Ian Millhiser at Think Progress has some insights:
If anything can be read into the Court’s decision not to hear the Elane Photography case, however, it is probably that the Court’s conservative wing was unwilling to take this bet. The Court’s four more liberal members had no reason to disturb the New Mexico Supreme Court’s decision — they probably agree with it — and the four most conservative justices may have decided to give this case a miss because they were worried that Kennedy would join the liberals if forced to decide Elane Photography… While Elane Photography is technically a free speech case and not a religious liberty case, it also presents the question of whether a religious business owner can ignore a business regulation. So if Kennedy was unwilling to decide Hobby Lobby in a way that would allow religious objections to trump anti-discrimination law, it is likely that he would have had the same concern in Elane Photography. That may have been enough to convince his fellow conservatives to avoid Elane Photography.
Lisa Keen at Keen News agrees:
The photographer had claimed that she had religious beliefs that compelled her to refuse accommodations to the lesbian couple, and the case was viewed as one of many disputes heading to the U.S. high court that pitted religious beliefs against non-discrimination laws. But the case was never pitched as a free exercise case and that may be why the Supreme Court didn’t take it, said Lambda Legal Senior Counsel Jenny Pizer. Tobias Wolff, an attorney helping represent the lesbian couple, said, “No court in the United States has ever found that a business selling commercial services to the general public has a First Amendment right to turn away customers on a discriminatory basis.”
When the case began, the was no marriage equality in the state. Now, as it ends with a whimper, New Mexico has embraced the right of gays and lesbians to marry. Now we await the court’s decision in the Hobby Lobby case, which could have profound effects on the religious liberty vs. gay rights arguments in the US.