It’s deja vu all over again for makers of custom wedding cakes who seek to operate their bakeries based on their religious beliefs, and possibly for the U.S. Supreme Court as well.
The California Supreme Court has declined to hear a petition for review by Christian baker Cathy Miller, who says her Tastries Bakery is limited to custom wedding cakes and refused to make one for a lesbian wedding in 2017, leading her lawyers to promise to petition SCOTUS. It didn’t give a reason for the denial.
A week-long trial determined Miller engages in “pure speech” and “expressive conduct” protected by the First Amendment, reflecting a SCOTUS precedent for Colorado web designer Lorie Smith, who resisted designing same-sex marriage websites and received a $1.5 million settlement from the state after the SCOTUS ruling.
But a California appeals court overruled the factual findings, deeming the white, three-tiered cake sought by Eileen and Mireya Rodriguez-Del Rio “predesigned” because it appeared as a “display cake” in the shop and allegedly held “no recognizable symbolic meaning.”
That violates a 9th U.S. Circuit Court of Appeals precedent upholding the First Amendment rights of tattoo artists, who use similar “sample books” as starting points for original designs, Miller’s petition says.
The couple itself “emphasized the expressive import of the cake,” with Mireya testifying “she wanted a cake inspired by two of Tastries’ display cakes,” and later commissioned “a tiered symbolic Styrofoam cake with a small, edible top layer” from a former Tastries employee who then served it at their wedding.
That former employee testified that she considers herself a “cake artist” and that the California Civil Rights Department, which sued Miller for declining the lesbian wedding order, “advised her not” to promote the cake she made for the Rodriguez-Del Rios on Instagram, the petition says, implying the department knew that would undermine its case.
The petition asked the California Supreme Court to consider whether the First Amendment’s free speech clause protected her right to refuse creating a lesbian wedding cake, and whether the appeals court’s ruling that the state’s Unruh Act is “neutral” and “generally applicable” conflict with three SCOTUS and one 9th Circuit precedents since 2018.
“As a former teacher, Cathy’s process for designing wedding cakes is unique: she meets with each couple for over an hour, and spends time teaching them the religious and symbolic meaning behind the wedding cake they’re commissioning to celebrate their union,” her lawyers at religious liberty law firm Becket said.
Miller set up “written design standards” early in her business in response to customers asking for designs that “contradict her faith,” such as “gory or pornographic images,” celebrations of drug use or depictions that “demean others” in addition to violations of “the Christian sacrament of marriage,” the firm said.
Those resemble the standards observed by Colorado custom cake baker Jack Phillips, who has spent a decade in state and federal court for his Masterpiece Cakeshop’s right to resist making cakes that celebrate same-sex marriage or gender transitions.
Hellbound and Down 