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 firstname.lastname@example.org or @stubblebuzz. The opinions expressed are his own.