California Court Says A Wedding Cake is Protected By the First Amendment

by Steve MacDonald

wedding cakeThis is interesting, and not just because the ruling came out of a court in California. The state charged a baker with breaking the law because they refused to make a cake for a same-sex couple. The court has denied the State’s motion for preliminary injunction in favor of the baker, Cathy Miller.

There’s a good deal of detail to consume, and while most court rulings are a challenge, this one is actually compelling.

No artist, having placed their work for public sale, may refuse to sell for an unlawful discriminatory purpose. No baker may place their wares in public display case, open their shop, and then refuse to sell because of race, religion, gender, or gender identification.

The difference here is that the cake in question is not yet baked. The State is not petitioning the court to order defendants to sell cake. The State asks this court to compel Miller to use her talents to design and create cake she has not yet conceived with the knowledge that her work will be displayed in celebration of 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.

I don’t agree that any private person operating in any public capacity is required to serve whoever shows up for any reason and I don’t think the state should be in the business of insisting otherwise. The free market, word of mouth, and competition will deal with them in due course. But this case is being decided on the basis of California law as written which has to be infuriating to the progressives who wrote it.

Silence, the court notes, is a form of protected speech. Refusing to stand for the pledge of allegiance is protected. So, in their opinion, given that the wedding cake made from scratch is a form of (artistic) expression, the baker has the right to refuse to make it knowing that it will service ideas that run contrary to her religious beliefs; beliefs that are protected by the same law the state used in its prosecution.

And is often the case, this baker isn’t the only one in town.

(Cathy) Miller (the defendant) has entered into an agreement to refer same-sex couples to competitor, Gimme Some Sugar, based upon her understanding that the owner of that bakery does not have any prohibitory policies.

Despite this arrangement the case was brought by the state, the baker accused, and in what I find an astonishing stab at justice, the court ruled against the state.

The ruling is included below and it’s filled with interesting tidbits about expression, speech, and religious protections. Take a look.

Wedding cake decision California

Leave a Comment

  • Kathleen LaBonte

    My husband is an illustrator, and he would never hesitate to decline a job he isn’t interested in. For example, his forte is not skyscrapers or science fiction. Can he do compositions and create that work – yes, but he doesn’t. What he does do is recommend other artists strong in the areas he is weak. Could he be compelled to do this work because a potential client wanted my husband and no one else. It never has happened in his over 40 year career….and we would not bend regardless.

    I found this final outcome very interesting as I did not think about the courts understanding that the cake “artist” would have to be compelled to create a piece of cake art that was not in their display but something unique to the couple. This was brilliant, and thank you for this post. I’m so thrilled for the outcome, and completely disgusted they had to go through this situation at all.

  • Ed Naile

    I guess the couple will have to find other people to harass so they can have a wonderful life together.

    • Mike Remski

      Two things I found interesting from this ruling (I think I saw it last week) :

      1. The baker had a preexisting arrangement with another baker in town to handle this. Basically “I’m sorry, I can’t design a cake for this, but Julie down the street and I have an arrangement so she can fulfill this for you”. Now refusing to sell a prebaked item would have been discrimination.

      2. The judge ruled that the creative expression required to design and make the cake as a custom piece for the customers is protected. To me this is no different that what Kathleen says above or what a true photographer does: photos do not exist until they are taken and knowing when to press the button to capture the decisive moment (Henri Cartier-Bresson) is what you are paying a professional for.

      • Ed Naile

        Still, no matter how you “slice it” the cake issue is about the intolerance of the homosexual lobby.
        The soon to be politically “wed” just wanted trouble and publicity.
        By the way.
        What is their story?
        Why not do an in depth report on who they are and why they wanted to ruin a baker for the sake of sport – of a very sad and boring cause?
        Can they take the limelight the baker has?
        Who paid for their lawyer?
        Have they started litigation against another person just for spite?

  • mrwonderful

    This makes complete sense to me. From a musical perspective – if I’m playing a gig I can’t really keep certain people from showing up to listen. But if someone approaches me in an attempt to hire me to play a gig, or compose a piece, for a specific group/event with a specific agenda – I have every right to refuse. Sounds like the court made a well-reasoned judgement in this case.

  • Tom Ford

    Maybe there’s some hope for California? Or is this just an outlier? Anyway, sounds like a well-reasoned judgement to me – and unlike the misfortune that happened to Melissa’s Sweet Cakes in Oregon.


    Based on the apparent logic behind this court ruling, would this mean a church or a priest/minister not have to perform a “wedding” ceremony for a same sex couple?

    • granitegrok

      Depends – if it is a “High” church (formalized, very liturgical in nature where everything is pre-written in advance for the masses in a denomination (e.g., The Book of Prayers), maybe not. Reading from a book or prepared “script for all churches and events” is not “art” – it is mere reading even if about sacred things.

      A “Low” church where there is an outline but is more ad hoc/ personal, maybe less subject to “that’s not ‘art’!”. Extemporaneously speaking or a personalized / one-off sermon IS definitely more “artistic” in nature (and yes, there is an art, as well as subject matter / Bible knowledge to write and deliver a really good sermon).

      • Mike Remski

        I think it’s simpler than High or Low. Forcing a Roman Catholic priest to perform a gay marriage in a Roman Catholic church violates the priest’s religious freedom. Period. Full Stop.

        • granitegrok

          Understood and agreed to. However, the issue in front of the Court is not Religious Freedom / Freedom of Expression but that of Freedom of Speech which covers “artistic” meanings. That’s why I stuck to just that venue.

          I agree – Religious Freedom, if actually given the high scrutiny test now given to the Second Amendment as they have done to the Freedom of Speech, should be a no brainer. However, it is like the Commerce Clause as in Wickard vs Fillmore in reverse.

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