Andy Koppelman has a new piece on SSRN discussing the Court’s denial of certiorari in Elane Photography v. Willcock. Here is the abstract:
One of the least interesting legal phenomena is a denial of certiorari by the Supreme Court. The Court has absolute control of its docket, it can decline to hear a case without explanation, and its denial of review is legally meaningless and has no precedential effect. However, the recent cert. denial in Elane Photography v. Willock, a case that presented a three-way collision between gay rights, religious liberty, and free speech, is a revealing window on the limits of constitutional lawmaking. The real issue in the case, the question of how gay people and religious conservatives can live out their ideals, was obscured by weak free speech claims. The Court was right to turn the case away.
The reconciliation of gay rights and religious liberty is an important and pressing question. But the cert. petition left it out of consideration. Instead, that question was displaced by weak free speech claims. This paradoxically meant that the Court could not hope to do justice to any of the real issues. The case as presented in the petition for cert. was a zombie: still moving, but without its soul.
I came to a somewhat similar conclusion. I thought that this was a bad vehicle as the cert petition only relied on the compelled speech issue, and did not discuss the religious liberty issues (though those issues were not appealed in the case). In any event, the Court denied review, and only vaguely alluded to the issue in Hobby Lobby. So, we’ll have to wait and see.