A Southern California bakery can continue, at least for now, to refuse to bake wedding cakes for ceremonies that its owner considers incompatible with her religious convictions. That was the ruling of Kern County Superior Court Judge David Lampe last week.
The judge issued a preliminary injunction allowing Tastries Bakery owner Cathy Miller, an evangelical Christian, to continue to decline to create a cake for an event she opposed on moral grounds.
The ruling was in stark contrast to one made in 2013 several hundred miles to the north, in Oregon, where that state’s Court of Appeals upheld the state labor commissioner’s $135,000 fine against the owner of a bakery there for his similar stance.
The California case began last fall, when two customers filed a complaint with the state, claiming the baker’s refusal violated California’s Unruh Civil Rights Act.
Judge Lampe, however, ruled that the state law was trumped by the U. S. Constitution’s First Amendment, since forcing Ms. Miller to use her artistic skills against her will violates her right to free speech.
A wedding cake, he wrote, “is an artistic expression by the person making it that is to be used traditionally as a centerpiece in the celebration of a marriage. There could not be a greater form of expressive conduct.”
He contrasted a bakery with a tire shop, saying that the shop could not refuse to sell a tire to a person because of his lifestyle, because “there is nothing sacred or expressive about a tire.” Similarly, had the couple at issue just chosen a cake out of a display case, the bakery could not have refused to sell it to them.
The ruling, however, only denies the order sought by the complainants to force Ms. Miller to provide the cake. A hearing on the case is set for June. The baker’s attorney, though, said he will move for dismissal of the case on the basis of the recent ruling.
It is heartening that a citizen’s religious convictions have, in effect, been protected in the case. But the ruling is a very narrow one, focused on the Constitution’s guarantee of free speech rather than its guarantee of religious freedom, and depends on the assertion that creating a cake is an artistic expression akin to speech.
Left unaddressed, though, is the issue of the right of a religious service provider, like a caterer or photographer, to decline a job where the individual’s religious convictions do not permit him to play a part of a ceremony that violates his faith. Catering or photography might arguably be deemed artistic endeavors too, but if they are judged otherwise, religious providers of such services would not be protected by the logic of the recent ruling.
Overshadowing the Oregon and California cases, of course, is the “Masterpiece Cakeshop” case currently before the U.S. Supreme Court.
In that case, a Denver-area “cake artist,” Jack Phillips, was ruled by an administrative law judge and the Colorado Civil Rights Commission to have violated Colorado’s anti-discrimination statute by turning down a request to bake a cake for an event he opposed on moral grounds.
The baker was ordered to fulfill similar requests in the future, to change his company’s policies and provide “comprehensive staff training” about unlawful discrimination. He was also told to provide quarterly reports for two years about steps he has taken to come into compliance with the ruling.
Mr. Phillips appealed the decision to the Colorado Court of Appeals and lost. When the Supreme Court of Colorado declined to hear a further appeal, Mr. Phillips petitioned the U.S. Supreme Court, which agreed to hear the case. It will decide in the summer whether “applying Colorado’s public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about morality violates the Free Speech or Free Exercise Clauses of the First Amendment.”
In oral arguments last year, Justice Anthony Kennedy, regarded as the likely swing vote on the issue, challenged both sides. At one point, though, he told the Colorado Solicitor General that “Tolerance is essential in a free society, and tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’s religious beliefs.”
We hope that Justice Kennedy votes, and as part of a majority, in consonance with that observation, and enshrines in our nation’s jurisprudence the primacy not only of free speech but of religious freedom.