February 26, 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.

By Julie A. Werner-Simon, LL.M 2019

What’s new with the Kern County Cake case? That’s the case in which a Bakersfield baker, in August 2017, refused to sell a wedding reception cake to an Imperial Valley gay couple. The Kern County cake case is our own, home-grown “cake case” and should not be confused with the Colorado-originating Masterpiece Cakeshop case which was argued at the U.S. Supreme Court on December 5, 2017. California’s Department of Employment and Fair Housing filed a request for TRO and preliminary injunction against the Bakersfield baker in December 2017. Department of Fair Employment and Housing v. Cathy’s Creations, Inc. dba Tastries, BCV-17-102855.

On February 5, 2018, a Kern County superior court judge denied the state’s request for relief. As a result, the Bakersfield baker, Cathy’s Creations, can continue the practice of declining to serve gay-intendeds. The Kern County court held that the application of California’s anti-discrimination law (which like 20 other states requires public accommodations including commercial square businesses to not discriminate on the basis of immutable characteristics including race, gender, and sexual identity or orientation) infringed upon the Bakersfield’s baker’s First Amendment rights.

The court held that if the baker had to make a cake for a gay wedding celebration, that act would constitute “compelled speech” and be violative of the First Amendment. The court did not address, however, how making a plain cake, with no message or writing and identical to the cakes in the store’s display case, could be constitutionally-protected expression. See, American Constitution Society blog post dated 2-19-18 entitled “Kern County Cake Case and Masterpiece Cake Case Compared”  which quotes constitutional law professor Professor Gowri Ramachandran as saying “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.” see also, Having Cake in Kern County, Los Angeles Daily Journal dated 2-13-18. 

In the case which pundits are calling “the Kern County Cake Case,” a California superior court judge held a two-hour hearing on Friday, February 2, during which a ...

The state agency has 60 days, that is, until April 5, 2018, to file an appeal of the superior court’s order. State agency appeals are handled by the California Attorney General’s office. No word yet on whether they will file an appeal of the Kern County court’s order. The Masterpiece Cake decision will issue at the latest, in June, when this Supreme Court term ends.