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U.S. Supreme Court,
Constitutional Law,
Civil Rights

Feb. 13, 2018

Having cake in Kern County

People clamored onto the courthouse steps in the case of the baker who declined to make a cake for a gay couple’s nuptials — only it wasn’t in Washington, but in our own backyard.

Julie A. Werner-Simon

Phone: (213) 894-5456


Julie A. Werner-Simon is a former federal prosecutor, former constitutional law fellow, and currently serves as a law professor (adjunct) at University of Southern California's Gould School of Law, Drexel University's Kline School of Law, and is also a legal analyst at Drexel's LeBow School of Business.

Jack Phillips, owner of Masterpiece Cakeshop, works on a wedding cake in Lakewood, Colo., Oct. 30, 2014 (New York Times News Service)

People clamored onto the courthouse steps in the case of the baker who declined to make a cake for a gay couple's nuptials. Only this time it was not in Colorado or on the steps of the U.S. Supreme Court on Dec. 5, 2017 when the Masterpiece Cakeshop v. Colorado Civil Rights Commission case was argued. It was February 2018, in our own backyard, the Imperial Valley. In the case which pundits are calling "the Kern County Cake Case," a superior court judge there held a two-hour hearing on Friday, Feb. 2, during which a California state agency which enforces California's anti-discrimination laws was pitted against chief counsel of a religious freedom advocacy group, the Freedom of Conscience Defense Fund. Department of Fair Employment and Housing v. Cathy's Creations, Inc. dba Tastries, BCV-17-102855. The issue? Should a Bakersfield baker who operates a commercial business open to the public be required to make cakes for gay weddings? The state (the Department of Fair Employment and Housing) argued that cake-making was conduct -- not speech, while the Bakersfield baker's lawyer argued that preparing wedding cake involves artistry and is expressive conduct warranting First Amendment protection.

Kern County Superior Court Judge David Lampe took the weekend to prepare his decision and with the cameras, the lawyers and crowds of the previous week gone, on the afternoon of Monday, Feb. 5, he issued an eight-page minute order which was quickly uploaded to the Kern County Superior Court website. It went viral. And many who heard the news reports thought that the U.S. Supreme Court had ruled on the Masterpiece Cake case. Not so and not yet. The Kern County judge, known as fair-minded, home-grown jurist, and a "man of faith," had found for the baker. He ruled that cake-making is artistic expression and that when used for a wedding, "there could not be a greater form of expressive conduct."

Although the Masterpiece and the Kern County cases involve cake being sold from bakeries housed in poorly constructed mini-malls, and both matters emerge from states, some 21 in total, which have traditional anti-discrimination statutes barring discrimination in places of public accommodation including businesses open to the public, there are some notable differences.

The Masterpiece case resulted from over five years of litigation so far. The Colorado couple were turned away from their baker in July 2012, after which followed years of litigation up the administrative chain with an administrative law judge finding discrimination by the baker, a finding that was upheld on review by the Colorado Civil Rights Commission, and then by the Colorado courts up to their Court of Appeals -- from which the U.S. Supreme Court ultimately accepted certiorari.

In comparison, the Kern County case is virtually a newborn. The Bakersfield couple were turned away from Tastries (aka Cathy's Creations) some seven months ago, in August 2017. The couple filed a complaint with the California state agency two months later in October 2017, and two months after that, in December 2017, the Department of Fair Employment and Housing filed for a temporary restraining order and a preliminary injunction. The restraining order was summarily denied on the day of filing, with the court setting the preliminary injunction hearing for Feb. 2.

The Colorado case started as an administrative complaint, while the California case was brought to life under a distinctly California-flavored civil-rights-police-power provision emanating from California's Fair Housing and Employment Act and California's anti-discrimination statute, the Unruh Act. (Gov. Code Sections 12974, 12948). California's Department of Fair Employment and Housing is vested with statutory authority to enforce the civil rights of people in California, and is permitted to seek injunctive relief at any time in an agency's civil rights investigation, should it conclude that discrimination is occurring and is ongoing. In the Kern County case, the state agency (informed that the Bakersfield baker had declined to make cakes for gay couples for several years; had turned away two gay couples in late summer 2017; and had announced to the media that she intended to continue the practice as she "does not do same-sex marriage cakes,") filed relatively quickly for injunctive relief.

Unlike a typical request for such relief which requires both a likelihood of success and a balancing of the harms from granting such relief, the second aspect of the two-prong test does not apply when a government agency seeks relief authorized by statute. Instead, there is a rebuttable presumption that the harm to the public outweighs the harm to the ordinance offender. All the government needs to prove under this special statute is that it is "reasonably probable" that the agency will prevail on the merits.

According to Kevin Kish, director of the Department of Fair Employment and Housing, the agency believed it would prevail on the merits for injunctive relief because it had to show only that the Bakersfield baker admitted the conduct (denying gay people wedding cakes) and the practice would be continuing. "There was no point to waiting," said Kish, "people in Kern County are entitled to equal access to public accommodations." This statement exemplifies another difference between the Kern County and Masterpiece cases: The Colorado baker, as the case was being litigated, chose to stop making any wedding cakes and continued to sell other baked goods. As for the Bakersfield baker, she has never stopped her practice of selling exclusively for heterosexual celebrations, and now that she has prevailed can continue to decline to make "gay wedding" cakes. According to the Kern County court's ruling, this is because a wedding cake is "not just a cake ... it is an artistic expression [of the baker] ... used traditionally as a centerpiece in the celebration of a marriage." As a result of the ruling, the Bakersfield baker is exempted from the application of California's antidiscrimination law.

That's how it is, at least for now. But the Kern County case is not over. All that has happened is that the state's requests for preliminary injunctive relief have failed. The next court date has not been set but the parties have filed objections to the evidence which the court ruled on in a separate minute order issuing the same day as the cake selling ruling. The baker's lawyer is to file an answer by Feb. 27 to the court's demurrer denial. To date, the baker's lawyer has filed an anti-SLAPP motion on the grounds that the Department of Fair Employment and Housing, in the light of the judge's ruling, should dismiss the action. Next up, the state agency can either appeal this judge's order or file a formal complaint against the baker by October, one year from when the couple filed their complaint with the agency. It's most likely that no action will be taken by the state until the U.S. Supreme Court decides Masterpiece, with a high court decision expected by June.

It's not that the Bakersfield baker or the state agency did not know or address the "cake-elephant" in the room, the specter of Masterpiece. The department noted in a footnote on the first page of the agency's temporary restraining order application and order to show cause for preliminary injunction, "that a case involving a baker's challenge to Colorado's public accommodations is now pending." The Bakersfield baker's lawyers referenced Masterpiece at length. Cathy's Creation's lawyers, led by Charles LiMandri of the Freedom of Conscience Defense Fund (an organization affiliated with the Christian advocacy group Alliance Defending Freedom, which argued both the Masterpiece and the Hobby Lobby contraception cases) filed a 384-page declaration in opposition to the order to show cause which contained multiple items from the Masterpiece case. LiMandri included with his declaration not only the complete transcript of the oral argument in Masterpiece (replete with highlights), but also the Alliance Defending Freedom's opening and reply briefs in the Masterpiece case. Additionally, he included a copy of Conscience Defending Freedom's amicus brief in Masterpiece, as well as a Fox report recounting that the Bakersfield baker was "under the fire" for not selling cakes to gay people. Curiously, the baker's lawyer also included in his filing two articles for the Kern County court's review from social science literature, specifically: "LGB Families and Relationships, a 2013 National Health Interview Survey," as well as a journal abstract on the demographic and other characteristics of "Self-identified Lesbian, Gay and Bisexual Adults" (which includes a section on how nearly one in four gay people examined in the study were found to be "atheist, agnostic or reported having no religion"). The final exhibit in the baker's lawyer's declaration was a press release from the White House dated Jan. 16, 2018, marking that date as Religious Freedom Day.

In the week or so since it issued, there has been much commentary on the Kern County judge's opinion, especially by scholars who have been following Masterpiece. One of the cake-watching constitutional law professors is Gowri Ramachandran of Southwestern Law School, who stated that "the court's sharp distinction between a not-yet-baked cake versus an already-made cake is absurd. The not-yet baked cake is constitutionally protected speech and the identical pre-made one is not."

But as further litigation and/or appellate review may ultimately reveal, the Bakersfield couple picked a tiered cake from the display-sample case -- of a style and type previously produced by the store. They asked for no writing or message. How can creating a cake from what is akin to a "pattern book" constitute protected expression? Even if one concedes that some cakes involve creativity and artistry, purchasing a cake from a pattern book or store display is akin to buying a pre-made, "off-the-shelf" ware. This was addressed extensively during the oral argument of the lawyer for the Colorado baker at the Supreme Court. The baker's lawyer explained that free speech "compulsion" occurs when the cake artist is forced to design a made-to-order cake; she was not describing an already-designed cake in which the bakery generates a cake "just like the one on display." This is precisely the line-drawing "chaos" to which Justice Stephen Breyer alluded in the Masterpiece argument.

The Kern County judge's opinion stressed the competing "feelings" of the parties, and surmised that of the competing harms, the baker was poised to "suffer greater harm" because in exercising her religious beliefs she faced economic consequences. This empathic "take" was redolent of the inquiries of a few of the justices during the Masterpiece oral argument. Chief Justice John Roberts reminded the lawyer arguing on behalf of the Colorado Civil Rights Commission that when the Obergefell [same sex marriage] decision was upheld, the court "went out of its way to talk about the decent and honorable people who may have opposing views [about same sex marriage]." Justice Anthony Kennedy also honed in on the feelings of the baker who would have to teach his family (those who work at the bakery) that state anti-discrimination law supersedes their religious beliefs.

The Bakersfield baker's religious beliefs have been widely reported including on where she was quoted as saying, "a ceremony, when you are getting married in the eyes of the Lord ... [is] a whole lot different than coming in and wanting a cookie." She told the Bakersfield News, that "[w]e are happy to make birthday cakes and cupcakes ... for everyone." Kern County Judge Lampe echoed this emphasis on the sacred rite, when he said the baker's wedding cakes (as compared to her other wares) are imbued with the baker's "desire to express ... that marriage is a sacramental commitment ... part of the ... doctrines of ... the three world Abrahamic religions" (as well as other Eastern religions).

But here's the rub: Neither the Colorado couple nor the Bakersfield couple were actually buying cakes for a typical wedding reception happening the same day or evening of the wedding ceremony. The Colorado couple were married on the East Coast and afterwards hosted a reception for family and friends in Colorado. The Bakersfield couple were married in December 2016, 10 months before they held a post-wedding reception in October 2017.

If the U.S. Supreme Court in Masterpiece follows the lead of the Kern County court and holds that people with sincerely held religious beliefs against gay marriage who operate businesses in the public square can be exempted from making wedding "reception" cakes for gay people, what would prevent the religiously minded from declining to make birthday cakes for children of gay couples or anniversary cakes for gay people?

The Bakersfield baker suggests that she does not discriminate because she has had the practice, for years, of sending gay couples to another area baker to make their wedding cakes. However, this does not undo discrimination, the act of which is completed once the customer is refused a similar service offered to heterosexual purchasers. In the 1960s lunch counter cases, discrimination was evidenced by the refusal to serve, even though the African-American diners could have eaten elsewhere. That other vendors will serve does not obviate discrimination. Another Imperial Valley gay couple (not a party to the instant case) took to Facebook to report being "directed" from one bakery to another. The gay couple explained that Cathy's Creation's owner offered to "do the design" for the men but would have another area bakery make it. They declined the offer.

That other baker, a competitor, told news organizations that the previous year Cathy imparted that "God told her not to make these people's cakes." The competitor-baker told Cathy that she should not be turning away gay people because it was hurtful and illegal. When asked by the reporters why the baker did not publicly "call out" Cathy's Creations, her source of referrals, the competitor-baker said that to insist on directing someone else's business would be "self-serving" and that she acted as she did because she felt badly for the gay people turned away by Cathy's Creations.

The facts on the ground demonstrate that the owner of Cathy's Creations has discomfort in having to construct a cake at her own bakery knowing that the end-user of the cake will do with it something to which she religiously disapproves. This is puzzling because a website for the bakery (showing wares for sale at the shop) also includes a photograph of a plate of Cathy's Creations' bordello-corset cookies, which too could be used at an event to which the owner would likely object.

The Bakersfield case, regardless of the future outcome in the continuing litigation (since the court there ruled only on the question of injunctive relief), portends a new crossover area for employment and religious freedom specialty lawyers. If the Masterpiece decision holds (like the Bakersfield case) that religious-minded bakers have a "carve out" and are exempt from neutral public accommodation laws, then imagine the cases that will follow. Masterpiece was the first case before the Supreme Court in which amicus briefs (from bakers across the country) contained page after page of magazine-style photographs of tiered confections, all for the court's review. It will not be the last. Courts at all levels will be asked to make distinctions on whether baked goods are pre-made or sold off-the-shelf, or whether the making of a treat incorporated expressive design features even where the designs are "pre-conceived" and offered in sample-pattern books or display cases. Such a focus on the constitutionality of cake-making requires a look back to the cakes of the constitutional era.

From the time of the framers, cake has been a mainstay of American culinary life. Recipes from colonial times show that cake-making (including cakes for weddings then called "bride cakes") involved taking pounds of butter "worked into a cream," and adding lots of sugar and flour to the mix and applying heat. Not much has changed with the basic recipe and cooking applications, except that 18th century Americans made the cakes months in advance of the wedding, used lots of nutmeg and fruit, and regularly doused the confection with brandy so that it would remain mold-free by the time it was served. To take a page from the originalists, is it conceivable that the framers, many of whom ate cake (and some at the tavern which still stands near Philadelphia's Independence Hall where the constitution was drafted), understood cake or cake fabrication to be speech?

Granted, our founding document (inclusive of the amendments) was never intended by the framers to be the last word, and former Chief Justice John Marshall said as much when he spoke of our Constitution "enduring for the ages" and its ability to adapt to future "crises of human affairs." But even an evolution in interpretation -- like those which ultimately acknowledged that equal protection applies not just to propertied white men like the Framers but to others with immutable and distinct characteristics to include people of color, women, gays and the disabled, or that expanded the conception of constitutional liberty to include freedom to make personal decisions about procreation and the education of one's children -- cannot be contorted into a vehicle which constitutionally protects the making of cake. To do so would be (riffing on Alexander Hamilton) precisely what the medium of the judiciary was designed to guard against, specifically linguistic contortions derived from human vagaries.

In any given day, there are numerous and varied acts through which we express ideas (like holding someone's hand to express affection or smiling to convey happiness). But not every "expressive" action constitutes constitutionally protected speech. And food preparation, no matter how expert and even if it is called artistry, is not speech. As Justice Sonia Sotomayor rhetorically noted in the Masterpiece argument, the Supreme Court has never given [First Amendment] protection to food. This means that food creation is non-expressive conduct even if the food is used for ceremonial purposes or ingested at any such ceremony. What the end-user does with a food product does not make the product "speech."

As a result, if cake making is not speech, then the "compelled speech" argument has no traction. Similarly, the free exercise claim has no tread. Requiring cake makers to serve all customers the same way and sell (or not sell) the same wares to all customers as required by a neutrally written public accommodation law, is more than rationally based to the government's interest in preventing discrimination.

Valentine's Day is Wednesday. Instead of divisiveness and exclusion, how about we recognize the compelling state interest in diversity and the importance of keeping the commercial square welcoming to all-comers? Underground legal empiricists wager and divines that, based on the oral argument in Masterpiece, it's 5-to-4 for a religious exception "carve out." In fact, the Bakersfield baker's lawyer in his opposition papers stated "[d]uring that oral argument Justice Kennedy several times indicated that he would probably lead a five-justice majority in reversing the lower court decision." Outcome predictions based on the Supreme Court argument are faulty, as sometimes the seemingly antagonist question is a "trial balloon" or a fake-pass. Prognosticating methodology issues aside, I predict an outcome in which courts will not be asked to "slice the cake," and envision a decision which extends Obergefell's "constellation of rights" -- to cake.


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