State Can’t Compel Baker to Make Cake for Same-Sex Couple

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By Patrick L. Gregory

A Christian baker can refuse to make a wedding cake for a same-sex couple on religious grounds, the Superior Court of California for Kern County ruled Feb. 5.

The controversy is similar to a First Amendment challenge to a Colorado anti-discrimination law awaiting a decision by the U.S. Supreme Court, in Masterpiece Cakeshop v. Colo. Civil Rights Comm’n.

Eileen and Mireya Rodriguez-Del Rio requested a cake for their wedding reception, but Cathy Miller, who is a practicing Christian, refused, the court said in a decision by Judge David R. Lampe.

California sought an injunction against Miller under the state’s civil rights act, based on the couple’s administrative complaint, the court said.

Miller’s right to free speech under the First Amendment outweighed California’s “interest in ensuring a freely accessible marketplace,” the court said.

A wedding cake “is an artistic expression,” and there couldn’t “be a greater form of expressive conduct,” the court said.

The cake requested here involved such expression even though the couple didn’t “request any written words or messages,” the court said.

It would “do violence” to the right of free speech 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,” the court said.

Bakers can’t refuse to sell cakes that are already placed “in a public display case,” the court said.

“The difference here is that the cake in question is not yet baked,” the court said.

Freedom of Conscience Defense Fund represented Miller.

The California Department of Fair Employment and Housing represented the state.

The case is Dep’t of Fair Hous. & Emp’t v. Cathy’s Creations, Inc. , Cal. Super. Ct., No. BCV-17-102855, 2/5/18 .

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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