Superior Court of California
County of Kern
Bakersfield
Department 11
Time:
02/05/2018
Date:
8:00
AM
-
5:00
PM
BCV-17-102855
Courtroom Stai!
Honorable:
David
Court reBorter:
P
ATHY
:
R.
Lampe
Clerk:
Veronica D. Lancaster
Bailiff:
.NONE
a
None
CHARLES LIMANDRI, Attorney, not present
CHARLES LIMANDRI, Attorney, not present
MILLER, Defendant, not present
CATHY'S CREATIONS, INC. DBA TASTRIES, A CALIFORNIA
CORPORATION, Defendant, not present
DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, AN
AGENCY OF THE STATE 0F CALIFORNIA, Plaintiff, not present
EILEEN RODRIGUEZ-DEL RIO, NonaParty, not present
MIREYA RODRIGUEZ-DEL RIO, Non-Party, not present
GREGORY MANN,
Attorney, not present
NATURE OF PROCEEDINGS: RULING 0N ORDER T0 SHOW CAUSE IN RE: PRELIMINARY INJUNCTION;
DEPARTMENT OF FAIR HOUSING; HERETOFORE SUBMITTED ON FEBRAURY 2, 2018
FILED BY PLAINTIFF
Introduction
The State of
California brings this action
defendants Cathyas Creations,
to be used
in
Inc.
under the Unruh
and Cathy
Civil
Code section 51, against
design and create wedding cakes
Rights Act,
Miller. Miller refuses to
Civil
the celebration of same sex marriages. She believes that such marriages violate her deeply
held religious convictions. The State seeks to enjoin this conduct as unlawfully discriminatory.
brings the action
upon the administrative complaint of
a
The State
same-sex married couple, complainants
Rodriquez-Del Rios.
The State cannot succeed on the
under the
The
First
right of
facts presented as a
Amendment outweighs
matter of law. The
the Stateas interest
in
right to
freedom of speech
ensuring a freely accessible marketplace.
freedom of thought guaranteed by the First Amendment includes the
from speaking. Sometimes the most profound protest is silence.
right to speak,
and the
right to refrain
No
public
commentator
which he disagrees
in
in
the
the marketplace of ideas
name
of equal access.
may be
forced by law to publish any opinion with
No person may be forced by the
State to stand and
The law cannot compel anyone to stand for the National
a state-sponsored slogan on license plates against their
recite the Pledge of Allegiance against her will.
Anthem. No persons may be forced to advertise
religious beliefs.
MINUTE ORDER
Page 1 of 8
DEPARTMENT OF
CREATIONS,
INC.
FAIR
EMPLOYMENT AND HOUSING VS CATHY'S
BCV-17-102855
The
purpose to ensure an accessible public marketplace free from discrimination
Stateas
and necessary public
goal.
No vendor may
refuse to
sell
is
a laudable
their public goods, or services (not
fundamentally founded upon speech) based upon their perception of the gender identification of their
does not want to
No
retail tire
having placed their work for public sale,
artist,
No baker may
purpose.
sell
sell tires
A
shop may not refuse to sell a tire because the owner
to same sex couples. There is nothing sacred or expressive about a tire.
customer, even upon religious grounds.
because of race,
The difference here
is
order defendants to
and create
a
place their wares
religion,
refuse to
sell
public display case,
in a
for an unlawful discriminatory
open
and then refuse to
their shop,
gender, or gender identification.
that the cake
sell a
may
cake.
in
question
The State asks
is
not yet baked. The State
this court to
compel
is
not petitioning the court to
Miller to use her talents to design
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.
The Unruh Act prohibits discrimination on the basis of religion, as well as sexual orientation. Would
court force a baker who strongly favored GLBT rights to create and design a wedding cake she had
refused to a Catholic couple, in her protest ofthe Catholic Church's prescription against same-sex
marriage? The answer
foot the shoe
is
on.
is
aNo.a This court has an obligation to protect Free Speech, regardless of
The court takes
judicial notice, not of
hearing on this matter there was a gathering
voiced their views.
stuff of tyranny.
ensure that
all
Would
this court
in
the content, but of the
front of the courthouse
fact, that
where both
this
whose
before the
sides of the debate
order one side or the other to be quiet? Such an order would be the
Both sides advocate with strong and heartfelt
beliefs,
and
this court has a
are given the freedom to speak them. The government must remain neutral
duty to
the
in
marketplace of ideas.1
No matter how the
court should rule, one side or the other
may be
visited with
some degree
of hurt,
indignity. The court finds that any harm here is equal to either complainants or defendant
one way or the other. If anything, the harm to Miller is the greater harm, 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 selfainflicted. 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
insult,
and
Miller,
enforced,
someone
necessarily loses. Nevertheless, the courtas duty
exercises the right of Free Speech,
someone
else
may be angered
is
to the law.
or hurt. This
is
Whenever anyone
the nature of a free
society under our Constitution.
Facts
Complainants Eileen and Mireya Rodriguez-Del Rio met
1
F.C.C.
v.
Pacifica Found. (1978)
438
U.S. 726,
the late 1990as at Bakersfield College, and
in
745a46, 98
S. Ct.
3026, 3038, 57
L.
Ed.
2d 1073.
MINUTE ORDER
Page 2 of 8
DEPARTMENT OF
CREATIONS,
INC.
FAIR
EMPLOYMENT AND HOUSING VS CATHY'S
BCV-17-102855
and strong friendship before becoming
built a close
in a
a couple in 2015.
They married
ceremony before their immediate family, and set a date of October
traditional
wedding reception with over 100
guests.
in
7, 2017, for a
They planned to order
a
December 2016,
vow exchange and
wedding cake
celebration. After tastings at other bakeries, Eileen and Mireya visited Tastries
in
for their
August 17, 2017 to see
sample wedding cakes. A Tastries employee named Rosemary met with the couple, showed them
wedding cakes on display in the bakery, and recorded the details of the cake they wanted. Eileen and
Mireya selected a design based on a display cake. The couple did not want or request any written words
or messages on the cake. They booked a cake tasting at Tastries for August 26, 2017. On August 26,
Mireya, Eileen, and others came to Tastries, where the owner, Cathy Miller, after apologizing, told them
that she would provide their order to Gimme Some Sugaraa competitor bakeryabecause she does not
condone same-sex marriage.
On October
18, 2017, Rodriguez-Del Rios filed an administrative complaint with the State, alleging that
Defendants violated the Unruh Act by denying them
On the
orientation.
was necessary, and
Cathy Miller
is
basis of
its
this action
bakery
in
and equal services on the basis of sexual
ensued.
a creative designer
"Tastries," a small
full
preliminary investigation, the State concluded that prompt judicial action
who owns and
operates Cathy's Creations,
Bakersfield, California.
nc.,
doing business as
As part of
its
business, Tastries creates specially
woman
of
deep
designed custom cakes, including wedding cakes.
Miller
is
a practicing Christian
Miller
is
a creative artist
and considers herself
and participates
in
a
faith.
every part of the custom cake design and creation process.
While Miller offers her services and products generally without discrimination, including her pre-made
wares, she
will
not design or create any custom cake that expresses or celebrates matters that she finds
offend her heartfelt religious principles. Thus, she refuses to create or design wedding cakes for samesex marriage celebrations, because of her belief that such unions Violate a Biblical
marriage
is
only between
Miller has entered into an
a
man and
a
command
agreement to
refer
same-sex couples to
a competitor,
Gimme Some
based upon her understanding that the owner of that bakery does not have any prohibitory
Miller
that
woman.
does not deny that she refused to design and create
a
custom wedding cake
Sugar,
policies.
for Rodriguez-Del
Rio.
Analysis
The
51
freedom of thought protected by the First Amendment includes both the right to speak
right to remain mute. (Wooley v. Maynard (1977) 430 U.S. 705, 714, 97 S. Ct. 1428, 1435,
2d 752.) The relevant principles are well presented in the Courtas Wooley decision.
right of
freely
L.
and the
Ed.
In ruling
that no child
may be compelled
by the educational system to perform the flag salute under
MINUTE ORDER
Page 3 of 8
DEPARTMENT OF
CREATIONS,
INC.
FAIR
EMPLOYMENT AND HOUSING VS CATHY'S
BCV-17-102855
threat of state discipline, the Court held that such a
political attitude
rights
today
that
it
to adhere as a
is
officially disciplined
ceremony so touched upon matters of opinion and
could not be imposed under our Constitution, finding that a[t]o enforce those
means
of strength to individual
freedom of mind
in
preference to
uniformity for which history indicates a disappointing and disastrous end.a (W.
Virginia State Bd. of Educ.
v.
Barnette (1943) 319 U.S. 624, 636, 637, 63
1178, 1184, 1185, 87
S. Ct.
L.
Ed.
1628.)
In
the case of
Miami Herald
Publishing Co.
v.
Tornillo (1974)
418
U.S. 241,
94
S.Ct.
2831, 41 L.Ed.2d 730,
the Court held a Florida statute unconstitutional which placed an affirmative duty upon newspapers to
whom
publish the replies of political candidates
they had
requirement deprived a newspaper of the fundamental
Pac.
Gas &
Elec. Co.
v.
Pub. Utilities
criticized.
right to
Comm'n of California
The Court concluded that such
a
decide what to print or omit. (See also
(1986) 475 U.S.
1,
106
S. Ct.
903, 89
L.
Ed.
2d
1.)
In
Wooley, the Court held that the State of
state motto "Live Free or Diea
This case
falls
upon
New Hampshire
could not compel residents to display the
their vehicle license plates against their religious principles.
well within the reach of the
Supreme
Courtas acompelled speecha doctrine. Hurley
v. Irish-
American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), establishes that generally
applicable public-accommodation laws violate the Free Speech Clause when applied to compel speech.
Supreme
accommodation law to
In
Hurley, the
Court, by Justice Souter, held that a state courts' application of public
essentially require defendants to alter the expressive content of their parade by
permitting a group of participants to march behind a
GLBT banner
violated the First
Amendment.
The State here makes two arguments against the application of the acompelled speecha doctrine. The
State argues that Unruh Act enforcement here does not compel speech, but only conductathe baking
Rumsfeld v. Forum for Academic & Institutional Rights, Inc., (FAIR) (2006) 547
The State also argues that this is not a compelled speech case because such case are limited to
those occasions where government requires a speaker to disseminate anotheras message and here the
State is not compelling any particular design, also principally citing FAIR, Wooley, and Tornillo. The State
and
selling of a ca ke, citing
U.S. 47.
takes a far too narrow view of both the case law and the circumstances to satisfy constitutional scrutiny.
The State does ask the court to
limit Milleras design,
because the State acknowledges that she cannot
create any element of the design that would disparage same-sex marriage, because that design element
would be unacceptable to Rodriguez-Del
when
opt
a
speaker
is
engaged
in
Rios.
FAIR recognized,
expression, and the
in
considering Wooley and Tornillo, that
government allows or compels that another may co-
necessarily affects the speaker's expression. (547 U.S. at 63-64.) FAIR
it, it
because the law schools
receptions.
in
that case did not speak
when they hosted
is
making
to be used traditionally as a centerpiece
that
also distinguishable
interviews and held recruiting
at 64.)
(Id.
A wedding cake
it
is
is
not just a cake
in
a Free
Speech
analysis.
in
It is
an
artistic
expression by the person
the celebration of a marriage. There could
not be a greater form of expressive conduct. Here, RodriguezaDel Rios plan to engage
in
speech. They
plan a celebration to declare the validity of their marital union and their enduring love for one another.
The State asks
this court to
compel
and religion to allow her artistic expression in
promote the message desired by same-sex marital partners,
Miller against her will
celebration of marriage to be co-opted to
MINUTE ORDER
Page 4 of 8
DEPARTMENT OF
CREATIONS,
INC.
FAIR
EMPLOYMENT AND HOUSING VS CATHY'S
BCV-17-102855
and with which Miller disagrees.
Identifying the interests here as implicating First
Amendment
protections does not end the inquiry. The
court must also determine whether the State's countervailing interest
the intrusion into a protected
The State
is
sufficiently compelling to justify
right.
principally cites United States
v.
OaBrien (1968) 391 U.S. 367, 88
S. Ct.
for the proposition that the Stateas interest in compelling a marketplace free
outweighs
Milleras First
Amendment
Free Speech interests.
OaBrien, the
In
Supreme
Justice Warren, held that because of the government's substantial interest
availability of issued selective service certificates,
mutilation of such certificates
1673, 20
L.
Ed.
2d 672,
from discrimination
in
Court, by Chief
assuring the continuing
because the statute punishing knowing destruction or
was an appropriately narrow means of protecting such
condemned only the independent non-communicative impact
of conduct within
its
and
interest,
reach, and because
the non-communicative impact of defendant's act of burning his registration certificate frustrated the
government's
interest, a sufficient
governmental interest was shown to
as against defendant's claim that his act
Here, Miller
is
is
Beeman
The application ofthe Unruh Act
Under
it
to protest government regulation
not refusing to post any government requirement to display the
caloric content of her pastries. (See
356.)
defendant's conviction,
was protected asymbolic speech.a
not burning her business license or refusing to display
of the small bakery industry. She
justify
in
Anthem
v.
Prescription
Mgmt,
these circumstances requires
LLC (2013) 58
astrict scrutinya
4th 329,
Cal.
by the court.
law cannot be applied in a manner that substantially burdens a constitutional
shows that the law represents the least restrictive means of achieving a
(N. Coast Womenas Care Med. Grp. Inc. v. San Diego Cty. Superior Court (2008) 44
strict scrutiny, a
right unless the State
compelling interest.
Cal.
4th 1145, 1158.)
The State cannot meet the
test that
particular case, or that the law
is
its
interest
outweighs the Free Speech
right at issue in this
being applied by the least restrictive means. The court cannot retreat
from protecting the Free Speech right implicated in this case based upon the specter of factual scenarios
not before it. SmalI-minded bigots will find no recourse in committing discriminatory acts, expecting to
be sheltered from Unruh Act prohibitions by a
false cry of Free Speech.
No
rights against the interest of the State in enforcing public access laws in a
circumstances, history, culture, social norms, and the application of
desire to express through her
man and
a
woman
same-sex unions,
wedding cakes that marriage
that should be celebrated, while she will
is
not
192
L.
all
Ed.
is
affirmed
in
a sacramental
if
is
expressing a belief that
in
Obergefell
v.
is
not also part of the orthodox
Milleras expression of her beliefs
the opinion ofJustice Kennedy
is
entitled to
Hodges (2015) 135
S. Ct.
2584,
2d 609 wherein the Court established that sameasex marriages are entitled to Equal
Protection. Therein, the Court noted: a[f]ina y,
adhere to
sense. Here, Milleras
commitment between a
not express the same sentiment toward
is
three world Abrahamic religions,
Hinduism and major sects of Buddhism. That
protection
vacuum, without regard to
common
arbitrary, nonsensical, or outrageous. Miller
trivial,
part of the orthodox doctrines of
beliefs of
court evaluates Free Speech
religious doctrines,
may continue
it
must be emphasized that
religions,
and those who
to advocate with utmost, sincere conviction that, by divine
precepts, same-sex marriage should not be condoned. The First
Amendment
ensures that religious
organizations and persons are given proper protection as they seek to teach the principles that are so
fulfilling
and so central to their
lives
and
and to their own deep aspirations to continue the family
faiths,
MINUTE ORDER
Page50f8
DEPARTMENT OF
CREATIONS,
INC.
FAIR
EMPLOYMENT AND HOUSING VS CATHY'S
BCV-17-102855
structure they have long revered.a (Id at 2607.)
Furthermore, here the State minimizes the fact that Miller has provided for an alternative means for
potential customers to receive the product they desire through the services of another talented baker
who does
The
not share Milleras
belief. Miller
is
not the only wedding cake creator
fact that Rodriguez-Del Rios feel they will suffer indignity
deny
harms
from
Bakersfield.
in
Milleras choice
is
not sufficient to
constitutional protection. Hurley established that the Stateas interest in eliminating dignitary
is
engage
not compelling where, as here, the cause of the harm
in
all speech protection
is to
hurtful.a (Hurley, supra, 515 U.S.
someoneas eyes are
preventing dignitary harms thus is not a compelling basis for infringing free
shield just those choices of content that in
An
at 574.)
another personas decision not to
is
expression. The Court there recognized that athe point of
interest
speech. (See Texas
in
v.
Johnson (1989) 491
.
.
.
.
.
.
U.S. 397, 409; see also Hustler
Magazine,
Inc. v.
Falwell
(1988) 485 U.S. 46, 56.)
The defendantsa argument that the case implicates the Free Exercise of
Religion Clause
addressing the constitutional protection for free exercise of religion, a law that
need not be
applicability
justified
by a compelling governmental interest even
incidental effect of burdening a particular religious practice.
begins with
its
text, for
the
minimum requirement
is
less clear.
does not reach the question of Free Exercise.
In light of the courtas discussion above, the court
is
if
the law has the
To determine the object of
of neutrality
is
In
neutral and of general
a law, the court
that a law not discriminate on
its
face.
The Free Exercise Clause extends beyond facial discrimination. The Clause aforbids subtle departures
from neutrality.a Official action that targets religious conduct for distinctive treatment cannot be
shielded by
mere compliance with the requirement of facial
against governmental
v.
hostility
City of Hialeah (1993)
508
which
U.S.
is
neutrality.
The Free Exercise Clause protects
Lukumi Babalu Aye, Inc.
masked, as well as overt. (Church ofthe
520,533- 534, 113
S. Ct.
2217, 2227, 124
L.
Ed.
2d 472.)
what standard of scrutiny the court should use to evaluate the application of the Free
Exercise clause to the circumstances of this case after Employment Div., Dept. of Human Resources of
Ore. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), which largely repudiated the method
of analyzing free-exercise claims that had been used in cases like Sherbert v. Verner, 374 U.S. 398, 83
S.Ct. 1790, 10 L.Ed.2d 965 (1963), and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15
(1972) and which resulted in Congress passing the Religious Freedom Restoration Act of 1993. (See
It is
difficult
Burwell
v.
to say
Hobby Lobby Stores,
The Unruh Act
fact,
by
its
is
neutral
on
its
Inc.
S. Ct.
2751, 2760, 189
L.
Ed.
2d 675.)
face and does not per se constitute a direct restraint
terms, the Unruh Act
does not constitute an indirect
(2014)134
itself
protects religious discrimination
restraint.
There
is
also
in
upon
religion. In
the marketplace. By
its
term
no evidence before the court that the State
it
is
targeting Christian bakers for Unruh Act enforcement under these circumstances. Designing and
creating a cake, even a
Free Exercise clause.
wedding cake, may not
It is
in
and of
itself
the use that Milleras design effort
constitute a religious practice under the
will
be put to that causes her to object.
Whether the application of the Unruh Act in these circumstances violates the Free Exercise clause is an
open question, and the court does not address it because the case is sufficiently resolved upon Free
Speech grounds.
MINUTE ORDER
Page 6 of 8
DEPARTMENT OF
CREATIONS,
INC.
FAIR
EMPLOYMENT AND HOUSING VS CATHY'S
BCV-17-102855
Conclusion
For the reasons stated above, the application for preliminary injunction
is
denied. The State cannot
succeed upon the merits, and the balance of hardships does not favor the State.
Ruling
Upon Obiections
The court
rules as follows
upon the evidentiary objections presented.
Defendantas Objections:
The court sustains objections
2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 14,
and 18. The court overrules
all
other
objections.
Stateas Objections:
The court sustains objections
The court overrules
Moving party
shall
all
8, 13, 15, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 35, 36, 42, 43,
and 44.
other objections.
prepare and order after hearing consistent with this ruling and pursuant to California
Rules of Court, Rule 3.1312.
Copy of minute order mailed to
MINUTE ORDER FINALIZED
BY:
all
parties as stated
on the attached
VERONICA LANCASTER
certificate of mailing.
0N:
FEBRUARY
05,
2018
MINUTE ORDER
Page 7 of 8
DEPARTMENT OF
CREATIONS,
INC.
FAIR
EMPLOYMENT AND HOUSING VS CATHY'S
BCV-17-102855
DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING VS CATHY'S CREATIONS, INC.
BCVa17a102855
CERTIFICATE OF MAILING
certify: That I am a Deputy Clerk 0f the Superior Court of the State 0f California,
and for the County of Kern, that I am a citizen 0f the United States, over 18 years of age, Ireside in or am employed in
the County 0f Kern, and not a party to the within action, that I served the Minute Order dated February 05, 2018
attached hereto on all interested parties and any respective counsel of record in the within action by depositing true copies
thereof, enclosed in a sealed envelope(s) With postage fully prepaid and placed for collection and mailing 0n this date,
following standard Court practices, in the United States mail at Bakersi!eld California addressed as indicated 0n the
The undersigned, 0f said Kern County,
in
attached mailing
list.
Date of Mailing:
February 05, 201 8
Place 0f Mailing:
Bakersi!eld,
I
CA
declare under penalty 0f perjury under the laws 0f the State of California that the foregoing
is
true
and
correct.
Terry McNally
CLERK OF THE SUPERIOR COURT
Date: February 05, 2018
By:
Veronica Lancaster, Deputy Clerk
MAILING LIST
GREGORY J MANN
CA DEPT OF FAIR EMPLOYMENT AND HOUSING
320 WEST 4TH STREET 10TH FLOOR
LOS ANGELES CA 90013
CHARLES
S
LIMANDRI
LAW OFC
PO BOX 9120
RANCHO SANTA FE
CA
92067
Certii!cate of Mailing
Page 8 of 8