Bakersfield Baker Has 1st Amendment Right to Refuse to Make Cake for Same-Sex Couple, Kern County Judge Rules

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A Kern County judge has ruled in favor of a Bakersfield baker who refused to design a wedding cake for an already married same-sex couple last year.

Kern County Superior Court Judge David Lampe denied a request for a preliminary injunction in the case on Monday, indicating the baker has a First Amendment right to refuse to make the cake.

The case began in August, when Mireya and Eileen Rodriguez-Del Rio booked a cake tasting at Tastries Bakery. The couple had been married in a small ceremony in December 2016 but were planning a wedding reception in October 2017, according to court documents.

When the couple got to the bakery, owner Cathy Miller apologized and told them she would provide their order to a competitor bakery since she does not condone same-sex marriage.

Miller, a Christian, refuses to make a custom cake that “expresses or celebrates matters she finds offend her heartfelt religious principles,” Lampe’s decision states. She is in an “agreement” to refer same-sex customers to a competitor called Gimme Some Sugar, which does not have any “prohibitory policies,” according to the judge.

Several weeks after the meeting with Miller, the Rodriguez-Del Rios filed a complaint with the California Department of Fair Employment and Housing, alleging their civil rights had been violated under the state’s anti-discrimination law, the Unruh Civil Rights Act.

The complaint led the state to file the case before Lampe, asking for an order compelling Miller to make a cake for the Rodriguez-Del Rios.

Lampe found that the baker’s First Amendment right to freedom of speech outweighs the state’s interest in ensuring a “freely accessible marketplace.” The judge found the case is within Supreme Court doctrine covering “compelled speech.”

Lampe’s eight-page decision states:

A wedding cake is not just cake in Free Speech analysis. It is an artistic expression by the person making it that is to be used traditionally as a centerpiece in the celebration of marriage. There could not be greater form of expressive conduct.

The State asks this court to compel Miller against her will and religion to allow her artistic expression in celebration of marriage to be co-opted to promote the message desired by same-sex marital partners, and with which Miller disagrees.

In his decision, Lampe compared the bakery to a tire shop refusing to sell tires to a same-sex couple. That would be discriminatory, Lampe wrote, because “there is nothing sacred or expressive about a tire.” Similarly, the bakery would be discriminating if it refused to sell a same-sex couple a generic cake from the display case.

“The difference here is that the cake in question is not yet baked,” Lampe wrote. “The State is not petitioning the court to order defendants to sell a cake. State asks this court to compel Miller to use her talents to design and create a cake she has not yet conceived with the knowledge that her work will be displayed in celebration of a marital union her religion forbids. For this court to force such compliance would do violence to the essentials of Free Speech guaranteed under the First Amendment.”

Lampe said Miller’s free speech rights were affirmed in Supreme Court Justice Anthony Kennedy’s opinion in Obergefell v. Hodges, the 2015 decision that found a constitutional right to marry for same-sex couples.

Miller was defended pro bono by the Rancho Santa Fe-based Freedom of Conscience Defense Fund, which called the judge’s decision a “major victory for faith and freedom.”

Miller herself spoke to the Bakersfield Californian newspaper, saying she was overjoyed.

“We were so joyful. We weren’t expecting it to be so soon. We started screaming and praising God because we felt we had been heard,” she said.

Patricia Ziegler-Lopez, who is representing the Rodriguez-Del Rios in the case, released the following statement to Bakersfield television station KERO:

We are disappointed but not surprised by ruling against the preliminary injunction. Bakersfield and Kern County in general is very conservative and that unfortunately includes some of the judges. But it’s not over. Our fight against bigotry and discrimination is only beginning. I am going to speaking with the attorney that represents DFEH to plan the next step. To be clear this is no lawsuit filed yet.

It’s not clear if the couple will seek an appeal.

The Kern County decision comes as a Colorado baker is awaiting a ruling from the U.S. Supreme Court on a similar case. Oral arguments in that case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, took place in December.

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