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First Amendment Debated in Same-Sex Bakery Hearing

At a hearing reminiscent of the movie “Groundhog Day,” the question of what the true issues at stake are in a case between the state, a same-sex couple, and the Bakersfield baker who refused to bake a wedding cake for them, kept popping up over and over again on Friday.

BAKERSFIELD, Calif. (CN) – At a hearing reminiscent of the movie “Groundhog Day,” the question of what the true issues at stake are in a case between the state, a same-sex couple, and the Bakersfield baker who refused to bake a wedding cake for them, kept popping up over and over again on Friday.

“Are there two sides here? Are there two rights that the court must consider and balance?” Kern County Judge David Lampe asked attorneys representing the Department of Fair Employment and Housing Thursday afternoon.

State attorneys Timothy Martin and Gregory Mann argued that, though the rights protecting free exercise of religion and freedom of speech were implicated in the matter, the Unruh Act trumps them both because it is a public accommodations law and therefore neutral.

“The Unruh Act is about conduct, about who she [defendant Cathy Miller] will sell to,” Mann told the court. “We are talking about equal access.”

When pressed by Judge Lampe whether the state is attempting to compel the baker to design and create a beautiful wedding cake through which she is not allowed to fully express her opinion, Mann pointed out that public accommodation laws like Unruh apply to business regardless of free exercise or free speech implications.

“The courts have a long history of saying that full and equal service means full and equal service,” Mann argued. “Choosing your customers is not speech; it’s conduct.”

The state argued that they are not trying to force Miller or her bakery Tastries to produce certain content, censor what content she does product, or tell her how to design her cakes. Its point, the attorneys argued, is that what Tastries is willing to bake for anyone, it must bake for everyone.

Judge Lampe also pressed attorney Charles LiMandri with the Freedom of Conscience Defense Fund, who represents the defendants, about whether the case was a free speech or a free exercise of religion case.

“The briefings conflate free exercise with free speech; it seems not to be clear. What right are you asserting here?” Lampe asked during Thursday’s hearing.

LiMandri argued that both rights are equally implicated because a wedding cake is intimately linked with marriage, which many Christians hold as a sacred institution created by the God of the Bible.

“My client believes that marriage is between a man and a woman,” LiMandri said. “Compelling her to make a cake [for a same-sex couple] would force her to engage in an expression offensive to her religion.”

Lampe pointed out that there is no difference between the design of this cake versus that of a heterosexual couple, and that what offends the faith of LiMandri’s client is who is buying her cake.

“The fact of this case is that my client has to provide what the customer wants,” LiMandri said. "And what they want is to have a wedding cake made by Tastries be the centerpiece of a same-sex wedding ceremony, which Miller does not agree with."

“You seem to be arguing about what happens afterward, consequences that move us away from the facts of the case,” Lampe said.

“It’s a work of art, creative expression,” LiMandri said.

“It comes back to conflating the issues of free exercise and free speech,” Lampe said.


But LiMandri insisted that both issues are “both clearly implicated and intertwined” in the matter. Since the Supreme Court held in the “Hobby Lobby” decision that employees may take their religious views into the workplace, the state should not compel her to give up that expression of religion and compel her to engage in speech she finds offensive.

Judge Lampe pointed out that the state is not specifically enforcing anti-discrimination laws against Christian bakers, that it would be doing the same thing “if the baker was an agnostic Pagan” who didn’t want to serve same-sex couples.

In response, LiMandri detailed how the claimants, Eileen and Mireya Rodriguez-Del Rio, specifically targeted his client, essentially shopping for a lawsuit.

“It was well-planned and choreographed, and the state was more than happy to jump on board,” LiMandri said. “There is evidence of religious discrimination, and the Unruh Act also prevents religious discrimination.”

“If I consider this a free speech issue by itself,” Judge Lampe said, “My question would be: If a seller of wedding cakes refused to sell to an African-American couple or a mixed-race couple because of religion, you’d claim that there is no recognized religious dogma from this century that condones such racism?”

“Yes,” LiMandri said. “We don’t condone such bigotry in the 21st century.”

In rebuttal, Mann argued that the crux of the matter is still conduct, not speech or religion.

“When you are open to the public as a commercial entity, you take all comers and serve them equally,” Mann said.

“Without an injunction [ordering Tastries to serve all customers equally], any business owner could deny customer service based not only on orientation, but even on religion,” Mann said. “A Jewish couple could go to a Catholic bakery and be turned away.”

“It will put us back into a situation we have overcome as a country,” Mann said.

Daniel Piedra, executive director of Freedom of Conscience Defense Fund, spoke with Courthouse News after the hearing.

“There’s a big disconnect on what the real issue is,” Piedra said. “The state says it’s discrimination against same-sex couples. But the shop is not just a wedding cake business. She’ll sell [other items] to anyone. She even hired two openly gay employees. The issue is that Cathy Miller was asked to create something fundamentally opposed with her religious beliefs.”

Outside the courthouse, Courthouse News spoke with Heidi Meyer, who showed up to protest a prayer rally held before the hearing.

“I just don’t understand how baking a cake for someone – if that’s what they do as a public service for everyone – going to ruin them?” Meyer said. “How is baking a cake for my gay son sending them to Hell?”

Meyer said she wondered how Miller and Tastries could draw the line on who to serve. Would they serve adulterers?

“Earlier I quoted the scripture saying, ‘If you have done these to the least of my brethren, you have done it to me.’ If Jesus walked into their bakery wearing a pink shirt, she’d tell him she couldn’t serve him. That’s mind blowing.”

The Department of Fair Employment and Housing last December filed an ex parte application for a temporary restraining order against Cathy’s Creations dba Tastries and its owner, Cathy Miller, on behalf of Eileen and Mireya Rodriguez-Del Rio. [prior reporting]

The case is similar to the high-profile case currently before the U.S. Supreme Court. That case began in Colorado in 2012, when Jack Phillips refused to bake a cake for Craig and Daniel Mullins, saying that same-sex marriage offended his religious beliefs.

The couple eventually received a free cake from another bakery, but went on to file a civil rights complaint alleging violations of the state’s anti-discrimination laws.

The Justices are expected to issue their ruling sometime in June.

Categories / Business, Civil Rights, Courts

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