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.