California discriminates against beleaguered Christian baker

History repeats itself. The Supreme Court twice ruled that Colorado could not compel Christians who believe marriage is a relationship between one man and one woman—in 2016’s Masterpiece Cakeshop v. Colorado Civil Rights Commission and 2024’s 303 Creative v. Elenis—to serve couples entering into “same-sex unions”.

Now there is a similar dispute in California after a state trial court decided that public officials could not compel a baker to prepare a cake for a “same-sex union.” The officials’ appeal against the baker is pending. Let’s briefly review the facts and the trial court order in a case originally called Department of Fair Employment and Housing v. Cathy’s Creation, now California Department of Civil Rights v. Tastries, before remarking on its significance.

California Department of Civil Rights v. Tastries

After ending her 30-year teaching career in 2013, Cathy Miller opened Cathy’s Creations, or Tastries, a small bakery in Bakersfield, California, which she operated in accordance with her Christian beliefs. In addition to ready-to-eat baked goods, Miller sells Christian books and gifts to anyone on first-come, first-serve bases; she and her staff also design custom baked goods for special events such as birthdays, quinceañeras, and weddings.

However, due to Tastries’ Design Standards, Miller will not create specified custom baked goods if they are incompatible with her Christian beliefs, most notably that “marriage is a sacred covenantal union between one man and woman.” As such, she has turned away custom orders inconsistent with this principle.

Controversy emerged in 2017 when two women tried to order a cake commemorating the formalization of their “same-sex union”. Although Miller would not prepare a cake, she referred the couple to a baker who agreed to do so. Subsequently, she and her staff were “barraged by rape threats, pornographic emails [too vile to print here], and harassing phone calls from men threatening to sexually assault them because of Miller’s religious beliefs.”

Additionally, as the initial suit over the injunction was pending, someone stole Miller’s laptop “and one of her employees was assaulted behind the bakery by a man who referred to the case during his attack.” Even though Miller and her employees notified the police, none of these incidents resulted in criminal prosecutions.

Following the formalization of their “same-sex union,” the women filed a complaint with the then California Department of Fair Employment and Housing, now its Civil Rights Department. Following its October 2017 investigation, the Department filed a suit alleging that Miller violated California’s Unruh Civil Rights Act by refusing to prepare a cake for the two women. After the Department unsuccessfully sought to enjoin Miller from implementing her Design Standards, it failed in its suit against Miller as a state trial court, relying on California law, entered a judgment in her Miller’s favor in July 2022.

The court gave three reasons for this judgment. First, the court determined that Miller did not discriminate because her only motivation was to “‘observe and practice her own Christian faith,’ and that ‘the design standards apply uniformly to all persons, regardless of sexual orientation.’” Second, the court observed that Miller satisfied the law by referring the couple to a baker who met their needs. Third, the court indicated that even if, arguendo, Miller violated the couple’s free speech rights, she could not be compelled to communicate in a way inconsistent with her beliefs. Interestingly, the trial judge echoed the Supreme Court’s rulings but did not address them directly.

On appeal, Miller is represented by two highly successful public interest firms engaged in protecting people of faith, the Thomas Moore Society and The Becket Fund for Religious Liberty.

Reflections

In light of clear Supreme Court precedent—which should trump state law because constitutional rights are at issue—it is troubling that officials in California continue to persecute (a term I use intentionally) Cathy Miller. California’s ongoing efforts at lawfare, which ignore (and even undermine) Miller’s First Amendment rights to the free exercise of religion and speech, are all the more inexplicable because she willingly assisted the couple by identifying a baker who prepared the cake they requested.

What do the couple and state officials hope to achieve by ignoring unequivocal Supreme Court guidance? Or by also ignoring the state’s anti-discrimination law, which was interpreted in her favor at trial? It is not a stretch to say that if the proverbial shoe were on the other foot and a Christian sought to impose her will on others in this manner, there would likely have been immediate and vocal opposition from the media and activists. Yet, there is no public outcry, even as Miller’s business lost contracts as this dispute became public, while she and her staff were appallingly harassed and at least one was physically assaulted.

Further, it is perplexing that California officials did not do more to protect Miller and her employees even as they continue to press the issue against Tastries. The deafening media silence in not condemning the repugnant threats against Miller, her business, and staff speaks volumes. This case illustrates the rampant hypocrisy of those who fail to condemn such outrageous behavior of some individuals whose ideas are different from their own, while attempting to compel others to agree with positions that violate their sincerely held religious beliefs.

In sum, Tastries is significant because its outcome may have a great deal to say about whether Americans can learn to demonstrate mutual respect for one another even if they disagree on key questions of the day while condemning those who engaged in execrable and harmful behavior.

Having heard oral arguments on December 17, 2024, the appellate court is likely to render a final judgment in Tastries during sometime this spring.