I haven't purchased any wedding cakes recently but a few months ago I did drop some major coin on an acre-sized, made-to-order monstrosity from a prominent local bakery. Selecting its flavor and design was not unlike the process of ordering a hoagie at a deli: turkey, provolone, jalapeños and olives on sourdough, in case you're ever ordering for me. Hold the pickles, hold the mayo.

Like that sandwich, my cake was built just for me, per my instructions, from ingredients readily at hand for that purpose. Did the cake baker express herself artistically in its manufacture? Sure. But it was a cake, built to the exact specifications of a customer who had walked in off the street.

I can't and won't dismiss the First Amendment. It's the Constitutional right from which all others flow. The right to express, or withhold expression, is inviolate. But, to state the obvious, for a First Amendment argument to supersede a conflicting Constitutional right, it must, without question, be applicable.

The conflicting right, in the Bakersfield case of Tastries Bakery, whose owner refused to make a wedding cake for a same sex couple, is a clause within the 14th Amendment that guarantees equal protection under the law — and, as it's commonly interpreted, equal access. A state anti-discrimination law lends it added weight.

That's not how Kern County Superior Court Judge David Lampe apparently sees the Tastries case; he ruled Monday that bakery owner Cathy Miller can continue to refuse to make wedding cakes for same sex couples — even though the State of California permits such unions and the Constitution assures such couples the right to be treated like everyone else in all matters — even matters as mundane as the consumption of excessive carbohydrates.

Lampe was merely ruling on a preliminary injunction; the full case comes to trial in June, although Miller's attorney, emboldened by Lampe's words, said he will immediately move to be done with the whole affair.

Among Lampe's emboldening words: "The right to freedom of speech under the First Amendment outweighs the State’s interest in ensuring a freely accessible marketplace,” he wrote in his ruling. He suggested that Miller's refusal to do business with the lesbian couple was a "profound protest" rooted in her free speech rights. Free speech as expressed in her skilled coordination of sugar, flour, eggs and food coloring.

Miller said it would be a violation of her Christian beliefs to make a cake for a same sex couple. 

"I am very happy to serve everything from my (pre-prepared) cases to anybody," she said. "But I cannot be a part of a celebration that goes against my Lord and savior" by baking a cake made specially for a same sex couple.

Miller is in the wrong line of work if she wants to impose a test for potential customers based on her personal religious standards. (It's curious that only one specific "sin," of the innumerable ones we humans perpetrate, activates her alarm.)

I grasp her message — just like I grasp the objections to interracial marriage that were still circulating as recently as a generation ago.

When Bob Jones University lost its tax-exempt status because it had banned interracial dating among its students, its attorneys, arguing before the Supreme Court in 1982, declared that IRS regulations “cannot constitutionally be applied to schools that engage in racial discrimination on the basis of sincerely held religious beliefs.” Well, they can too, ruled the Court of conservative Chief Justice Warren Burger.

Today it would sound absurd to cite God's law as justification for keeping an Irish girl and a Japanese boy from going to the movies together — well, absurd to most of us — but for centuries those were the "sincerely held religious beliefs" of many people.

And so it will certainly be one day with wedding cakes for same sex couples — if not because love eventually conquers all, then because a court of appeals will tell us so.

Robert Price's column appears Wednesdays, Saturdays and Sundays. Reach him at rprice@bakersfield.com or @stubblebuzz. The opinions expressed are his own.

(11) comments

Stefan

In comment to the discusion about the Cathy Miller case. I think the idea that this case is about weighing two amendments (1,14) against each other is oversimplification. Miller can claim that California's attempt to compel her to bake custom made wedding cakes for same-sex "wedding" celebrations intrudes on TWO of her very specific constitutional rights, i.e. freedom of speech and free exercise of religion. They just happen to be combined into one amendment. Other important principles like freedom of economic self-determination, entrepreneural freedom, freedom of contract, free market and others are also not irrelevant. I just think it is more complicated than Mr. Price is suggesting. (I am also not a lawer!)
I think Miller's most powerful argument is freedom of artstic expression and expressive conduct. Compelling artistic expression is the kind of thing dictatorships do, not free countries, so this is a serious matter. I think Mr. Price's deliberations on whether supplying a custom wedding cake involves artistic expression and expressive conduct fall short. A wedding cake is the central celebratory symbol of a wedding celebration. To create that central celebratory symbol from scratch, specifically and knowingly for a same-sex "marriage" celebration arguably means to participate in the propagation of the message it convey's, i.e. the message of celebration of same-sex "marriage". Apparently supplying such a cake involves a detailed and open discussion with the customers about the design of the cake (i.e. the involvement of the bakers creativity starts here); agreement on the basic design; creative rendition of that design by the baker; delivery and set up at the event. Making the "hoagie", or the "acre-sized, made-to-order monstrosity" require no such involvement, and the other key point is whether the makers of these two products intended to create central celebratory symbols of very specific meaningful events.

The comparison with interracial marriage is shallow. Traditional interracial marriage is in essence no different from any other traditional marriage. But same-sex "marriage" is arguably very very different from traditional marriage. And traditional wedding celebrations are arguably very different events from same-sex "wedding" celebrations. They are arguably as different as a man and a woman are different. The celebration of the union of a man and woman is arguably a celebration of how husband and wife uniquely complement each other, of potential procreation, of the natural family, of motherhood and fatherhood and of evolutionary sustenance and of an event which is in harmony with Christian religious principles. It is arguably the celebration of a religious event. This is differentiation based on indisputable and significant differences and ramifications that are evident for anyone to see. I think religious conviction and reasoning based on religious principles add weight to Millier's position. The religious significance of marriage between a man and a woman is clearly verified in multiple passages in the Bible (and in many other scriptures by the way). I see no evidence that Miller's reasons for refusing to create custom wedding cakes for same-sex "weddings" is in any way comparable to the sham that discrimination based on a racist attitude is, including any underlying phony reasoning or pseudo-religious reasoning.

Lamonster

Thanks for finally giving the pertinent information down in the sixth paragraph as to what the judge actually ruled. This hearing was about nothing more than whether the baker should be forced to comply with the complainants' demand that she either change her policy on baking wedding cakes or stop baking them altogether, even before the case has been fully adjudicated. If I may be so bold as to offer my own analogy, this column and the news story about the ruling have many of these outraged and outrageous commentators and letter writers acting like the proverbial lynch mob, ready to string up the perceived jail escapee who in reality has only made bail. The case is a long way from over, folks.

Flowers77

Mr. Price wrote a great analogy which is simplied for all to comprend. Great writing.

Bud

Mr. Price, It is pretty obvious that you should stick to whatever you do at the Californian and leave the legal debate to the courts, and the creating of wedding cakes to the bakers. Your analogy of a wedding cake to a hogie is an excellent example of showing your ignorance in this debate. To build a homie, you choose the ingredients and slap it in a bun and that is it. In a wedding cake you choose your flavors, colors, and type of frosting but it doesn't end there. An hour or two of dialogue describing the setting, interests, tone of the event, timing of the event, message of the bride and groom want to express to those attending, and additional elements of the ceremony. All of that information is processed by the baker and a wedding cake is CREATED to reflect all of those elements, a creative process quite unlike your building of a hogie. Contrary to your premise that the customer dictates the exact ingredients and design that is not the case. Those elements are simply used to afford the making of the cake and do not express the effect the customer desires. That is called creativity and is not a production line process. I am sure you have the ability to build your hogie, but question your ability to CREATE a seven layer message of love and marriage.
As for your assertion of discrimination on the part of Cathy Miller, that is clearly and simply an un-truth. Cathy welcomes all who enter her doors period! She will sell anything in her counters to ALL who enter. She will create birthday cakes, valentine cakes, graduation cakes, etc. for ALL. She will not create any product that violates her conscience, which is developed by her Christian faith, based on Scripture. She has on occasion made offers of referral to other bakeries to meet the wishes of the customer. That is called accommodation. There are several verses in the Bible referring to the case at hand that are unequivocal. Cathy has placed her faith and trust in God's Word and does not leave it on church steps on Sunday.
As Judge Lampe stated "The right of freedom of thought guaranteed by the First Amendment includes the right to speak and the right ro refrain from speaking. Sometimes the most profound protest is silence." In this case Cathy has chosen to remain silent and not add her creative voice to the proposed wedding event.
Returning to the title of your article Mr. Price ... "Of Sugar, Flour, Eggs and Free Speech" suggests you just toss those three ingredients in a mixer and out comes a beautiful work of art in the form of a wedding cake. I ask you, do you at the Californian simply toss some words, letters, and ink into a printer and come up with printed news articles? The answer is obvious in both scenarios. Just as each of your articles that articulate a storyline require a creator, so it is in creating the storyline to reflect the beauty of a wedding ceremony through the CREATION of a cake.
The Freedom of Speech (or remain silent) as guaranteed by the First Amendment pertains to everyone. Tolerance is a two way street! With accommodation there is no discrimination. Free speech, tolerance, accommodation, and the lack of discrimination are all germane to this case. It is time to cool the muskets and observe each other's freedoms.

barbara meuleman-girga

Thank you, Mr. Price for writing my thoughts. I was, of course, knowing most readers would be against what you said, seeing that this is a conservative town. But some of us, have other opinions, not liberal, not conservative, just truth. I am a person who follows Jesus, hence, a Christian, but do not pick and choose which scriptures to follow. Thanks, over and over again, for a well thought out and well spoken "other side" to this event/situation. Yes, you will get critics, but the minority that doesn't speak up support you and your right to an opinion.

Grancer

Hoagies to wedding cakes is quite a stretch and a very poor analysis in this situation. Mr. Price appears to deliberately distort Mrs. Miller’s position about selling a same sex couple a wedding cake. She did not refuse to sell them a wedding cake but rather refused to decorate the cake in a fashion that clearly depicted it as being for a same sex marriage. He further attempts to confuse the situation by treating racial and sexual relationships as two peas in the same pod. Mr. Price’s interpretation of the laws may very well be upheld as the case wends its way through California’s court system. Mrs. Miller isn’t likely to have a chance of winning the case unless it gets past the ultra-left leaning 9th circuit court of appeals and ends up with SCOTUS.

jtorczon

Well stated, Grancer. The Supreme Court will be ruling on a similar case soon, and hopefully that will put the kibosh on any crazy rulings on Cathy Miller's case by the 9th Circus Court of Appeals, unless they don't mind getting slapped down by SCOTUS once again. It'd be interesting to know whether the bakery would have agreed to make the cake for Mr. Price if he had asked for it to include a message or theme that the baker finds offensive.

Wim Laven

Smart money says Miller's bigotry bankrupts her business. Funny that you don't hear much about "state's rights" right now.

Wim Laven

Your facts are not straight, and Miller's bigotry will likely bankrupt her business. Bakersfield does not need such hateful stains on its reputation. The coward #MyKevin is bad enough.

GaryJohns

Nice of Mr. Price to sober up long enough to crank out another left wing hit piece this week....

Wim Laven

Ad hominem attack called on the play.

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