Wedding cake is an 'artistic expression' that baker may deny to same-sex couple, California judge rules

(Brennan Linsley | AP Photo) In this March 10, 2014 photo, Masterpiece Cakeshop owner Jack Phillips decorates a cake inside his store, in Lakewood, Colo. Phillips is appealing a recent ruling against him in a legal complaint filed with the Colorado Civil Rights Commission by a gay couple he refused to make a wedding cake for, based on his religious beliefs.

Forcing a baker to provide a wedding cake for a same-sex marriage over her religious objections violates her right to free speech, a California judge has ruled.

"A wedding cake is not just a cake in a Free Speech analysis," wrote Superior Court Judge David R. Lampe in a decision late Monday. "It is an artistic expression by the person making it that is to be used traditionally as a centerpiece in the celebration of a marriage. There could not be a greater form of expressive conduct," he said.

As a result, a state anti-discrimination law, which applies to all kinds of other goods and services, does not apply to the baker of the cake in question, who happens to be in Bakersfield.

The judge's reasoning is similar to that of the "cake artist" currently awaiting a U.S. Supreme Court ruling. In that case, Jack C. Phillips, a Colorado baker, is arguing that the First Amendment's free speech and free exercise of religion clauses give him the right to refuse wedding services to a same sex couple, despite public accommodations laws that require businesses that are open to the public to treat all potential customers equally. The court heard arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission in December.

The argument of the Colorado baker has the support of the Trump administration, marking the first time the government has argued for an exemption to an anti-discrimination law, as The Washington Post's Robert Barnes and Ann E. Marimow reported.

The California case, which is likely to be appealed, began with a complaint by Eileen and Mireya Rodriquez-Del Rio before California's Department of Fair Employment and Housing after they sought to buy a cake for their October 2017 wedding vows from Tastries bakery.

The couple did not want any words or messages on the cake, but just the cake. Still, the owner, Cathy Miller, told them that "because she does not condone same-sex marriage," according to the opinion, she would send their order to another bakery, called Gimme Some Sugar.

"Miller is a practicing Christian and considers herself a woman of deep faith," the opinion said. She believes that same sex unions "violate a Biblical command that marriage is only between a man and a woman."

She is also "a creative artist" who "participates in every part of the custom cake design and creation process," the opinion said.

The state agency sided with the couple, arguing that California's Unruh Act, which bars discrimination in public accommodations, "does not compel speech, but only conduct," in this case, the baking and selling of a cake.

In addition, the state argued, the First Amendment protects only "those occasions where government requires a speaker to disseminate another's message," which was not the case here.

It sought an order forcing Miller to provide the cake.

Lampe, the judge, denied it. He said that it did not matter that the baker was not being asked to design particular words on the cake. The wedding alone, with the couple engaging in speech, "could not be a greater form of expressive conduct."

He compared a bakery to a tire shop, saying that the shop could not refuse to sell a tire to a same sex couple because "there is nothing sacred or expressive about a tire." Similarly, had the couple just chosen a cake out of a display case, the bakery could not have refused to sell it to them.

"The difference here is that the cake in question is not yet baked . . . The 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."