Every single court has ruled against anti-gay bakers… until this one.
By Professor Art Leonard. This article appears in LGBT Bar NY’s “LGBT Law Notes.”
Breaking a consensus among courts that has developed over the past several years that people with religious or moral objections to same-sex weddings are not entitled to exempt their business from selling goods or services for such events, Kern County (California) Superior Court Judge David Lampe ruled on February 5, 2018, in Department of Fair Employment and Housing v. Miller, BCV-17–102855, that Cathy Miller, owner of Cathy’s Creations, Inc., doing business as Tastries Bakery in Bakersfield, California, is entitled to a First Amendment exemption from complying with California’s law that bans sexual orientation discrimination by businesses. Judge Lampe is the first to rule in favor of a business in such a case.
Miller refused to make a wedding cake for Eileen and Mireya Rodriguez-Del Rio, who came to her bakery in August 2017 to plan for a celebration to take place in October. They had selected a design of a cake in the display case, but since their celebration would not be until October, the transaction would be for Miller to prepare a cake specifically for their event. “The couple did not want or request any written words or messages on the cake,” wrote the judge in his opinion. Nonetheless, Miller refused to make it because of her religious objections to same-sex marriage, and offered to refer them to another bakery in town that was happy to make wedding cakes for same-sex couples.
Eileen and Mireya filed an administrative complaint, charging Miller and her business with a violation of the Unruh Civil Rights Act, California’s law that prohibits discrimination by businesses. The Department of Fair Employment and Housing, with is charged with enforcement of the law, filed suit against the bakery, asking the court to issue an injunction requiring that Miller’s business not refuse to make wedding cakes for same-sex couples.
Miller’s defense relied on two provisions of the First Amendment of the U.S. Constitution, one forbidding laws that abridge freedom of speech, and the other forbidding laws that prohibit the free exercise of religion. Judge Lampe decided that this case could be resolved most easily by reference to the free speech provision, and did not render a ruling on whether the free exercise of religion clause would protect Miller in this case.
The judge accepted Miller “cake artist” argument, the same argument that Jack Phillips of Masterpiece Cakeshop in Colorado is making in his case pending before the U.S. Supreme Court. Miller and Phillips argue that when they are contracting to produce a cake for a specific event, they are engaging in a creative effort that communicates a message of endorsement for that event. Under this theory of symbolic speech, they argue, requiring them to make the cake when they do not approve of the event is compelling them to voice a particular message.
They rely on past decisions in which the Supreme Court has found that government officials had violated free speech rights by compelling people to voice particular messages with which they disagree, such as the famous “flag salute” cases first decided during World War II and most recently reiterated in Wooley v. Maynard, 430 U.S. 705 (1977), in which the Court famously reversed direction on this issue, overruling its own prior precedent to find that the government cannot compel a student to recite the pledge of allegiance. Although there are circumstances where the courts have held that government requirements did not impose a substantial burden on free speech, the compelled speech argument has taken on particular weight in several important LGBT-related rulings.
The Supreme Court unanimously ruled in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), for example, that Massachusetts civil rights authorities could not compel the organizers of the Boston St. Patrick’s Day Parade to include an LGBT rights contingent in the parade with a banner proclaiming their identity. The court said this would unconstitutionally compel the parade organizers to include a message in their event that they did not want to include. Similarly, although more controversially, the Court later ruled in Boy Scouts of America v. Dale, 530 US 640 (2000), that the BSA was not required to allow an openly gay man to service as an adult leader, because that would be compelling them to implicitly send a message of endorsement for homosexuality which they did not want to communicate to their members or the public. Unlike the unanimous parade decision, however, the Court split 5–4 in the Boy Scouts case, with a minority rejecting the contention that the BSA’s free speech rights would be unconstitutionally burdened.
Despite these rulings, the Court concluded that Congress did not unconstitutionally burden the free speech rights of law schools when it required them to allow military recruiters equal access to their facilities, reasoning that the schools were free to communicate their disagreement with the anti-gay policies then followed by the Defense Department and that hosting the recruiters was not necessarily sending a message of agreement with their policies. Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006). And the Court concluded that a state university law school was not violating the free speech or free exercise rights of conservative Christian students when it required a Christian Legal Society chapter to allow gay students to be members if CLS wanted to be an officially recognized student organization. Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010).
It is difficult to follow a consistent thread of reasoning through these cases, each of which presents a slightly different factual context, which is why there is some suspense about how the Supreme Court is going to decide the Masterpiece Cakeshop case. So far, however, lower courts have been unanimous in ruling that bakers, florists, photographers, videographers, non-religious wedding venues are all required to comply with public accommodations laws (in states where they exist) and provide their services and goods to same-sex couples celebrating their unions.
Judge Lampe, the first to depart from this consensus, accepted Miller’s compelled speech argument. “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,” wrote the judge. “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.”
But, he wrote, this case is different. “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. For this court to force such compliance would do violence to the essentials of Free Speech guaranteed under the First Amendment.”
Judge Lampe acknowledged that there was a clash of rights here, and no matter which way he ruled, somebody would feel insulted. “The court finds that any harm here is equal to either complainants or defendant Miller, one way or the other. If anything, the harm to Miller is the greater, because it carries significant economic consequences. When one feels injured, insulted, or angered by the words or expressive conduct of others, the harm is many times self-inflicted. The most effective Free Speech in the family of our nation is when we speak and listen with respect. In any case, the court cannot guarantee that no one will be harmed when the law is enforced. Quite the contrary, when the law is enforced, someone necessarily loses. Nevertheless, the court’s duty is to the law. Whenever anyone exercises the right of Free Speech, someone else may be angered or hurt. This is the nature of a free society under our Constitution.”
The judge acknowledged that the case is more difficult if it is treated as a free exercise of religion case, because the Supreme Court has ruled that neutral state laws of general application do not include within them a constitutional exemption for religious dissenters. “Whether the application of the Unruh Act in these circumstances violates the Free Exercise clause is an open question,” he wrote, “and the court does not address it because the case is sufficiently resolved upon Free Speech grounds.”
Interestingly, the judge’s approach mirrors that of U.S. Solicitor General Noel Francisco in the Masterpiece Cakeshop case before the Supreme Court. In briefing and argument, the Solicitor General placed the government’s support for Jack Phillips’ right to refuse to make the wedding cake entirely on Free Speech grounds, and disclaimed taking any position on his right of free exercise of religion — despite the Trump Administration’s more general position, expressed in a “religious freedom” memorandum by Attorney General Jeff Sessions, that religious free exercise rights should be treated as superior to just about any other legal claim.
Perhaps Judge Lampe’s decision is truly an outlier in the ongoing controversies stemming from the Supreme Court’s ruling in 2015 that same-sex couples have a constitutional right to marry, but on the other hand it may be an accurate prediction of how the Supreme Court will deal with the issue, at least in cases where the goods or services at issue could be plausibly described in terms of expressive content.