Cake baker celebrates religious rights win

On a Sunday evening in July, jazz saxophone notes fluttered over a California crowd. Soon, hands were locked in prayer on the downtown Bakersfield plaza. The pretrial vigil sought one aim—a healing resolution to a heated lawsuit over baker Cathy Miller’s choice not to create a wedding cake for Eileen and Mireya Rodriguez-Del Rio, a same-sex couple. Later, Miller explained the case is bigger than her Tastries Bakery. She said it was about Americans respecting the rule of law in a pluralistic society, one where Christian principles can coexist with LGBT rights. 

“Tonight was [about] bringing the community together who wanted to pray for the entire case—both sides, the attorneys, the judge, the community, our nation, our state,” she says. “To pray for us and to pray for the LGBT community, so that we can follow what God has planned for this week.”

On Friday, three months after the July vigil and trial, Superior Court Judge J. Eric Bradshaw ruled Miller’s free speech rights allow her to decline to create a cake to celebrate something that violates her religious beliefs.

In August 2017, Miller politely declined the job and referred the couple to another baker. That referral provided free and equal access under California’s Unruh Civil Rights Act, Bradshaw ruled. Miller always sold bakery-case items to LGBT customers. She had employed people with a same-sex orientation. And she communicated design standards with no intent to discriminate against customers, the court found. “I just couldn’t participate in a [same-sex] marriage,” Miller said, “because that’s a sacred covenant, and it’s ordained by Christ.”

The Bakersfield case represents one of many pitting creative professionals against a tide of broader state anti-discrimination laws. Despite scoring a Supreme Court victory in a case similar to Miller’s, Colorado baker Jack Phillips is defending his Masterpiece Cakeshop a third time against discrimination claims. Other same-sex wedding clashes have involved a florist, a photographer, and a website designer, whose case will be heard Dec. 5 by the Supreme Court.

“A lot of the problem is these state statutes are drafted and interpreted in really, really broad ways,” said Brad Jacob, associate dean of the Regent University School of Law. “In theory, this kind of case should violate both free speech and free exercise [of religion]. You end up in this Catch-22 where the state is basically asking people to violate their own conscience.”

California’s Department of Fair Employment and Housing acted against Miller twice. During an administrative investigation in early 2018, the agency sought a court order compelling Miller to serve the same-sex couple. That effort failed, and the state did not file an appeal in time. But California’s 5th District Court of Appeals permitted the state agency to pursue the matter anew as a civil lawsuit.

The state agency, recently renamed the California Civil Rights Department, did not respond to questions about its intent to appeal. Neither did Patricia Ziegler-Lopez, an attorney who has represented the Rodriguez-Del Rio couple.

Charles LiMandri represents at Miller in the case as special counsel to the Thomas More Society and a partner in LiMandri & Jonna LLP. Both the free speech merits of Miller’s case and attorney’s fees she’ll be awarded—estimated in the mid-six-figure range—may discourage California from appealing. LiMandri & Jonna were part of a five-firm legal team that secured nearly $3 million in state-paid attorney’s fees after successfully arguing to reopen California churches during the COVID-19 pandemic.

“If they’re smart, they may decide to just let this case stay at the trial court level, where it doesn’t present binding legal authority—just persuasive,” LiMandri said. “What matters of course to the client is we won and she’s not going to be facing hundreds of thousands of dollars in attorney’s fees.”

Jacob and LiMandri concur that creative professionals will continue facing a higher hurdle to free religious exercise arguments than free speech. Yet recent cases show a Supreme Court looking more closely at how history and tradition inform the Constitution, and that bodes well for Lorie Smith’s upcoming website designer case, 303 Creative LLC v. Elenis.

“If they apply the same reasoning they did most recently in Dobbs and Kennedy … I think there’s a good chance we’re going to see in 303 Creative that they’ll come down a similar way, at least insofar as saying it’s protected speech,” LiMandri said.