A Zombie in the Supreme Court: The Elane Photography Cert Denial

Northwestern Public Law Research Paper No. 14-27

7 Alabama Civil Rights & Civil Liberties Law Review 77 (2016)

21 Pages Posted: 29 Jun 2014 Last revised: 9 Jul 2016

Date Written: June 17, 2014


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.

Keywords: Gay Rights, Free Speech, Discrimination Law, Religion, First Amendment, Supreme Court

JEL Classification: K10, K30

Suggested Citation

Koppelman, Andrew M., A Zombie in the Supreme Court: The Elane Photography Cert Denial (June 17, 2014). Northwestern Public Law Research Paper No. 14-27. Available at SSRN: https://ssrn.com/abstract=2455848 or http://dx.doi.org/10.2139/ssrn.2455848

Andrew M. Koppelman (Contact Author)

Northwestern University School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-8431 (Phone)

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