Declining to make a same sex wedding cake is not discriminatory

A recent decision by a California Superior Court Judge holds that a bakery cannot be required by discrimination law to make a same sex wedding cake, where the owner has a religious reason for declining to do so. In Department of Fair Employment and Housing v Cathy’s Creations Inc (Cal Sup Ct, Kern Cty; BCV-17-102855; Lampe J, 5 Feb 2018) Judge Lampe refused an injunction against Cathy Miller, proprietor of Tastries Bakery, which would have required her to create a wedding cake for the same sex wedding of Mireya and Eileen Rodriguez-Del Rio. The basis for the decision was the free speech clause of the First Amendment to the US Constitution, the judge holding that creating a wedding cake was a constitutionally protected form of “free speech”.

The decision is possibly subject to appeal, and it is not, of course, binding on Australian courts. But it provides an excellent example, in my view, of how the case can be made for protecting the free speech and religious freedom rights of small businesses involved in the artistic creation of items designed to celebrate same sex weddings.


The couple approached Cathy Miller in August 2017, for a traditional wedding cake to celebrate their relationship, at a ceremony planned for October that year. (In fact they had already married under Californian law in December 2016 in a small ceremony, but wanted to reiterate their vows in front of their wider family in a larger ceremony.) Miller told them that she could not make a cake as requested, due to her religious views about same sex marriage, but offered to refer them to a local competitor who would be able to make the cake.

The couple then complained about this to the California Department of Fair Employment and Housing (DFEH), who administer California’s discrimination legislation, the Unruh Civil Rights Act, which forbids, among other things, discrimination on the basis of sexual orientation. (The legislation gains its popular name from the politician who sponsored the Act through the legislature in 1959.) DFEH, then, in response to the complaint, initiated these legal proceedings against Miller, seeming to think that it was a matter of some urgency to stop her from making decisions like this.

Judge Lampe summed up Cathy Miller’s reasons as follows (at p 3):

While Miller offers her services and products generally without discrimination, including her pre-made wares, she will not design or create any custom cake that expresses or celebrates matters that she finds offend her heartfelt religious principles. Thus, she refuses to create or design wedding cakes for same sex marriage celebrations, because of her belief that such unions violate a Biblical command that marriage is only between a  man and a woman.

Judge Lampe declined to issue an interlocutory injunction which had been applied for by the Department, holding that the State did not have a strong case for its claim that Miller was liable under the discrimination law.

Free speech reasons for the decision

The primary reason for the dismissal of the action was that his Honour held that requiring Miller to bake the ordered cake would be a form of “compelled speech”, which was forbidden by the free speech clause of the US First Amendment. The judgment is easy to read and cogent in its reasoning. In brief, the logic is as follows.

First, being asked to devote artistic skills to the creation of a wedding cake is something different from being asked to sell pre-prepared goods. The baking of a cake in these circumstances is a form of speech, conveying a message. His Honour summed this up in this way (at pp 4-5):

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. 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.

A number of previous US Supreme Court decisions hold that certain types of conduct, which clearly convey a message of support for some proposition, amount to protected free speech. One example is Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), where the Supreme Court upheld the free speech right of the organisers of a parade not to allow inclusion of a pro-GLB banner in the parade, despite a similar State “public-accommodation” law.

Second, then, given that forcing the production of a cake in these circumstances would be compelled speech in favour of same sex marriage, could the State show that the law in this context passed “strict scrutiny”- “whether the State’s countervailing interest is sufficiently compelling to justify the intrusion into a protected right?” (at p 5) Judge Lampe ruled that the interest protected was not so weighty that it overcame the free speech right. This quote, while lengthy, sums up the issues brilliantly:

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. Miller is expressing a belief that is part of the orthodox doctrines of all three world Abrahamic religions, if not also part of the orthodox beliefs of Hinduism and major sects of Buddhism. That Miller’s expression of her beliefs is entitled to protection is affirmed in the opinion of Justice Kennedy in Obergefell v. Hodges (2015) 135 S. Ct. 2584, 192 L. Ed. 2d 609 wherein the Court established that same—sex marriages are entitled to Equal Protection. Therein, the Court noted: ”[f]inally, it must be emphasized that religions, and those who adhere to religious doctrines,  may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First  Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their  own deep aspirations to continue the family structure they have long revered.” (Id at 2607.) (from pp 5-6)

Miller was not the only baker in (the aptly named town of) Bakersfield! Of course her refusal to create the cake would cause upset to the couple. But, Judge Lampe continued:

The fact that Rodriguez-Del Rios feel they will suffer indignity from Miller’s choice is not sufficient to deny constitutional protection. Hurley established that the State’s interest in eliminating dignitary harms is not compelling where, as here, the cause of the harm is another person’s decision not to engage in expression. The Court there recognized that ”the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are . . . hurtful.” (Hurley, supra, 515 U.S. at 574.) An interest in preventing dignitary harms thus is not a compelling basis for infringing free speech. (See Texas v. Johnson (1989) 491 U.S. 397, 409; see also Hustler Magazine, Inc. v. Falwell (1988) 485 U.S. 46, 56.) (at p 6; emphasis added)


Given that he had denied the injunction on free speech grounds, Judge Lampe held that he did not need to issue a ruling on the question whether there had been a breach of free exercise of religion rights under the Religion Clause of the First Amendment. His Honour suggested that such a claim might be hard to establish, given that the prevailing decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) makes it difficulty to challenge a “general law” which impairs free exercise. But he did not make a formal ruling on the point one way or the other.

I have recently commented on a decision of the Oregon Court of Appeals in December 2017 which involved almost the same issues, and resulted in the upholding of a large fine against the bakers in that case: see comment on the Klein decision here. It is interesting that Judge Lampe did not feel it was necessary to refer to the decision in Klein. His Honour’s ruling, though, is a clear rejection of the “dignitary harm” finding which in the end swayed the Klein court on the free speech argument there. As noted previously, the US Supreme Court has heard argument on appeal in another very similar case, Craig v. Masterpiece Cakeshop, Inc., 370 P3d 272 (Colo App 2015), cert den, No. 15SC738, 2016 WL 1645027 (Colo Apr 25, 2016), cert granted sub nom Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 137 S Ct 2290 (2017). It seems likely that arguments about the weight to be given to such harms will be one of the main issues the Supreme Court will need to deal with.

In the meantime, in my view Judge Lampe’s decision here provides a clear and persuasive analysis as to why the freedom of small businesses in the wedding industry ought to be protected, following the radical re-definition of marriage away from the classic model supported by all major religious traditions. The distinction between supply of general retail services, and the supply of a specially crafted artistic product, is well set out:

 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.

The difference here is that the cake in question is not yet baked. The State is not petitioning the court to order defendants to sell a cake. 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.

This is a helpful summary of an important point, and will hopefully be read carefully by those considering these issues in Australia as well as elsewhere.

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