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Court of Appeal:
Bakery Violated Law by Refusing Cake for Same-Sex Marriage
Opinion Says Policy to Refuse Custom Orders for Non-Heterosexual Unions Violates Anti-Discrimination Law Regardless of Religious Reasons, Plain White Cake is Not Protected Speech Under First Amendment
By Kimber Cooley, associate editor
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Catherine Miller is seen in her Bakersfield bakery. The Fifth District Court of Appeal on Tuesday reversed a 2022 judgment in favor of her and her business, Cathy’s Creations, Inc., in a civil rights action based on her refusal, pursuant to a policy predicated on her Christian beliefs, to provide a wedding cake for a same-sex wedding. |
The Fifth District Court of Appeal has held that a Bakersfield-area bakery’s policy of refusing to make custom cakes for same-sex marriage ceremonies violates a California anti-discrimination law, regardless of the shop owner’s sincerely held religious beliefs and is not entitled to First Amendment protections, reversing a lower court judgment in favor of the shop and its owners.
Tuesday’s decision declares that the policy is facially discriminatory because it could only apply to customers based on their sexual orientation and that a cake requested in 2017 by the plaintiffs did not amount to either “pure” or “symbolic” speech where it was a plain-white cake—bearing no writings, images, or symbols—and failed to convey a message of support for the sacrament of marriage when the same type of baked good may be ordered for other celebrations.
At issue is whether a cause of action exists under the Unruh Civil Rights Act (“UCRA”), codified at Civil Code §51, which, subject to certain listed exceptions, provides:
“All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”
Referring the couple to another local bakery, with which the defendant had a prior agreement for such referrals, also did not provide the aggrieved parties with “equal accommodations” as contemplated by the law, Justice Kathleen Meehan wrote. She said the U.S. Supreme Court 2022 decision in 303 Creative LLC v. Elenis—in which it found that the free speech protections of the First Amendment prohibited Colorado, under a similar state law, from forcing a website designer to create pages for same-sex marriages containing messages with which she disagrees—does not compel a contrary ruling.
Acting Presiding Justice Jennifer R.S. Detjen and Justice M. Bruce Smith joined in the opinion.
Design Standards
Catharine Miller adopted the policy at her Tastries Bakery as part of the development of larger design standards, under which the store also declined to make custom goods portraying explicitly sexual conduct, promoting drug use or featuring alcohol. The policy also specifically said that the company would refuse “[r]equests that violate fundamental Christian [principles]; wedding cakes must not contradict God’s sacrament of marriage between a man and a woman.” Miller, a Christian who developed the policy in consultation with her pastor, has Bible verses on her business cards and prays with the staff before meetings. The bakery offers pre-made, single-layer cakes for sale which can be purchased for any purpose, but any custom orders must comply with the design standards.
In 2017, Mireya and Eileen Rodriguez-Del Rio came to Tasteries looking for a cake to celebrate their marriage, which occurred a few months earlier, at a formal wedding reception. They had already visited and rejected the bakery to which Miller had made referrals in the past for same-sex couples.
Refused Service
The couple wished to make a custom order for a plain, white cake, with three tiers and no writing, to be adorned with real flowers. After they were refused service, the California Civil Rights Department (“CRD”), formerly known as the Department of Fair Employment and Housing, filed suit against Tastries and its corporate owner Cathy’s Creations Inc., as well as Miller, the sole shareholder in the corporation. Following a bench trial, Kern Superior Court Judge J. Eric Bradshaw concluded that there was no violation of the UCRA because the policy was facially neutral and CRD failed to prove “intentional discrimination.”
Bradshaw also said that forcing Tasteries to bake the cake would amount to compelling defendants to speak a message about marriage to which they objected. Judgment was entered for the defendants on Dec. 27, 2022.
Tuesday’s opinion vacated Bradshaw’s order finding in favor of the defendants and remanded for further proceedings.
Facially Discriminatory
Addressing whether the policy violates the UCRA, Meehan noted that “[a] facially discriminatory policy is one which on its face applies less favorably to a protected group” and wrote:
“Tastries’s refusal to sell a wedding cake to anyone—regardless of sexual orientation—for the purpose of a same-sex wedding does not render the standard applicable alike to every person regardless of sexual orientation….[A] customer buying a preordered cake for a same-sex wedding is doubtlessly associated with the same-sex couple who is marrying, and the refusal to furnish a product because it will be used by the customer to celebrate a same-sex wedding will invariably be based on that association.”
Adding that “[n]or is the standard facially neutral because its limitation pertains to same-sex marriage,” she opined that “[d]rawing a distinction based on conduct (same-sex marriage), which is indelibly intertwined with a protected status (sexual orientation) has been rejected in several contexts.”
She concluded that “[t]he underlying rationale for the policy—Miller’s sincerely held religious beliefs—does not make the facially discriminatory policy any less violative of the UCRA.”
Meehan pointed out that Bradshaw cited California Supreme Court jurisprudence suggesting that the referral of a same-sex couple to a different physician, within the same medical group, for an artificial insemination process would immunize the doctor from UCRA claims by still providing the patients with “equal accommodations.” Finding the case law inapplicable, Meehan wrote:
“Discriminatorily denying service and then telling would-be customers they may take their business down the street (or farther) to a separate, unassociated establishment where they may be served by way of referral in no way ensures full and equal access to the product or service at the same price and under the same conditions. Miller’s successful referral of another same-sex couple to [that other bakery] in the past does not change this reality.”
Pointing out that “[t]he First Amendment’s free speech guarantee ‘includes both the right to speak freely and the right to refrain from speaking at all,’ ” the jurist remarked that “the compelled-speech doctrine can preclude the government’s enforcement of antidiscrimination laws in places of public accommodation.”
Protected speech may be pure or symbolic speech, the latter of which must meet a two-part test to be considered expressive conduct—it must be made with the intent to convey a particular message and a viewer must be likely to understand the communication being conveyed.
Addressing the 303 Creative decision, which found that any compelled production of websites would contain “pure speech,” she wrote:
“The cake at issue here bears no indicia of self-expression similar to…the custom wedding websites described by stipulation in 303 Creative. The requested cake had no writing, drawings, images, engravings, symbols or any other modes of expression displayed on it: it was a plain, three-tiered, white cake with ‘wispy’ frosting and some flowers. The cake was considered a custom order because all preordered cakes are labeled ‘custom’ by Tastries, regardless of the design of the cake, any consultation process with the customer, or the degree of autonomy or influence the baker has regarding the cake’s aesthetic appearance. Other than flavoring and size, nothing about the predesigned cake was to be customized for the Rodriguez-Del Rios as a couple or for their wedding specifically, setting it worlds apart from the websites in 303 Creative….”
Meehan commented: “[T]he mere act of preparing and selling merchandise, even a wedding cake, is not the inherent self-expression of the vendor just because the vendor has knowledge of how the end user will utilize the product. It is the consumer’s use of a multi-purpose cake like this that gives it any expressive meaning at all, not the baker’s beliefs or intent which are not reflected in the cake itself.”
Symbolic Speech
Turning to whether the cake involved “symbolic speech,” she concluded: “We cannot agree that all of defendants’ wedding cakes are intended as an expression of support for the sacrament of marriage between one man and one woman. Here, they could not have intended to send that particularized message through the cake’s design because this predesigned cake was requested and sold for a variety of parties and gatherings; the cake itself communicated nothing about marriage generally, let alone that marriage constitutes a religious sacrament reserved only for couples made up of one man and one woman (hence its popularity for use at other types of events).”
She added that “[t]here is also little likelihood a viewer would understand the cake’s sale and provision to a same-sex wedding conveyed any message about marriage generally or an endorsement and celebration of same-sex marriage in particular.”
Meehan also rejected the defendants’ defenses based on the Free Exercise Clauses of the federal and state Constitutions, noting case law finding that the UCRA survives strict scrutiny.
The case is Civil Rights Department v. Cathy’s Creations Inc. (Rodriguez-Del Rio), 2025 S.O.S. 319.
One of the defendants’ lawyers, Charles S. LiMandri of the San Diego County firm of LiMandri & Jonna, said yesterday that review will be sought in the California Supreme Court.
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