February 8, 2018 at 9:08 am PST | by Jon Davidson
A Half-Baked Ruling

On February 5th, Kern County Superior Court Judge David R. Lampe issued a ruling denying the California Fair Employment and Housing Commission’s request for a preliminary injunction that would have ordered a baker to stop discriminating against same-sex couples, pending trial in a case.

The case arose after Eileen and Mireya Rodriguez-Del Rio visited Tastries, a commercial bakery in Bakersfield, and selected a cake design for their upcoming wedding reception based on one on display in the shop. According to Judge Lampe’s decision, the couple did not request any words or messages on the cake. When they returned for a tasting a week later, the store’s owner, Cathy Miller, told them—apparently based on her religious views—that she does not condone marriages of same-sex couples and they therefore would have to go elsewhere for their cake.

Faced with the indignity of being shunned and told “we don’t serve your kind,” the couple filed a complaint with the agency that enforces California’s law barring sexual orientation discrimination by businesses. The agency agreed that that law had been violated and sought the order Judge Lampe denied.

The judge did not reach whether Ms. Miller had a religious freedom right to deny the couple equal treatment. Instead, his decision was based on free speech grounds. He concluded that, “The State cannot succeed on the facts presented as matter of law” because, in his view, “The right to freedom of speech under the First Amendment outweighs the State’s interest in ensuring a freely accessible marketplace.”

Either now or after Judge Lampe grants the motion to dismiss the case Ms. Miller’s lawyers have said they will file, the government agency likely will appeal.

Judge Lampe’s ruling is wrong and dangerous, and hopefully an appellate court swiftly will overturn it. Every other U.S. court to have considered similar First Amendment claims advanced by bakers, florists, photographers, invitation designers, and reception halls has rejected the arguments on which Judge Lampe relied.

Lower courts did that in a very similar case, known as Masterpiece Cakeshop, Ltd. v. Colorado Human Rights Commission. That case was argued to the U.S. Supreme Court December 5th. A decision should be released by the end of June. If the justices follow past rulings, they too should refuse to license such discriminatory acts.

While there is an absolute right to believe what one wants, and a near absolute right to say what one wants (subject to laws regulating defamation, invasion of privacy, harassment, threats, and similar wrongs), the U.S. Supreme Court has rejected any First Amendment right to engage in discriminatory conduct. Discriminatory treatment is conduct, not speech.

Judge Lampe analogized the situation before him to cases involving compelled speech. Those cases hold that the government can’t force students to salute the flag, can’t compel individuals to display a state motto they object to on their vehicle license plates, and can’t require newspapers to publish the replies of political candidates whom they criticized. There are at least three problems with that comparison, however.

First, the state agency here wasn’t seeking an order that Ms. Miller say anything. A cake is not speech. And, to the extent a wedding cake conveys a message of some sort, it’s the message of the betrothed couple who chose the design, not the baker they asked to follow their instructions. But, beyond that, all the state agency sought was an order that Ms. Miller not discriminate by refusing to make cakes for same-sex couples she makes for everyone else. If she couldn’t abide the thought of a custom wedding cake she made being enjoyed by those at same-sex couple’s receptions, she could just stop making such cakes altogether

As raised during the Masterpiece Cakeshop argument, it also would be difficult to draw a line between Ms. Miller and others who believe some people aren’t worthy of equal treatment. If a wedding cake is constitutionally-protected speech, what about the catered wedding meal, floral arrangements, hairstyles, and make-up applications? It likewise would be hard to limit a ruling to weddings. And, if people have a conscience right not to treat same-sex couples equally to others, why should they have to provide equal service to those of particular races, nationalities, or religions? If the Constitution meant that, minorities once again could be legally treated like pariahs in this country.

When Judge Lampe valued a business person’s “freedom of conscience” over customers’ equality, he erred. The notion that one is complicit in how others use what one creates wrongly imposes one’s beliefs on others. Most importantly, people who go into commerce—even commerce involving expression—properly are subject to the rules governing all businesses. Those selling their paintings can’t use toxic materials or plagiarize, even if their beliefs dictate it. Even with art, neither religion nor speech should be trump cards.

Jon W. Davidson has been a leading LGBT legal rights advocate and constitutional scholar for more than 30 years. He recently stepped down as the national legal director of Lambda Legal.

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