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Cathy Miller is being targeted by the state for refusing to bake a cake for a same-sex wedding — despite the Supreme Court’s clear ruling that Americans have a right to refuse to engage in expression that violates their deeply held beliefs.
[UPDATE] On December 17, the California Fifth District Court of Appeal heard oral arguments in a case that will decide whether or not baker Cathy Miller engaged in discrimination when she refused to bake a cake for a same-sex wedding because it violated her religious beliefs.
Her legal troubles began in August 2017 when lesbian couple Mireya and Eileen Rodriguez-Del Rio went to Miller’s Tastries bakery for a cake tasting. Miller soon realized that they were asking her to create a custom wedding cake. Miller informed them she could not create the cake 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 referred them to another bakery, but the couple and their friends posted messages on social media that led to negative media attention and harassment from those opposed to Miller’s religious beliefs.
In October 2017, after a complaint by the couple, the Department of Fair Employment and Housing (now the Civil Rights Department) launched an investigation into Miller.
While the Civil Rights Department claimed Miller had violated the Unruh Civil Rights Act by discriminating against the lesbian couple because of their sexual orientation, two courts have since ruled in favor of Miller.
Miller operates her business to glorify God and has created design standards to deal with the many requests she receives for cakes that are pornographic, violent, gory, or that celebrate anything that violates her religious beliefs, such as divorce.
Far from discriminating against members of the LGBT community, Miller not only serves but also employed and trained LGBT people in her business. She simply does not want to be forced to create a message in violation of her beliefs.
Despite two court rulings in her favor — including one that found that Miller’s “only intent, her only motivation, was fidelity to her sincere Christian beliefs” — the state appealed the case to the Fifth District Court of Appeal.
Miller’s legal representatives the Becket Fund for Religious Liberty, the Thomas More Society, and LiMandri & Jonna LLP argue that the Supreme Court has now ruled in 303 Creative v. Elenis that the government cannot force business owners to engage in expressive conduct that violates their religious beliefs.
In 303 Creative, the Court ruled that web designer Lorie Smith could not be forced to create websites celebrating same-sex weddings. The opinion, released in June 2023, upholds the First Amendment right of business owners to refuse to create artistic expressions that promote a viewpoint in opposition to their own.
What’s more, in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court ruled in favor of baker Jack Phillips, who had also refused to bake a cake for a gay wedding because it violated his religious beliefs, explaining that the Colorado Civil Rights Commission had treated Phillips and his Christian faith with animus.
The latter fact is important in Miller’s case, as her attorneys argued in their brief before the appeals court, the California Civil Rights Department has also acted with animus.
They also argued that the Unruh Civil Rights Act is unconstitutional. Their brief states that the law “is anything but neutral and generally applicable, because it allows the Department and the courts to make case-by case discretionary decisions about what activities to permit or not, and because it treats comparable secular activity more favorably than Miller’s religious exercise. And because the Department has expressed unremitting hostility towards Miller and her religious beliefs.”
The brief also details the horrific persecution that Miller and her employees have endured following the complaint. For example, Miller has received numerous vulgar messages on Facebook expressing hatred towards her due to her religious beliefs. She and her employees have been sent malicious emails featuring pornographic images and threats to sexually assault Miller and her young female employees.
And one man engaged in a harassment campaign of repeatedly calling the business and detailing acts of sexual violence he would commit against the employees. Miller’s employees were so afraid they ran to the back of the store and began sobbing and shaking.
Miller called the police, and after an officer showed up, the calls stopped. When the officer left, the man began calling again. Miller and her employees believe the man was watching them. Many of Miller’s employees quit due to the harassment.
The night before the preliminary injunction hearing, a man physically assaulted one of the employees behind the bakery and referred to the state’s prosecution during his attack. And the same night, Miller’s car featuring her company’s logo was broken into and her laptop was stolen.
Miller reported all these incidents to the police, but no one was ever prosecuted. In addition, the department has never responded to the acts of violence or threats nor opened an investigation into the discrimination against Miller and her employees.
“It takes a special kind of spite to spend almost a decade bullying a small-business owner because she wants to run her bakery without sacrificing her Christian faith,” said Eric Rassbach, vice president and senior counsel at Becket. “Doesn’t California have enough problems without picking yet another culture war fight? It’s high time for the court to bring the State’s baseless campaign to a close and allow Cathy to bake in peace.”
A decision in the case is expected in the first half of 2025.
{Published October 24, 2022} 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.
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