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to Section One | to Arts & Entertainment
posted Friday, February 9, 2018 - Volume 46 Issue 06
California court rules for anti-Gay baker
Section One
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California court rules for anti-Gay baker

by Mike Andrew - SGN Staff Writer

A California trial court ruled on February 6 that a cake shop in Bakersfield can legally refuse to make cakes for same-sex weddings.

Kern County Superior Court Judge David Lampe said that baker Cathy Miller was likely to prevail in her claims of First Amendment religious privilege should her case proceed to trial, and therefore she can continue to refuse to make wedding cakes for same-sex couples.

'The State cannot succeed on the facts presented as a matter of law. The right to freedom of speech under the First Amendment outweighs the State's interest in ensuring a freely accessible marketplace,' Lampe wrote in his ruling.

'The right of freedom of thought guaranteed by the First Amendment includes the right to speak, and the right to refrain from speaking. Sometimes the most profound protest is silence.'

In August 2017, Miller refused to make a cake for the wedding of Mireya and Eileen Rodriguez-Del Rio, citing her religious conviction that same-sex weddings are invalid. The couple then complained to the California Department of Fair Employment and Housing that Miller had violated the Unruh Civil Rights Act.

Lampe wrote that his ruling was based on the fact that Miller was being asked to create a cake especially for wedding, not merely to sell a stock cake to a random customer.

'A wedding cake is not just a cake in a 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 a marriage,' Lampe wrote.

'There could not be a greater form of expressive conduct. Here, Rodriguez-Del Rios plan to engage in speech. They plan a celebration to declare the validity of their marital union and their enduring love for one another. 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.'

Although Miller's attorneys called Lampe's ruling 'a significant victory for faith and freedom,' the judge cautioned that the First Amendment does not give businesses an unrestricted right to refuse service to groups protected by the Unruh Act.

'A retail tire shop may not refuse to sell a tire because the owner does not want to sell tires to same-sex couples. 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 purpose. No baker may place their wares in a public display case, open their shop, and then refuse to sell because of race, religion, gender, or gender identification,' Lampe wrote.

Patricia Ziegler-Lopez, the attorney for the Rodriguez-Del Rioses said their fight is not over. 'We are disappointed but not surprised by [the] ruling against the preliminary injunction. Bakersfield and Kern County in general [are] very conservative, and that unfortunately includes some of the judges. But it's not over. Our fight against bigotry and discrimination is only beginning,' she told the Bakersfield Californian newspaper in an email.

She has not yet filed an appeal on behalf of her clients.

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