Judge issues key ruling on 'same-sex wedding' cakes

A California judge has refused to advance a social agenda in his state that targets Christians who refuse to endorse homosexuality through their work.

In this case it was baker Cathy Miller of Tastries Bakery who was put in a state bull's-eye because she refused to use her artistic talents to promote the "wedding" of two lesbians.

The state asked Superior Court Judge David Lampe to issue a preliminary injunction ordering Miller either to create wedding cakes for same-sex duos or be barred from serving anyone.

But Lampe recognized that the issue is not about discrimination against same-sex couples.

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"The state is not petitioning the court to order defendants to sell a cake. The state asks this court to compel Miller to use her talents to design and create a cake she has not yet conceived with the knowledge that her work will be displayed in celebration of a 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," he wrote.

The same issue is before the U.S. Supreme Court in a case brought by Colorado against Masterpiece Cakeshop baker Jack Phillips, who refused to make a wedding cake for two homosexuals at a time when same-sex marriage was illegal in the state.

The Supreme Court is expected to announce a verdict within the next few months.

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Charles LiMandri, chief counsel in the case and president of the Freedom of Conscience Defense Fund, argued in defense of Miller.

"Cathy would never discriminate against anyone who walks through her bakery's doors. She will gladly serve anyone, including same-sex couples. But Cathy will not use her artistic talents to express messages that conflict with her sincerely held religious beliefs about marriage. We are pleased that the judge recognized that the First Amendment protects Cathy’s freedom of speech," he said.

It was last August when two women entered Miller's bakery and asked her to design a wedding cake for their same-sex marriage. Because of her religious conviction that marriage is the union of one man and one woman, she told the couple that designing a custom cake to celebrate a same-sex marriage was something she could not do.

The couple promptly complained to the state, which investigated.

While the case remains unresolved, the judge made it clear that Miller's religious belief that same-sex marriage is wrong is entitled to protection.

"The state cannot meet the test that its interest outweighs the free speech right at issue in this particular case, or that the law is being applied by the least restrictive means," the judge wrote. "The court cannot retreat from protecting the free speech right implicated in this cased based upon the specter of factual scenarios not before it.

The judge said Miller's "desire to express through her wedding cakes that marriage is a sacramental commitment between a man and a woman that should be celebrated, while she will not express the same sentiment toward same-sex unions, is not trivial, arbitrary, nonsensical, or outrageous."

"Miller is expressing a belief that is part of the orthodox doctrines of all three world Abrahamic religions, if not also part of the orthodox beliefs of Hinduism and major sects of Buddhism," he said.

The just said the fact that Miller's expression of her beliefs is entitled to protection is affirmed in Associate Justice Justice Anthony Kennedy's opinion in the same-sex marriage case, Obergefell v. Hodges.

Kennedy wrote that "finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths."

The state, Judge Lampe ruled, "cannot succeed on the facts presented as a matter of law."

"The right to freedom of speech under the First Amendment outweighs the state's interest in ensuring a freely accessible marketplace. The right of freedom of thought guaranteed by the First Amendment includes the right to speak, and the right to refrain from speaking. Sometimes the most profound protest is silence," he said.

"No public commentator in the marketplace of ideas may be forced by law to publish any opinion with which he disagrees in the name of equal access. No person may be forced by the state to stand and recite the Pledge of Allegiance against her will. The law cannot compel anyone to stand for the national anthem. No persons may be forced to advertise a state-sponsored slogan on license plates against their religious beliefs."

The judge said a shop may not refuse to sell a tire to a same-sex couple, because "there is nothing sacred or expressive about a tire."

However, "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 a cake. The state asks this court to compel Miller to use her talents to design and create a cake she has not yet conceived with the knowledge that her work will be displayed in celebration of a martial union her religion forbids."

That would "do violence to the essentials of free speech guaranteed under the First Amendment," the judge ruled.

"If anything, the harm to Miller is the greater harm, because it carries significant economic consequences. When one feels injured, insulted, or angered by the words or expressive conduct of others, the harm is many times self-inflicted."

In fact, after declining to make a cake for the couple, Miller arranged to transfer the order to a competitor.

The couple responded by taking her to court.

"The right to freedom of thought protected by the First Amendment includes both the right to speak freely and the right to remain mute," the judge said.

In this case, a wedding cake "is an artistic expression by the person making it … there could not be a greater form of expressive conduct."

LiMandri called the order "a significant victory for faith and freedom because the judge indicated in his ruling that the state cannot succeed in this case as a matter of law."

"No doubt the California officials will continue their persecution of Cathy, but it is clear that she has the Constitution on her side," he sdaid.

In the Colorado case, WND reported that while LGBT activists have portrayed it as a dispute over being treated equally in public accommodations, it's actually about the Constitution's protections for free speech and religious rights.

Critics of Colorado's actions have warned that Muslim bakers could be forced to promote Jewish holidays and black bakers to promote a KKK message.

The Alliance Defending Freedom, which is defending Phillips, however, has argued that the same Colorado commission that is punishing Phillips exonerated three other "cake artists who refused to express religious messages" with which they disagreed. The rejected messages were all Christian messages.

"Had the commission applied the same rationale to those artists that it applied to Phillips, it would have punished them too. After all, [the law] forbids refusing service because of religious beliefs, and those cake artists admitted that they declined the requests because of the religious beliefs expressed on the cakes," the organization said in its brief.

Kennedy also pointed out that the Colorado commission was "neither … tolerant nor respectful of Mr. Phillips' religious beliefs."

In fact, the state commission's antagonism to Christian beliefs became evident at the outset of the case, when one member, Diann Rice, publicly exhibited bias against Phillips during a hearing, comparing him to a Nazi.

"I would also like to reiterate what we said in the hearing or the last meeting," Rice said during consideration of Phillips' case. "Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be – I mean, we – we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to – to use their religion to hurt others."

Hear a recording of Rice's statement:

The response to Phillips from the state of Colorado was an order for him to be reindoctrinated.