserves to pay the penalty under the already established law for their discrimination. Period.

  • 29. Marriage Equality Round-U&hellip  |  April 1, 2014 at 6:41 am

    […] USA: Once again, the US Supreme Court has passed over the New Mexico photographer’s case. full story […]

  • 30. Hypo  |  April 5, 2014 at 11:20 pm

    So where does the Thirteenth Amendment figure into all of this?

    What if they post a sign saying a percentage of the profit will be donated to Focus On The Family? Then you can boycott them as is your right. To me this is not a First Amendment issue, it is a 13th Amendment issue. The 13th Amendment abolished involuntary servitude which formally ended slavery. It is really direct and to the point.
    U.S. Constitution › 13th Amendment


    SECTION 1.

    Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

    SECTION 2.

    Congress shall have power to enforce this article by appropriate legislation.
    That is it. My question is, can you legally force a person to do business with or to serve another person? I think it clearly says NO without regard to reason unless they have been convicted of a crime. What crime did the Baker commit? Having a religious belief is not a crime and is Protected by the Establishment clause of the First Amendment. Are you willing to use force to make someone act against their conscience? It ultimately will be force used against the baker if he does not comply with a court order and he loses his appeal. He can be charged with contempt and arrested. What else are you willing to use the power of government to compel people to do? We can still use social methods to persuade a person to serve all persons alike but I believe that the Force of Law is precluded by the 13th Amendment. ??? Tell me where I am wrong and why? My point of view is that I want a very limited government intrusion. I don't even think a Marriage License should be required anywhere. Your life is your business. What if the business owner closes up his shop and moves to another State? Is he then a fugitive from justice and should be hunted down at any cost? I think there is a difference between a customized Wedding Cake made under contract and merely selling pre cooked cakes and baked items. anyone should be able to walk into the door and buy the items on display and readily available. Offer, Acceptance, and action towards the completion of the work is a contract and if the baker accepted and then changed his mind then it is an enforceable contract. If there never was acceptance then I think it should not be actionable. It is a fine line. Where is it?

  • 31. Equality On TrialBREAKING&hellip  |  April 7, 2014 at 6:53 am

    […] Court had considered the petition over several conferences, and this morning, they officially denied certiorari, meaning that the unanimous New Mexico Supreme […]

  • 32. Zack12  |  April 7, 2014 at 8:18 am

    This isn't about a photography business. At its core, this was about a business wanting permission to ignore state discrimination laws.
    If they were allowed a pass, who would be next? A grocery store owner? A person selling houses?
    A doctor?
    You can be sure they would try, hence the reason even the small business owners aren't allowed to get away with stuff like this.

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