A California Judge Allows a Baker to Discriminate Against a Lesbian Couple Who Wanted a Wedding Cake

On Monday, a trial court in California’s Central Valley blamed a lesbian couple for the discrimination they experienced when they tried to buy a wedding cake. That twisted reasoning ignores the very real harms that occur when people are denied the freedom to participate in public life.

Eileen and Mireya Rodriguez-Del Rio tried to buy a cake from the bakery Tastries, but the owner Cathy Miller turned them away when they arrived for their scheduled cake tasting on Aug. 26, 2017, based on her religious objections to same-sex marriage. Miller instead referred them to a different bakery, even though Tastries regularly sells wedding cakes to heterosexual couples.

The court found that the Constitution creates a right to discriminate, in part by grossly minimizing the harm that the couple experienced when they were rejected. In ruling for the bakery, Kern County Superior Court Judge David Lampe said:

If anything, the harm to [the bakery owner] 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 self-inflicted.

Blaming Eileen and Mireya for the discrimination they experienced that day at the bakery is outrageous. It’s hard to fault people who experience injury when told they are not good enough to be served because of who they are. But the court didn’t stop there.

According to the judge, “the fact that Rodriguez-Del Rios feel they will suffer indignity from Miller’s choice is not sufficient to deny constitutional protection.” Judge Lampe went on to say that an "interest in preventing dignitary harms . . . is not a compelling basis for infringing free speech.”  That is just not true. Putting aside the bakery’s contention that freedom of speech creates a right to refuse equal service, the Supreme Court has long recognized that preventing harm to personal dignity that occurs with discrimination is one of the core purposes of our anti-discrimination laws.

In a challenge to the Civil Rights Act of 1964, the Supreme Court ruled in favor of federal public accommodations law to ensure human dignity. Justice Arthur Goldberg, in a concurring opinion, wrote: “Discrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public.”

And in Roberts v. Jaycees, the Supreme Court recognized that discrimination — in that case, turning women away from membership in an organization — “deprives persons of their individual dignity and denies society the benefits of wide participation in political, economic, and cultural life.”

All of us should have the freedom to walk into a business open to the public and know that we will be served. Fearing that you will be turned away because of who you are changes the way you live your life, in real and damaging ways. It forces you to hide who you are. It takes away one's liberty to live an authentic life.

If upheld on appeal, the recent ruling would create a constitutional right to discriminate. It would mean that LGBTQ people, even those who live in states like California with laws against discrimination, must go back to being fearful of embarrassment and hostility when walking into a business. The U.S. Supreme Court is considering this same question in the Masterpiece Cakeshop case right now. Let's hope the justices will see the bakery’s arguments for what they really are — an impermissible attempt to use a claim of speech and religion rights to discriminate against LGBTQ people, and potentially others, across the country.

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Anonymously known

Not necessarily true. There is the S Corporation, a “sole proprietor ” type of designation, with one (or very limited) owners, which earnings from the business pass on to the owner’s tax return as regular compensation. But that doesn’t prevent the owner from the protections of a corporation. The primary reason small businesses incorporate is to segregate and protect the assets of the corporation from the assets of the individual (or family.) In the event the corporation harms someone, the harmed party can sue for any amount, but should only be able to collect up to the total value of the assets of the corporation (plus of course any insurance benefits to which the corporation is entitled.) UNLESS of course the wrong is perceived to come from the business as well as the owner, as an individual. But that would require the claim to be made against BOTH the company (S Corportation) and the owner, as an individual.

So if the company rents a vehicle, and is in an accident, they can be sued, and could lose the assets of the company. BUT if the company rents a vehicle, and then purposefully seeks out another, and causes harm intentionally, then they put both company and personal assets at risk.

Since the owner of the bakery made an appointment with the couple, I would assume she was possibly aware of what she was meeting for in advance. (What bakery making a wedding cake doesn’t ask the date, names and locations they would need to serve on the date of the wedding, in advance?) There is nothing in the website design of the bakery to indicate they would refuse service to LGBTQ couples, so it is up to the owner to know the right questions to avoid getting in to a situation that would be against her faith. There must be so many ways Christians would be offended, and in fact, there are many that the average man on the street would expect a devout Christian avoid. They obviously could never make a cake for a Jewish or Muslim celebration. Or imagine being asked to bake a Kwanzaa cake, when they are busy with the (faked date of the birth of their named “Savior”, chosen to prevent early Christians from being anhililated for going against their pagan roots and ignoring the Winter Solstice!

I can easily imagine the call making the appointment. “Hello, Tasteries Bakery. Press 1 for stolen copyrighted cookies from Marvel Comics, Disney, Pixar, the Muppets or several others. Press 2 wedding cakes custom designed for your virgin opposite cis gendered couple. Press 3 for flaming cross pastries for your next lynching. Press 4 to schedule a midnight drop off or pickup the evening before a Sunday event, in order to avoid damning me to hell for doing business on the Sabbath. Press 5for a Pill, which would be Oh So Bitter to swallow.” Then, when the owner contacts the potential client, she can ask the pertinent questions. She could, for example, offer an option of bacon flavored cupcakes, to weed out the dirty Jews and Muslims. Or schedule an OB/GYN appointment for the bride so as to assure herself of the virginal status of at least one member of the party. And happily, the virginal status would assure her that she not worry herself with needing to decide how to work “have you ever terminated a pregnancy” or “have you been married before” into the initial call!

Once she, however, makes an appointment, she is saying that she intends to fulfill an order. I wasn’t aware that a bakery would schedule (and prepare for) a costly time and materials intensive “tasting” for just anyone considering the possibility of hiring it to make a cake. I always thought that you needed to confirm availability for the time and location before the owner bakes sample cake/icing combinations and takes time away from the business to meet with SOMEONE, present the cakes for tasting, and discuss the order in more detail. It’s not as if a wedding cake has “I support your right to lick each other’s vaginas” written in fondant! Wedding cakes are far less personalized than, for example, a Spider-Man, Batman, Wonder Woman or Superman (copyrights held by the various publishers) or Mickey and Minnie Mouse cookies (copyright held by Disney), which cookies they not only freely make at profit, but also use on their website, Facebook and Google accessibile pages used for advertising purposes. It’s cake, some kind of sweet coating, and some flowery things. What exactly goes against her teachings as a Christian woman? She need not attend any of the celebrations, nor publicize that she made that Lesbian cake, nor is she required to be part of any consummation of the marriage, nor any pre-wedding hankypanky. Any more than she would be required to attend the abortion procedure of some other customer, or the lousy cheating night out of yet another.

Argument could surely be made that this is more than a business harm, especially if any money had exchanged hands to even reserve the services (as is required by their FAQ page) or any time had passed or arrangements made with any venue Not necessarily true. There is the S Corporation, a “sole proprietor ” type of designation, with one (or very limited) owners, which earnings from the business pass on to the owner’s tax return as regular compensation. But that doesn’t prevent the owner from the protections of a corporation. The primary reason small businesses incorporate is to segregate and protect the assets of the corporation from the assets of the individual (or family.) In the event the corporation harms someone, the harmed party can sue for any amount, but should only be able to collect up to the total value of the assets of the corporation (plus of course any insurance benefits to which the corporation is entitled.) UNLESS of course the wrong is perceived to come from the business as well as the owner, as an individual. But that would require the claim to be made against BOTH the company (S Corportation) and the owner, as an individual.

So if the company rents a vehicle, and is in an accident, they can be sued, and could lose the assets of the company. BUT if the company rents a vehicle, and then purposefully seeks out another, and causes harm intentionally, then they put both company and personal assets at risk.

Since the owner of the bakery made an appointment with the couple, I would assume she was possibly aware of what she was meeting for in advance. (What bakery making a wedding cake doesn’t ask the date, names and locations they would need to serve on the date of the wedding, in advance?) There is nothing in the website design of the bakery to indicate they would refuse service to LGBTQ couples, so it is up to the owner to know the right questions to avoid getting in to a situation that would be against her faith. There must be so many ways Christians would be offended, and in fact, there are many that the average man on the street would expect a devout Christian avoid. They obviously could never make a cake for a Jewish or Muslim celebration. Or imagine being asked to bake a Kwanzaa cake, when they are busy with the (faked date of the birth of their named “Savior”, chosen to prevent early Christians from being anhililated for going against their pagan roots and ignoring the Winter Solstice!

I can easily imagine the call making the appointment. “Hello, Tasteries Bakery. Press 1 for stolen copyrighted cookies from Marvel Comics, Disney, Pixar, the Muppets or several others. Press 2 wedding cakes custom designed for your virgin opposite cis gendered couple. Press 3 for flaming cross pastries for your next lynching. Press 4 to schedule a midnight drop off or pickup the evening before a Sunday event, in order to avoid damning me to hell for doing business on the Sabbath. Press 5for a Pill, which would be Oh So Bitter to swallow.” Then, when the owner contacts the potential client, she can ask the pertinent questions. She could, for example, offer an option of bacon flavored cupcakes, to weed out the dirty Jews and Muslims. Or schedule an OB/GYN appointment for the bride so as to assure herself of the virginal status of at least one member of the party. And happily, the virginal status would assure her that she not worry herself with needing to decide how to work “have you ever terminated a pregnancy” or “have you been married before” into the initial call!

Once she, however, makes an appointment, she is saying that she intends to fulfill an order. I wasn’t aware that a bakery would schedule (and prepare for) a costly time and materials intensive “tasting” for just anyone considering the possibility of hiring it to make a cake. I always thought that you needed to confirm availability for the time and location before the owner bakes sample cake/icing combinations and takes time away from the business to meet with SOMEONE, present the cakes for tasting, and discuss the order in more detail. It’s not as if a wedding cake has “I support your right to lick each other’s vaginas” written in fondant! Wedding cakes are far less personalized than, for example, a Spider-Man, Batman, Wonder Woman or Superman (copyrights held by the various publishers) or Mickey and Minnie Mouse cookies (copyright held by Disney), which cookies they not only freely make at profit, but also use on their website, Facebook and Google accessibile pages used for advertising purposes. It’s cake, some kind of sweet coating, and some flowery things. What exactly goes against her teachings as a Christian woman? She need not attend any of the celebrations, nor publicize that she made that Lesbian cake, nor is she required to be part of any consummation of the marriage, nor any pre-wedding hankypanky. Any more than she would be required to attend the abortion procedure of some other customer, or the lousy cheating night out of yet another.

Anonymous

It wont stop with lgbt folks. Next theyll use the same arguments, and "religious freedom" excuse to deny equal pay, housing, employment, against anyone they want to. After all, if you claim your religious beliefs prevent you from serving lgbt, then thats no different than if you said no blacks, no muslims, no jews, no women, no (insert random other abstract reason here). It allows anyone to be discriminatory of anyone else on a whim, even in cases, like within medicine, where a regional hospital could say "we dont take in blacks here" as there are trauma victims dying on thier doorsteps. This is madness...

Robynlassy

It's long past time that we hold judges accountable for their decisions, instead of letting them create havoc and then just walk away while the people who have to live with their decisions have to either pay big money to appeal, or walk away without justice being served. If judges had to make valid arguments for why they made their decisions, or be held accountable when they didn't uphold the laws and constitution, then they might think twice before putting out bogus decisions like this one. It's just a travesty of justice, and that judge should be held accountable. I say, if a case goes to appeal and it's decided differently than the judge ordered, then HE should have to pay for the people's legal expenses to appeal his incorrect decision.

Lisa

This is an excellent idea!

Sabrina

This is several days late, I apologize, but I wanted to expand on your comment. Most consider the "punishment" for a bad judge, to lose the re-election. This particular judge seems to have ruled the way he did in a plea for re-election this year. Bakersfield is highly conservative and rural and desolate compared to other areas of California, including their surrounding counties. A prayer rally supporting the bakery owner was well received and very public. Sadly, I feel if he'd ruled correctly, and by that I mean, constitutionally, he would have been punished. He took the cowards way out and probably is expecting to be overruled by a higher court. He saves face with his constituents, without actually having to be held responsible for anything because it's now out of his hands. I hate the valley.

Richard J Stuart

It's shocking that the ACLU has no interest in protecting free speech, religious liberty, or the rights of artists. A Wedding cake is not a generic item, it's an artistic creation. Forcing artists to create works against their religious beliefs is outrageous. Do we force liberal artists to make cakes supporting the war in Iraq? Of course not. The line here is clear. If you want a generic product then yes, you cannot discriminate. But if this involves any sort of artistic or creative work, then you have no right to force anyone to speak on your behalf..

Anonymous

There is a difference between "Fine Art" vs. "Commercial Art for Hire" - real purists believe you shouldn't make any money at all if it is really Fine Art. If it is semi-fine art, the cake-maker would make anything they please then sell it "as is" off the shelf. Most real artists throughout history paid the rent with "commercial art for hire" then did the fine art in their spare time and stored it in their attic and forgot about it. Even Michaelangelo was paid "commercial art for hire" to paint church walls and ceilings.

Lisa

Richard: Your logic is flawed. The bakery refused to make a cake for someone because the customer didn't meet their religious standards. No one was trying to force the bakery to create a cake that went against their beliefs (e.g. racist slogan, X-rated images), which is what your Iraq War statement suggests. The cake itself was never the issue, nor is it relevant whether the item is generic. By your logic, if a black man went to a diner he would have to be served--unless he requested something "creative" like extra ketchup on his burger.

Anonymous

A "wedding cake" from a "cake shop" is a generic item. It is a thing on the menu. Just as a steak from a steak restaurant, whether the chef is John Smith or Gordon F-Bomb Ramsey, is still a steak. The chef may call it art all he likes, but it is still a menu item and anyone is entitled to order off the menu, be he straight, SAGA, or fallen in from outer space.

If the artist wishes to withhold his or her artistic talent for whatever reason, he or she may, without penalty, also hold his or her tongue. "This is not a service we will be able to provide," is a legitimate answer and places no judgement. It's poor business sense, of course, and wrong, and a damnable lie. But it is the individual's right to do so.

A wedding cake is not "art" in this sense: You literally cannot have your cake and eat it too, and it is therefore a commodity in this instance.

Your argument is still specious, because a PERSON may do what he or she pleases, but a COMPANY may not. If the operator of a liberal-owned bakery feels they cannot make cakes supporting the war in Iraq, they may offer design choices that are unappealing to the choosing committee, but they may not turn down a job that they would do for the DNC.

BESIDES, DaVinci is not free to come back from the dead and explain that he doesn't want the Mona Lisa in the Louvre because they once lost it. Art is free to the world, and an artist has no control over it once it's done, which is why Chicago gets to call their famous sculpture "the Bean" even though it infuriates the creator. Don't use an example that can't even keep its own name when you're trying to make a hare-brained argument in favor of discrimination.

E Foreman

It would seem, then. that this baker should be compelled to refuse service to divorcees, adulterers, liars, all of whom the scripture castigates with more frequency.

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