Wedding cakes are in this season — in court, that is. As the U.S. Supreme Court continues to contemplate whether the First Amendment protects the religious rights of a Colorado baker whose Christian faith led him to refuse to bake a custom wedding cake for a same-sex couple, a county judge in California recently ruled that a baker there was justified in making a similar decision.

Last month Kern County Superior Court Judge David Lampe ruled that Cathy Miller, owner of Tastries Bakery in Bakersfield, was not obligated to comply with California’s anti-discrimination law, which otherwise would have required her to bake a cake for a lesbian couple.

In August 2017, having wed in a private ceremony the previous December, Mireya and Eileen Rodriguez-Del Rio visited Tastries as they planned a public exchange of vows. Miller declined to bake them a cake for the occasion.

In its coverage of the case, the San Francisco Chronicle quoted Lampe saying that the state was asking him 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.”

The judge demurred, reasoning that “the right to freedom of speech under the First Amendment outweighs the state’s interest in ensuring a freely accessible marketplace.”

See Also:
“Religious Rights v. Civil Rights: Supreme Court Hears Arguments in Colorado Gay Wedding Cake Case”

The case appears nearly identical to Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which the U.S. Supreme Court is expected to rule on sometime this summer. But Kevin Kish, director of the California Department of Fair Employment and Housing (DFEH) — the agency that attempted to enforce the state law in the Tastries case — told the Chronicle that the situations differ in a crucial way: In the Colorado case, baker Jack Phillips had offered to sell the gay couple an already baked cake off the shelf of his shop, whereas in Bakersfield, Cathy Miller refused to bake the lesbian customers a cake, period.

“The issue was not whether [Miller] would bake a custom cake, but whether she would bake a cake for them [at all],” Kish told Chronicle reporter Bob Egelko. “And if that is ‘artistic expression,’ he asked, what about a chef at a fancy restaurant who refuses to cook a custom-made meal for a gay couple? Or a party store that refuses to make special balloons to celebrate the birthday of a child of an interfaith or interracial couple?”

Added Kish: “If you are engaged in a business open to the public, then you provide it to the public on an equal basis.”

Judge Lampe didn’t parse the recipe in quite that way.

“A wedding cake is not just cake in Free Speech analysis,” the judge stated, according to court documents quoted by ABC23, the TV network’s Bakersfield affiliate. “It is an artistic expression by the person making it that is to be used traditionally as centerpiece in the celebration of marriage. There could not be greater form of expressive conduct. Here…[t]hey plan celebration to declare the validity of their marital union and their enduring love for one another.”

Noting that Miller had referred the Rodriguez-Del Rios to one of her competitors, Lampe wrote that the fact that the women “feel they will suffer indignity from Miller’s choice is not sufficient to deny constitutional protection” of her religious rights.

Patricia Ziegler-Lopez, the attorney representing the Rodriguez-Del Rios, provided a statement to ABC23: “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 [be] speaking with the attorney that represents DFEH to plan the next step.”

The conservative website Daily Caller obtained a statement from attorney Charles LiMandri, who represented Miller on behalf of the Freedom of Conscience Defense Fund (FCDF).

“We are pleased that the judge recognized that the First Amendment protects Cathy’s freedom of speech,” said LiMandri, chief counsel and president of the FCDF. “He says what I say — the ruling recognizes that Miller’s exercising of her constitutionally guaranteed religious beliefs, which do not comport with same-sex marriage, does not translate seamlessly into discrimination. This is a significant victory for faith and freedom because the judge indicated in his ruling that the State cannot succeed in this case as a matter of law. No doubt the California officials will continue their persecution of Cathy, but it is clear that she has the Constitution on her side.”