Bench Memos

Important Elane Photography Cert Petition

Teed up for action at the Supreme Court’s conference tomorrow is Elane Photography’s cert petition raising a fundamental question on First Amendment speech rights: May a photographer be punished for refusing to create expressive images and albums that conflict with her beliefs?

Law professors Eugene Volokh and Dale Carpenter, who identify themselves as “supporters of same-sex marriage who also believe that photographers, singers, writers, and other creators of expression have a First Amendment right to choose which expression they want to create,” have submitted a strong amicus brief in support of Elane Photography’s petition. Volokh and Ilya Shapiro of Cato, who co-authored the brief, also had this op-ed in the Wall Street Journal earlier this week.


Let’s hope that the Court grants review and clarifies this important area of the law.

Ed Whelan holds the Antonin Scalia Chair in Constitutional Studies at the Ethics and Public Policy Center and is a regular contributor to National Review’s Bench Memos blog.
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