News Law and Policy

Supreme Court Declines Review of New Mexico Same-Sex Wedding Photography Case

Jessica Mason Pieklo

The Court announced it would not hear the appeal of the owners of a photography business who claim they have a constitutional right to refuse to photograph same-sex couples. The decision lets stand a state supreme court ruling that states business owners must provide services to LGBTQ couples the same way they do to heterosexual couples.

On Monday, the Supreme Court announced it would not hear the appeal of the owners of a New Mexico photography business who claim they have a constitutional right to refuse to photograph same-sex ceremonies.

The case involves Elaine and Jonathan Huguenin, the owners of Elane Photography, who in 2007 refused service for the commitment ceremony of a lesbian couple. The couple found another photographer but then sued the Elane Photography owners, arguing the Huguenins’ refusal to take their business violated a New Mexico law that protects against discrimination based on sexual orientation.

According to the Huguenins, they had no problem taking pictures of LGBTQ individuals, but photographing same-sex marriages or commitment ceremonies would “require them to create expression conveying messages that conflict with their religious beliefs.” The Huguenins say in the complaint that the government, through enforcing anti-discrimination laws that prevent them from turning away requests to photograph same-sex weddings and commitment ceremonies, violates their First Amendment free speech rights by “compelling” the Huguenins to present images that endorse marriage equality—a political viewpoint they do not support.

The case made its way through the New Mexico courts, with the New Mexico Supreme Court eventually ruling that the studio violated the state’s anti-discrimination law by turning away the commitment ceremony request. According to the state supreme court, the New Mexico Human Rights Act requires a commercial photography business to serve same-sex couples on the same basis as heterosexual couples. It also concluded that the First Amendment does not require an exception for creative or expressive professions.

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The Huguenins had appealed to the U.S. Supreme Court to take up their case, and the case was twice listed for consideration. But ultimately the court declined, denying review without comment. The Elane Photography case is one of the first to reach the Supreme Court to test the boundaries between advancing equality for the LGBTQ community and claims by religious conservatives that the Constitution grants them a right to discriminate against those individuals because of religious objections to homosexuality.

The Supreme Court’s refusal to hear the appeal means the New Mexico Supreme Court opinion that refuses to recognize this kind of broad religious-based exemption to the state’s anti-discrimination law stands.

Roundups Politics

Campaign Week in Review: Cruz Likens His Supreme Court Pick to ‘Lord of the Rings’ Character

Ally Boguhn

This week on the campaign trail, Donald Trump and Ted Cruz spoke about whom they would nominate for the vacant Supreme Court seat, and Trump saw his favorability plummet among women.

This week on the campaign trail, Donald Trump and Ted Cruz spoke about whom they would nominate for the vacant Supreme Court seat, and Trump saw his favorability plummet among women.

Cruz, Trump Discuss Their Supreme Court Nominations

Republican presidential candidates Sen. Ted Cruz (R-TX) and Donald Trump were hard at work dreaming up possibilities for a Supreme Court nominee should the Senate obstruct Obama’s pick for the vacancy.

Appearing at a rally over the weekend for Sen. Mike Lee’s (R-UT) bid for re-election, Cruz commented that Lee “would look good” on the Supreme Court. Cruz compared Lee to Gollum, a character from Lord of the Rings, claiming that “For Mike, the Constitution is ‘my precious,'” according to the Salt Lake Tribune. 

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Lee’s work opposing abortion during his time in Congress earned him a 100 percent rating from the anti-choice National Right to Life Committee. The Republican senator has supported several measures attempting to limit access to or outright ban abortion, including a 2013 bill to investigate all abortion clinics and extend “personhood” rights beginning at the moment of fertilization, which could outlaw many forms of birth control in addition to abortion.

Lee’s 2010 campaign website included a section noting his opposition to legal abortion and Roe v. Wade:

The Constitution says nothing that can plausibly be read to suggest—as the Supreme Court concluded in Roe v. Wade—that States are essentially powerless to protect unborn human life. This power to protect the most vulnerable members of society needs to be returned to the States.

Donald Trump also signaled he was mulling over potential picks for the Court’s vacancy, promising during a Monday press conference in Washington, D.C., to release a list of seven to ten potential picks. If elected, Trump vowed to choose nominees exclusively from the list, which he said will be created by the “Heritage Foundation and others.”

But as ThinkProgress reported, the Heritage Foundation “is an odd place for a presidential candidate to seek advice on any topic” given its history of discriminatory politics:

Heritage is a think tank known for its stridently conservative views and its unorthodox approach to mathematics. They oppose marriage equality, defend discrimination against LGBT Americans, and they have a surprisingly long history of reversing their own stances on health policy when doing so is useful to opponents of Obamacare. Their former chief “economist” is an ex-newspaper columnist and anti-tax activist with no doctorate in economics.

In 2013, Heritage released a widely criticized report claiming that immigration reform would cost an eye-popping $6.3 trillion. One of the co-authors of that report resigned four days later after news broke that “his graduate dissertation on immigration was premised on the idea that Latinos were less intelligent than whites.”

The Heritage Foundation is vehemently anti-choice, a position that could inform its picks for the Court. The organization’s “Solutions 2016” policy recommendations include calls to expand bans on using federal funding for abortion, redirect funding for reproductive health away from Planned Parenthood to community health centers, and codify protections for “medical personnel who decline to provide, pay for, provide coverage of, or refer for abortions.” Its website also details the organization’s opposition to Roe v. Wade, dismissing the decision as “judicial activism.”

Poll: 74 Percent of Women Registered to Vote Hold Unfavorable Views of Trump

A CNN/ORC International poll released Thursday found that Donald Trump is viewed unfavorably by 74 percent of registered women voters and 81 percent of people of color.

The poll, which asked registered voters whether they “have a favorable or unfavorable opinion” of presidential candidates, shows potentially major hurdles for the Republican front-runner moving into the general election. Comparably, 50 percent of women and 36 percent of “non-white” people polled said they had an “unfavorable” view of Hillary Clinton.

Polling from the Washington Post similarly found that Trump’s favorability among women has been steadily decliningjeopardizing the Republican Party’s already tumultuous relationship with women. “Trump’s favorability numbers have decreased 10 points among women nationwide since November, to 23 percent, while his unfavorable number among women has jumped to 75 percent from 64 percent, according to a Washington Post-ABC News poll taken this month,” reported the Post.

What Else We’re Reading

Franklin Foer explained for Slate that “there’s one ideology that [Trump] does hold with sincerity and practices with unwavering fervor: misogyny.”

The Washington Post’s Karen Attiah wrote about the sexism she experienced from Donald Trump after asking him a policy question during his sit-down with the paper’s editorial board.

ThinkProgress’ Aaron Rupar explains how the Republican presidential race has turned into a “sexist competition over whose wife is hotter.”

Voters in Arizona had to wait in line as long as five hours to cast a ballot in their state’s Tuesday primary thanks to a Supreme Court decision that “gutted” the Voting Rights Act (VRA) and “an ill-conceived decision” to cut polling locations in order to save money. As the Nation reported, “Phoenix’s Maricopa County, the largest in the state, reduced the number of polling places by 70 percent from 2012 to 2016, from 200 to just 60—one polling place per every 21,000 voters”a change that “would very likely have been blocked” had the VRA’s protections remained intact.

Bernie Sanders applauded Phoenix Mayor Greg Stanton’s request for a Department of Justice investigation into voting delays in Maricopa County.

Dark money groups in Wisconsin are outspending candidates on ads for the Wisconsin Supreme Court race. When voters head to the polls for the April 5 judicial elections, “they won’t know who funded most of the ad spending around this race,” said the Sunlight Foundation’s Libby Watson.  

Analysis Law and Policy

Everything You Need to Know for the Supreme Court Birth Control Case

Jessica Mason Pieklo

The Supreme Court is set to hear the second direct challenge to the Affordable Care Act's birth control benefit Wednesday. Here's what to look out for during oral arguments.

The U.S. Supreme Court is set to hear arguments on March 23 in Zubik v. Burwell, the second direct challenge to the birth control benefit in the Affordable Care Act (ACA). This time, the plaintiffs are religiously affiliated businesses like universities, hospitals, and nursing homes: nonprofits that serve the general population, but have a corporate affiliation to a faith group. Those organizations argue that, like churches, synagogues, and other houses of worship, they should be fully exempt from the law’s requirement that employer-provided health insurance plans cover contraception as preventive care. The cases are part of conservatives’ longstanding attacks on the Affordable Care Act generally, and the birth control benefit specifically—objections to which began as soon as President Obama signed the ACA into law. 

There’s a lot on the line with these cases. Here are the key points law attorneys will be battling over during this week’s arguments, and why they matter.

First, Some Background 

A nonprofit claiming a religious objection to the birth control benefit has two ways to participate in the “accommodation process” and opt out of complying with the law. It can mail a short self-certification form to its health insurance company or third-party administrator, depending on the type of insurance it carries, declaring that the organization is a religiously affiliated nonprofit that “opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered.” The nonprofit can also provide similar notice, along with the name and contact information of its insurer or third-party administrator, directly to the U.S. Department of Health and Human Services (HHS).

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Once either of those two things happens, the federal government will step in and direct insurance coverage for contraception as needed. The employer has nothing more to do with the process at all.

The plaintiffs in Zubik v. Burwell argue that taking either action “triggers” or “facilitates” the ability of their employees to get contraceptive coverage elsewhere. That, the organizations argue, makes them complicit in what they believe to be a sinful act: supporting contraception. They say such an act violates their rights under the Religious Freedom Restoration Act (RFRA).

Unlike in Burwell v. Hobby Lobby, the 2014 case that asked whether secular, for-profit businesses should also have the right to pursue a religious exemption from the birth control benefit, the Roberts Court in Zubik v. Burwell will try to answer the question of whether completing the paperwork required to obtain that religious exemption is itself a substantial burden on religious liberty. If the plaintiffs win in Zubik, it could not only spell the end of the ACA’s birth control benefit; it could further open the door to launching wide-scale religiously based objections to civil rights protections.

So, let’s get into it.

How Badly Does the Government Want to Keep This Fight Up?

The conservative majority ruled in Hobby Lobby that secular, for-profit companies could have access to the accommodation process now being challenged by conservatives in Zubik. In that decision, the Court “presumed without deciding” that the contraception benefit advances compelling government interests, a necessary requirement for laws being challenged in RFRA cases.

A presumption is not the same thing as a ruling, however, and has no value as precedent for future cases, including Zubik.

In Hobby Lobby, Kennedy stated in his controlling concurrence the benefit furthers “a compelling [government] interest in the health of female employees”; the four liberals agreed with the sentiment, though Justice Ruth Bader Ginsburg, in her dissent, took a much stronger stance in its favor. If Kennedy changes his mind in Zubik, he’s going to have to explain why.

Compelling government interest is only one part of the equation, however. To successfully defend the benefit, the Obama administration is also going to have to show that it is narrowly tailored to further that compelling government interest. In Hobby Lobby, Kennedy presumed that the very fact that the benefit has an accommodation process and religious exemptions shows that it is narrowly tailored.

Again, this is a presumption on Kennedy’s part. The Court did not rule that the benefit is narrowly tailored in Hobby Lobby, so it is not bound by that finding in Zubik. In terms of presumptions, though, it was a pretty big one, on which Kennedy hung much of the rest of his concurrence.

But if there is a prong of the analysis conservatives feel they stand a chance of winning, it is clearly this “narrowly tailored” one. They argue that if providing contraception coverage is so important to the federal government, it should just provide that coverage directly and not involve employers at all. Because the Court never definitively ruled in Hobby Lobby that the benefit is narrowly tailored, presenting a specific alternative in the form of direct coverage for contraception is a smart tactical move by the challengers.

Kennedy’s opinion in Hobby Lobby suggests he won’t bite. But considering, too, the earlier interim orders by the Roberts Court preventing the administration from enforcing penalties against nonprofits for not complying with the accommodation process, any open question presents a way for conservatives to take a whack at the benefit. And if they do so successfully, the Obama administration is going to have to decide if it wants to amend the benefit yet again to try and appease their objections, provide the contraception itself directly through some as-yet-undescribed accommodation-to-the-accommodation, or give up on the coverage all together.

Which option do you think conservatives are gunning for?

It’s Not Just Any Burden

In addition to answering the “compelling government interest” and “narrowly tailored” questions, the Court in Zubik will have to address the matter of “substantial burdens.”

RFRA’s provisions don’t apply to simply any burden on religious rights. They apply only to substantial burdens on religious rights. The nonprofits claiming a RFRA violation here insist that the question of whether or not a law places a substantial burden on religious rights is a subjective one for the religious objector to answer, not an objective one for the courts. As soon as an objector says a law-created burden counts as substantial, they argue, it is substantial—as long as the objector is sincere in that religious belief.

The federal courts largely have rejected this line of argument, and for good reason. If accepted, it would provide an enormous loophole for businesses to seek accommodations to other civil rights requirements, like not discriminating in pay on the basis of gender, or not refusing to work as a photographer at same-sex weddings. But before Hobby Lobby, federal courts largely had rejected claims that secular, for-profit businesses could even raise religious objections to the birth control benefit—and look how that turned out. In addition, at least one federal court is willing to consider organizations’ moral objections to the benefit as well as religious ones, threatening to render RFRA entirely meaningless except as a weapon for conservatives to use to try and thwart civil rights advancements.

The Women Justices Going in Hard for the Benefit

Like we saw earlier this month in Whole Woman’s Health v. Hellerstedthaving women on the bench makes a difference in the tone and tenor of the questions when reproductive rights are before the Court. The birth control cases have been no different.

In Hobby Lobby, Justice Ginsburg made it clear that if the conservative male justices were going to “presume without deciding” the government’s compelling interest in advancing contraception coverage, she was ready for whenever the question arose again with proof of the public good contraceptive access advances.

Writing for the dissenters, Ginsburg emphasized that “the Government has shown that the [benefit] furthers compelling interests in public health and women’s well-being. Those interests are concrete, specific, and demonstrated by a wealth of empirical evidence.” Ginsburg then provided a list of the myriad of benefits women derive from contraception access.

Just days after the Court issued its decision in Hobby Lobby, it ruled Wheaton College did not have to comply with the very accommodation process it had just extended to for-profits, in one of the first religious objector cases to land before the Court. It was a temporary ruling while the underlying litigation progressed, but produced a blistering dissent.

“Those who are bound by our decisions usually believe they can take us at our word,” Justice Sonia Sotomayor wrote for the dissent, joined by all three female justices. “Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, retreats from that position,” wrote Sotomayor. “This action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.”

Sotomayor’s dissent reveals a lot about the split among the justices in Hobby Lobby. Much of Kennedy’s controlling opinion in Hobby Lobby was about bridging the gap between the conservative wing of the Court—willing to open the floodgates for nearly all types of corporations to pose religious objections to regulatory actions—and the dissenting liberal justices—who, rightly, saw the arguments in Hobby Lobby as a ruse for conservatives to expand their attacks on all forms of civil rights protections. Kennedy tried to assure the liberal justices it was a narrow decision. His decision to side with the conservatives a few days later in Wheaton College betrayed that assurance, as Sotomayor’s dissent makes clear.

With the Court now split 4 to 4, the tension along the fault line between the ruling in Hobby Lobby and the Court’s retreat in Wheaton College will likely be palpable in Zubik. The women on the Court, along with Justice Stephen Breyer, will keep the pressure on Kennedy to stand by his analysis in Hobby Lobby; the conservative justices will no doubt pressure him as well, leaning hard on his discomfort with government intrusions into religious belief, actual or perceived.

Will Kennedy listen to those directly affected by the challenges to the birth control benefit? Or will he buy the specious arguments made by conservative employers: that their religious rights include the right to block their students and employees from accessing contraception coverage under the law?

The Court likely won’t rule until this summer. With the battle to replace the late Justice Scalia only heating up, the possibility of a 4-4 split in Zubik is real. If the Court deadlocks, there will be no definitive ruling on the birth control benefit. Nor will there be any answers at all to the broader questions of whether contraceptive coverage furthers government interest, and the limit, if any, to how far conservatives are willing to stretch RFRA to try and stymie civil rights progress. Such a split would leave in place the appellate court rulings, which have almost unanimously supported the Obama administration and the accommodation process. Practically speaking, it would mean that, eventually, these cases would find their way before the Court again, when it has a full bench of nine members and can issue a definitive ruling.

There is also the possibility that the Court rules 5 to 3 in favor of the Obama administration and the accommodation process. As Kennedy’s opinion in Hobby Lobby demonstrates, he is quite capable of distinguishing real government intrusions into religious beliefs from imaginary ones.

Will the oral arguments offer any insight here? Maybe. But only if Kennedy tips his hand.