Free Speech Victory in California

california gay wedding cake
BAKERSFIELD, CA — Artistic expression isn’t often brought up in discrimination cases, but it proved central to a judge’s ruling in a California case. Forcing a baker to make a wedding cake for a same-sex marriage despite her religious objections violates her right to free speech, a California judge has ruled.

As a result, the baker, who lives in Bakersfield, CA, is exempt from a controversial anti-discrimination law, which applies to all kinds of other goods and services in California. Many free speech advocates have long disparaged California’s anti-discrimination laws as unconstitutional, weaponized legislation.

Kern County Superior Court Judge David R. Lampe ruled this week against the State of California, which took legal action against a Bakersfield baker who refused to make a wedding cake for a same-sex couple. The whole thing started when a lesbian couple ordered a wedding cake from a baker who happens to be a Christian.

Tastries Bakery owner Cathy Miller told Eileen and Mireya Rodriguez-Del Rio in August that she couldn’t create a cake for their wedding because same-sex marriage conflicted with her faith. She instead politely referred them to another bakery, according to documents provided to the Court, as well as witness testimonies. In response, Rodriguez-Del Rio filed a complaint with California’s Department of Fair Housing, which sided with the couple.

The state argued that California’s Unruh Act, which bars discrimination in public accommodations, “does not compel speech, but only conduct,” in this case, the baking and selling of a cake. The state also argued that the First Amendment protects only “those occasions where government requires a speaker to disseminate another’s message,” which is contrary to the interpretations made by the Supreme Court in past cases. The state agency sought an injunction against Miller that would have forced her to stop what it considered a “discriminatory practice,” under threat of fines and business license revocation. Lampe denied it.

The judge ruled for Miller, saying her actions were protected by the First Amendment, because making a cake is considered an act of artistic expression.Lampe wrote in his ruling:

The right to freedom of speech under the First Amendment outweighs the state’s interest in ensuring a freely accessible marketplace, a wedding cake is not just a cake in free speech analysis. It 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.

Lampe determined it did not matter that the baker was not being asked to design particular words on the cake. The wedding alone, with the couple engaging in speech, “could not be a greater form of expressive conduct.” He compared a bakery to a tire shop, saying that the shop could not refuse to sell a tire to a homosexual couple because “there is nothing sacred or expressive about a tire.” Similarly, had the couple just chosen a cake out of a display case, the bakery could not have refused to sell it to them.

“The difference here is that the cake in question is not yet baked. . . . The State asks this court to compel Miller to use her talents to design and create a cake she has not yet conceived with the knowledge that her work will be displayed in celebration of a marital union her religion forbids…”

. . . For this court to force such compliance would do violence to the essentials of Free Speech guaranteed under the First Amendment.

Lampe’s reasoning mirrors that of the Colorado baker awaiting a U.S. Supreme Court ruling. In that case, Jack Phillips, owner of Masterpiece Cakeshop, is arguing that the First Amendment’s free speech and free exercise of religion clauses give him the right to refuse to provide a wedding cake to a gay couple, despite state public accommodations laws that require businesses that are open to the public to “treat all potential customers equally.” A phrase which Colorado has vaguely interpreted as a loophole measure for denying business owners their First Amendment rights. The Supreme Court heard arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission in December, 2017.

The plaintiff’s lawyer said Lampe’s ruling won’t be the end of the matter.
“Bakersfield and Kern County in general is very conservative and that unfortunately includes some of the judges,” attorney Patricia Ziegler Lopez said in a statement to CNN affiliate KBAK.

Miller told KBAK that she felt God had won in court and she’s glad society is trying to balance tolerance with free speech. “The community and the government is starting to see that we have an issue that needs to be resolved,” Miller said. “And I think that’s really good.”


  1. Judge must be a Libertarian lol. A win in California is big, now we need to go after the gun laws there and defend the Second Amendment.



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