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“What DEFH dismissively characterizes as a ‘blank cake’ and ‘baked goods,’ Miller and Tastries intend as a creation that ‘speaks’ a ‘meaningful,’ ‘positive,’ ‘affirming’ message of support for a marriage. She does not want to speak a different message. Yet that is precisely what DEFH wants her to do.”
– JUDGE ERIC BRADSHAW
A California superior court judge has ruled that a woman did not violate a California civil rights law when she refused to make a custom wedding cake for a lesbian couple.
Judge Eric Bradshaw of the Superior Court of California in Kern County has ruled that Cathy Miller, owner of “Tastries,” a bakery in Bakersfield, California, did not violate the Unruh Civil Rights Act when she refused to create a custom wedding cake for a lesbian couple because of her religious beliefs.
The issue started in 2017 when a lesbian couple asked Tastries to design a cake for their wedding. Miller informed them she could not do so because “I can’t be a part of same-sex wedding because of my deeply-held religious convictions, and I can’t hurt my Lord and Savior.”
Miller attempted to refer them to another bakery, but the couple left, chose another bakery, and had their celebration. About two weeks later, they filed an administrative complaint with the California Department of Fair Employment and Housing (DEFH).
DEFH claimed that Miller committed intentional discrimination against the couple because they were lesbians. Bradshaw ruled, “The evidence affirmatively showed Miller’s only intent, her only motivation, was fidelity to her sincere Christian beliefs.”
Bradshaw wrote that the evidence showed that “Miller’s sincere faith permeates her life and work.” Miller had testified, “God’s word says in Genesis that God created man and woman in His likeness, and marriage was between a man and a woman” and that the teaching “throughout the Bible” is that “marriage is between a man and a woman and is very, very sacred, and it’s a sacrament.”
Miller’s faith is foundational to her business and led to the creation of established design standards of what her business would and would not create. The standards quote Philippians 4:8, which says, “Whatever is true, whatever is noble, whatever is right, whatever is pure, whatever is lovely, whatever is admirable – if anything is excellent or praiseworthy − think about such things,” and the standard asks, “Is the design based on godly themes?”
The standards say that the bakery will not make any design that depicts drug use; alcohol; offensive, demeaning, or violent designs; witches, spirits, demonic images; or anything that violate fundamental Christian principles. What’s more, the standards specifically state that “wedding cakes must not contradict God’s sacrament of marriage between a man and a woman.”
Miller would refer requests that violated the design standards to another bakery.
By the same token, Miller not only served but employed gay people. Bradshaw ruled that there was no evidence that Miller’s standards reflected any intent to discriminate against homosexuals, but that she simply refused to make any design that violated Christian principles.
A focus of Bradshaw’s ruling was that Miller’s referral to another bakery satisfied the law’s requirement for full and equal access.
The judge wrote that the court was not required to address the issues raised by both parties due to DEFH’s failure to prove a violation of the Unruh Civil Rights Act, but he elected to discuss it anyway.
As for Miller’s free exercise of religion defense, Bradshaw wrote that DEFH’s use of the Civil Rights Act substantially burdened her religious freedom and did not survive strict scrutiny. He noted the inconsistency in DEFH’s alleged respect for her sincere religious beliefs while trying to force her to either violate her beliefs or stop selling wedding cakes. DEFH claimed Miller could either (1) sell all its goods and services to all customers; (2) cease offering wedding cakes for sale to anyone; (3) have Miller and her employees sharing her religious objections to same-sex marriage “step aside” and have “all her willing employees to manage the process.’”
Bradshaw wrote, “The evidence affirmatively showed that DEFH’s proposed ‘options’ would substantially burden defendants’ free exercise of religious faith under the circumstances, as their blunt force rigidity lacks any sensitivity to the rational, reasonable, sincere religious beliefs the DEFH says it acknowledges.”
Regarding her free speech claims, Bradshaw wrote that Miller’s designing of cakes was pure speech as artistic expression. He reasoned that a wedding cake expresses support for the marriage, that the union is a marriage, and that it should be celebrated. “The design standards on which DEFH so heavily relies as evidence of Miller’s intent, leave no room to doubt that Miller intends a message, which DEFH fails to acknowledge or misunderstands…Miller’s wedding cake designs are intended as an expression of support for the sacrament of ‘marriage,’” he argued.
“All of Miller’s designs are specifically intended to answer the question at the top of the design standard page: ‘Is it lovely, praiseworthy, or of good report?’… Notably, Miller’s design standard also states, ‘Our cakes are a reflection of our business and speak volumes when sitting center stage.’ What DEFH dismissively characterizes as a ‘blank cake’ and ‘baked goods,’ Miller and Tastries intend as a creation that ‘speaks’ a ‘meaningful,’ ‘positive,’ ‘affirming’ message of support for a marriage. She does not want to speak a different message. Yet that is precisely what DEFH wants her to do.”
Bradshaw reasoned that compelled expressive speech that is viewpoint-based is subject to strict scrutiny. “DEFH’s enforcement action seeks to compel Miller and Tastries to express support for same-sex marriage, or be silent. No compelling state interest justifies such a result under strict scrutiny.”
This decision is laudable and provides an interesting preview as the Supreme Court considers 303 Creative v. Elenis, which involves Lorie Smith, a website designer who has refused to create sites with messages that violate her Christian beliefs.
Bradshaw’s ruling shows a major flaw in the Court’s current standard of review for free exercise claims. A blatant violation of Miller’s religious freedom occurred due to the law. The Court’s requirement that laws that infringe on free exercise rights only be neutral and generally applicable, however, means that laws such as these can supersede a person’s religious freedom if they are not constructed in an openly hostile way.
“There’s a certain irony there,” noted Paul Jonna, special counsel for Thomas More Society, which represents Miller, “that a law intended to protect individuals from religious discrimination was used to discriminate against Cathy for her religious beliefs.”
It is noteworthy that the Court has decided not to hear Smith’s free exercise claim, but only her free speech claim. The Court could be signaling that it will retain the current standard for religious freedom yet could make a monumental decision regarding free speech. It is very possible that the Court could take a similar view as Judge Bradshaw regarding compelled speech.
As Proverbs 29:2 reminds us, “When the righteous increase, the people rejoice, but when a wicked man rules, people groan.”
In this case, a wise judge ruled righteously. Bradshaw’s understanding of the central role faith plays in the lives of people like Miller, as well as his grasp of the message conveyed by participating in homosexual weddings, is refreshing. Hopefully, other judges — Supreme Court justices even — will embrace his reasoning regarding free speech claims.
Ready to dive deeper into the intersection of faith and policy? Head over to our Theology of Politics series page where we’ve published several long-form pieces that will help Christians navigate where their faith should direct them on political issues.
