(CN) — A state appellate court on Wednesday vacated a Kern County judge’s final judgment in favor of a bakery owner who refused to make a wedding cake for a same-sex couple, finding he prematurely decided the case on its First Amendment merits.
In February 2018, a state judge denied California’s Department of Fair Employment and Housing a preliminary injunction that would have compelled Cathy Miller, owner of Tastries Bakery in Bakersfield, to create and design wedding cakes for same-sex couples.
But the real beef stems from an order he issued several months later on Sept. 13, 2018, in which he granted Tastries’ motion to enforce judgment in the case while allowing the department to continue its investigation into whether Miller’s refusal violates anti-discrimination laws.
The department contended in its appellate petition that the trial court was not empowered to determine the merits of their case on a preliminary injunction motion, asserting that Government Code Section 12974 authorized the agency to seek a temporary remedy — a preliminary injunction — to maintain the status quo until the court can decide the merits.
The department said the trial court jumped the gun before it could fully plead its case.
The California Fifth District Appellate Court agreed that the trial judge’s order should not be construed as a final judgment.
“The trial court’s intention to treat a matter as finally decided at the preliminary injunction stage does not necessarily make it so, especially when that intention is made clear to the parties only after the adjudication of the preliminary injunction and the entry of judgment, as was the case here,” Justice Kathleen Meehan wrote for the panel. “Nor does the presence of a constitutional question automatically render a matter ripe for a merits-based determination of the parties’ rights.”
Meehan added that the constitutional questions arising from Miller’s refusal to bake a wedding cake for a gay couple cannot be decided before the department completes its investigation.
Whether any type of wedding cake is a type of First Amendment expression “is not a foregone legal proposition,” she wrote, since the U.S. Supreme Court did not reach the baker Jack Phillips’ free speech claim in its ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission.
“Does it matter if the situation here more closely resembles the order of a grocery store cake or is more akin to the cakes originally designed and created by Phillips, the baker in Masterpiece? Maybe Tastries is right, and it makes no difference at all. But that is not the point,” Meehan wrote.
“The issue is that the DFEH must be permitted an opportunity to complete its investigation and fully and formally plead its claims to support whatever legal arguments it wishes to make before any merits-based decision is reached, especially on an issue where the contours of the legal analysis, and what facts are material to it, are uncertain and unsettled. Anything short of that and the DFEH is deprived of its opportunity to be heard.”
The department filed a second lawsuit against Miller in October 2018.
Meehan was joined by Justice M. Bruce Smith and Acting Presiding Justice Jennifer Detjen.
In an email, Miller’s attorney Charles LiMandri with the Freedom of Conscience Defense Fund said he’s confident Miller will ultimately prevail in the second round. The case is set for trial at the end of next year.
“There can be no reasonable dispute that Ms. Miller was asked to make a wedding cake for a same-sex couple which she declined to do based on her sincerely held religious beliefs,” he said.
“The cases cited by the appellate court support the fact that forcing her to bake a wedding cake under those circumstances would constitute compelled expressive speech; such compelled speech is absolutely prohibited by the First Amendment. For these reasons, the State of California should stop violating the constitutional rights of this devout Christian woman for following the dictates of her conscience.”
A spokesperson for the employment department said the ruling bolsters the agency’s “longstanding authority to seek provisional legal relief during the course of our investigations. The merits of this case will be adjudicated as part of the lawsuit for permanent relief that remains pending before the trial court.”
The appellate panel found the department is not entitled to attorneys’ fees in a separate order.