California judge: Baker can refuse to bake cakes for same-sex couples

Glen Norman
February 8, 2018

It's a familiar sounding story: a lesbian couple walks into the bakery of a cake-artist known for having Christian beliefs, then sues when the baker refuses to make a custom cake for their same-sex "wedding".

The decision came after a lawyer for Tastries Bakery in Bakersfield argued that owner Cathy Miller's right to free speech and free expression of religion trumps the argument that she violated a state anti-discrimination law.

In August, Miller told 23 ABC that making a wedding cake for a gay couple would violate her conscience.

The Feb. 5 ruling denies the preliminary injunction as an undue infringement upon Free Speech, specifically the right to abstain from speech.

Lampe, in his decision, wrote that both freedom of speech and a nondiscriminatory marketplace are laudable and necessary but said the facts of the case favor Miller. "The right of freedom of thought guaranteed by the First Amendment includes the right to speak, and the right to refrain from speaking. When one feels injured, insulted, or angered by the words or expressive conduct of others, the harm is many times self-inflicted".


"Would this court force a baker who strongly favored LGBT rights to create and design wedding cake she had refused to a Catholic couple, in her protest of the Catholic Church's prescription against same-sex marriage?"

He said refusing to sell practical use items to a same-sex couple would be illegal, but baked goods are a creative item. "There is nothing sacred or expressive about a tire".

No artist, having placed their work for public sale, may refuse to sell for an unlawful discriminatory goal.

"The case goes beyond just selling a cake", he continued.

"A retail tire shop may not refuse to sell a tire because the owner does not want to sell tires to same-sex couples", Lampe wrote. In December, the Oregon Court of Appeals upheld the state labor commissioner's $135,000 fine against the bakery. The State asks this court to compel Miller to use her talents to design and create cake she has not yet conceived with the knowledge that her work will be displayed in celebration of marital union her religion forbids.


Therefore, California's Unruh Act, which bars discrimination in public accommodations, does not apply to Cathy Miller, owner of Tastries Bakery in Bakersfield. "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".

If the cake had already been made and was on sale, that would have been discriminatory, the judge said.

The lawsuit against Miller - and the arguments advanced by Lampe in her favor - are almost identical to those that were made in the Masterpiece Cakeshop case now being weighed by the U.S. Supreme Court.

"Here, Miller's desire to express through her wedding cakes that marriage is a sacramental commitment between a man and a woman that should be celebrated, while she will not express the same sentiment toward same-sex unions, is not trivial, arbitrary, nonsensical, or outrageous", Lampe stated.


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