A California superior court judge ruled that a baker had a First Amendment right to refuse to bake a cake for the wedding of a same-sex couple. The cake was custom not regularly displayed and routinely sold to customers. Wrote the judge, “A wedding cake is not just a wedding cake in Free Speech analysis. It is an artistic expression by the person making it that is to be used traditionally as centerpiece in the celebration of marriage. There could not be greater form of expressive conduct.” (theblaze, February 6, 2018, by Aaron Colen)
Law professor Eugene Volokh, Reason, February 6, 2018, writes that while the baker has a right to her religious-based opposition under the First Amendment, that “creating wedding cakes with no text or symbolic design on them is not [constitutionally protected speech]. (In this case, the couple selected a preexisting design, and ‘did not want or request any written words or messages on the cake.’)”
The couple had filed a complaint with a state agency that held that the state’s Unruh Act that barred discrimination in public accommodations does not bar speech but regulates conduct as in selling of a cake. They also argued that the First Amendment protects only against a government requiring a particular message, not the case in selling a cake. (The Washington Post, February 7, 2018, by Fred Barbash)
Robert Price of The Bakersfield Californian, February 6, 2018, comments on the judge’s ruling, “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 federal court of appeals will tell us so.”