Just make the cake, appeals court tells Christian baker

A Bakersfield, Calif., baker vowed to press on after a state appeals court panel Tuesday rejected her claim that the First Amendment protects her right not to design a custom cake for a same-sex wedding.

Tastries Bakery owner Cathy Miller describes all of her wedding cakes as custom-designed. But in a 74-page opinion, judges concluded that her refusal to provide a “pre-designed, multipurpose white cake” was not protected expression under the Constitution’s free speech guarantee.

“A three-tiered, plain white cake with no writing, engravings, adornments, symbols or images is not pure speech,” wrote Justice Kathleen Meehan for the court. “Nor can the act of preparing a pre-designed, multipurpose, plain white cake—an ordinary commercial product—and delivering it prior to the wedding constitute the symbolic speech of the vendor.”

Meehan said that the case turned on the sexual orientation of the customer, something specifically barred by California’s broad anti-discrimination law. She argued that Miller’s referral of another baker willing to work with the couple did not satisfy the law, since it did not give them full and equal access to the goods and services requested.

But Meehan went further, noting that “this referral model does not mitigate the stigmatizing harms inflicted by a referral process—which, here, occurred in front of the couple’s friends and family. It reinforces a caste system where certain individuals are treated as less deserving of products and services on the open market based on protected characteristics.”

Adèle Keim, one of several attorneys that represent Miller, said that the court’s characterization of the cake as “pre-designed” enabled it to reach the result it desired. “Anybody who’s been through law school knows that speech is protected by the First Amendment and that speech doesn’t have to have words,” said Keim, an attorney with the Becket Fund for Religious Liberty. “So the court’s task was to find a way to say that a white three-tiered cake covered with white wavy frosting and flowers was not a symbol of this lesbian couple’s wedding.”

Keim said the court ignored the findings of the trial court. After five days of testimony, in October 2022, California Superior Court Judge J. Eric Bradshaw concluded that all wedding cakes designed by Tastries were custom-designed and constituted protected speech.

Miller will continue to fight to preserve her right to act in accordance with her convictions, said Keim, adding that Miller plans to file an appeal with the California Supreme Court. If the court declines to weigh in on the case, Miller’s attorneys will ask the U.S. Supreme Court to review it.

It would not be the first time the high court has refereed disputes that pit broad state public accommodation laws against constitutional free speech rights. In 2018, it overruled an appeals court ruling that upheld the application of Colorado’s law against Masterpiece Cakeshop baker Jack Phillips. Supreme Court justices pinned that ruling on the overt hostility the state’s Civil Rights Commission displayed toward Phillips’ religious beliefs. That kind of overt discrimination is not present in Miller’s case.

In 2023, the Supreme Court sided with wedding website designer Lorie Smith in another dispute that involved Colorado’s public accommodations law. This time the court went further than it did in Phillips’ case, finding that Smith’s wedding website design was speech protected by the First Amendment and that she could not be compelled to speak messages that violated her beliefs.

Thomas Berg, a constitutional law professor at the University of St. Thomas School of Law in Minneapolis, said the result in the case was not surprising. “Unlike Lorie Smith’s customized websites or Jack Phillips cake designs, courts will be reluctant to find that an off-the-shelf product expresses the baker’s message,” he said. But he said the court’s treatment of Miller’s free exercise of religion claim shows the problem with the much-criticized 1990 precedent set by Employment Division v. Smith, which states that laws that are neutral and generally applicable may still penalize religious conduct.

For Miller, it comes down to staying true to her Biblical beliefs about marriage and gender. “The Bible states very clearly that there are things I should and should not do, and I love my Lord and Savior, and I’m not going to hurt Him,” she told FOX News last week.

“This case is not just about Cathy Miller,” said Thomas More Society special counsel Charles LiMandri in a statement. “It’s about protecting the rights of all Americans to live and work according to their deeply held beliefs.”