A California Judge Protects the Wedding Baker

In the summer of 2016, Cathy Miller, the owner of Tastries Bakery in California, was faced with a difficult decision. As part of its business, Tastries makes wedding cakes, and for the first time, a same-sex couple came in and asked for a wedding cake. Cathy, however, is a devout Christian. As a result, she believes God has called her to abide by his precepts that he set forth in the Bible, and to make her life edifying to him. This means that she welcomes and serves everyone who comes to Tastries. But it also means that she believes that God designed marriage to be between one man and one woman. And so, she believes it would be tantamount to pinching the incense to participate in and celebrate any other kind of marriage. So what did Cathy do? She called up a rival bakery—Gimme Some Sugar—and met with its owner Stephanie. Cathy explained her problem to Stephanie, and asked whether she could refer the wedding cake order to her. Stephanie was in a relationship with another woman; but she was not offended by Cathy’s request. Tolerance has to be a two-way street. So Cathy referred that couple to Stephanie, and later referred two more couples.

Then in the morning of August 26, 2017, Mireya and Eileen Rodriguez Del-Rio came to Tastries. They too were looking for a wedding cake. They were married under the laws of California in December 2016 and were planning a belated wedding reception for October 2017. According to their sworn court statements, when they came into Tastries, they were welcomed by a Tastries’ employee who “treated us kindly and was very warm.” However, when it was discovered that Mireya and Eileen were actually two brides, and not a bride and a maid-of-honor, Cathy told them that she had to refer their order to Gimme Some Sugar.

That afternoon, Eileen posted on Facebook that she and Mireya had been discriminated against at Tastries, and by that evening there were news vans and protesters in the Tastries parking lot, and Cathy had begun receiving death threats. Mireya and Eileen then also reported Cathy to California’s Department of Fair Employment & Housing (DFEH), a state agency that handles discrimination complaints. The DFEH brought a civil action against Cathy and ignored the fact that she had provided Mireya and Eileen with a reasonable accommodation, because “[t]he exercise of religious freedom should not be a justification for discrimination.”

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That’s when we became involved. Freedom of Conscience Defense Fund (FCDF), stepped in to defend Cathy and Tastries against the charge that they had engaged in unlawful discrimination under California’s civil rights act—the Unruh Act. And on February 5, 2018, a California judge agreed with our arguments that Cathy’s wedding cakes are protected speech under the First Amendment to the Constitution, and so she cannot be forced to make them in celebration of a same-sex “wedding.”

The speech argument might seem a little weird without some unpacking, and here, the judge did that unpacking:

A wedding cake is not just cake in Free Speech analysis. 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 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.

The judge further explained that:

No public commentator in the marketplace of ideas may be forced by law to publish any opinion with which he disagrees in the name of equal access. No person may be forced by the State to stand and recite the Pledge of Allegiance against her will. The law cannot compel anyone to stand for the National Anthem. No persons may be forced to advertise a state-sponsored slogan on license plates against their religious beliefs…. The State cannot meet the test that its interest outweighs the Free Speech right at issue in this particular case[.]

What is amazing is that this is a first-of-its-kind ruling. All across the country, Christian wedding professionals have been bankrupted, stigmatized, and run out of business due to their religious beliefs on marriage. The courts have uniformly held that Christians are not allowed to participate in the wedding industry unless they pinch the incense. Things have got so bad that the Supreme Court had to step in last year and take up a nearly identical case involving a baker from Colorado. That baker was ordered to tell his employees (including his family) that his decision not to participate in a same-sex “wedding” was discrimination and that it was illegal. So when Cathy came to us, we knew that she had an uphill battle. According to recent court cases, freedom of speech and freedom of religion have little meaning anymore if you speak the wrong things or have the wrong beliefs.

And that’s why the whole nation is watching the Colorado case with bated breath. In that case, the Supreme Court will decide whether the First Amendment has any meaning any more, or whether it is just words. But finally here’s an opinion from a trial court judge in California that takes the cake. The opinion shows that the recipe for a fair and happy society does not include running Christians out of business simply because they are Christians. Since Cathy “is not the only wedding cake creator in Bakersfield,” and Mireya and Eileen did get a wedding cake, there is no need to run Cathy out of business.

The Supreme Court Justices should take note of Cathy’s case when they decide the Colorado case. Compromises that protect everybody’s rights are not impossible, and indeed in California they are the law.


  • Jeffrey M. Trissell

    Jeffrey M. Trissell is an attorney with Freedom of Conscience Defense Fund, and the principal author of FCDF’s briefing in the Tastries matter. He received his J.D. from the George Washington University Law School in 2013.

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