The Superior Court for Kern County, California has opined concerning the tension between First Amendment protections and state public accommodations laws notwithstanding the pendency of the same question before the United States Supreme Court.  Department of Fair Employment and Housing v. Miller, No. BCV-17-102855.

Bakersfield, California bakeshop Cathy’s Creations, known commercially  as “Tastries,” refused on religious grounds to custom-make a wedding cake for a same sex couple.  The state sought injunctive relief against proprietor Cathy Miller for violation of the state’s public accommodations law.

The California Superior Court for Kern County declined to grant injunctive relief against Miller, stating that while the state goal of ensuring against discrimination in the marketplace is laudable, there is no compelling justification for interfering with Miller’s conscience.

The court reviewed the history of Supreme Court consideration of clashes between conscience, as expressed in speech, and the state’s capacity to compel its citizenry to conform to the state’s interests.  Fear of state intrusion into individual matters of conscience, opinion and attitude makes it unconstitutional for the state to compel a child to salute the flag or face discipline; unconstitutional to compel a newspaper to publish rebuttals by politicians it has criticized; and unconstitutional for the state to force residents to display license plates bearing slogans offensive to conscience.

Public accommodations laws sacrifice their noble and benign purposes — that all be treated fairly in the marketplace — when those laws are used as instruments to compel speech.  It is no answer, the court found, to re-characterize the creation of a custom designed cake as conduct.  Design is expressive; marriage is expressive; a wedding cake that serves as a ceremonial focal point is expressive.  

The state may not compel Cathy’s Creations to violate the proprietor’s conscience absent a compelling interest strong enough to justify that compulsion.  The state cannot satisfy strict scrutiny:  compelling action contrary to conscience is not the least intrusive means of ensuring a marketplace free of discrimination.

The beliefs Miller espouses are reflected in major world religions.  The court stressed that its determination will not provide shelter for the “small minded bigot.”

The same sex couple’s protestation of dignitary harms is not sufficiently compelling to permit the state to compel Miller to act contrary to conscience in violation of her First Amendment rights.  The Supreme Court has observed that discomfort is an unavoidable consequence of protecting speech.

The California court declined to reach the Free Exercise Clause arguments, resting its dismissal on the Free Speech Clause.

2018 02 05 Cathy’s Creations_Sup. Ct. Kern County Cal.



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