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Judge's baked ruling in CA cake case

by BAR Editorial Board

Judge's baked ruling in CA cake case

Kern County Superior Court Judge David Lampe got it wrong last week when he ruled in favor of a woman who said that her religious beliefs against same-sex marriage prevented her from making a cake for a lesbian couple's wedding reception. We urge the appeals court to swiftly overturn this unusual ruling.

In the case, Tastries owner Cathy Miller told Eileen and Mireya Rodriguez-Del Rio that they would have to go elsewhere for their cake because she does not condone same-sex marriage. The couple filed a complaint with the state Department of Fair Employment and Housing, claiming that Miller had violated the state's Unruh Act, which prohibits discrimination based on sexual orientation. The agency investigated and filed a complaint against Miller and her company.

But when Lampe heard the request for a preliminary injunction to compel Miller to provide her professional services to the couple, he ruled for Miller, saying that she has a First Amendment right to discriminate. This is a dangerous precedent, particularly given that the U.S. Supreme Court will issue a decision this spring in its own gay cake case, Masterpiece Cakeshop v. Colorado Civil Rights Commission. As Jon Davidson, a longtime gay civil rights attorney who recently stepped down from Lambda Legal Defense and Education Fund, wrote in an op-ed for the Los Angeles Blade, discriminatory treatment is conduct not speech.

The good news is that the state likely will appeal Lampe's order. In similar cases, judges and state anti-bias divisions have ruled that conduct such as Miller's is discriminatory. As Davidson wrote, "Every other U.S. court to have considered similar First Amendment claims advanced by bakers, florists, photographers, invitation designers, and reception halls has rejected the arguments on which Judge Lampe relied."
The First Amendment grants citizens a wide berth for speech - people can say just about anything; but it does not give people the right to discriminate.

This case is just the latest example of conservative law groups latching on to someone's anti-same-sex marriage beliefs in the hope of getting a favorable ruling to set a legal foundation allowing bias. In this case, they did, but we suspect that their "victory" will be short-lived. Whether in Bakersfield or San Francisco, state law prohibits discrimination based on sexual orientation. The state was right to investigate and seek the injunction. The appeals court should grant it.

A sucker punch for trans students
It's no secret that the Trump administration despises trans people. Whether young or old, students or military members, the president and his administration have successfully rescinded rights and tried to block trans people from enlisting in the armed forces. This week, BuzzFeed News reported that the Education Department will flatly refuse to investigate or take any action on complaints from trans students who are denied access to restrooms that correspond to their gender identity. "It's the first time officials have asserted this position as a formal interpretation of law," BuzzFeed reported. "No public announcement has been made." While this development is not surprising, it is a sucker punch to trans students and their families. More trans and gender-nonconforming students are coming forward each school year with issues related to restroom access, and now the federal government is putting them in potentially life-threatening situations by declining to investigate.

PFLAG, which has worked with LGBTQ people and their families and allies for years, called the announcement "abhorrent." Its executive director, Jaime Grant, said that Title IX remains the law in the U.S. Title IX of the Education Amendments of 1972 protects people from discrimination based on sex in education programs or activities that receive federal financial assistance. In recent years, courts in two jurisdictions have ruled that discrimination based on sex extends to gender identity with respect to restroom access, and a Wisconsin school district settled a case for $800,000. But this week, Education Secretary Betsy DeVos decided otherwise. BuzzFeed's story noted that a department spokeswoman said that other types of discrimination against trans students may be investigated, but not bathroom complaints.

Lucas Acosta, LGBTQ media director for the Democratic National Committee, assailed the decision, noting that it's the latest move by an anti-LGBT Education Department. "In the last year, the Trump administration has rolled back critical protections for the LGBTQ community, and today's decision by Betsy DeVos is no different," he said in a statement. "By refusing to take action on complaints filed by transgender students denied the right to use bathrooms that match their gender identities, DeVos is willingly undermining Title IX and turning her back on individuals facing institutional discrimination."

DeVos should cease her self-serving pity party. Last week she tweeted her dismay and said her feelings were "hurt" by people saying she's not defending the rights of all students. But guess what? This week her department did just that by backtracking on policy. Spare us, Ms. DeVos. We know that you do not believe in defending the rights of all students, least of all LGBTQ youth.

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