- The Washington Times - Tuesday, February 6, 2018

A California judge refused this week to order a baker to make a wedding cake for a same-sex couple, ruling that to do otherwise would be to trample on the baker’s free speech rights.

Superior Court Judge David R. Lampe said in his Monday ruling that wedding cakes run to the core of the First Amendment.

“It is an artistic expression by the person making it that is to be used traditionally as a centerpiece in the celebration of a marriage. There could not be a greater form of expressive conduct,” the judge wrote.

His decision contrasts with a ruling out of Colorado, where a court ruled that a baker could not refuse to bake for a same-sex couple, arguing the state’s public accommodation law trumped that baker’s First Amendment claims. That case is now before the U.S. Supreme Court.

David Mullins and Charlie Craig filed a complaint after Colorado baker Jack Phillips told them he wouldn’t create a custom cake for a party celebrating their union in 2012, because it violated his Christian faith. After feeling rejected, the couple filed a complaint with the Civil Rights Commission.

As a result of the ruling, Mr. Phillips has not been making wedding cakes at all in order to appease the court’s order and not violate his faith, which has cost him a large portion of his profits.

His case is currently before the U.S. Supreme Court.

California has a public accommodation law similar to Colorado.

When Cathy Miller, a devout Christian and owner of “Tastries” bakeshop in Bakersfield, refused to make a cake for Eileen and Mireya Rodriguez-De Rio, the state pursued legal action.

Ms. Miller’s attorney, Charles LiMandri with the Freedom of Conscience Defense Fund, said they gave the judge an option to hold off on issuing a decision in the case until after the high court issues its opinion in Mr. Phillip’s dispute, but the state of California had argued it was entitled to a decision.

“That may not have been the one they wanted,” said Mr. LiMandri. “We’re obviously quite happy.”

The judge said that if the couple had bought a premade cake, they could not be refused service. But by asking the baker to make a cake specifically for them, the couple was implicating Ms. Miller’s expression — even if they didn’t ask for a message to be added to the cake.

“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,” Judge Lampe wrote in his order.

“The difference here is that the cake in question is not yet baked,” he added.

Last year, the couple met with an employee at Tastries and described how they wanted their wedding cake to look, selecting one of Ms. Miller’s display cakes. They did not want anything written on the cake.

But when they were scheduled to return to the bakeshop for their tasting, Ms. Miller canceled and directed them to “Gimme Some Sugar,” another bakery, explaining she does not support same-sex weddings.

Judge Lampe said California’s interest in preserving an open, public marketplace cannot compel an individual to endorse or communicate a message by which he or she disagrees, saying a wedding cake is not just a cake when it comes to free speech.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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