Issue:  Vol. 48 / No. 7 / 15 February 2018
 

Online Extra: Gays Across America: CA judge rules for anti-gay cake baker

NEWS


s.hemmelgarn@ebar.com

Mireya, left, and Eileen Rodriguez-Del Rio were denied a wedding cake by a Bakersfield baker. Photo courtesy Facebook
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Citing free speech, a California judge recently ruled that a cake baker in Bakersfield shouldn't have to make cakes for same-sex weddings.

In his ruling issued February 5, Kern County Superior Court Judge David R. Lampe said, "The state asks this court to compel [Cathy] 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."

The case started in August 2017, when Eileen and Mireya Rodriguez-Del Rio, who'd already been married for several months, went to Miller's shop – Tastries – as they planned a traditional wedding reception, the judge noted in his ruling. The couple selected a design, but when they returned a few days later for a tasting Miller told them that she planned to give their order to a competing bakery "because she does not condone same-sex marriage."

In October 2017, the women complained to the state's Department of Fair Employment and Housing, claiming that Miller violated the Unruh Act, which prohibits discrimination based on sexual orientation. After investigating the case, the agency filed the civil complaint against Miller and Cathy's Creations Inc. doing business as Tastries.

Among the cases Lampe cited in his ruling was Obergefell v. Hodges, the 2015 U.S. Supreme Court case that legalized same-sex marriage nationally.

Lampe noted that in that case, the court said, "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, and to their own deep aspirations to continue the family and structure they have long revered."

No matter how he ruled, said Lampe, "one side or the other may be visited with some degree of hurt, insult, and indignity," but the potential harm to Miller was greater, "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. ... The court cannot guarantee that no one will be harmed when the law is enforced. Quite the contrary, when the law is enforced, someone necessarily loses."

A similar case, which involves Masterpiece Cakeshop in Colorado, is pending at the U.S. Supreme Court.

Miller didn't respond to a request for comment on the judge's ruling, but a post on her Tastries' Facebook page says, "We appreciate your prayers, wonderful words of encouragement and continued support. ... We would like to send a huge THANK YOU to our amazing attorneys at Freedom of Conscience Defense Fund who spent long hours working on our case to defend Cathy Miller and the First Amendment. Their commitment to 'protect we the people' and stand for religious freedom is a blessing to us all."

A GoFundMe page has been launched to help with Miller's legal fees.

Eileen Rodriguez-Del Rio didn't respond to a Facebook message seeking comment.

Kevin Kish, a gay man who's director of the Department of Fair Employment and Housing, said in a statement, We felt it was appropriate to seek legal intervention to prevent discrimination until our investigation is complete. Although the judge declined to issue an injunction, our investigation will continue."

 

Federal court orders MO to provide treatment for trans prisoner

A federal judge has ordered the Missouri Department of Corrections and Corizon LLC, its health care provider, to give a transgender prisoner access to hormone therapy and other medically necessary treatment.

Jessica Hicklin, 38, who's in custody at the Potosi Correctional Center in Mineral Point, Missouri, said in a February 9 statement from Lambda Legal Defense and Education Fund, the nonprofit that's been representing her, "For years, I felt like I had been drowning. But today, I can finally breathe because I will be able to start an important part of my transition that I had been waiting for desperately. Today's decision is like someone threw me a life preserver – it has saved my life."

In April 2017, Lambda Legal filed a motion for a preliminary injunction asking for Hicklin to get immediate access to hormone therapy and permanent body hair removal, along with access to gender-affirming canteen items. Her doctors had recommended the access.

However, the state's prisons have banned treatment for gender dysphoria if inmates haven't been treated prior to being incarcerated, according to Lambda Legal.

After U.S. Magistrate Judge Noelle C. Collins issued her ruling, Demoya Gordon, Lambda Legal's Transgender Rights Project attorney, stated, "This decision is such a welcome relief. Jessica will finally have access to the potentially life-saving medical care she has waited so many years for. Forcing her to go without medically necessary treatment was unnecessarily cruel and the source of a lot of pain and anguish for her. Furthermore, this makes clear that the Eighth Amendment requires that prisons provide all forms of medically necessary treatment for gender dysphoria. Ensuring that Ms. Hicklin receives constitutionally adequate medical care while the lawsuit proceeds was the humane thing to do."

In her ruling, Collins noted that a doctor had written the lack of "appropriate treatment" was causing Hicklin "to experience serious psychological and physical symptoms including panic attacks, anxiety," and other problems. "She also experiences intrusive thoughts of cutting off her testicles, and has attempted to amputate them with a tourniquet."

Collins said that Hicklin, who's serving a life sentence for first-degree murder, had "met her burden to show the threat of irreparable injury. ... Defendants' assertion that Ms. Hicklin cannot establish irreparable injury because any injury is merely speculative is inaccurate."

Missouri Department of Corrections spokespeople weren't available Friday night, but in a court filing, the agency said, "This Defendant admits that hormone therapy has been provided and is currently being provided to transgender inmates in MDOC," but "the 'medically necessary treatment' standard referred to is applicable on a case-by-case basis and not as blanket applications."

 

Gays Across America is a column addressing LGBTQ issues nationwide. It runs most Tuesdays, but is off next week, returning February 27. Please submit comments or column ideas to Seth Hemmelgarn at (415) 875-9986 or s.hemmelgarn@ebar.com.

 






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