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

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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