A Bay Area legal group was one of several organizations that filed amicus briefs in support of the state's appeal of a lower court decision that a Bakersfield bakery has a right not to sell a wedding cake to a same-sex couple.
In the case of California Civil Rights Department v. Tastries, attorneys for Catherine Miller of Cathy's Creations, a Bakersfield-based bakery doing business as Tastries, argued that she had a right under the First Amendment to the United States Constitution not to make the cake for a same-sex couple back in 2017 due to her Baptist beliefs, according to a brief filed with the California Court of Appeal for the Fifth Appellate District in January.
The Lawyers' Committee for Civil Rights of the San Francisco Bay Area filed its brief April 11.
"Tastries' refusal to sell a blank, white cake base to a lesbian couple based on their sexual orientation is unequivocally illegal," Nisha Kashyap, a racial justice program director with the committee, told the Bay Area Reporter. "The trial court's decision permitting this discrimination opens the door to discrimination by all types of businesses and threatens the civil rights of millions of Californians, including members of the LGBTQ community, interracial couples, people of color, and immigrants. We were proud to file an amicus brief, urging the Court of Appeal to correct this erroneous decision."
Equality California, the statewide LGBTQ rights organization, also spoke out in a statement to the B.A.R.
"Religious freedoms should not be a license to discriminate," stated Jorge Reyes Salinas, EQCA's communications director. "Unfortunately, the owners of Tastries Bakery are not part of the more than two-thirds of Americans who oppose permitting businesses to refuse service to LGBTQ+ people on religious grounds. LGBTQ+ people are family members, co-workers, business owners, classmates, and customers in every community across California.
"We know the vast majority of business owners believe in treating all their customers with dignity and respect, and we call on all fair-minded business owners to condemn discrimination and stand on the side of equality," Salinas added.
Cake controversy
The case is reminiscent of another that gained national headlines, Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the U.S. Supreme Court in 2018 ruled 7-2 in favor of a baker who would not bake a cake for a same-sex couple due to his religious beliefs. The court found that a Colorado commission was biased against baker Jack Phillips' religious beliefs — thus avoiding the broader questions about anti-discrimination laws and the First Amendment, which have become increasingly salient as LGBTQ people have gained legal protections.
The imbroglio at Tastries started seven years ago when a mixed-sex group, including lesbian couple Mireya and Eileen Rodriguez-Del Rio, came to the shop for a scheduled tasting, Miller's brief states.
"Upon their arrival, Miller believed these five were the bride and groom along with the maid of honor, the best man, and a mother," Miller's brief stated. When she realized "a few minutes into the consultation" that this was a request for a same-sex wedding cake, Miller "explained that she could not make their wedding cake because doing so would violate her Christian beliefs. Miller offered to connect them with a different custom wedding cake designer."
The Department of Fair Employment and Housing (now the California Civil Rights Department) opened an investigation into Miller in October 2017 after the same-sex couple filed a formal complaint, the brief states.
In 2018, the civil rights department determined Miller had violated the Unruh Civil Rights Act, Civil Code Section 51, which states businesses in the Golden State can't discriminate on the basis of age, ancestry, color, disability, national origin, race, religion, sex and sexual orientation, and filed a lawsuit against Tastries.
(The Unruh act was named for the late Jesse M. Unruh, the once-powerful state Assembly speaker who authored it in 1959. Sexual orientation was added in 2005.)
In 2022, however, Kern County Superior Court Judge J. Eric Bradshaw entered a judgment in Miller's favor.
"The court found that Miller's religious beliefs about marriage were sincere, and that her only motivation at all times was to 'observe and practice her own Christian faith,' and that 'the design standards apply uniformly to all persons, regardless of sexual orientation,'" Miller's brief stated. "Even assuming that Miller's conduct violated the Act, the Free Speech Clause of the United States Constitution did not allow the Department to compel Miller to create custom cakes for same-sex weddings."
Mireya and Eileen Rodriguez-Del Rio could not be reached for comment. In 2022, Eileen Rodriguez-Del Rio told USA Today that she and her wife expected the state to appeal.
"Of course we're disappointed, but not surprised," she told the paper. "We anticipate that our appeal will have a different result."
In October 2023, the state appealed the decision to the appellate court, where the matter is pending.
"In California, we refuse to stand down and let others roll back the clock on fundamental civil rights protections," stated Mary Wheat, the Civil Rights Department's chief deputy director, in a news release at that time. "Every couple deserves to celebrate and mark their special occasions without fear of discrimination. Refusal to provide equal access to goods and services is against the law.
"I encourage all Californians who believe their civil rights have been violated to reach out to our office and work with us in fighting for your rights," Wheat added.
In its appellate brief, the state alleges that the cake in question is "a plain, predesigned cake used interchangeably by the bakery for a variety of celebrations, from birthday parties to baby showers."
"By operation, Tastries's Design Standards expressly treat one class of individuals — heterosexuals — differently from other non-heterosexual classes," the state's brief stated. "The Design Standards specifically state that Tastries will only provide a cake for a wedding between a man and a woman. Thus, gay or lesbian couples, whose marriages are same-sex oriented, are denied the opportunity to purchase a Tastries cake to celebrate their marriage — one that is made freely available to couples of a heterosexual (i.e., a couple formed by combining a man and woman) orientation. When Tastries realizes a couple is not heterosexual and having a wedding, it purposefully refuses to provide a cake on that basis alone."
Amicus briefs
The Bay Area lawyer's committee's brief begins that "the trial court's decision not only legitimizes Tastries' open and deliberate discrimination ... but threatens to undo decades of progress in protecting the civil rights of marginalized groups. The ruling opens the door for businesses to wantonly discriminate against individuals based on their sex, race, sexual orientation, religion, and disabilities — all under the guise of religious freedom and free expression."
It does this in three ways, the brief alleges: first, it "creates an exception for discriminatory conduct based on religious beliefs."
"Applying the trial court's logic, a business could explicitly discriminate against anyone based on a protected characteristic — so long as its proprietor alleges a sincere religious objection to treating that individual the same as others," the brief states. "Unchecked, this exception would eviscerate the Unruh Act's protections."
The second way is that by excusing Miller referring the couple to an LGBTQ-friendly baker, the court "condone[s] a return to the Jim Crow 'separate but equal' era," the lawyer's committee brief states.
Finally, "the trial court's conclusion that requiring Tastries to make a blank cake for a same-sex wedding would violate Catherine Miller's First Amendment free speech rights departs from well-established precedent."
"If upheld, the ruling would allow virtually any business to discriminate against protected individuals by asserting a right to avoid 'compelled' speech or expressive conduct," the brief states. "This cannot be correct."
Americans United for Separation of Church and State filed an amicus brief of its own April 12, alongside Bend the Arc: A Jewish Partnership for Justice, the Global Justice Institute, the Reconstructionist Rabbinical Association, and the Sikh Coalition.
"Christian Nationalists are trying to drag this country back to the days when people from marginalized communities were forced to go door to door because businesses displayed signs like 'No Jews, No Blacks, No Irish,'" Rachel Laser, president and CEO of Americans United, stated in a news release. "Decades ago we as a society agreed that when a business decides to open its doors to the public, it must be open to all. If religious extremists are successful in getting the courts to allow religiously motivated discrimination against LGBTQ+ people, that license to discriminate could harm other vulnerable communities too."
That brief quotes the Masterpiece case, stating religious objections "do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law."
The brief continues: "The Free Exercise Clause is not, and never has been, a free pass to violate the law. And neither federal nor state free-exercise protections compel California to exempt Tastries from the state's prohibition against discrimination in public accommodations on the basis of sexual orientation."
Attorneys with the Becket Fund for Religious Liberty, representing Miller, did not return a request for comment for this report. A spokesperson for the Civil Rights Department stated that the case is currently in the briefings stage, and the court has not yet set a date to hear the appeal.
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