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California Judge Issues Unprecedented Ruling in Favor of Baker Who Declined to Make Wedding Cake for Same-Sex Couple

Posted on: February 8th, 2018 by Art Leonard No Comments

Breaking a consensus among courts that has developed over the past several years that people with religious or moral objections to same-sex weddings are not entitled to exempt their business from selling goods or services for such events, Kern County (California) Superior Court Judge David Lampe ruled on February 5, 2018, in Department of Fair Employment and Housing v. Miller, BCV-17-102855, that Cathy Miller, owner of Cathy’s Creations, Inc., doing business as Tastries Bakery in Bakersfield, California, is entitled to a First Amendment exemption from complying with California’s law that bans sexual orientation discrimination by businesses.  Judge Lampe is the first to rule in favor of a business in such a case.

Miller refused to make a wedding cake for Eileen and Mireya Rodriguez-Del Rio, who came to her bakery in August 2017 to plan for a celebration to take place in October.  They had selected a design of a cake in the display case, but since their celebration would not be until October, the transaction would be for Miller to prepare a cake specifically for their event.  “The couple did not want or request any written words or messages on the cake,” wrote the judge in his opinion.  Nonetheless, Miller refused to make it because of her religious objections to same-sex marriage, and offered to refer them to another bakery in town that was happy to make wedding cakes for same-sex couples.

Eileen and Mireya filed an administrative complaint, charging Miller and her business with a violation of the Unruh Civil Rights Act, California’s law that prohibits discrimination by businesses.  The Department of Fair Employment and Housing, with is charged with enforcement of the law, filed suit against the bakery, asking the court to issue an injunction requiring that Miller’s business not refuse to make wedding cakes for same-sex couples.

Miller’s defense relied on two provisions of the First Amendment of the U.S. Constitution, one forbidding laws that abridge freedom of speech, and the other forbidding laws that prohibit the free exercise of religion.   Judge Lampe decided that this case could be resolved most easily by reference to the free speech provision, and did not render a ruling on whether the free exercise of religion clause would protect Miller in this case.

The judge accepted Miller “cake artist” argument, the same argument that Jack Phillips of Masterpiece Cakeshop in Colorado is making in his case pending before the U.S. Supreme Court.  Miller and Phillips argue that when they are contracting to produce a cake for a specific event, they are engaging in a creative effort that communicates a message of endorsement for that event.  Under this theory of symbolic speech, they argue, requiring them to make the cake when they do not approve of the event is compelling them to voice a particular message.

They rely on past decisions in which the Supreme Court has found that government officials had violated free speech rights by compelling people to voice particular messages with which they disagree, such as the famous “flag salute” cases first decided during World War II and most recently reiterated in  Wooley v. Maynard, 430 U.S. 705 (1977), in which the Court famously reversed direction on this issue, overruling its own prior precedent to find that the government cannot compel a student to recite the pledge of allegiance.  Although there are circumstances where the courts have held that government requirements did not impose a substantial burden on free speech, the compelled speech argument has taken on particular weight in several important LGBT-related rulings.

The Supreme Court unanimously ruled in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), for example, that Massachusetts civil rights authorities could not compel the organizers of the Boston St. Patrick’s Day Parade to include an LGBT rights contingent in the parade with a banner proclaiming their identity.  The court said this would unconstitutionally compel the parade organizers to include a message in their event that they did not want to include.  Similarly, although more controversially, the Court later ruled in Boy Scouts of America v. Dale, 530 US 640 (2000), that the BSA was not required to allow an openly gay man to service as an adult leader, because that would be compelling them to implicitly send a message of endorsement for homosexuality which they did not want to communicate to their members or the public.  Unlike the unanimous parade decision, however, the Court split 5-4 in the Boy Scouts case, with a minority rejecting the contention that the BSA’s free speech rights would be unconstitutionally burdened.

Despite these rulings, the Court concluded that Congress did not unconstitutionally burden the free speech rights of law schools when it required them to allow military recruiters equal access to their facilities, reasoning that the schools were free to communicate their disagreement with the anti-gay policies then followed by the Defense Department and that hosting the recruiters was not necessarily sending a message of agreement with their policies.  Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006).  And the Court concluded that a state university law school was not violating the free speech or free exercise rights of conservative Christian students when it required a Christian Legal Society chapter to allow gay students to be members if CLS wanted to be an officially recognized student organization.  Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010).

It is difficult to follow a consistent thread of reasoning through these cases, each of which presents a slightly different factual context, which is why there is some suspense about how the Supreme Court is going to decide the Masterpiece Cakeshop case.  So far, however, lower courts have been unanimous in ruling that bakers, florists, photographers, videographers, non-religious wedding venues are all required to comply with public accommodations laws (in states where they exist) and provide their services and goods to same-sex couples celebrating their unions.

Judge Lampe, the first to depart from this consensus, accepted Miller’s compelled speech argument.  “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,” wrote the judge.  “No baker may place their wares in a public display case, open their shop, and then refuse to sell because of race, religion, gender, or gender identification.”

But, he wrote, this case is different. “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 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.”

Judge Lampe acknowledged that there was a clash of rights here, and no matter which way he ruled, somebody would feel insulted. “The court finds that any harm here is equal to either complainants or defendant Miller, one way or the other. If anything, the harm to Miller is the 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 most effective Free Speech in the family of our nation is when we speak and listen with respect.  In any case, 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.  Nevertheless, the court’s duty is to the law.  Whenever anyone exercises the right of Free Speech, someone else may be angered or hurt.  This is the nature of a free society under our Constitution.”

The judge acknowledged that the case is more difficult if it is treated as a free exercise of religion case, because the Supreme Court has ruled that neutral state laws of general application do not include within them a constitutional exemption for religious dissenters. “Whether the application of the Unruh Act in these circumstances violates the Free Exercise clause is an open question,” he wrote, “and the court does not address it because the case is sufficiently resolved upon Free Speech grounds.”

Interestingly, the judge’s approach mirrors that of U.S. Solicitor General Noel Francisco in the Masterpiece Cakeshop case before the Supreme Court. In briefing and argument, the Solicitor General placed the government’s support for Jack Phillips’ right to refuse to make the wedding cake entirely on Free Speech grounds, and disclaimed taking any position on his right of free exercise of religion – despite the Trump Administration’s more general position, expressed in a “religious freedom” memorandum by Attorney General Jeff Sessions, that religious free exercise rights should be treated as superior to just about any other legal claim.

Perhaps Judge Lampe’s decision is truly an outlier in the ongoing controversies stemming from the Supreme Court’s ruling in 2015 that same-sex couples have a constitutional right to marry, but on the other hand it may be an accurate prediction of how the Supreme Court will deal with the issue, at least in cases where the goods or services at issue could be plausibly described in terms of expressive content.

Oregon Court of Appeals Rules against Baker in “Gay Wedding Cake” Case

Posted on: December 31st, 2017 by Art Leonard No Comments

A unanimous three-judge panel of the Court of Appeals of Oregon affirmed a ruling by the Oregon Bureau of Labor and Industries (BOLI) that Melissa and Aaron Klein, doing business as Sweetcakes by Melissa, violated the state’s public accommodations law by refusing to provide a wedding cake for Rachel and Laurel Bowman-Cryer.  The ruling upheld an award of $135,000 in damages, rejecting the Kleins’ argument that this application of the state law to them violates their 1st Amendment rights.  However, the court overruled the BOLI’s determination that the Kleins’ public remarks in connection with this case had also violated a separate section of the law forbidding businesses to announce in advance that they will discriminate in the future.  Judge Chris Garrett wrote for the panel.

This case is, for all practical purposes, a virtual clone of the Colorado case, Masterpiece Cakeshop, which was argued at the U.S. Supreme Court on December 5, 2017.

Rachel and Laurel first met in 2004 and decided to marry in 2012. Rachel and her mother, Cheryl, went to a Portland bridal show as part of their wedding planning, and visited Melissa Klein’s booth at the show.  Sweetcakes by Melissa had designed, created and decorated a wedding cake for Cheryl’s wedding two years before, and Rachel and Cheryl told Melissa that they would like to order a cake from her.  A cake-testing appointment was set up for January 17, 2013.  Rachel and Cheryl visited the bakery shop, in Gresham, for their appointment.  Melissa was at home performing child care, so the appointment was with her husband and co-proprietor, Aaron.  During the tasting, Aaron asked for the names of the bride and groom, and was told there were two brides, Rachel and Laurel.  “At that point,” wrote Judge Garrett, “Aaron stated that he was sorry, but that Sweetcakes did not make wedding cakes for same-sex ceremonies because of his and Melissa’s religious convictions.  Rachel began crying, and Cheryl took her by the arm and walked her out of the shop.  On the way to their car, Rachel became ‘hysterical’ and kept apologizing to her mother, feeling that she had humiliated her.”

In their car, Cheryl assured Rachel that they would find somebody else to make the cake. After driving a short distance, Cheryl turned back and re-entered the bakery by herself to talk with Aaron.  “During their conversation,” wrote Judge Garrett, “Cheryl told Aaron that she had previously shared his thinking about homosexuality, but that her ‘truth had changed’ as a result of having ‘two gay children.’  In response, Aaron quoted a Bible passage from the Book of Leviticus, stating, ‘You shall not lie with a male as one lies with a female; it is an abomination.’  Cheryl left and returned to the car, where Rachel had remained, ‘holding [her] head in her hands, just bawling.”  Cheryl telling Rachel that Aaron had called her an “abomination” didn’t make things any better.  Rachel later stated that “it made me feel like they were saying God made a mistake when he made me, that I wasn’t supposed to be, that I wasn’t supposed to love or be loved or have a family or live a good life and one day go to heaven.”  When they got home and told Laurel what had happened, she recognized the “abomination” reference from Leviticus and “felt shame and anger.  Rachel was inconsolable, which made Laurel even angrier.”  It was Laurel who filed an online complaint with the Oregon Department of Justice, but later she filed a complaint with BOLI, as did Rachel.

News of the complaints generated a wave of media attention, which resulted in death threats and adverse attention to Rachel and Laurel as well as to the Kleins. Ultimately, BOLI’s investigation concluded that the Kleins violated two sections of the public accommodations law, one forbidding discrimination by businesses in providing goods and services because of the sexual orientation of customers, the other, based on statements that the Kleins had made about the case, as well as a sign they posted in their bakery, that they violated a provision making it unlawful for a business to announce its intent to discriminate against customers because of their sexual orientation.  An administrative law judge (ALJ) sustained the first but not the second, finding that the comments in question related to the Klein’s position on this case and was not a general announcement of intent to discriminate in the future.  At the agency level, however, BOLI, disagreeing with the ALJ on this point, ruled that both provisions had been violated, and the Kleins appealed to the Court of Appeals.  The ALJ and BOLI agreed on an award of $135,000 in damages to Rachel and Laurel, to compensate them for the mental, emotional or physical suffering sustained because of the discrimination.  The agency rejected a claim for additional damages for mental, emotional or physical suffering stemming from the media and public response to their filing of the discrimination charges against the Kleins.

The first issue for the court was to determine whether the Kleins were correct in arguing that they had not violated the statute because, as they contended, their business does not discriminate against people because of their status as gay, but rather, in this instance, was declining to “facilitate the celebration of a union that conveys a message about marriage to which they do not subscribe and that contravenes their religious beliefs.” The court rejected this attempt to skirt the issue, commenting that “there is no reason to believe that the legislature intended a ‘status/conduct’ distinction specifically with regard to the subject of ‘sexual orientation.’”
Judge Garrett pointed to the state’s passage of the Oregon Family Fairness Act, which specifically provides that same-sex couples should be entitled to the same rights and privileges of different-sex couples. “The Kleins have not provided us with any persuasive explanation for why the legislature would have intended to grant equal privileges and immunities to individuals in same-sex relationships while simultaneously excepting those committed relationships from the protections of” the public accommodations law. The court pointed out that “under the distinction proposed by the Kleins, owners and operators of businesses could continue to oppress and humiliate black people simply by recasting their bias in terms of conduct rather than race.  For instance, a restaurant could refuse to serve an interracial couple, not on account of the race of either customer, but on account of the conduct – interracial dating – to which the proprietor objected.  In the absence of any textual or contextual support, or legislative history on that point, we decline to construe [the law] in a way that would so fundamentally undermine its purpose.”

Indeed, wrote the court, “The Kleins refused to make a wedding cake for the complainants precisely and expressly because of the relationship between sexual orientation and the conduct at issue (a wedding).  And, where a close relationship between status and conduct exists, the Supreme Court has repeatedly rejected the type of distinction urged by the Kleins.”  Judge Garrett cited the Supreme Court’s 2010 ruling, upholding the University of California-Hasting’s refusal to extend official recognition to a Christian Legal Society chapter whose membership policies excluded gay people, in which Justice Ruth Bader Ginsburg, writing for the Court, made this point, as well as Lawrence v. Texas, the Texas sodomy law case, where Justice Kennedy wrote for the Court that making gay conduct a crime was “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”

Turning to the constitutional challenges, the court rejected both the free speech and free exercise of religion arguments. For one thing, the court found, while conceding there would be an element of artistic expression and creativity in the process of making a wedding cake, this did not present the type of free speech issues that would merit strict scrutiny from the court.  Rather, the court found, the Supreme Court’s public accommodations jurisprudence treated such laws as neutral laws intended to achieve a legitimate purpose of extending equal rights to participate in the community, and not specifically targeted on particular political or religious views held by a particular business person.  The Kleins premised their arguments largely on the Supreme Court’s Hurley (St. Patrick’s Day Parade) and Dale (Boy Scouts) cases, in which the Supreme Court held that application of a public accommodations law to require an organization or association to include gay people would have to yield to the free expression rights of an organization that has a particularly expressive purpose.  They also focused on the famous flag salute cases from World War II and other cases in which the Supreme Court ruled that the government cannot compel private individuals to express a message dictated by the government.

Wrote Judge Garrett, “We must decide whether the Kleins’ cake-making activity is sufficiently expressive, communicative, or artistic so as to implicate the First Amendment, and, if it is, whether BOLI’s final order compelling the creation of such expression in a particular circumstance survives First Amendment scrutiny.” Reviewing the way the Kleins produced customized wedding cakes for their customers, the court found, “the Kleins’ argument that their products entail artistic expression is entitled to be taken seriously.  That being said, we are not persuaded that the Kleins’ wedding cakes are entitled to the same level of constitutional protection as pure speech or traditional forms of artistic expression.  In order to establish that their wedding cakes are fundamentally pieces of art, it is not enough that the Kleins %believe% them to be pieces of art.  For First Amendment purposes, the expressive character of a thing must turn not only on how it is subjectively perceived by its maker, but also on how it will be perceived and experienced by others.  Here, although we accept that the Kleins imbue each wedding cake with their own aesthetic choices, they have made no showing that other people will necessarily experience %any% wedding cake that the Kleins create predominantly as ‘expression’ rather than as food.”

Further, the court found that it would be a different case “if BOLI’s order had awarded damages against the Kleins for refusing to decorate a cake with a specific message requested by a customer (‘God Bless This Marriage,’ for example) that they found offensive or contrary to their beliefs.” Then an articulated message would be conveyed, and the First Amendment issue would be much stronger.  Responding to the Kleins’ concern that the wedding cake communicates a “celebratory message” about the wedding, which they did not wish to communicate, the court pointed out that “the Kleins have not raised a nonspeculative possibility that anyone attending the wedding will impute that message to the Kleins.”  In short, wedding guests will not respond to seeing the cake at the reception by thinking that the baker is “celebrating” or “approving” this wedding.  There is nothing in the law that requires the Kleins to formally endorse same-sex marriages.

However, having found that there is at least some First Amendment free speech interest involved, the court applied “intermediate scrutiny” and found that the state had a compelling interest “both in ensuring equal access to publicly available goods and services and in preventing the dignitary harm that results from discriminatory denials of service. That interest is no less compelling with respect to the provision of services for same-sex weddings,” wrote Garrett.  “Indeed, that interest is particularly acute when the state seeks to prevent the dignitary harms that result from the unequal treatment of same-sex couples who choose to exercise their fundamental right to marry,” as established in Obergefell, the Supreme Court’s marriage equality decision.

The court concluded that “any burden imposed on the Kleins’ expression is no greater than essential to further the state’s interest,” pointing out that “BOLI’s order does not compel the Kleins to express an articulable message with which they disagree. … Given that the state’s interest is to avoid the ‘evil of unequal treatment, which is the injury to an individual’s sense of self-worth and personal integrity,’” wrote Garrett, quoting from a prior Oregon Supreme Court case, “there is no doubt that interest would be undermined if businesses that market their goods and services to the ‘public’ are given a special privilege to exclude certain groups from the meaning of that word.”

Turning to the free exercise of religion point, the court noted that the Supreme Court held in Employment Division v. Smith that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribed (or prescribes) conduct that his religion prescribes (or proscribes).”  The “incidental effect” on religion of such laws does not violate the 1st Amendment.

The court devoted most of its analysis on this point to distinguishing cases offered by the Kleins as exceptions to this rule. All of those cases involved special circumstances where it could be shown that although the laws in question were neutral on their face, they had been intended by the legislature to apply to particular religious practices and were thus not really “neutral to religion.”  The Kleins also pushed a “hybrid rights” theory, mentioned in passing in the Smith case, under which when a party’s claim arises under two different constitutional rights guarantees (in this case speech and religious exercise) the burden of justification on the state should be raised to strict scrutiny.  The court observed that apart from the passing mention in Smith, that concept had not been developed by the Supreme Court, had been rejected by many other courts, and specifically had never been adopted by the Oregon Supreme Court in construing the state’s constitution.

The court rejected the Kleins’ arguments that recognizing a limited or narrow exception for businesses whose owners had religious objections to same-sex marriage would have only a “minimal” effect on “the state’s antidiscrimination objectives,” pointing out that “those with sincere religious objections to marriage between people of different races, ethnicities, or faiths could just as readily demand the same exemption. The Kleins do not offer a principled basis for limiting their requested exemption in the manner that they propose, except to argue that there are ‘decent and honorable’ reasons, grounded in religious faith, for opposing same-sex marriage, as recognized by the United States Supreme Court in Obergefell.  That is not in dispute.  But neither the sincerity, nor the religious basis, nor the historical pedigree of a particular belief has been held to give a special license for discrimination,” wrote Garrett.

The court rejected the Kleins’ claim for free speech and religious exemptions under the Oregon Constitution, pointing out that they had not advanced any additional arguments peculiar to Oregon constitutional jurisprudence that would justify going beyond the federal constitutional analysis in this case. The court also rejected the argument that BOLI’s ruling should be set aside because BOLI’s Commissioner had made public comments about the case before voting to affirm the ALJ’s ruling and award the damages.  The court found that the commissioner’s comments “fall short of the kinds of statements that reflect prejudgment of the facts or an impermissibly closed-minded view of law or policy so as to indicate that he, as a decision maker, cannot be impartial.”  The court rejected the Kleins’ objection to the damage award, finding that the ALJ and BOLI had scrupulously limited the award to damages flowing from the Kleins’ discrimination and had an adequate basis in the trial record to award the amounts in question, which were not out of line with awards in other cases.

However, the court concluded that BOLI erred by failing to affirm the ALJ’s conclusion that the Kleins had not violated a section of the law that forbids any business “to publish, circulate, issue or display… any communication, notice, advertisement or sign of any kind to the effect that any of the accommodations, advantages, facilities, services or privileges of the place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of. . . sexual orientation.” The court, agreeing with the ALJ but not with BOLI, found that the Kleins’ public comments about their determination to defend this case and to adhere to their religious beliefs did not specifically violate this provision.

The Kleins were careful in wording the sign they put up at their bakery and in their comments on Facebook and in the press to avoid stating that they would discriminate because of a customer’s sexual orientation. Their position throughout this case is that they were not engaging in such discrimination.  The court was not willing to interpret this section of the statute as exposing businesses to additional liability for stating publicly their belief that their past action had not violated the law.  Since BOLI’s calculation of damages awarded to Rachel and Laurel did not include any amount for violation of this section, however, the reversal of this part of the decision did not require any reduction in damages.

The Kleins were represented in this appeal by attorneys from several law firms, some specializing in championing socially conservative causes, so it would not be surprising to see them file an appeal with the Oregon Supreme Court. The Oregon attorney general’s office represented BOLI.  Lambda Legal filed an amicus brief on behalf of Rachel and Laurel.  A long list of liberal religious associations and organizations joined in an amicus brief filed by pro bono attorneys in support of BOLI’s ruling, and amicus briefs were also filed by the ACLU and Americans United for Separation of Church and State.