Sorry, Tea Leaf Readers

Back on the first Monday in October, I noted that the United States Supreme Court would be addressing the case of Elane Photography, LLC v. Willock, in which the New Mexico Supreme Court found a violation of that state’s Human Rights Act (which is to say, actionable discrimination) when a privately-held photography company declined to render its services for a same-sex commitment ceremony (note that same-sex marriages have subsequently been recognized in New Mexico).

Today, the United States Supreme Court did in fact take action on the case — by declining to review it. That effectively ends the matter completely. A thought passed my mind that there might be some indication how the Court might address of the Sibelius v. Hobby Lobby case in this denial of certiorari. After all, there is some similarity in that in both cases, a privately-held general business entity invokes their respective owners’ religious beliefs seeking to avoid application of a law.

But after a few moments’ thought, I’m cautious about calling this a hint about that contentious case under deliberation by SCOTUS right now. The Elane Photography case, after all, turns on a question of state rather than federal law. The Religious Freedom Restoration Act invoked by the plaintiffs in the Sibelius v. Hobby Lobby case cannot constitutionally be applied to a state law, City of Boerne v. Flores (1997) 521 U.S. 507, 511, 519. The pre-RFRA case of Employment Division v. Smith ((1990) 494 U.S. 872 ) still applies to invocations of the federal free exercise right as against a state law, Christian Legal Society v. Martinez (2010) 561 U.S. ___, ___, 130 S.Ct. 2971, 2993 & n.24, 2995 n.27.

So this doesn’t really tell us much at all about what the Court is thinking about the Hobby Lobby case, only that the Court isn’t going to revisit City of Boerne nor step on the toes of the New Mexico Supreme Court as to an issue of interpretation of state law.


Burt LikkoBurt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.

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2 thoughts on “Sorry, Tea Leaf Readers

  1. I’m glad you posted this, I was wondering this very thing.

    Although there does seem to be other big difference between the two cases; In HL, the case stems over employee benefits, here, over a contractual agreement. I’ve been reading through the Balkanization posts; and I still think there’s an Establishment Clause burden on the employees under Caldor.

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  2. My own jaundiced view. Yes gays are within their legal rights to go after religious business owners for refusing to serve their events. That said, unless there are no other businesses of that type in the area I think it’s a really really REALLY bad idea to do so on political and culture war grounds.

    Now extralegal actions like boycotts and scathing reviews etc? I think that’s perfectly fine.

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