Maybe Elane Photography was a Bad Vehicle?

April 7th, 2014

The Supreme Court denied cert in Elane Photograph, to the surprise of many (including Will Baude here). We will never know why the Court denied cert, though I’ll stick to my previous thoughts that this case was a bad vehicle. The case was petitioned for cert as a compelled speech case, but was primarily a religious liberty case. It’s hard to disentangle the two.

A much better case would focus solely on the religious liberty issue, outside the content of compelled speech. For example, a person who does not want to rent an apartment to a gay couple, due to sincerely held religious beliefs (assume that they are not exempted from the law). This would tee up more clearly the issue.