Wait! Supreme Court (in)decision isn’t its final word on religious liberty

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U.S. Supreme Court building.

Mike Renlund via Flickr

U.S. Supreme Court building.

Guest post by Daniel Bennett

This morning, the U.S. Supreme Court denied hearing an appeal on Elane Photography v. Willock. Social conservatives are outraged. Civil rights advocates are celebrating. Both sides should be patient.

"Supreme Court" by Mike RenlundA case being denied by the Court is rarely noteworthy, as the Court agrees to hear only around 90 cases of the several thousand annually seeking review. Indeed, the Court’s decision (or, rather, indecision) in this case may actually belie its view on how we should resolve tensions between religious liberty and civil rights.

The details of Willock are fairly straightforward. In 2006 Vanessa Willock and her same-sex partner asked Elane Photography to photograph their commitment ceremony. The company’s owners, Elaine and Jonathan Huguenin, declined their services, citing their Christian beliefs and freedom of speech. Willock and her partner filed a complaint with the state of New Mexico, alleging the business had violated the couple’s rights. The state’s human rights commission sided with the couple and, in 2013, the New Mexico Supreme Court upheld the ruling, arguing that in entering the marketplace, a business must occasionally serve people with which it disagrees. Being a professional photographer does not make one exempt from this because a photographer is not an act of personal expression protected by the First Amendment; it is a contracted service. Willock and her partner found another photographer in time for their 2007 ceremony, but the Huguenins were still ordered to pay over $6,000 in attorneys’ fees to Willock.

By denying to review the state court’s ruling, the U.S. Supreme Court effectively affirmed the lower court’s decision. However, this does not mean that the Court necessarily endorses it. Just two weeks ago, the Court heard oral arguments in another case involving religious freedom arguments. In Sebelius v. Hobby Lobby Stores, the Court must decide whether a for-profit corporation can seek religious exemptions to the Affordable Care Act’s mandate for providing contraceptive coverage to employees. It is notoriously difficult to predict case outcomes based on oral arguments, but based on the justices’ questions, the Court appeared to be leaning 5-4 in favor of Hobby Lobby.

A ruling in favor of Hobby Lobby may signal a return to the constitutional standard established in Sherbert v. Verner. This case, involving a Seventh-Day Adventist denied unemployment benefits because she refused to work on Saturdays, guaranteed exemptions from neutral laws if:

1) religious beliefs were sincerely held and substantially burdened; and

2) the state either lacked a compelling interest in requiring the violation of those beliefs, or could have acted in a less burdensome fashion.

Such a standard was scaled back in Employment Division v. Smith, when the Court held that states were in fact not required to grant exemptions from neutral laws. Depending on how the Hobby Lobby decision is written, though, the Court may once again give greater deference to religious freedom objections to certain neutral laws, including civil rights laws in Willock.

Many defenders of religious freedom would have liked to see the Court agree to hear (and overturn) Willock, but in reality, the Court may already be on its way to establishing greater religious freedom protections. In the ongoing tensions between religious freedom and same-sex equality—seen recently in Arizona’s controversial S.B. 1062, and other state laws like it—the Hobby Lobby decision could tip the Court’s hand in favor of religious freedom in cases like Willock (of which there are currently several in the courts).

The takeaway, then, from today’s denial is simple: Wait. The Court’s decision in the Hobby Lobby case is the one that really matters, and we expect to have that decision just before the Court recesses in July.


Daniel Bennett recently completed his PhD in political science. His research focuses on conservative legal movement. He will be joining the faculty at Eastern Kentucky University this fall.

  • Deacon John M. Bresnahan

    A lot of commentary on religion cases has zeroed in on how the Catholics on the Supreme Court are going to handle the religious freedom cases coming its way. But –considering that some American cities have debated possibly outlawing circumcision or doing away with special health law exemptions for Kosher food and meat businesses-shouldn’t the two Jewish members of the Supreme Court also, rightly, be very concerned about the ultimate effect down the road on their faith community of any ruling they make on the First Amendment.

  • .
    Wow, how far we have come since Christians fought in the civil rights movement to end discriminiation, yet now are claiming Christianity demands discrimination.

  • Larry

    A good number of Christians used to demand discrimination back in the day as well.

    But a couple of generations allowed them to sweep that little bit under the big rug of official history.

  • Mike

    Does a photographer have to guarantee the quality of his/her photos? If not, I would not force anyone who refused the service to take my wedding photos. Imaging after the wedding, the photos are badly shot!

  • Larry

    Which is why Elaine Photography is more a case of the business being uncivil and acting in a pigheaded, spiteful, fashion more than anything else.

    They were too beholden to the notion of telling gay couples to “buzz off” to bother with more civil polite refusals. Would it have killed them to say, “we are all booked up for those dates”, “we have no experience shooting that kind of wedding”, “I am not sure we can handle it with the requisite skill”? Of course not. But they would not have the satisfaction of showing a gay couple their self-righteous scorn.