A California baker continued her fight Tuesday against the state over her religious beliefs, which she says do not permit her to bake a cake for a same-sex wedding.
Although the trial court ruled for her last year, California has appealed the decision in its quest to protect “dignity interests in freedom from discrimination based on personal characteristics.”
After seven years of fighting the legal battle to defend her religious liberty, Cathy Miller’s lawyers told California’s Fifth District Court of Appeal in Tuesday’s hearing that her cakes are a design and that they are a form of protected speech.
“Free speech is the simplest and narrowest path to resolution,” said Eric Rassbach, representing Ms. Miller, noting she also has refused to create a divorce cake. “She was following her message rules. She is trying to have a consistent message.”
But Carly Munson, representing the California Civil Rights Department, said the First Amendment does not protect Ms. Miller’s refusal. She said paintings and symbolic speech are protected as expressive conduct but that is not what is at issue with Ms. Miller’s bakery.
“The cake at issue here is not speech,” Ms. Munson said. “This cake, however delicious or beautiful, is a commercial item.”
Ms. Miller’s trouble began in 2017 when a same-sex couple came to her and scheduled a cake tasting to design their wedding cake. When Ms. Miller discovered the cake was for two women, she explained she could not complete their order.
When she opened her bakery, Tastries in Bakersfield, California, in 2013, Ms. Miller made her mission statement align with her faith: “Honor God in all that we do.” She attends Valley Baptist Church in Bakersfield.
She has Bible verses on her business cards and has design standards in writing to reflect her Christian beliefs, which was suggested to her after counseling with her pastor.
She states that she will not create bakery items to celebrate same-sex weddings, divorces, violent content, pornographic images, drug use or witchcraft.
If a customer requests an item that violates her written standards, she refers them to a nearby bakery.
She refused to create a custom wedding cake to be a centerpiece at the same-sex wedding of Mireya and Eileen Rodriguez-Del Rio in 2017.
California’s Civil Rights Department then sued Ms. Miller in 2018 after launching an investigation, claiming she violated the Unruh Civil Rights Act, a state law banning discrimination in business.
The litigation has caused Ms. Miller and her staff to face harassment over her religious beliefs, including one of her employees being assaulted while leaving work and her laptop stolen.
She’s also lost employees over the issue.
The trial court, after a five-day trial, ruled for Ms. Miller, reasoning she has served and hired LGBTQ people in the past, but only objects to creating custom same-sex wedding cakes. The court said her religious beliefs were sincere and that the state could not force her to speak — by creating a custom cake — against her will.
California has appealed, arguing that the requirement to serve everyone equally does not violate the First Amendment. The state says the lesbian couple liked a pre-made cake and had an interest in purchasing it.
“Businesses that serve the public may not discriminate based on sexual orientation, and selling the Rodriguez-Del Rios a plain, unadorned, predesigned cake cannot reasonably be construed as speech endorsing their union,” the state wrote in court documents.
Her legal battle follows that of Jack Phillips, who has been litigating his right as a Christian not to bake same-sex wedding cakes or gender-transition cakes in Colorado.
In his 2018 high court battle, Masterpiece Cakeshop v. Colorado Civil Rights Commission, the justices said Mr. Phillips was not given a fair hearing by the Colorado Civil Rights Commission and remanded the case back to lower court for further proceedings.
The justices did not, at that time, settle the clash between the religious freedom and discrimination against LGBTQ people.
The Supreme Court, though, did later rule in a similar First Amendment clash in 2023.
The justices sided with a graphic web designer in her fight not be forced to design wedding websites for same-sex couples in violation of her faith. The case was 303 Creative v. Elenis.
Ms. Miller’s litigation is Civil Rights Department v. Cathy’s Creations.
Correction: An earlier version of this report misidentified Jack Phillips.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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