Civil Rights Dept. v. Cathy's Creations

Filed 2/11/25

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

CIVIL RIGHTS DEPARTMENT,

F085800

Plaintiff and Appellant,

(Super. Ct. No. BCV-18-102633)

v.

CATHY'S CREATIONS, INC., et al., OPINION

Defendants and Respondents;

EILEEN RODRIGUEZ-DEL RIO et al.,

Real Parties in Interest.

APPEAL from a judgment of the Superior Court of Kern County. J. Eric

Bradshaw, Judge.

Rob Bonta, Attorney General, Michael L. Newman, Assistant Attorney General,

William H. Downer, Carly J. Munson, Lisa C. Ehrlich and Gary D. Rowe, Deputy

Attorneys General, for Plaintiff and Appellant.

Amanda Goad, Elizabeth Gill, Efaon Cobb, Michelle Fraling and Aditi Fruitwala

for ACLU, ACLU of Southern California, ACLU of Northern California and ACLU of

San Diego & Imperial Counties as Amici Curiae on behalf of Plaintiff and Appellant.

Shannon Minter for National Center for Lesbian Rights; Jennifer C. Pizer for

LAMBDA Legal Defense and Education Fund; Mary L. Bonauto, Gary D. Buseck and

Chris Erchull for GLBTQ Legal Advocates & Defenders as Amici Curiae on behalf of

Plaintiff and Appellant.

Davis Wright Tremaine and Samantha Lachman; Bradley Girard and Jenny

Samuels for Americans United for Separation of Church and State as Amicus Curiae on

behalf of Plaintiff and Appellant.

Morrison & Foerster, Richard S.J. Hung, Bonnie Lau, Camille Framroze and

Justin K. Rezkalla; Nisha Kashyap for Lawyers’ Committee for Civil Rights of the San

Francisco Bay Area; Public Counsel Amanda M. Savage and Yi Li as Amicus Curiae on

behalf of Plaintiff and Appellant.

LiMandri & Jonna, Charles S. LiMandri, Paul M. Jonna and Jeffrey M. Trissell;

The Becket Fund for Religious Liberty, Eric C. Rassbach, Adèle A. Keim and Andrea R.

Butler for Defendants and Respondents.

Alan J. Reinach for Church-State Council; Eric W. Treene and Asma Uddin for

The Catholic University of America, Columbus School of Law, Religious Liberty Clinic

as Amici Curiae on behalf of Defendants and Respondents.

-ooOoo-

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INTRODUCTION

This appeal involves a bakery’s refusal to sell a predesigned white cake, popularly

sold for a variety of events, because it was intended for use at the customers’ same-sex

wedding reception. The State of California, through the Civil Rights Department (the

CRD), filed suit on behalf of real parties in interest Eileen and Mireya Rodriguez-Del Rio

(the Rodriguez-Del Rios) when Tastries Bakery (Tastries) refused to provide them the

cake for their wedding pursuant to the bakery’s policy that prohibited the sale of any

preordered cake for a same-sex couple’s wedding. The case culminated in a bench trial

on the CRD’s claim of discrimination under the Unruh Civil Rights Act (Civ. Code, § 51

et seq. (UCRA)), and the free speech and free exercise affirmative defenses of defendants

Tastries, Tastries’s owner Cathy’s Creations, Inc. (Cathy’s Creations), and Cathy’s

Creations’s sole shareholder Catharine Miller (Miller) (collectively defendants). 1

The trial court concluded there was no violation of the UCRA because the CRD

failed to prove intentional discrimination, and concluded Miller’s referral of the

Rodriguez-Del Rios to another bakery constituted full and equal access under the UCRA.

The trial court proceeded to consider defendants’ affirmative defenses as an alternative

matter, and concluded the preparation of a preordered cake by defendants always

constitutes expression protected by the federal Constitution’s First Amendment when it is

sold for a wedding, and, as applied here, concluded the UCRA compelled defendants to

speak a message about marriage to which they objected. The trial court rejected

defendants’ defense under the free exercise clause of both the federal and state

Constitutions.

The CRD appeals and challenges the trial court’s construction and application of

the UCRA’s intentional discrimination element, and its interpretation and application of

decisional authority in concluding Miller’s referral of the couple to a separate business

1 Unless indicated otherwise, all statutory references are to the Civil Code.

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constitutes full and equal access under the UCRA. The CRD and defendants also

challenge the trial court’s determinations as to defendants’ affirmative defenses.

For the reasons explained below, we conclude the trial court erred in its

determination that Tastries’s policy was facially neutral and, as a result, misconstrued the

intentional discrimination standard to require evidence of malice or ill will. Application

of the policy here pivots upon the sexual orientation of the end user—the policy cannot

apply or operate until the same-sex status of the couple is identified. Despite that the

underlying rationale for the policy is rooted in a sincerely held religious belief about

marriage, held in good faith without ill will or malice, the policy nonetheless requires a

distinction in service that is based solely on, and because of, the end users’ sexual

orientation. The relevant and undisputed facts about the policy and its application here

necessarily establish intentional discrimination.

We also conclude Miller’s referral to a separate business did not satisfy the

UCRA’s full and equal access requirement. The applicable case authority does not

contemplate, let alone authorize, a referral to an entirely separate business entity as full

and equal access. Interpreting the UCRA in this manner would not only thwart the

bedrock antidiscrimination purposes of the statute, it would entirely undermine the

statute’s operation as a public accommodations law. Under such a rule, business

establishments would be free to refuse service to anyone on account of protected

characteristics so long as they told those customers there was another comparable

business in existence confirmed to have no objection to providing service.

As for defendants’ constitutional affirmative defenses, under our independent

review, we conclude defendants’ refusal to provide the Rodriguez-Del Rios the

predesigned, multi-purpose white cake requested was not protected expression under the

federal Constitution’s free speech guarantee. A three-tiered, plain white cake with no

writing, engravings, adornments, symbols or images is not pure speech. Nor can the act

of preparing a predesigned, multi-purpose, plain white cake—an ordinary commercial

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product—and delivering it prior to the wedding constitute the symbolic speech of the

vendor. Further, we conclude the trial court properly rejected defendants’ free exercise

challenges under governing case authority. Accordingly, we reverse and remand.

FACTUAL BACKGROUND

I. The Cake Tastries Refused to Sell to the Rodriguez-Del Rios

As this case involves a specific denial of service, we begin with a brief description

of the cake Tastries refused to sell. For their wedding, the Rodriguez-Del Rios sought a

cake with a simple design, and chose one based on a sample (nonedible) cake displayed

in Tastries’s bakery. It was to have three tiers with white buttercream frosting without

any writing, symbols, engravings, images or toppers.2 According to the Tastries’s

manager who originally helped the couple with the order, it was a “very popular,”

“simple” design sold for a variety of events including birthdays, baby showers (left, post),

weddings (right, post), and quinceaneras. Defendants refused to prepare and sell the cake

2 Mireya testified when she came into Tastries the first time, she had an idea of what she

wanted. After she and Eileen discussed the cake with an employee of Tastries, there was nothing

left in Mireya’s mind to discuss about the design of the cake. Eileen similarly testified that after

their conversation with the employee on their first visit, there were no “other choices” to make

about the design of the cake beyond flavors.

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to the Rodriguez-Del Rios, however, because the couple planned to serve it at their same-

sex wedding reception.

After Tastries’s refusal, the Rodriguez-Del Rios ultimately obtained a cake of the

same design from another baker, pictured post:

We turn now to the broader, factual context surrounding this denial.

II. Tastries

Catharine Miller owns and operates Tastries, a small commercial bakery in

Bakersfield, which employs approximately 18 people, including Miller and her husband.

The bakery sells a variety of baked goods, which are available daily in a display case and

can be purchased by anyone without restriction. The display case of daily goods can

accommodate cakes, but only single-tiered cakes that are meant for last-minute

purchasing. The bakery also sells preordered baked goods to be produced for a specific

date, which encompasses cakes for a variety of occasions, including weddings. Tastries’s

policy is that all preordered baked goods are considered “custom,” regardless of the type

of product or its design specifications. If a customer wants a cake identical to one in the

daily display case, but wants the cake prepared for a specific date, it is considered by

Tastries to be a “custom” cake.

Miller is a devout Christian. She believes that Tastries is God’s business, and that

she and her husband work in service to God. She has Bible verses on her business cards,

she prays with the staff before meetings, and they work as a family—helping each other

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and working together. They play Christian music at the store, and sell a small variety of

boutique merchandise, some with Christian themes.

Approximately 30 percent of Tastries’s revenue comes from wedding cake sales.

All preordered wedding cakes are considered custom products by Tastries, regardless of

their design. When customers order a wedding cake, Tastries collects information such as

the name of the bride and the groom, and a consultation will be scheduled where the

cake’s design will be discussed. Typically, Miller will personally conduct this

consultation, although in the past other employees have done it. Miller requires the

engaged couple, except in certain circumstances, to both be present for the cake

consultation. She has developed a packet, which she goes over with the couple during

the consultation that explains various wedding traditions, including those relevant to a

wedding cake, and the packet includes various Bible verses and talks about how marriage

is between a man and a woman; Miller informs the couple of the Bible verses she has

used in weddings and how many weddings she has coordinated. Given these

circumstances, Miller intends each cake, regardless of appearance, to convey a message

that the marriage is “ordained by God between a man and a woman and we are here to

celebrate that with you.”

The consultation includes a tasting, where the couple has a chance to sample

cupcakes with the different available fillings and flavors. When Miller conducts the

consultation, they talk about the colors for the wedding, the flowers, and the number of

guests they wish to serve because “all of that comes into play when [Miller] is designing

their cake.” About 40 to 50 percent of the time, couples will bring in a picture of a cake

design, and Tastries will replicate it so long as Miller believes the cake’s appearance is

beautiful. Tastries also has many display cakes in the bakery and photographs of cake

designs for couples to choose from. Some customers leave the design entirely up to

Tastries after consulting about flavors and colors.

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In completing a wedding cake order, usually at least five to eight different

employees work on some aspect of the cake—from baking it, to making fillings and

frostings, to decorating and then (often) delivering the cake to the wedding site.

Approximately 95 percent of wedding cake orders are delivered, and setting up the cake

at a reception site can take 15 minutes to an hour. Many times, some wedding guests or

the wedding party are at the venue site at the time of delivery. Miller may be involved in

all aspects of a cake order, but she does not necessarily bake or decorate any particular

cake. Since the events of this case, Miller personally conducts most of the design/tasting

consultations.

Since opening Tastries, Miller has developed design standards for Tastries’s

products so that they reflect her beliefs. For the period of time relevant to this case,

Tastries used the following design standards for its products:

“We do not accept requests that do not meet Tastries Standards of

Service, including but not limited to designs or an intended purpose based

on the following:

“•Requests portraying explicit sexual content

“•Requests promoting marijuana or casual drug use

“•Requests featuring alcohol products or drunkenness

“•Requests presenting anything offensive, demeaning or violent

“•Requests depicting gore, witches, spirits, and satanic or violent

content

“•Requests that violate fundamental Christian principals [sic];

wedding cakes must not contradict God’s sacrament of marriage

between a man and a woman”3

3 There were several versions of the design standards in existence during the relevant time

frame, but, as the trial court found, they varied only in minor detail.

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The standards refer to Miller’s mission to create “custom designs that are Creative,

Uplifting, Inspirational and Affirming” (boldface omitted), and that are “lovely,

praiseworthy, or of good report[.]”

These design standards apply to all baked goods, and Miller has refused to make

products that do not comport with the design standards. For example, she has refused to

make products with a marijuana theme, and she refused to provide a cake for a man who

wanted to use the cake at his anniversary party to announce his intention to seek a

divorce.

Miller developed the standards in consultation with her minister; the final standard

was added in 2015 after same-sex marriage was recognized as a fundamental right.

Miller intends the design policy to prohibit the provision of any preordered baked good

for use in the celebration of same-sex marriage, including engagements, weddings and

anniversaries. She believes that by providing any preordered product for the celebration

of same-sex marriage, Tastries is placing its stamp of approval on that marriage, which is

inconsistent with Miller’s religious belief that marriage is between a man and a woman.

Thus, specific to wedding cakes, Miller will not provide any preordered cake—no matter

its design—for a same-sex wedding, even though she will sell the identical product for an

opposite-sex couple’s wedding. According to Miller, her purpose for refusing certain

products for certain people is not to exclude anyone on the basis of sexual orientation, but

to follow her conscience and her sincerely held religious beliefs that marriage is limited

to couples comprising one man and one woman.

Miller has referred same-sex couples seeking a wedding cake to Gimme Some

Sugar approximately three times. The referral process was developed when a same-sex

couple sought to purchase a wedding cake from Tastries. Miller became uncomfortable

and concluded she could not provide the cake because of her beliefs. She had already

taken payment for the order, so she sought out the owner of Gimme Some Sugar, who

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agreed to take over the order. In that instance, the couple came back and thanked Miller,

told her the cake was wonderful, and they have been back at Tastries since then.

Despite her design policy prohibiting the sale of preordered cakes for same-sex

weddings, four of Tastries’s former employees had surreptitiously supplied wedding

cakes on prior occasions to at least two same-sex couples without Miller’s knowledge.

III. Rodriguez-Del Rios’ Order Refused

Real parties in interest Mireya and Eileen Rodriguez-Del Rio are a same-sex

couple who were married in December 2016 in a small ceremony with friends and family.

The couple wanted to celebrate with a larger group and planned to exchange vows and

host a traditional wedding reception in October 2017.

In planning the 2017 wedding event, the couple visited several bakeries, including

Tastries. Eileen brought home cupcakes from Gimme Some Sugar to taste the flavors, but

they decided the samples were too sweet. On August 16, 2017, they visited Tastries,

where an employee, not Miller, assisted them in selecting a cake for their wedding. The

couple chose a cake based on one of Tastries’s preexisting, inedible sample cake displays,

which the employee who assisted them described at trial as a simple and popular design

sold for many different types of events: a round, three-tiered cake with no writing or

cake topper that was to be delivered about an hour before their event; the employee

suggested the couple come back to do a cake tasting. The employee never told them

Tastries would not provide a cake for a lesbian couple. The Rodriguez-Del Rios returned

to the bakery for a tasting on August 26, 2017, with two of their friends and Eileen’s

mother. When they got to the bakery, the employee who assisted them previously told

them Miller was going to take over.

Miller, who was unaware the Rodriguez-Del Rios had already discussed the cake

design with the employee, asked them questions about the cake they wanted. Miller

initially believed it was a heterosexual couple with their mother and a maid and man of

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honor. The order form Miller had was blank, so she handed it to Mireya thinking she was

the bride. Miller’s questions struck the Rodriguez-Del Rios as odd because they had

already gone over this information in their first visit—they thought they were there only

to taste flavors for the filling and frosting. Miller asked who the groom was, and that was

when she discovered it was a same-sex marriage. At that point, Miller excused herself

for a moment, and then returned to tell them she was sorry, she could not supply their

wedding cake, and she would refer them to Gimme Some Sugar. Eileen asked why, and

Miller said she could not be part of a same-sex wedding due to her religious beliefs.

Although Miller told them they could stay and complete the sampling, the couple did not

see the point of doing so. A member of the group took the order form or the clipboard

from Miller, and the group walked out.

The Rodriguez-Del Rios were shocked, humiliated and frustrated to learn Tastries

would not provide them a wedding cake. Mireya felt rejected, and Eileen was upset and

angry because they hurt Mireya. Eileen was concerned about removing her mother and

Mireya from the situation. When the group got to the parking lot, they decided to get

coffee to process what had happened. Members of the group posted about their

experience on social media. After the group left the coffee shop, Mireya and Eileen ran

additional errands. Mireya began crying, which resulted in a bloody nose.

Within hours after the group left the bakery, Tastries started receiving threatening

telephone calls and pornographic emails; Tastries subsequently lost corporate accounts,

and people left low ratings on social media accounts. Miller and her employees received

threats; Miller had to shorten Tastries’s hours of operation. An article was written about

the Rodriguez-Del Rios that was untrue; hurtful and threatening comments were made

about the Rodriguez-Del Rios, Miller and Tastries.

The Rodriguez-Del Rios ultimately obtained a cake from another bakery, which

was very similar to the cake they had wanted Tastries to provide. The plain, white cake

was three tiers, two of which were made of Styrofoam, and adorned with real flowers. It

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was placed in the center of the reception venue for a few minutes when it was cut during

the event.

IV. Procedural Background

The CRD filed suit against defendants in October 2018 seeking injunctive relief

and monetary damages for violations of the UCRA. In September 2021, the parties each

filed motions for summary judgment, which were denied. The matter proceeded to a

bench trial in July 2022. The trial court issued a tentative ruling in favor of defendants,

and the CRD requested a statement of decision pursuant to Code of Civil Procedure

section 632. After both parties filed various objections, the trial court adopted its

tentative ruling as its statement of decision, and judgment was entered on December 27,

2022.

In its statement of decision, the trial court concluded defendants’ design standard

that precluded selling wedding cakes for same-sex couples was facially neutral. The trial

court explained defendants would not design or offer to any person a wedding cake that

contradicts “‘God’s sacrament of marriage between a man and a woman.’” The trial

court found no evidence indicating the facially neutral policy was merely a pretext to

discriminate. The trial court also concluded Miller’s referral to Gimme Some Sugar

constituted full and equal access under the UCRA pursuant to the trial court’s

interpretation of relevant case authority. In sum, the trial court concluded the CRD had

failed to prove that defendants violated the UCRA.

The trial court then, as an alternative matter, reached defendants’ First Amendment

defenses. Although concluding the UCRA substantially burdened Miller’s free exercise

of religion, the trial court found it was bound by the California Supreme Court’s decision

in North Coast Women’s Care Medical Group, Inc. v. Superior Court (2008) 44 Cal.4th

1145 (North Coast), which held the UCRA is a valid and neutral law of general

applicability that survives strict scrutiny. (North Coast, supra, at p. 1158.)

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As for defendants’ First Amendment compelled speech defense, the trial court

found defendants’ wedding cakes were all artistic expression that constituted pure speech

and amounted to expressive conduct that conveys support for a man and a woman uniting

in the “sacrament” of marriage, that the union is a marriage and should be celebrated.

The trial court applied strict scrutiny and found there was no compelling government

interest that justified forcing defendants to convey a message about marriage with which

they disagreed.

DISCUSSION

I. The UCRA Violation

The UCRA mandates that “All persons within the jurisdiction of this state are free

and equal, and no matter what their sex, race, color, religion, ancestry, national origin,

disability, medical condition, genetic information, marital status, sexual orientation,

citizenship, primary language, or immigration status are entitled to the full and equal

accommodations, advantages, facilities, privileges, or services in all business

establishments of every kind whatsoever.” (§ 51, subd. (b).)

“The purpose of the [UCRA] is to create and preserve ‘a nondiscriminatory

environment in California business establishments by “banishing” or “eradicating”

arbitrary, invidious discrimination by such establishments.’ (Angelucci v. Century Supper

Club (2007) 41 Cal.4th 160, 167 (Angelucci), citing Isbister v. Boys’ Club of Santa Cruz,

Inc. (1985) 40 Cal.3d 72, 75–76.) ‘The [UCRA] stands as a bulwark protecting each

person’s inherent right to “full and equal” access to “all business establishments.” (§ 51,

subd. (b); see Isbister, supra, 40 Cal.3d at p. 75.)’ (Angelucci, at p. 167.) In enforcing

the [UCRA], courts must consider its broad remedial purpose and overarching goal of

deterring discriminatory practices by businesses. (Angelucci, at p. 167.; see Isbister, at

p. 75.) [The California Supreme Court has] consistently held that ‘the [UCRA] must be

construed liberally in order to carry out its purpose.’ (Angelucci, at p. 167; see Koire v.

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Metro Car Wash (1985) 40 Cal.3d 24, 28, (Koire).)” (White v. Square, Inc. (2019) 7

Cal.5th 1019, 1025 (White).)

While the UCRA expressly lists sex, race and other types of protected-

characteristic discrimination, its list is illustrative rather than restrictive, and its protection

against discrimination is not confined to the expressly articulated classes. (Marina Point,

Ltd. v. Wolfson (1982) 30 Cal.3d 721, 732 (Marina Point) [the UCRA’s “‘language and its

history compel the conclusion that the Legislature intended to prohibit all arbitrary

discrimination by business establishments,’” regardless of whether the ground of

discrimination is expressly set forth in the statute]; Harris v. Capital Growth Investors

XIV (1991) 52 Cal.3d 1142, 1160–1169 (Harris) [establishing analytical framework for

determining whether unenumerated protected class is cognizable under the UCRA].)

“In general, a person suffers discrimination under the [UCRA] when the person

presents himself or herself to a business with an intent to use its services but encounters

an exclusionary policy or practice that prevents him or her from using those services.”

(White, supra, 7 Cal.5th at p. 1023.) Unless an UCRA claim is based on an Americans

with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq. (ADA)) violation, a plaintiff is

required to establish the defendant is a business enterprise that intentionally discriminates

against and denies the plaintiff full and equal treatment of a service, advantage or

accommodation based on the plaintiff’s protected status. (Civ. Code, § 51, subd. (b);

Liapes v. Facebook, Inc. (2023) 95 Cal.App.5th 910, 922 (Liapes); Martinez v. Cot’n

Wash, Inc. (2022) 81 Cal.App.5th 1026, 1036 [“Unless an [UCRA] claim is based on an

ADA violation,” a plaintiff must prove intentional discrimination].) Intentional

discrimination requires proof of “‘willful, affirmative misconduct.’” (Koebke v. Bernardo

Heights Country Club (2005) 36 Cal.4th 824, 853 (Koebke), quoting Harris, supra, 52

Cal.3d at p. 1172.) To meet this standard, the plaintiff must show more than the disparate

impact of a facially neutral policy on a particular protected group—e.g., establishing the

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policy was a pretext for discriminatory intent or was applied in a discriminatory manner.

(Koebke, supra, at pp. 854–855.)

Policies that make a facial distinction based on an enumerated protected

characteristic are unlawful. (See Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 32–33

(Koire) [facially discriminatory pricing policies favoring women unlawful under the

UCRA]; see also Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 175–176

(Angelucci) [pricing policies making facial distinction on the basis of sex violate the

UCRA; the plaintiffs sufficiently alleged injury when such a policy was applied to

them].) Policies that make a facial distinction based on an unenumerated characteristic

may be found unlawful if the distinction constitutes “‘arbitrary, invidious or unreasonable

discrimination.’” (Javorsky v. Western Athletic Clubs, Inc. (2015) 242 Cal.App.4th 1386,

1398; see Liapes, supra, 95 Cal.App.5th at p. 926 [program and algorithm that facially

excludes women and older people from receiving ads combined with evidence of

disparate impact adequately alleged violation of the UCRA].)

A. Intentional Discrimination

In concluding defendants did not intentionally discriminate for purposes of the

UCRA, the trial court found Miller’s “only intent, her only motivation, [in refusing the

Rodriguez-Del Rios a wedding cake] was fidelity to her sincere Christian beliefs”—a

motivation the trial court concluded was not unreasonable or arbitrary under the statute.

The CRD argues that, where a policy facially discriminates on the basis of a protected

characteristic, as the wedding cake design standard does here, liability does not depend

on why someone intentionally discriminates. The CRD contends the trial court’s reliance

on Miller’s sincere religious beliefs as demonstrating no malice toward same-sex couples

is irrelevant and misinterprets the standard for proving intentional discrimination.

Defendants contend the design standard at issue is facially neutral because, as the

trial court concluded, it applies equally to everyone, regardless of sexual orientation:

“Miller and Tastries do not design and do not offer to any person—regardless of sexual

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orientation—custom wedding cakes that ‘contradict God’s sacrament of marriage

between a man and a woman.’” At best, defendants argue, the CRD presented evidence

of a disparate impact based on sexual orientation stemming from a facially neutral policy,

which is insufficient to show intentional discrimination under the UCRA. Moreover,

defendants argue, there is no other evidence that supported a finding of intentional

discrimination because the trial court found the design standards were not created or

applied as a pretext to discriminate or to make a distinction based on a person’s sexual

orientation.

1. Tastries’s Design Standard is Facially Discriminatory

A facially discriminatory policy is one which on its face applies less favorably to a

protected group. (See, e.g., Community House, Inc. v. City of Boise (9th Cir. 2007) 490

F.3d 1041, 1048.) A facially neutral policy applies equally to all persons; a disparate

impact analysis “relies on the effects of a facially neutral policy on a particular group”

(Koebke, supra, 36 Cal.4th at p. 854), and “it requires inferring discriminatory intent

solely from those effects” (Liapes, supra, 95 Cal.App.5th at p. 925). Here, there was no

factual dispute as to the literal contents of Tastries’s design standards for the trial court to

resolve, nor was there any dispute that Miller refused to provide a wedding cake to the

Rodriguez-Del Rios pursuant to those standards. The CRD contends the trial court erred

by concluding the standard at issue applied equally to everyone—i.e., that it was facially

neutral.

In this context, whether a business establishment’s undisputed written policy is

facially neutral or discriminatory under the UCRA involves application of the rule of law

to the relevant and undisputed facts. As such, our review on this specific issue is de

novo. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799 [“When the decisive facts are

undisputed, we are confronted with a question of law and are not bound by the findings

of the trial court.”]; see Haworth v. Superior Court (2010) 50 Cal.4th 372, 385 (Haworth)

[where legal question predominates in mixed question of law and fact, appellate review is

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de novo]; see also Koebke, supra, 36 Cal.4th at p. 854 [determining in summary

judgment context that country club’s membership benefits policy was facially neutral].)

Here, Miller developed standards of service that restrict the design of products

Tastries will create and the “intended purpose” for which the product will be used. The

standards of service list six types of requests for a preordered baked good that Tastries

will not honor: (1) portraying explicit sexual content; (2) promoting marijuana or casual

drug use; (3) featuring alcohol products or drunkenness; (4) presenting anything

offensive, demeaning or violent; and (5) depicting gore, witches, spirits, and satanic or

demonic content. These standards focus on the design of the product. The sixth and final

category, however, specifies Tastries will not provide any preordered baked goods that

“violate fundamental Christian princip[les],” and specifies “wedding cakes must not

contradict God’s sacrament of marriage between a man and a woman.”

The trial court concluded this last standard, which was the basis for Miller’s

refusal of Rodriguez-Del Rios’ wedding cake order, applies to everyone equally because

Tastries will not sell a preordered cake to anyone for purposes of a same-sex wedding.

But the sixth standard, which precludes a wedding cake whose design or intended

purpose “contradict[s] God’s sacrament of marriage between a man and a woman,” is a

status-based limitation because it expressly precludes a purpose that is defined around,

and indelibly tied to, the sexual orientation of the end user for whom the cake is sold.

That is what distinguishes it from all the other design standards concerning the design of

the cake, and instead expressly targets an intended purpose inextricably tied to a

protected characteristic.4 Different from the other standards, the preclusion on providing

wedding cakes for the purpose of same-sex marriage cannot be applied until and unless

4 To that end, Miller’s refusal to sell a so-called “divorce” cake as an example of how the

policy applies equally to everyone is an inapt comparison. When Miller refused to make a cake

for a gentleman who wanted to make a surprise request for a divorce during a wedding

anniversary party, the prohibited purpose was not tied to and defined by the end user’s protected

characteristics.

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the same-sex status of the marrying couple is ascertained because that is the criterion on

which it pivots. (Cf. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n

(2018) 584 U.S. 617, 672 (dis. opn. of Ginsberg, J.) (Masterpiece) [observing that baker’s

declination “to make a cake he found offensive where the offensiveness of the product

was determined solely by the identity of the customer requesting it” is distinct from cakes

declined due to demeaning message requested, which did not turn on protected

characteristic of the customer].) And, because this is so, it is a standard that does not

apply “alike to persons of every … sexual orientation .…” (§ 51, subd. (c).) Indeed,

Miller testified she would have provided to a heterosexual couple the same cake she

refused to provide to the Rodriguez-Del Rios under this standard.

The design standard is not transformed into a neutral policy simply because

Tastries will sell other products (such as items in the bakery case or preordered baked

goods not intended for same-sex weddings) to nonheterosexual customers. The UCRA

“clearly is not limited to [wholly] exclusionary practices” but requires “equal treatment of

patrons in all aspects of the business.” (Koire, supra, 40 Cal.3d at p. 29.) Additionally,

Tastries’s refusal to sell a wedding cake to anyone—regardless of sexual orientation—for

the purpose of a same-sex wedding does not render the standard applicable alike to every

person regardless of sexual orientation. Section 51, subdivision (e)(6), defines sexual

orientation to include those persons associated with someone who has, or is perceived to

have, that protected characteristic. As the CRD correctly contends, a customer buying a

preordered cake for a same-sex wedding is doubtlessly associated with the same-sex

couple who is marrying, and the refusal to furnish a product because it will be used by the

customer to celebrate a same-sex wedding will invariably be based on that association.

Nor is the standard facially neutral because its limitation pertains to same-sex

marriage. Drawing a distinction based on conduct (same-sex marriage), which is

indelibly intertwined with a protected status (sexual orientation) has been rejected in

several contexts. (See, e.g., Christian Legal Society Chapter of the University of

18.

California, Hastings College of the Law v. Martinez (2010) 561 U.S. 661, 672, 689 [no

difference between organization’s exclusion of those engaged in “‘unrepentant

homosexual conduct’” and exclusion of those based on their sexual orientation]; see also

Lawrence v. Texas (2003) 539 U.S. 558, 575 [“[w]hen homosexual conduct is made

criminal by the law of the State, that declaration in and of itself is an invitation to subject

homosexual persons to discrimination” (italics added)]; cf. Bray v. Alexandria Women’s

Health Clinic (1993) 506 U.S. 263, 270 [explaining some conduct is so tied to a

particular group that targeting the conduct can be readily inferred as an attempt to

disfavor the group by pointing out “[a] tax on wearing yarmulkes is a tax on Jews”].)

Indeed, same-sex marriage has been recognized by the United States Supreme Court as a

fundamental expression of an individual’s sexual orientation. (Obergefell v. Hodges

(2015) 576 U.S. 644, 675 [laws prohibiting gay marriage “impos[e] … disability on gays

and lesbians [and] serves to disrespect and subordinate them”]; United States v. Windsor

(2013) 570 U.S. 744, 775 [“[The federal Defense of Marriage Act (1 U.S.C. § 7)] singles

out a class of persons deemed by a State entitled to recognition and protection to enhance

their own liberty.”].)

Notably, the California Supreme Court considered this conduct/status distinction

in the context of state marriage statutes and explained that “restricting marriage to a man

and a woman cannot be understood as having merely a disparate impact on gay persons,

but instead properly must be viewed as directly classifying and prescribing distinct

treatment on the basis of sexual orientation. By limiting marriage to opposite-sex

couples, the marriage statutes, realistically viewed, operate clearly and directly to impose

different treatment on gay individuals because of their sexual orientation. By definition,

gay individuals are persons who are sexually attracted to persons of the same sex and

thus, if inclined to enter into a marriage relationship, would choose to marry a person of

their own sex or gender. A statute that limits marriage to a union of persons of opposite

sexes, thereby placing marriage outside the reach of couples of the same sex,

19.

unquestionably imposes different treatment on the basis of sexual orientation.” (In re

Marriage Cases (2008) 43 Cal.4th 757, 839–840, fn. omitted, superseded by

constitutional amend. as stated in Hollingsworth v. Perry (2013) 570 U.S. 693, 701.)

This reasoning applies with equal force here: a business policy that permits

preordered wedding cake sales only for opposite-sex couples, while refusing those

services to same-sex couples, unquestionably imposes differential treatment on the basis

of sexual orientation. If a business refuses its services to and/or for same-sex couples, it

realistically operates “clearly and directly to impose different treatment on gay

individuals because of their sexual orientation.” (In re Marriage Cases, supra, 43 Cal.4th

at p. 839; cf. Smith v. Fair Employment & Housing Com. (1996) 12 Cal.4th 1143, 1155–

1156 [rejecting argument that refusing to rent to unmarried couple was aimed at

assumptions about their sexual conduct rather than their marital status].)

Defendants draw a distinction between an exclusionary policy implemented

because of a sincerely held religious belief about marriage and one aimed at individuals

because of their sexual orientation. To conflate them, defendants argue, is a serious

misstatement of Miller’s religious beliefs. We do not question the sincerity of Miller’s

religious beliefs about marriage, and they are entitled to respect. But Miller’s good-faith

religious basis for why she makes this distinction does not alter what the design standard

requires on its face: disparate treatment in wedding cake service based on the sexual

orientation of the end user. Thus, the legal issue for purposes of the UCRA concerns the

implementation and application of a policy in a public-facing business establishment that

facially excludes service to a portion of the public because of a protected characteristic.

None of the facially neutral policies in other cases that defendants point to as

analogous are comparable. For example, in Turner v. Association of American Medical

Colleges (2008) 167 Cal.App.4th 1401, the challenged policy involved the standards for

administration of the medical college admissions test, including a time limit for each

section of the test. (Id. at p. 1409.) The plaintiffs, who had reading-related learning

20.

disabilities and/or attention deficit hyperactivity disorder, requested and were denied

more time or a private room to take the medical college admissions test. (Id. at pp. 1404–

1405.) The court noted the administration standards were facially neutral because they

extended to all applicants regardless of their membership in a particular group. (Id. at

p. 1409.)

The policy considered in Koebke was similarly neutral. (Koebke, supra, 36

Cal.4th at pp. 853–854.) There, a private country club maintained a policy that extended

member benefits only to married spouses of members, which excluded same-sex partners

who were prohibited by law from marrying at that time. The policy was deemed facially

neutral because it applied equally to all unmarried individuals, regardless of their sexual

orientation.5 (Koebke, supra, at p. 854.) The denial of member benefits could be made

without knowing anything about the sexual orientation of the person seeking them

because the policy applied to anyone who was not married to a member.

Here, the policy’s application hinges not on the act of marriage, but on the same-

sex status of the couple to be married. Thus, the policy’s purposeful exclusion of same-

sex couples is facial discrimination because of sexual orientation. When Miller refused

to supply the cake the Rodriguez-Del Rios ordered, she did so because they were not a

heterosexual couple. The issue is not why Miller created and applied the policy, but that

it facially precludes some services based on a protected characteristic. As adoption and

application of the policy was purposeful and the policy was facially discriminatory, there

can be no other conclusion but that Miller’s refusal under the policy was intentionally

discriminatory.

5 The court held the plaintiff was entitled to pursue a discrimination claim based on marital

status for the period of time following the passage of the California Domestic Partner Rights and

Responsibilities Act of 2003 (Fam. Code, § 297 et seq.), and held the plaintiff was able to pursue

an as-applied discrimination claim based on sexual orientation under the UCRA prior to passage

of the Domestic Partner Rights and Responsibilities Act. (Koebke, supra, 36 Cal.4th at pp. 851–

852.)

21.

2. Reason for Adopting the Facially Discriminatory Policy is Not

Relevant

In concluding intentional discrimination was not proven, the trial court found

“Miller’s only intent, her only motivation, was fidelity to her sincere Christian beliefs.

Miller’s only motivation in creating and following the design standards, and in declining

to involve herself or her business in designing a wedding cake for a marriage at odds with

her faith, was to observe and practice her own Christian faith” and that motivation “was

not unreasonable, or arbitrary, nor did it emphasize irrelevant differences or perpetuate

stereotypes.”

This line of reasoning appears premised on the conclusion that Tastries’s design

standard regarding wedding cakes is facially neutral, evidencing only disparate impact

insufficient by itself to show intentional discrimination. (Harris, supra, 52 Cal.3d at

p. 1175.) However, when the design standard is rightfully understood as facially

discriminatory, the fact that Miller’s adoption of the discriminatory policy was driven by

her sincerely held religious beliefs rather than malice or ill will is irrelevant to the issue

of intentional discrimination. (Cf. Smith v. Fair Employment & Housing Com., supra, 12

Cal.4th at pp. 1160–1161 [assertion of sincerely held religious belief as the basis to deny

unmarried couple housing evaluated only as a free exercise defense, and not in

determining whether discrimination because of marital status constituted a violation of

the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) (FEHA)].)6 If it

were otherwise, the assertion of a sincerely held religious belief (which is nonjusticiable)

6 At the time of the refusal to rent in Smith v. Fair Employment & Housing Com. and

currently, it is unlawful under FEHA for the owner of any housing accommodation to

discriminate against any person because of marital status. (Gov. Code, § 12955, subd. (a); Stats.

1980, ch. 992, § 4, p. 3154.) In concluding that Smith’s refusal to rent to an unmarried couple

violated FEHA, and thus supported the Fair Employment and Housing Commission’s

administrative level decision that the landlord violated the statute, Smith deemed it unnecessary

to decide whether the UCRA—which did not expressly enumerate marital status as a protected

characteristic at that time—had the same effect. (Smith v. Fair Employment & Housing Com.,

supra, 12 Cal.4th at pp. 1160–1161, fn. 11.)

22.

as justification for a facially discriminatory policy would always result in a finding of

nonintentionality, absent direct evidence of pretext.7 This is why the intentionality

required by the UCRA relates to the purposefulness of the discriminatory action; it does

not necessarily entail malice or a bias-driven rationale for the discriminatory act or

policy. (Black’s Law Dict. (12th ed. 2024) p. 964, col. 1 [intentional means “[d]one with

the aim of carrying out a given act; performed or brought about purposely”].)

It is undisputed that Miller purposefully refused to supply any wedding cake to the

Rodriguez-Del Rios, and that she did so based on Tastries’s facially discriminatory design

standard, which she created. In such an instance, Miller’s underlying incentive for

purposely adopting and applying the facially discriminatory policy does not affect, nor is

it relevant to, the intentionality of the discrimination. (Cf. Los Angeles Dept. of Water &

Power v. Manhart (1978) 435 U.S. 702, 705, 716 [in the context of tit. VII of the Civ.

Rights Act of 1964 (42 U.S.C. § 2000e et seq.), requirement that female employees make

larger contributions to pension fund was a facially discriminatory policy despite that it

was purportedly based on actuarial data related to lifespan and not on any malice or

stereotyping].)

The standard jury instruction for UCRA claims (CACI No. 3060) underscores this

conclusion. The instruction requires a plaintiff to prove (1) the defendant denied the

plaintiff full and equal accommodations, advantages, facilities, privileges, or services;

(2) that a substantial motivating reason for the defendant’s conduct was the plaintiff’s

membership in a protected class; (3) that the plaintiff was harmed; and (4) that the

defendant’s conduct was a substantial factor in causing the plaintiff’s harm. (CACI

No. 3060.) The use notes for CACI No. 3060 indicate the term “substantial motivating

reason” was imported from the employment discrimination context under FEHA as

7 The potential implications of that proposition are astonishing in their breadth, and would

undercut the entire purpose of the UCRA.

23.

articulated in Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232, and was meant

to express both the intent and causation between the protected classification and the

defendant’s conduct.8 Decisional authority in the FEHA context holds a “substantial

motivating reason” need not be predicated on malice or ill will. (Wallace v. County of

Stanislaus (2016) 245 Cal.App.4th 109, 130–131 [where there is direct evidence of

employer’s motivation, substantial motivating reason does not require ill will].)9

Here, the design standard regarding wedding cakes specifically applies and

operates around the sexual orientation of the couple to be married—it cannot even be

applied unless or until defendants have ascertained the same-sex status of the couple.

Thus, a substantial motivating reason for refusing service under the policy necessarily

was because of the sexual orientation of the couple, even though Miller bears no ill will

or malice toward those of nonheterosexual orientation generally.

In sum, we conclude Tastries’s sixth design standard pertaining to wedding cakes

is facially discriminatory. The evidence is undisputed that Miller purposefully created the

policy and applied it to refuse to supply a cake for the Rodriguez-Del Rios. Because the

denial was based on a policy that facially discriminated on the basis of sexual orientation,

a substantial motivating reason for the denial was necessarily because of the sexual

orientation of the couple. The underlying rationale for the policy—Miller’s sincerely

held religious beliefs—does not make the facially discriminatory policy any less violative

of the UCRA.

8 CACI No. 2507 explains that a “‘substantial motivating reason’” “is a reason that actually

contributed to the [discriminatory act]. It must be more than a remote or trivial reason. It does

not have to be the only reason motivating the [discriminatory act].”

9 Defendants provided CACI No. 3060 to the trial court, and argued BAJI No. 7.92, which

likewise uses the substantial motivating factor standard, states the elements required by the

UCRA. Neither party asserts “substantial motivating reason” standard is incorrectly applied to

UCRA claims, and, as such, we do not comment on that issue.

24.

B. Referral to Separate and Independent Business Was Not Full and

Equal Access Under the UCRA

The trial court found that when Miller determined she was unable to design the

cake, she immediately referred the Rodriguez-Del Rios to “another good bakery,” but the

couple declined her referral. The trial court then relied on North Coast, supra, 44 Cal.4th

1145 and Minton v. Dignity Health (2019) 39 Cal.App.5th 1155 (Minton) to conclude a

refusal of service could satisfy the UCRA’s “‘full and equal access’” requirement when

accompanied by an immediate referral to a different business entity that served

comparable products. The court applied this interpretation of the UCRA’s full and equal

access requirement to the facts it found, and determined Miller’s immediate referral to

Gimme Some Sugar constituted full and equal access under the UCRA because that

bakery was analogous to the proposed alternative facility in Minton. The CRD contends

the trial court misinterpreted this case law, and it applied an incorrect rule of law to the

facts.

1. Standard of Review

In reviewing mixed questions of law and fact where we must determine whether

the trial court properly applied the rule of law to the relevant facts, the review is

conducted independently when the question is predominantly legal. (See Haworth,

supra, 50 Cal.4th at p. 384.) Here, because the “‘inquiry requires a critical consideration,

in a factual context, of legal principles and their underlying values, the question is

predominantly legal and its determination is reviewed independently.’” (20th Century

Ins. Co. v. Garamendi (1994) 8 Cal.4th 216, 271.)

2. Analysis

The trial court’s conclusion that defendants provided the Rodriguez-Del Rios full

and equal access through a referral to another bakery was predicated on its interpretation

of North Coast and Minton, and so we begin with a brief overview of those cases.

25.

In North Coast, an unmarried lesbian woman (Benitez) was denied intrauterine

insemination (IUI) by physicians who had religious objection to performing the

procedure on Benitez. (North Coast, supra, 44 Cal.4th at pp. 1150–1152.) She was

ultimately referred to a physician outside North Coast’s medical practice, and then filed

suit against North Coast and its physicians, seeking damages and injunctive relief for,

inter alia, sexual orientation discrimination in violation of the UCRA. (North Coast,

supra, at p. 1152.) Among their affirmative defenses, the defendants asserted the alleged

misconduct, if any, was protected by the right of free speech and the freedom of religion

under both the federal and state Constitutions. (North Coast, supra, at pp. 1152–1153.)

Benitez moved for summary adjudication of that specific affirmative defense,

which the trial court granted, ruling that neither the federal nor the state Constitutions

provide a religious defense to a claim of sexual orientation discrimination under the

UCRA. (North Coast, supra, 44 Cal.4th at p. 1153.) In granting the defendant

physicians’ writ petition, the Court of Appeal concluded summary adjudication was

improper as to the physicians because it effectively precluded them from presenting

evidence that they refused to perform the IUI for Benitez due to her unmarried status, as

marital status was not an expressly protected characteristic at the time of the refusal.

(Ibid.)

The Supreme Court agreed with the trial court that the federal Constitution’s First

Amendment right to the free exercise of religion did not exempt the defendant physicians

in the case before it “from conforming their conduct to the [UCRA’s] antidiscrimination

requirements even if compliance poses an incidental conflict with [the] defendants’

religious beliefs. (North Coast, supra, 44 Cal.4th. at p. 1156, citing Church of Lukumi

Babalu Aye, Inc. v. Hialeah (1993) 508 U.S. 520, 531 (Lukumi); accord, Employment Div.

Ore. Dept. of Human Res. v. Smith (1990) 494 U.S. 872, 879 (Smith).) Moreover, “‘[f]or

purposes of the free speech clause, simple obedience to a law that does not require one to

convey a verbal or symbolic message cannot reasonably be seen as a statement of support

26.

for the law or its purpose. Such a rule would, in effect, permit each individual to choose

which laws he would obey merely by declaring his agreement or opposition.’” (North

Coast, supra, at p. 1157, quoting Catholic Charities of Sacramento, Inc. v. Superior

Court (2004) 32 Cal.4th 527, 558–559 (Catholic Charities).) In turning to the California

Constitution’s free exercise guarantee (Cal. Const., art. I, § 4), the court assumed the

physicians’ religious exercise had been substantially burdened, further assumed strict

scrutiny applied and concluded it was satisfied because the UCRA “furthers California’s

compelling interest in ensuring full and equal access to medical treatment irrespective of

sexual orientation, and there are no less restrictive means for the state to achieve that

goal.” (North Coast, supra, at p. 1158.)

After reaching this conclusion, the court observed that to avoid any conflict

between their religious beliefs and the UCRA, the defendant physicians could “simply

refuse to perform the IUI medical procedure at issue here for any patient of North Coast,

the physician’s employer. Or because they incur liability under the [UCRA] if they

infringe upon the right to the ‘full and equal’ services of North Coast’s medical practice

[citations], defendant physicians can avoid such a conflict by ensuring that every patient

requiring IUI services receives ‘full and equal’ access to that medical procedure through a

North Coast physician lacking defendants’ religious objections.” (North Coast, supra, 44

Cal.4th at p. 1159.)

The high court held the trial court’s grant of summary adjudication correctly

narrowed the issues in the case by disposing of the defendant physicians’ contention that

their constitutional rights to free speech and the free exercise of religion exempted them

from complying with the UCRA’s prohibition against sexual orientation discrimination

while still leaving them free to offer evidence that their religious objections stemmed

from Benitez’s unmarried status. (North Coast, supra, 44 Cal.4th at p. 1161.)

In Minton, the plaintiff (Minton) was a transgender man diagnosed with gender

dysphoria. (Minton, supra, 39 Cal.App.5th at p. 1158.) To treat the gender dysphoria,

27.

Minton’s physician and two mental health professionals considered a hysterectomy

medically necessary, and his physician scheduled the surgery at Mercy San Juan Medical

Center (Mercy), a hospital owned and operated by Dignity Health. (Id. at p. 1159.) After

the surgery was scheduled, Mercy’s president notified Minton’s physician the procedure

had been cancelled and that she would “‘never’” be allowed to perform the scheduled

hysterectomy because it was a course of treatment for gender dysphoria as opposed to

any other medical diagnosis. (Ibid.) Subsequently, the president suggested the physician

obtain emergency admitting privileges at Methodist Hospital, a non-Catholic Dignity

Health hospital about 30 minutes from Mercy. (Id. at pp. 1159, 1164.) The physician

was able to secure the privileges and performed the hysterectomy three days after the

surgery had originally been scheduled. (Id. at p. 1159.)

Minton filed suit, alleging a violation of the UCRA for discrimination based on his

gender identity. (Minton, supra, 39 Cal.App.5th at p. 1158.) The trial court sustained

Dignity Health’s demurrer to an amended complaint, concluding Minton had failed to

allege facts showing Dignity Health’s conduct violated the UCRA. (Minton, supra, at

p. 1159.) The trial court cited North Coast and reasoned it was not reasonably possible

Minton could allege that his receiving the procedure he desired from the physician he

selected to perform it three days later than planned at a different hospital than he desired

deprived him of full and equal access to the procedure. (Minton, supra, at p. 1161.)

The Court of Appeal reversed. (Minton, supra, 39 Cal.App.5th. at p. 1163.) The

court pointed out Minton had not alleged that providing him with access to alternative

hospital facilities violated the UCRA; rather, his complaint was that Dignity Health

violated the UCRA when it cancelled the procedure and told his doctor she would never

be allowed to perform the hysterectomy. (Minton, supra, at p. 1164.) That refusal, the

appellate court noted, was not “accompanied by advice that the procedure could instead

be performed at a different nearby Dignity Health hospital.” (Ibid.) The court reasoned

that when Minton’s surgery was cancelled, he was subjected to discrimination. (Ibid.)

28.

“Dignity Health’s subsequent reactive offer to arrange treatment elsewhere was not the

implementation of a policy to provide full and equal care to all persons at comparable

facilities not subject to the same religious restrictions that applied at Mercy.” (Id. at

p. 1165.)

On examination of these cases, neither North Coast nor Minton support the trial

court’s conclusion that full and equal access under the UCRA can be accomplished by

referral to a separate and independent business entity. We, like Minton, do not question

North Coast’s observation that “ensuring” a patient full access to medical treatment

through an alternative physician at the same hospital could constitute full and equal

service. (North Coast, supra, 44 Cal.4th at p. 1159.) But North Coast never suggested

that full and equal access under the UCRA could be satisfied by simply identifying for

the patient an independent hospital that would offer comparable treatment. Indeed, the

full and equal access to which the high court referred was the right to the “‘full and equal’

access to that medical procedure through a North Coast physician .…” (North Coast,

supra, at p. 1159, italics added.)

Nor did Minton extend North Coast in such a manner. First, the issue addressed in

Minton was not whether Dignity Health’s “subsequent reactive offer to arrange

treatment” at a different hospital constituted full and equal access under the UCRA.

(Minton, supra, 39 Cal.App.5th at p. 1165.) Minton expressly limited its holding to

“narrower grounds”: “Without determining the right of Dignity Health to provide its

services in such cases at alternative facilities, as it claims to have done here, we agree that

[the] plaintiff’s complaint alleges that Dignity Health initially failed to do so and that its

subsequent rectification of its denial, while likely mitigating [Minton’s] damages, did not

extinguish his cause of action for discrimination in violation of the [UCRA].” (Id. at

p. 1158.) It is axiomatic that an opinion is not authority for a proposition not considered,

and the scope of “[l]anguage used in any opinion [must] be understood in the light of the

facts and issues then before the court .…” (Ginns v. Savage (1964) 61 Cal.2d 520, 524,

29.

fn. 2; see California Building Industry Assn. v. State Water Resources Control Bd. (2018)

4 Cal.5th 1032, 1043.) We cannot agree that reliance on Minton to determine whether

Miller’s referral fulfilled the UCRA’s full and equal access requirement is appropriate.

Second, even if Minton could be read to suggest in dicta that Dignity Health’s

alternative treatment proposal at a different hospital could have constituted full and equal

access under the UCRA had it been timely offered, it was contemplating a related hospital

facility also owned and operated by Dignity Health. (Minton, supra, 39 Cal.App.5th at

p. 1160.) Moreover, it was a facility where Minton’s chosen physician could obtain

emergency admitting privileges, and where the time-sensitive procedure was performed

only three days later than originally scheduled by Minton’s physician. Not only did

Minton expressly decline to address whether and what type of hospital alternative would

constitute full and equal access, any suggestion the alternative would have sufficed if

timely offered is necessarily cabined to the specific facts alleged, which bear no

similarity to Miller’s referral here.

The record reflects Miller had confirmed with Gimme Some Sugar at some point

prior to the events in this case that it would provide wedding cake products and services

to same-sex couples whom Miller referred, but there is no evidence a referral under that

agreement would ensure the Rodriguez-Del Rios a wedding cake on the needed date, let

alone the wedding cake they wanted to order from Tastries. It is irrelevant the trial court

found the referral bakery to be a “comparable, good bakery.” Merely identifying a

separate bakery that is willing, in the abstract, to provide a wedding cake for same-sex

couples says nothing about its ability to ensure a “comparable” wedding cake in terms of

taste, design, cost or date availability. Indeed, testimony established the Rodriguez-Del

Rios had already rejected Gimme Some Sugar’s cakes as overly sweet before they met

with Miller.10

10 It is irrelevant that Miller would have referred the Rodriguez-Del Rios to yet another

bakery had the couple informed her they did not want a cake from Gimme Some Sugar. The

30.

Discriminatorily denying service and then telling would-be customers they may

take their business down the street (or farther) to a separate, unassociated establishment

where they may be served by way of referral in no way ensures full and equal access to

the product or service at the same price and under the same conditions. Miller’s

successful referral of another same-sex couple to Gimme Some Sugar in the past does not

change this reality. Moreover, a referral to a separate and independent business subjects

the customer to “‘the deprivation of personal dignity that surely accompanies denials of

equal access to public establishments’” that public accommodation laws like the UCRA

are generally designed to address. (Atlanta Motel v. United States (1964) 379 U.S. 241,

250; see Roberts v. United States Jaycees (1984) 468 U.S. 609, 625.)

An analogous application of North Coast’s observation as to an UCRA-compliant

alternative might exist if Miller herself, as an employee of Tastries, declined to do any

work on the cake and turned the project over to another Tastries employee, ensuring

continuity of service and price with access to the same product. But extending North

Coast to encompass Miller’s referral to a wholly separate and independent business is not

only an unrecognizable distortion of the alternative North Coast articulated, it

fundamentally undermines the UCRA’s purpose to stand “as a bulwark protecting each

person’s inherent right to ‘full and equal’ access to ‘all business establishments.’”

(Angelucci, supra, 41 Cal.4th at p. 167.) There is no evidence Miller’s referral to Gimme

Some Sugar involved anything more than ascertaining ahead of time this bakery was

willing to provide service for same-sex weddings Miller would not serve—nothing

showed an agreement that Gimme Some Sugar necessarily would or could provide the

specific cake (by taste and design) desired, on the date needed, for the price Tastries

offered.

same issues of ensuring full and equal service access with a referral to any other separate

business entity.

31.

As a practical matter, this referral is indistinguishable from hanging a sign in

Tastries’s window saying no cakes for same-sex weddings provided here—try Gimme

Some Sugar; we have confirmed it has no objection to providing service. Under a referral

practice like this, any business establishment would be authorized to refuse goods or

services to customers based on any type of protected characteristic so long as they could

point to a separate business confirmed to be theoretically willing to provide what the

referring business subjectively considers to be similar goods or services. Embracing such

a referral model would invite and endorse an untold number of discriminatory practices

wholly antithetical to the UCRA’s purpose (White, supra, 7 Cal.5th at p. 1025),

effectively repealing the UCRA by judicial fiat. Whatever alternative offer of service

might otherwise comport with the UCRA as articulated in North Coast, Miller’s referral

to a separate and independent business did not ensure full and equal access to defendants’

goods and services, and we emphatically reject it as compliance with the UCRA.11

C. The UCRA Provides No Exemption for Disparate Treatment on the

Basis of Sexual Orientation

Defendants also argue, alternatively, that Miller’s conduct is exempt from the

UCRA for constitutional and public policy reasons.

Defendants maintain Miller’s conduct comes within section 51, subdivision (c),

which provides that section 51 “shall not be construed to confer any right or privilege on

a person that is conditioned or limited by law .…” According to defendants, because they

maintain that compelling them to provide certain services to same-sex couples would

violate their rights under the federal and state Constitutions, the UCRA is not applicable

11 Defendants assert that an unbounded right to refer customers to other businesses under

the UCRA must be afforded to those with conflicting religious beliefs to avoid a clash with First

Amendment rights. But that begs the primary question of whether a refusal on religious grounds

is a constitutionally protected activity that overrides a public accommodations law. That cannot

be answered in the abstract, but must be instead considered in the context of the particular

constitutional right asserted, subject to the applicable analytical framework. We take up

defendants’ constitutional defenses post.

32.

pursuant to section 51, subdivision (c). The First Amendment constitutes an affirmative

defense to the UCRA on which defendants carry the burden of proof. (See generally

Gaab & Reese, Cal. Practice Guide: Civil Procedure Before Trial, Claims and Defenses

(The Rutter Group 2024) ch. 14(III)-C) ¶ 14:840.) Defendants’ constitutional defenses

must be considered separately; section 51, subdivision (c), does not operate as an

exemption feature for First Amendment defenses. (See Pines v. Tomson (1984) 160

Cal.App.3d 370, 387 [whether First Amend. warrants an exclusion from the UCRA

addressed separately and not as an exemption].)

Defendants next contend Miller’s conduct comes within a public policy exception

to the UCRA for distinctions that are nonarbitrary because the distinction made here was

based on Miller’s sincerely held religious beliefs. Some disparities in treatment have

been recognized by decisional authority as reasonable under the UCRA because they are

supported by compelling societal interests. (See, e.g., Koire, supra, 40 Cal.3d at pp. 36–

38 [observing price discounts for children and elderly are supported by social policy

considerations evidenced in legislative enactments that address special needs of these

populations]; Starkman v. Mann Theatres Corp. (1991) 227 Cal.App.3d 1491, 1499–1500

(Starkman) [theater discounts for children and seniors help seniors and children

participate in events that might not be affordable otherwise]; Sargoy v. Resolution Trust

Corp. (1992) 8 Cal.App.4th 1039, 1046 (Sargoy) [higher deposit interest rates for seniors

supported by public policy of assisting senior citizens]; Sunrise Country Club Assn. v.

Proud (1987) 190 Cal.App.3d 377, 382 (Proud) [setting aside 10 swimming pools out of

at least 21 for adults only was reasonable distinction based on danger to children in adult

areas and adult areas largely populated by retired or semi-retired adults].)

However, the decisional authority recognizing lawful distinctions in treatment

under the UCRA relate exclusively to unenumerated characteristics or, in a singular case,

revolve around a distinction based on disability expressly recognized by the Legislature

(Chabner v. United of Omaha Life Ins. Co. (9th Cir. 2000) 225 F.3d 1042, 1050 [Ins.

33.

Code, § 10144 expressly permits life insurance premium rate differential based on

actuarial tables]), none of which include any distinction in treatment based on sexual

orientation. Narrow distinctions based on age (an unenumerated category), for example,

have been recognized as lawful only where compelling societal interests justify a

difference in treatment, which are frequently evidenced by statute. (See Koire, supra, 40

Cal.3d at p. 38 [no strong public policy supported sex-based price discounts similar to

those recognized on the basis of age].) Defendants point to no compelling societal

interests that support a business establishment making a distinction in service based on

sexual orientation. Rather, there is strong public policy favoring the elimination of

distinctions based on sexual orientation with the UCRA being one such statute evidencing

it. (See, e.g., Gov. Code, § 12920 [barring sexual orientation discrimination in

employment]; id., § 12955, subd. (a) [barring sexual orientation discrimination in

housing]; id., § 11135, subd. (a) [barring sexual orientation discrimination in programs

operated by, or that are receiving financial assistance from, the state].)

Defendants assert that public policy “counsels against categorizing a good faith

religious belief held by millions of Americans as invidious discrimination, particularly

where, as here, Miller’s policy applies to all customers regardless of sexual orientation.”

But this contention misapprehends the UCRA. First, Miller’s policy, as already

explained, does not apply equally to all because the policy refuses service based on an

“intended purpose” that is inextricably rooted in sexual orientation and refuses certain

services for certain people on that basis.

Second, it is the distinction that is legally arbitrary and unreasonable under the

UCRA, not Miller’s sincerely held religious beliefs. (Koire, supra, 40 Cal.3d at p. 32

[gender-based pricing distinction itself was unreasonable and arbitrary, not the rational

self-interested profit motive spurring its creation]; cf. Marina Point, supra, 30 Cal.3d at

pp. 740–741, fn. 9 [disapproving as overbroad the proposition that discriminatory policy

is not actionable under the UCRA if it proceeds from a motive of rational self-interest and

34.

noting “an entrepreneur may find it economically advantageous to exclude all

homosexuals, or alternatively all nonhomosexuals, from his restaurant or hotel, but such a

‘rational’ economic motive would not, of course, validate the practice”].) When public

policy objectives are judicially recognized as justifying certain distinctions (almost

exclusively in unenumerated protected characteristics, like age), it is the compelling

societal interest the distinction itself serves that is evaluated, not the underlying rationale

for drawing the distinction.

D. Conclusion

Because we conclude defendants’ design standard regarding wedding cakes is

facially discriminatory, the trial court’s reliance on the absence of malice or ill will in

determining the CRD had not proven intentional discrimination was irrelevant and

reflected a misapplication of the intentionality requirement. Further, we conclude the

UCRA’s full and equal access requirement is not satisfied by the referral to a separate

business. Finally, there is no compelling societal interest that supports making a

distinction based on sexual orientation as reasonable or nonarbitrary under the UCRA.

As a result, the trial court’s conclusions regarding the UCRA claim cannot be sustained.

In light of this conclusion, we turn next to consider defendants’ affirmative free

speech and free exercise defenses. Even though the trial court erred in assessing the

CRD’s UCRA claim, those errors are prejudicial only if defendants’ affirmative defenses

provide no shelter from the UCRA’s application.12 (Cal. Const., art. VI, § 13; F.P. v.

Monier (2017) 3 Cal.5th 1099, 1108 [observing Const. “generally ‘prohibits a reviewing

court from setting aside a judgment due to trial court error unless it finds the error

prejudicial’”].)

12 The trial court did not reach the element of harm, having concluded there was no

intentional discrimination or failure to ensure full and equal access under the UCRA, but we note

there is evidence to support a finding of harm as a result of the denial.

35.

II. First Amendment’s Free Speech Guarantee

Although finding no violation of the UCRA, the trial court reached defendants’

affirmative defenses, including their First Amendment free speech defense under the

federal Constitution, rooted in the compelled speech doctrine. The trial court determined

that defendants’ preparation and sale of wedding cakes constitute both “pure speech” and

expressive conduct (symbolic speech) protected by the First Amendment, and that forcing

defendants to provide any preordered wedding cake for a same-sex wedding under the

UCRA would compel defendants to speak a message with which they disagree, in

violation of the First Amendment. The CRD challenges the trial court’s conclusions.

A. Expression Protected by the First Amendment

The First Amendment to the federal Constitution, which applies to the states

through the Fourteenth Amendment, prohibits laws “abridging the freedom of speech.”

(U.S. Const., 1st Amend.) While the First Amendment “literally forbids the abridgment

only of ‘speech,’” it has long been recognized “that its protection does not end at the

spoken or written word.” (Texas v. Johnson (1989) 491 U.S. 397, 404 (Johnson).)

Although First Amendment speech protections extend “beyond written or spoken

words as mediums of expression” (Hurley v. Irish-American Gay, Lesbian and Bisexual

Group of Boston, Inc. (1995) 515 U.S. 557, 569 (Hurley)), not all expression is treated

equally (Cressman v. Thompson (10th Cir. 2015) 798 F.3d 938, 951 (Cressman);

Anderson v. City of Hermosa Beach (9th Cir. 2010) 621 F.3d 1051, 1058 (Anderson)).

“While ‘pure speech’ activities are rigorously protected regardless of meaning, symbolic

speech or conduct must be ‘sufficiently imbued with elements of communication[]’

[(]Spence [v. Washington (1974)] 418 U.S. [405,] 409)], and is subject to a ‘relaxed

constitutional standard[]’ [citations].”13 (Cressman, supra, at pp. 951–952; see Johnson,

13 Although recognizing there is a distinction between what is sometimes labeled pure

speech and symbolic speech (expressive conduct) can be articulated plainly enough, it is much

more difficult to draw clean and clear lines around activities entitled to protection as “‘pure

36.

supra, 491 U.S. at p. 406 [“The government generally has a freer hand in restricting

expressive conduct than it has in restricting the written or spoken word.”]; Anderson,

supra, at p. 1059, fn. omitted [“Restrictions on protected expressive conduct are analyzed

under the four-part test announced in O’Brien,[14] a less stringent test than those

established for regulations of pure speech.”].)15

The United States Supreme Court has recognized a range of different forms of

entertainment and visual expression as constituting pure speech, including fiction (see

Hurley, supra, 515 U.S. at p. 569); music without words (Ward v. Rock Against Racism

(1989) 491 U.S. 781, 790); theater (Schacht v. United States (1970) 398 U.S. 58, 61–63);

movies (Joseph Burstyn, Inc. v. Wilson (1952) 343 U.S. 495, 501–502); and “pictures, …

paintings, drawings, and engravings” (Kaplan v. California (1973) 413 U.S. 115, 119).

speech’” as separate from expressive conduct sufficiently “‘imbued with elements of

communication’” such that it is protected as speech under the First Amendment as separate from

conduct, though perhaps expressive, which receives no speech protection at all. (See, e.g.,

James M. McGoldrick, Jr., Symbolic Speech: A Message from Mind to Mind (2008) 61 Okla.

L.Rev. 1, 2–5 (McGoldrick) [noting prefatorily the difficulty of navigating among these

distinctions].)

We note that the difference in the treatment of pure speech and symbolic speech is tied to

whether the law at issue is content-neutral or content-based and the state interests that are

weighed. (See McGoldrick, supra, 61 Okla. L.Rev. at p. 25 [positing that “[i]f something is

speech, then the level of protection will depend on whether the law is content-based or content-

neutral, not the speech itself and not whether it is pure speech or symbolic speech”]; City of Erie

v. Pap’s A.M. (2000) 529 U.S. 277, 299, italics added [“As we have said, so long as the

regulation is unrelated to the suppression of expression, ‘[t]he government generally has a freer

hand in restricting expressive conduct than it has in restricting the written or spoken word.’”].)

14 United States v. O’Brien (1968) 391 U.S. 367, 376–377 (O’Brien).

15 The test articulated in O’Brien for symbolic speech is as follows: “This Court has held

that when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a

sufficiently important governmental interest in regulating the nonspeech element can justify

incidental limitations on First Amendment freedoms.… [W]e think it clear that a government

regulation is sufficiently justified if it is within the constitutional power of the Government; if it

furthers an important or substantial governmental interest; if the governmental interest is

unrelated to the suppression of free expression; and if the incidental restriction on alleged First

Amendment freedoms is no greater than is essential to the furtherance of that interest.”

(O’Brien, supra, 391 U.S. at pp. 376–377, fns. omitted.)

37.

(See 303 Creative, LLC v. Elenis (2023) 600 U.S. 570, 587 (303 Creative); Cressman,

supra, 798 F.3d at p. 952; Anderson, supra, 621 F.3d at p. 1060.)

The federal circuit Courts of Appeals have additionally recognized tattoos

(Anderson, supra, 621 F.3d at p. 1061); the sale of original artwork (White v. City of

Sparks (9th Cir. 2007) 500 F.3d 953, 955); custom-painted clothing (Mastrovincenzo v.

City of New York (2d Cir. 2006) 435 F.3d 78, 96–97 (Mastrovincenzo); and stained glass

windows (Piarowski v. Illinois Community College (7th Cir. 1985) 759 F.2d 625, 628) as

forms of pure speech (Cressman, supra, 798 F.3d at p. 952).

The justification for protecting these different forms of entertainment and visual

expression is “‘simply … their expressive character, which falls within a spectrum of

protected “speech” extending outward from the core of overtly political declarations.’”

(Cressman, supra, 798 F.3d at p. 952, quoting National Endowment for the Arts v. Finley

(1998) 524 U.S. 569, 602–603 (dis. opn. of Souter, J.) (Finley).) The 10th Circuit Court

of Appeals has described self-expression as “the animating principle behind pure speech

protection .…” (Cressman, supra, at pp. 952–953; see Brush & Nib Studio, LC v. City of

Phoenix (2019) 247 Ariz. 269, 285 (Brush & Nib) [“words, pictures, paintings, and films

qualify as pure speech when they are used by a person as a means of self-expression”];

White v. City of Sparks, supra, 500 F.3d at p. 956, fn. omitted [“So long as it is an artist’s

self-expression, a painting will be protected under the First Amendment, because it

expresses the artist’s perspective.”].)

The high court has also afforded First Amendment protection to expressive

conduct that qualifies as symbolic speech. (Clark v. Community for Creative Non-

Violence (1984) 468 U.S. 288, 304 (Clark), citing Tinker v. Des Moines School Dist.

(1969) 393 U.S. 503 (Tinker) [black armband worn by students in public school as protest

of hostilities in Vietnam]; Brown v. Louisiana (1966) 383 U.S. 131 [sit-in by Black

students in Whites only library to protest segregation]; Stromberg v. California (1931)

283 U.S. 359 [flying red flag as gesture of support for communism]; Spence v.

38.

Washington (1974) 418 U.S. 405,410–411 (Spence) [displaying a U.S. flag with a peace

symbol attached to it].)

Not all conduct constitutes speech, and the nation’s high court has rejected “the

view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the

person engaging in the conduct intends thereby to express an idea.” (O’Brien, supra, 391

U.S. at p. 376; see Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (2006)

547 U.S. 47, 65–66 (FAIR).) Thus, the First Amendment extends only to conduct that is

“inherently expressive.” (FAIR, supra, at p. 66; Spence, supra, 418 U.S. at p. 409 [to

warrant 1st Amend. protection, activity must be “sufficiently imbued with elements of

communication”].) To determine whether conduct is sufficiently expressive, it must have

been intended to be communicative and, in context, would be reasonably understood by

the viewer to be communicative. (Spence, supra, at pp, 410–411; Johnson, supra, 491

U.S. at p. 404.)16

B. Compelled Speech Doctrine

The First Amendment’s free speech guarantee “includes both the right to speak

freely and the right to refrain from speaking at all.” (Wooley v. Maynard (1977) 430 U.S.

705, 714 (Wooley).) This basic precept underpins the compelled speech doctrine which

was first articulated in Board of Education v. Barnette (1943) 319 U.S. 624 (Barnette).

There, Jehovah’s Witnesses sought to enjoin enforcement of compulsory flag salute laws

applicable to students because the required salute and pledge of allegiance violated their

religious beliefs. (Id. at p. 629.) The high court struck down the law under the First

Amendment, holding the government could not compel any individual “by word and

sign” (Barnette, supra, at p. 633) “to utter what is not in his mind” (id. at p. 634).

16 “[I]t is the obligation of the person desiring to engage in assertedly expressive conduct to

demonstrate that the First Amendment even applies. To hold otherwise would be to create a rule

that all conduct is presumptively expressive.” (Clark, supra, 468 U.S. at p. 293, fn. 5.)

39.

Like uttering the pledge of allegiance in Barnette, the government is also

prohibited from compelling an individual to display a prescribed government message.

(Wooley, supra, 430 U.S. at p. 717.) In Wooley, New Hampshire vehicle license plates

displayed the motto “‘Live Free or Die,’” which George Maynard objected to on religious

and political grounds and covered the motto with tape, violating state law. (Id. at

pp. 707–708.) After being cited, Maynard sought and received injunctive and declaratory

relief against enforcement of the state law. (Id. at p. 709.) On review, the Supreme Court

held in Maynard’s favor, explaining his claim, like in Barnette, forced an individual “to

be an instrument for fostering public adherence to an ideological point of view he finds

unacceptable.” (Wooley, supra, at p. 715.) The court observed the state had required

Maynard to use his private property as a “‘mobile billboard’” (ibid.) for the state’s

ideological message, and the state’s interests did not outweigh an individual’s First

Amendment “right to avoid becoming a courier for such message.” (Wooley, supra, at

p. 717, fn. omitted.)

Expanding beyond Barnette and Wooley, the compelled speech doctrine is not

limited to situations where an individual must personally speak or display a specific

government message—it also limits the government’s ability to compel one speaker to

host or accommodate another nongovernment speaker’s message. (Hurley, supra, 515

U.S. at p. 580; see Miami Herald Publishing Co. v. Tornillo (1974) 418 U.S. 241, 256–

257 [Fla. right-of-reply statute violated newspaper editor’s right to determine content of

the newspaper]; Pacific Gas & Elec. Co. v. Public Util. Comm’n (1986) 475 U.S. 1, 20–

21 [state agency cannot require utility company to include third party newsletter in its

billing envelope].)

For example, in Hurley, the organizers of a St. Patrick’s Day parade refused to

admit to their parade a group of openly gay, lesbian and bisexual descendants of Irish

immigrants (GLIB) who wished to march with their group’s banner stating, “‘Irish

American Gay, Lesbian and Bisexual Group of Boston.’” (Hurley, supra, 515 U.S. at

40.

p. 570.) The high court determined the parade itself was inherently expressive activity, as

was GLIB’s participation. (Id. at pp. 568–570.) Compelling the organizers to host

GLIB’s message within their own inherently expressive activity “violate[d] the

fundamental rule of protection under the First Amendment[] that a speaker has the

autonomy to choose the content of his own message.” (Id. at p. 573.) It was of no

consequence that the eclectic variety of parade participants meant the parade had no

narrow, succinctly articulable message, nor were parade organizers required to generate

each featured item of communication within the parade. (Id. at pp. 569–570.)

But, different from Hurley, where an activity is not inherently expressive, the

government may compel nonexpressive conduct even if it imposes an incidental burden

on speech. In FAIR, law schools began restricting military recruiter’s access to students

at law school recruiting events in opposition to the government’s policy on homosexuals

in the military. (FAIR, supra, 547 U.S. at p. 51.) Congress responded by enacting the

Solomon Amendment (10 U.S.C. § 983) (Solomon Amendment), which specified that if

any part of an institution of higher education denied military recruiters equal access

provided to other recruiters, the institution would lose certain federal funds. (FAIR,

supra, at p. 51.) An association of law schools and law faculties challenged enforcement

of the Solomon Amendment, arguing the law violated their First Amendment freedoms of

speech and association by forcing law schools to decide whether to disseminate and

accommodate a military recruiter’s message or lose federal funding. (FAIR, supra, at

pp. 52–53.)

The high court concluded there was no compelled-speech violation because “the

schools [were] not speaking when they host[ed] interviews and recruiting receptions,”

even though the law school generated emails and notices of the recruiters’ presence on

campus. (FAIR, supra, 547 U.S. at p. 64.) As for the expressive nature of the conduct in

hosting the military at recruiting events, the court reasoned “[t]he expressive component

of a law school’s actions is not created by the conduct itself but by the speech that

41.

accompanies it.” (Id. at p. 66.) Prior to the Solomon Amendment, schools had expressed

disagreement with the military by requiring recruiters to use undergraduate campuses, but

these actions “were expressive only because the law schools accompanied their conduct

with speech explaining it.” (FAIR, supra, at p. 66.) “An observer who sees military

recruiters interviewing away from the law school has no way of knowing whether the law

school is expressing its disapproval of the military, all the law school’s interview rooms

are full, or the military recruiters decided for reasons of their own that they would rather

interview someplace else.” (Ibid.) The court viewed the need for explanatory speech as

“strong evidence that the conduct at issue here [was] not so inherently expressive that it

warrants protection” as symbolic speech. (Ibid.) In the court’s view, the only expressive

activity required of the law schools was posting and sending notices indicating logistical

information about where the interviews would take place, which the court found only

incidental to the Solomon Amendment’s regulation of conduct and nothing like the

compelled speech in Barnette or Wooley. (FAIR, supra, at pp. 61–62.)

Where there is speech or expressive conduct, however, the compelled-speech

doctrine can preclude the government’s enforcement of antidiscrimination laws in places

of public accommodation. (303 Creative, supra, 600 U.S. at p. 594.) In 303 Creative, a

graphic designer (Smith) offered website design services through her business, and she

planned to create wedding websites, but had religious objections to creating wedding

websites for same-sex couples. (Id. at pp. 579–580.) Smith filed a pre-enforcement First

Amendment challenge alleging she faced a credible threat that the State of Colorado

would enforce its public accommodation law to compel her to create websites celebrating

same-sex marriage, which she did not endorse. (303 Creative, supra, at p. 580.)

The pre-enforcement posture of the case meant it was litigated absent any facts

about a particular denial of service. Instead, the parties stipulated that, among other

things, “Smith’s websites promise to contain ‘images, words, symbols, and other modes

of expression’”; “that every website will be her ‘original, customized’ creation”; she “will

42.

create these websites to communicate ideas—namely to ‘celebrate and promote the

couple’s wedding and unique love story’ and to ‘celebrat[e] and promot[e] what … Smith

understands to be a true marriage.” (303 Creative, supra, 600 U.S. at p. 587.)

The court agreed that Smith’s websites constituted “‘pure speech’” and indicated

the parties’ stipulations drove that conclusion. (303 Creative, supra, 600 U.S. at p. 587

[websites considered pure speech “is a conclusion that flows directly from the parties’

stipulations”]; id. at p. 599 [acknowledging that determining what qualifies as expressive

activity protected by the 1st Amend. may raise difficult questions, but Smith’s websites

presented no such complication because “[t]he parties have stipulated that … Smith seeks

to engage in expressive activity”].)

In turning to examine Colorado’s public accommodations law as applied to Smith,

the court construed the law as compelling Smith’s speech because if she offered wedding

websites celebrating marriages she endorses, the state intended to force her to create

custom websites celebrating marriages she did not. (303 Creative, supra, 600 U.S. at

p. 588.) The court viewed Colorado’s interest in applying its public accommodations law

to Smith as “‘excis[ing] certain ideas or viewpoints from the public dialogue’” and to

“force someone [to] speak its preferred message[.]” (Id. at pp. 588, 597.) While the state

had a compelling interest in combatting discrimination, the court held the state could not

compel speech in a content-based manner to further that interest. (Id. at pp. 590–592.)

As these cases demonstrate, determining whether the government has

impermissibly compelled speech begins with a threshold inquiry as to whether there is

inherently expressive activity protected by the First Amendment to which the speaker

objects. (Cressman, supra, 798 F.3d at p. 951 [to “make out a valid compelled-speech

claim [or defense], a party must establish (1) speech; (2) to which he objects; [and] that is

(3) compelled by some governmental action”].) If there is expression protected by the

First Amendment, then a second inquiry examines what the law regulates and the

government’s interests in doing so, applying the requisite degree of scrutiny. (See, e.g.,

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Hurley, supra, 515 U.S. at pp. 580–581 [no sufficient government interest identified to

interfere with speech]; O’Brien, supra, 391 U.S. at p. 376 [“when ‘speech’ and

‘nonspeech’ elements are combined in the same course of conduct, a sufficiently

important governmental interest in regulating the nonspeech element can justify

incidental limitations on First Amendment freedoms”]; Turner Broadcasting System, Inc.

v. FCC (1994) 512 U.S. 622, 642 [“Laws that compel speakers to utter or distribute

speech bearing a particular message are subject to the [most exacting] scrutiny.”]; Reed v.

Town of Gilbert (2015) 576 U.S. 155, 163 [“Content-based laws—those that target speech

based on its communicative content—are presumptively unconstitutional and may be

justified only if the government proves that they are narrowly tailored to serve

compelling state interests.”].) We turn now to the first inquiry.

C. Analysis

Miller testified she adheres to a religious principle that “God created man and

woman in his likeness, and marriage was between a man and a woman.” Miller believes

the Bible teaches “Marriage is between a man and a woman and is very, very sacred, and

it’s a sacrament. And [Miller] can’t be a part of something that is contrary to God .…”

To Miller, the message of a wedding cake that she means to convey is that “this is a

marriage ordained by God between a man and a woman and we are here to celebrate that

with you.” In her view, supplying a wedding cake for same-sex couples sends a message

of endorsement for the wedding, and Tastries is part of the “[w]hole thing,” which relates

to any dessert product the couple chooses, not just the cake. By providing a cake or other

dessert products to a wedding, Miller testified that Tastries is putting a “stamp of

approval” on the wedding. Tastries is conveying a message that the wedding should be

celebrated, or, for other events, that the person should be celebrated. In Miller’s view, by

supplying any type of preordered cake, Tastries is participating in the wedding event.

The trial court determined defendants’ wedding cakes are “pure speech” entitled to

First Amendment protection because they are “designed and intended—genuinely and

44.

primarily—as an artistic expression of support for a man and a woman uniting in the

‘sacrament’ of marriage, and a collaboration with them in the celebration of their

marriage. The wedding cake expresses support for the marriage. The wedding cake is an

expression that the union is a ‘marriage,’ and should be celebrated.”17 In addition, the

trial court concluded “defendants’ participation in the design, creation, delivery and

setting up of a wedding cake is expressive conduct, conveying a particular message of

support for the marriage that is very likely to be understood by those who view it.”

The CRD argues this cannot be true; the wedding cake Miller refused to sell to the

Rodriguez-Del Rios here cannot be considered pure speech—it is unlike an original

sculpture, painting, verse or music, and lacks any of the hallmarks or characteristics that

courts have associated with self-expression. According to the CRD, it was a

predesigned—not customized—plain, white cake with three tiers that was sold by

Tastries for a variety of different events, not just weddings. It did not inherently convey

anything about Miller’s views on marriage; the only way the cake could have conveyed a

message was based on the customer’s choice in selecting it for their wedding. Moreover,

the CRD argues, Miller’s subjective intent to convey a message of support for

heterosexual marriage is insufficient by itself to transform a routine commercial product

into a work of self-expression, particularly where the product itself does not

independently express that message. Nor was the preparation and delivery of the cake,

the CRD argues, protected expressive conduct. The CRD contends Miller could not have

intended to send any message about marriage through the design of the cake because the

cake was sold for multiple events, not just weddings. Additionally, the CRD argues, no

17 Because the CRD’s complaint sought an order requiring defendants to immediately cease

and desist from selling to anyone any item they are unwilling to sell, on an equal basis, to

members of any protected group, the trial court considered the expressive nature of defendants’

preordered wedding cakes generally, not just the cake Miller refused to sell to the Rodriguez-Del

Rios.

45.

reasonable viewer would understand the cake’s preparation and delivery to a same-sex

wedding to convey any message about marriage, especially a message of the baker.

Defendants respond that Miller’s design and creation of a custom wedding cake

incorporates elements of pure speech as an original and customized creation, which is a

symbol of the creator’s understanding of marriage. According to defendants, wedding

cakes inherently convey the meaning that a particular union is a marriage and that it

should be celebrated, which is how the Rodriguez-Del Rios understood it—they

ultimately featured a tiered symbolic Styrofoam cake with an edible top layer specifically

for the traditional cake cutting ceremony. The preparation and delivery of the cake is also

expressive conduct, defendants maintain, because Miller intends that all her cakes convey

a message of support for the sacrament of marriage between one man and one woman.

And, according to defendants, everyone who sees the cake in context understands it was

commissioned to celebrate the new union.

1. Standard of Review

Ordinarily, in reviewing a judgment based upon a statement of decision following

a bench trial, Courts of Appeal review questions of law de novo, while findings of fact

are reviewed for substantial evidence. (Thompson v. Asimos (2016) 6 Cal.App.5th 970,

981.) However, the trial court’s determinations as to defendants’ First Amendment

defenses are subject to independent review. (In re George T. (2004) 33 Cal.4th 620, 632;

accord, People v. Peterson (2023) 95 Cal.App.5th 1061, 1066.) We defer to the trial

court’s credibility determinations, but we must undertake an “‘“‘independent examination

of the whole record’”’ (Hurley[, supra,] 515 U.S. at pp. 567–568), including a review of

the constitutionally relevant facts ‘“de novo, independently of any previous

determinations made by the [trial] court”’” to determine whether defendants’ refusal of

service was entitled to First Amendment protection. (In re George T., supra, at p. 634;

accord, Veilleux v. National Broadcasting Co. (1st Cir. 2000) 206 F.3d 92, 106; see Smith

v. Novato Unified School Dist. (2007) 150 Cal.App.4th 1439, 1453.)

46.

2. No Pure Speech

Our initial task is to determine whether defendants were engaged in a purely

expressive activity that constitutes speech entitled to full First Amendment protection

without resort to the Spence-Johnson test applicable to expressive conduct. (Anderson,

supra, 621 F.3d at p. 1059 [describing analysis to determine whether tattooing is speech

protected by the 1st Amend.].) When it comes to expression qualifying as pure speech,

“courts, on a case-by-case basis, must determine whether the ‘disseminators of [an item]

are genuinely and primarily engaged in … self-expression.’” (Cressman, supra, 798 F.3d

at p. 953, quoting Mastrovincenzo, supra, 435 F.3d at p. 91.)

Some products and services in the marketplace have been deemed to be pure

forms of expression and treated as speech entitled to full First Amendment protection. A

tattoo and the process of tattooing, for example, have been held to be forms of pure

expression: “Tattoos are generally composed of words, realistic or abstract images,

symbols, or a combination of these, all of which are forms of pure expression that are

entitled to full First Amendment protection.” (Anderson, supra, 621 F.3d at p. 1061.)

They express a “countless variety of messages” (ibid.), and there is no functional purpose

for a tattoo except as a mode of expressing something by the tattoo designer and the

customer.

Similarly, the custom websites Smith wished to create in 303 Creative were

considered pure speech by the high court, although it did not define the term. (303

Creative, supra, 600 U.S. at p. 587.) The parties stipulated Smith’s custom websites

would contain images, words, symbols, and other modes of expression; that each one

would be her original, customized creation; and she would create these websites to

communicate ideas, specifically to celebrate and promote a couple’s wedding and unique

love story and to celebrate and promote what Smith understood to be a true marriage.

(Ibid.)

47.

The cake at issue here bears no indicia of self-expression similar to tattoos or the

custom wedding websites described by stipulation in 303 Creative. The requested cake

had no writing, drawings, images, engravings, symbols or any other modes of expression

displayed on it: it was a plain, three-tiered, white cake with “wispy” frosting and some

flowers. The cake was considered a custom order because all preordered cakes are

labeled “custom” by Tastries, regardless of the design of the cake, any consultation

process with the customer, or the degree of autonomy or influence the baker has

regarding the cake’s aesthetic appearance. Other than flavoring and size, nothing about

the predesigned cake was to be customized for the Rodriguez-Del Rios as a couple or for

their wedding specifically, setting it worlds apart from the websites in 303 Creative or

tattoos considered in Anderson. (303 Creative, supra, 600 U.S. at pp. 587–588 [parties

stipulated the websites and graphics are “‘original, customized’ creation[s]” and Smith

would “produce a final story for each couple using her own words and her own ‘original

artwork’”].) Moreover, unlike the websites considered in 303 Creative, testimony

established this cake design was popularly requested and sold for several different

occasions, including birthdays, baby showers and quinceaneras. Miller similarly testified

the cake was suitable for different events beyond weddings. On its own, the cake was a

generic, multi-purpose product primarily intended to be eaten.

Defendants argue the expressiveness Miller intends with a wedding cake cannot be

severed from its surrounding context, which here was the cake’s display as a centerpiece

at a same-sex wedding celebration. While the inquiry into what constitutes speech is

context-driven (Cressman, supra, 798 F.3d at p. 953; 303 Creative, supra, 600 U.S. at

p. 600, fn. 6), self-expression amounting to pure speech cannot derive its expressive

quality solely because it is observed in a specific place—a painting’s expressiveness is

not contingent on whether it hangs in an art gallery, nor is a symphony’s expressiveness

contingent on which orchestra performs it (see Finley, supra, 542 U.S. at p. 602 (dis. opn.

of Souter, J.) [protection for artistic works turns simply on their expressive nature]).

48.

“Pure-speech treatment is only warranted for those [items] whose creation is itself an act

of self-expression.” (Cressman, supra, at p. 954.)

The act of providing a product to a wedding reception with the intent to send a

message does not transform that product into pure speech if the product itself is not the

self-expression of the vendor. If this were the case, a host of nonexpressive products or

services provided for a same-sex wedding reception could be deemed to convey a

message merely because they were provided for the event—e.g., flatware, chairs and

linens, etc. Moreover, many standard products provided to a wedding reception are

equally as visible as the cake and used by the couple in a symbolic manner—a portable

dance floor where the couple has a first dance, the bridal bouquet that is tossed at the

reception, the centerpieces for the tables, beautifully plated meals prepared by the caterer,

and guest favors left at each place setting. The mere fact these products are prepared for

and provided to a same-sex wedding in a routine economic transaction does not transform

them into the self-expression of the vendor. (See Brush & Nib, supra, 247 Ariz. at p. 312

(dis. opn. of Bales, J. (Ret.)) [“expression of a wedding invitation, as ‘perceived by

spectators as part of the whole’ is that of the marrying couple”]; cf. FAIR, supra, 547 U.S.

at p. 65 [“Nothing about recruiting suggests that law schools agree with any speech by

recruiters, and nothing in the Solomon Amendment restricts what the law schools may

say about the military’s policies.”].)

Defendants maintain the cake itself was a symbol because it was a wedding cake

that inherently expressed the bakery’s message of celebration and conveyed endorsement

of the marriage just as a parade is the inherent expression of its organizers. But this cake

was a wedding cake only because the Rodriguez-Del Rios were going to use it that way—

this cake design was sold for many different events. Moreover, the mere act of preparing

and selling merchandise, even a wedding cake, is not the inherent self-expression of the

vendor just because the vendor has knowledge of how the end user will utilize the

product. It is the consumer’s use of a multi-purpose cake like this that gives it any

49.

expressive meaning at all, not the baker’s beliefs or intent which are not reflected in the

cake itself. (Cf. Moody v. NetChoice, LLC (2024) 603 U.S. 707, 739 [144 S.Ct. 2388,

*2406] [where a purported host of third party speech is not itself engaged in expression,

there is little risk of misattribution of the message].) Defendants implicitly acknowledge

this through the sale of Tastries’s daily display-case cakes. Tastries does not restrict the

sale of those cakes, and a same-sex couple could purchase a Tastries’s daily display-case

cake to photograph, cut and serve at their wedding celebration.18

Here, the finished product could have been deployed for any number of different

purposes—the essence of a generic, multi-purpose commercial product that expresses

nothing at all until it is used in a particular manner by the customer. If there is any fitting

analogy to the parade in Hurley, it is the Rodriguez-Del Rios who are most like the

parade organizers—it is their parade; defendants are like vendors who refuse to sell the

parade organizers blank, colorful vinyl banners because they are a disfavored group.

(Brush & Nib, supra, 247 Ariz. at p. 312 (dis. opn. of Bales, J. (Ret.)) [“To the extent a

parade analogy is apt, … [t]he organizers would be the marrying couple and forcing them

to include particular messages in their wedding would be more analogous to Hurley.”].)

The trial court focused on what it perceived as the artistic element of Miller’s

wedding cakes as a medium for her own self-expression. The United States Supreme

Court has been clear that the arts are protected forms of expression under the First

Amendment (see, e.g., Hurley, supra, 515 U.S. at p. 569 [remarking that examples of

painting, music, and poetry are “unquestionably shielded”]; White v. City of Sparks,

supra, 500 F.3d at pp. 955–956 [“Supreme Court has been clear that the arts and

18 At oral argument, defendants’ counsel acknowledged cakes purchased out of the daily

display case do not constitute protected expression. Yet, the couple would not be permitted

under Tastries’s design standards to preorder for a specific date the exact same display-case cake

for their wedding on the ground it would be a “custom” wedding cake that expresses a prohibited

message. It is impossible to reconcile how a preordered cake for a same-sex wedding is

necessarily a symbol amounting to pure speech if the very same cake carried directly from

Tastries’s display case to a same-sex wedding celebration is not.

50.

entertainment constitute protected forms of expression”]), but the fact that frequently

produced items of merchandise have an artistic element does not automatically afford

them First Amendment protection as speech. Any object has the potential to be art, but

“[t]o say that the First Amendment protects the sale or dissemination of all objects

ranging from ‘totem poles,’ [citation], to television sets does not take us far in trying to

articulate or understand a jurisprudence of ordered liberty; indeed it would entirely drain

the First Amendment of meaning.” (Mastrovincenzo, supra, 435 F.3d at p. 92, fn.

omitted; see Cressman, supra, 798 F.3d at pp. 952–953 [“Given the animating principle

behind pure-speech protection—viz., safeguarding self expression—it is evident that all

images are not categorically pure speech.”].)

If that were the case, a vast array of merchandise with only incidental artistic

elements would qualify for First Amendment protection, such as playing cards with a

decorative design or T-shirts emblazoned with stars and stripes, both of which the Second

Circuit Court of Appeals has suggested are insufficiently expressive to receive First

Amendment protection. (Mastrovincenzo, supra, 435 F.3d at pp. 94–95, citing People v.

Saul (N.Y. Crim.Ct. 2004) 776 N.Y.S.2d 189, 192–193 & Mastrovincenzo v. City of New

York (S.D.N.Y. 2004) 313 F.Supp.2d 280, 288.)

Cakes of every type are a widely produced consumer product intended for all

kinds of purposes; even three-tiered cakes virtually identical to the one the Rodriguez-Del

Rios sought from defendants. Being asked to reproduce a facsimile from a popularly

ordered predesign, as here, can hardly be deemed an act of self-expression by the

baker/decorator. Nothing about the sale of this cake reflected the independent expressive

choices of the baker/decorator—it was the Rodriguez-Del Rios who dictated the size,

shape, color, flavor and, indeed, the very design of the cake. Even the pattern of the

frosting was not Tastries’s elective choice. Much of this is likely true of tattoos, which

have been recognized by some courts as pure speech, but there is a significant difference

51.

that tilts away from a broad conclusion that all cakes made for a wedding are primarily

created as the self-expression of the baker.

Unlike a tattoo (and perhaps other forms of art), cakes uniformly have a

nonexpressive functional purpose: they are primarily a dessert meant to be eaten—even

wedding cakes. That is why the size of cakes are often ordered based on how many

guests a customer anticipates feeding—so much so, Miller’s client packet indicates how

many people each cake size feeds. Not coincidentally, Miller’s design standards require

that cakes taste as good as they look, and wedding cake customers are offered a tasting to

select from an array of filling, cake and frosting flavors because the cake is meant to be

enjoyed as food. Indeed, the Rodriguez-Del Rios rejected a different bakery because its

cakes were too sweet for certain of their guests to eat.

To overtake the nonexpressive element of a cake such that its preparation and

assembly could be considered an act of self-expression by the baker, the expressive

elements would have to be significant and apparent. We can imagine cakes like that. But

this cake was no different than a multitude of other predesigned, routinely generated and

multi-purpose consumer products with primarily nonexpressive purposes—this one as a

dessert to be eaten at a gathering of some sort. In terms of its artistic element, this cake is

entirely indistinguishable from a charcuterie board, a fruit bouquet, or a cheese platter—

all versatile items used for many different parties or occasions, aesthetically assembled

for salability and meant to be consumed as their primary purpose, not as a vehicle for the

self-expression of the designer/assembler.

To conclude this cake is primarily an act of artistic self-expression entitled to First

Amendment protection is to hold that any product artfully designed and prepared to have

an aesthetically pleasing appearance—e.g., catering displays, cars, homes, jewelry, quilts,

shoes, clothing and handbags to name only a few—is protected speech. Not only would

such an expansive conception of artistic self-expression drain the First Amendment of

meaning, it would invite broad potential disruption to the stream of commerce, where the

52.

mere act of providing routine, artfully designed consumer products without any indicia or

characteristics associated with speech would be transformed into the self-expression of

their maker/designer. (See generally 303 Creative, supra, 600 U.S. at p. 592 [public

accommodation laws cannot be applied to compel speech].)

Although the design and appearance of a vast array of ordinary commercial goods

involve elements of creativity and originality that could be subjectively viewed as artistic,

drawing the contours of protected speech to include routinely produced, ordinary

commercial products as the artistic self-expression of the designer is unworkably

overbroad. The trial court’s conclusion that all defendants’ wedding cakes constitute pure

speech proves too much. This predesigned, plain white cake without any indicia of a

wedding and no writing, images, symbols, engravings, even though aesthetically

appealing, did not have any qualities signaling its preparation was primarily a self-

expressive act of the baker/decorator.

3. Expressive Conduct

Even if an activity is not protected as pure speech, it may still come within the

First Amendment’s protection as symbolic speech. Although pure speech “is entitled to

First Amendment protection unless it falls within one of the ‘categories of speech … fully

outside the protection of the First Amendment,’ [citations], conduct intending to express

an idea is constitutionally protected only if it is ‘sufficiently imbued with elements of

communication to fall within the scope of the First and Fourteenth Amendments .…’”

(Anderson, supra, 621 F.3d at p. 1058, italics added.) Whether conduct is sufficiently

communicative to warrant First Amendment protection was originally considered in

Spence. There, a college student displayed from the window of his apartment an upside

down United States flag with a peace symbol taped to each side. (Spence, supra, 418

U.S. at p. 406.) He was arrested and prosecuted under Washington’s “‘improper use”’ of

a flag statute. (Ibid.) The Supreme Court found the display “was a pointed expression of

anguish … about the then-current domestic and foreign affairs of his government.” (Id.

53.

at p. 410.) As the conduct was “inten[ded] to convey a particularized message,” and

because “in the surrounding circumstances the likelihood was great that the message

would be understood by those who viewed it,” it was conduct protected by the First

Amendment. (Id. at pp. 410–411.)

Spence was followed later by Johnson, where a demonstrator was prosecuted

under a Texas law after he burned an American flag in front of the Dallas City Hall while

the Republican National Convention was occurring. (Johnson, supra, 491 U.S. at

p. 399.) The flag was burned as part of “a political demonstration that coincided with the

convening of the Republican Party and its renomination of Ronald Reagan for President.”

(Id. at p. 406.) Applying the two factors identified in Spence, the court concluded both

were present because the “overtly political nature of th[e] conduct was both intentional

and overwhelmingly apparent.” (Ibid.)19 Under the Spence-Johnson test, we consider

whether preparing and delivering this cake for use at a same-sex wedding reception is

conduct that amounted to symbolic speech.

a. Intent to Convey a Particularized Message

We begin with whether defendants intended to convey a particularized message of

some sort by preparing and delivering the cake. The trial court determined a “specific

message is intended and understood by the presence of defendants’ wedding cakes, and

separately, by defendants’ participation in the wedding cake process. The Tastries

wedding cake by itself, and the people who are observed in the bakery or the wedding

venue designing, delivering, setting up, or cutting the wedding cake, are associated with

19 More recently, in Hurley, the Supreme Court seemed to suggest the particularized

message requirement of the Spence-Johnson test is not necessarily a prerequisite to First

Amendment protection for symbolic speech in commenting that “a narrow, succinctly articulable

message is not a condition of constitutional protection .…” (Hurley, supra, 515 U.S. at p. 569.)

After Hurley, however, the Supreme Court cited Johnson in support of its conclusion in FAIR

that law schools’ conduct in refusing to give interview space to military recruiters was not

symbolic speech because the law schools’ message was not “‘overwhelmingly apparent’” to

those who viewed it. (FAIR, supra, 547 U.S. at p. 66.)

54.

support for the marriage.” The trial court noted the design standards “leave no room to

doubt that Miller intends a message,” and “all of Miller’s wedding cake designs are

intended as an expression of support for the sacrament of ‘marriage,’ that is, the marriage

of a man and a woman.” Although, the court acknowledged, “[i]t is not a message that

everyone may perceive, or accept.”

We cannot agree that all of defendants’ wedding cakes are intended as an

expression of support for the sacrament of marriage between one man and one woman.

Here, they could not have intended to send that particularized message through the cake’s

design because this predesigned cake was requested and sold for a variety of parties and

gatherings; the cake itself communicated nothing about marriage generally, let alone that

marriage constitutes a religious sacrament reserved only for couples made up of one man

and one woman (hence its popularity for use at other types of events). Miller’s personal

intent to send such a message is evidenced by Tastries’s design standards, but, as the

CRD points out, the cake here bore no evidence of that intent; the cake conveyed no

particular message about marriage at all, let alone Miller’s intended message. (See FAIR,

supra, 547 U.S. at p. 66 [“If combining speech and conduct were enough to create

expressive conduct, a regulated party could always transform conduct into ‘speech’

simply by talking about it.”]; O’Brien, supra, 391 U.S. at p. 376 [“We cannot accept the

view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the

person engaging in [it] intends thereby to express an idea.”].) The cake design itself was

not customized for a wedding specifically—aside from the number of people meant to be

fed by the cake, defendants did not need to know anything about the nature of the event

to prepare and assemble the cake.

b. Likelihood Message Would be Understood By Those Who View It

There is also little likelihood a viewer would understand the cake’s sale and

provision to a same-sex wedding conveyed any message about marriage generally or an

endorsement and celebration of same-sex marriage in particular. First, the cake itself

55.

conveyed no particularized message about the nature of marriage being between one man

and one woman, and virtually no one would have understood that message from viewing

the cake, even displayed as a centerpiece at a wedding reception. It was a plain, white,

three-tiered cake with flowers that was supplied to different types of events—an ordinary

commercial good in every sense; the cake itself conveyed nothing in support or

opposition of same-sex marriage or marriage at all. Regardless of whether a viewer saw

the cake being prepared at the bakery or displayed at a same-sex wedding reception, such

a viewer would be unlikely to understand that message or any message from the cake.20

Second, a viewer is unlikely to understand this cake’s sale and delivery for a

wedding reception to convey a message of celebration and endorsement of same-sex

marriage. Any rational viewer knows that retailers and vendors who provide services and

products for wedding receptions are engaged in a for-profit transaction; the viewer would

have no reason to assume a vendor was conveying any message at all—especially

through a multi-purpose product that bears no indicia it was customized for this specific

wedding.21 As explained in FAIR, the law schools’ different treatment of military

20 While there was some testimony indicating the employee originally assisting the couple

might come to the wedding as a guest and could serve the cake at the reception, the order form

reflected a delivery time prior to the event’s start time and Eileen testified they never intended

for Tastries to be there during the reception or the wedding. We find no authority holding that

delivery of a product to a wedding reception site prior to the event, which is all that was

requested of Tastries in this case, necessarily constitutes participation in a wedding ceremony.

(Cf. Kaahumanu v. Hawaii (9th Cir. 2012) 682 F.3d 789, 799 [wedding ceremonies are protected

expression under the 1st Amend.].)

21 Had the order been cancelled at the last minute, the cake could have been provided

without alteration to any number of different gatherings because it was a generic, multi-purpose

design that did not signal to a viewer a message of the baker/decorator or that the baker/decorator

was even aware of its intended use. Consider the plain, black armbands worn by students in

Tinker meant to express a message of protest against the hostilities in Vietnam; no viewer would

have considered the manufacturer’s sale of the armband/material as conveying approval and

endorsement of the students’ use. (See generally Tinker, supra, 393 U.S. at pp. 504, 505.) The

creation and sale of a routinely produced, multi-purpose consumer good containing no words or

other indicia of expression is simply not understood by the buying and viewing public as the

expressive conduct of the manufacturer.

56.

recruiters did not express a message of disagreement with the military that a viewer

would understand. (FAIR, supra, 547 U.S. at p. 66.) The court explained an observer

who saw military recruiters interviewing away from law school campuses had no way of

knowing whether the law school was expressing disapproval, all the law school rooms

were full, or the recruiters decided for their own reasons they would interview away from

the law school. (Ibid.) Similarly, here, a viewer would not know from the cake’s

appearance at a wedding reception that the baker was expressing a message of celebration

and endorsement of the marriage, or merely providing a cake in an arm’s-length,

commercial transaction, especially when the design of the cake is not customized for a

wedding generally or this wedding particularly. A reasonable viewer has no way of

knowing the reasons supporting defendants’ decision to serve or decline any customer,

especially a generic product like this one that could have been (and was) used for many

different events.

If the mere act of providing and/or delivering a predesigned product for use at a

same-sex wedding conveys a message of celebration and endorsement for same-sex

marriage, a baker could potentially refuse to sell any goods or any cakes for same-sex

weddings as a protected form of expression; but this would be a denial of goods and

services that likely goes “beyond any protected rights of a baker who offers goods and

services to the general public .…” (Masterpiece, supra, 584 U.S. at p. 632.) Expanded

logically, this reasoning would extend to a whole range of routine products and services

provided for a wedding or wedding reception, including those highly visible items like

jewelry, makeup and hair design for the wedding party, table centerpieces, stemware and

alcohol for a toast, and catering displays. This is tantamount to business establishments

being “allowed to put up signs saying ‘no goods or services will be sold if they will be

used for gay marriages,’ something that would impose a serious stigma on gay persons.”

(Id. at p. 634.) If mere product provision to a wedding is considered expressive conduct,

then all wedding vendors could potentially claim their refusal to serve same-sex couples

57.

is a form of protected expression because they disapprove of same-sex marriage, or any

other type of marriage involving those with protected characteristics they do not wish to

serve.

D. Conclusion

Because we conclude the cake defendants refused to provide in this instance was

not an expressive activity protected by the First Amendment, defendants’ free speech

defense fails. A huge number of routinely produced goods in the stream of commerce are

designed with attention to aesthetic details that may reflect the designer’s sense of color,

balance and perspective, and while those elements might be viewed as artistic features,

they are primarily applied and intended for broad appeal and profitability—not as a

medium for self-expression. While a routinely produced and multi-purpose cake like the

one here might be baked and decorated with skill and creativity, we cannot conclude it is

inherently expressive.

We acknowledge that, in some circumstances, a wedding cake or select services

like cake cutting at the wedding celebration may be expressive, and in those cases, First

Amendment speech protections may apply.22 Indeed, 303 Creative permits businesses

engaged in pure speech to decline to provide their services for same-sex weddings under

defined circumstances. (303 Creative, supra, 600 U.S. at p. 596.) In doing so, however,

the high court emphasized that result flowed from the expressiveness of the wedding

websites at issue—stipulated to be an expressive activity. (Id. at pp. 597, 599.) The

preparation and delivery, prior to an event, of a nondescript, plain white cake with a

multi-purpose design is not a protected form of expression, either as pure speech or as

expressive conduct. As such, we do not reach the second inquiry, which examines

22 In that regard, the scope of any injunctive remedy the CRD may be afforded must be

considered accordingly.

58.

whether the UCRA, as applied to the refusal here, impermissibly compels speech under

the requisite standard of scrutiny.

III. Free Exercise Clause

Defendant’s free exercise defense is based on both the federal and state

Constitutions. Defendants argue Miller’s religious beliefs are protected views, and they

prohibit her or her business from providing wedding cakes for same-sex weddings;

applying the UCRA to force defendants to sell wedding cakes for same-sex weddings

substantially burdens Miller’s free exercise of her beliefs. According to defendants, the

UCRA is neither neutral nor generally applicable, and thus its burden on Miller’s

religious freedom is subject to review under the strict scrutiny standard that the UCRA

cannot survive.

“The Free Exercise Clause of the First Amendment, applicable to the States under

the Fourteenth Amendment, provides that ‘Congress shall make no law … prohibiting the

free exercise’ of religion.” (Fulton v. Philadelphia (2021) 593 U.S. 522, 532 (Fulton),

quoting U.S. Const., 1st Amend.; accord, Lukumi, supra, 508 U.S. at p. 531.) “The free

exercise of religion means, first and foremost, the right to believe and profess whatever

religious doctrine one desires.” (Smith, supra, 494 U.S. at pp. 877. 878–882.)

Nevertheless, Smith held that an individual’s religious beliefs do not “excuse him from

compliance with an otherwise valid law prohibiting conduct that the State is free to

regulate.” (Id. at pp. 878–879.)

Thus, laws incidentally burdening religion are ordinarily not subject to strict

scrutiny under the free exercise clause so long as they are neutral and generally

applicable; rather, they are subject only to rational basis review. (Smith, supra, 494 U.S.

at pp. 878–882; accord, Lukumi, supra, 508 U.S. at p. 531 [“a law that is neutral and of

general applicability need not be justified by a compelling governmental interest even if

the law has the incidental effect of burdening a particular religious practice”].) If a law is

not neutral and generally applicable, however, it is subject to strict scrutiny and survives

59.

only if it advances “‘“interests of the highest order”’” and is “narrowly tailored in pursuit

of those interests.” (Lukumi, supra, at p. 546.)

Based on Smith and Lukumi, our Supreme Court held in North Coast that “a

religious objector has no federal constitutional right to an exemption from a neutral and

valid law of general applicability on the ground that compliance with that law is contrary

to the objector’s religious beliefs.” (North Coast, supra, 44 Cal.4th at p. 1155.) North

Coast then applied Smith’s test to the UCRA from which the defendant physicians sought

a religious exemption. The court held the UCRA is “‘a “valid and neutral law of general

applicability”’” because, as relevant to the case before it, the UCRA “requires business

establishments to provide ‘full and equal accommodations, advantages, facilities,

privileges, or services’ to all persons notwithstanding their sexual orientation.” (North

Coast, supra, at p. 1156.) Accordingly, the court held, “the First Amendment’s right to

the free exercise of religion does not exempt [the] defendant physicians … from

conforming their conduct to the [UCRA]’s antidiscrimination requirements even if

compliance poses an incidental conflict with [the] defendants’ religious beliefs.” (Ibid.)

Turning to the California Constitution’s free exercise clause (Cal. Const., art. 1,

§ 4), the court assumed without deciding that strict scrutiny was the applicable standard

of review. Under that standard, “‘a law could not be applied in a manner that

substantially burden[s] a religious belief or practice unless the state show[s] that the law

represent[s] the least restrictive means of achieving a compelling interest .…’” (North

Coast, supra, 44 Cal.4th at p. 1158, quoting Catholic Charities, supra, 32 Cal.4th at

p. 562.) The court concluded that even if compliance with the UCRA’s prohibition

against sexual orientation discrimination substantially burdened the defendant physicians’

religious beliefs, that burden was “insufficient to allow them to engage in such

discrimination” because the UCRA furthered “California’s compelling interest in

ensuring full and equal access to medical treatment irrespective of sexual orientation, and

60.

there [were] no less restrictive means for the state to achieve that goal.” (North Coast,

supra, at p. 1158.)

A. Federal Constitutional Analysis

The trial court here concluded that, although application of the UCRA

substantially burdens Miller’s free exercise of her religion, North Coast’s conclusion that

the UCRA survives strict scrutiny, even where the prohibition on sexual orientation

substantially burdens religious rights, was binding. Relying on more recent United States

Supreme Court opinions, defendants argue the UCRA is not a valid and neutral law of

general applicability because it provides discretionary exemptions, and it treats secular

activity more favorably than religious activity. (Code Civ. Proc., § 906.)23

1. Neutrality and General Applicability of the UCRA

Typically, the free exercise analysis begins by evaluating whether the law at issue

is neutral and of general applicability. For a law to be generally applicable, it may not

selectively “impose burdens only on conduct motivated by religious belief .…” (See

Lukumi, supra, 508 U.S. at p. 543.) A law is not generally applicable (1) where “it

‘invites’ the government to consider the particular reasons for a person’s conduct by

providing ‘“a mechanism for individualized exemptions”’” and (2) where it “prohibits

religious conduct while permitting secular conduct that undermines the government’s

asserted interests in a similar way.” (Fulton, supra, 593 U.S. at pp. 533, 534.) A

government policy is neutral if it does not “restrict[] practices because of their religious

nature” or evince “intoleran[ce] of religious beliefs.” (Id. at p. 533.) The neutrality

analysis focuses on the purposes or motivation behind a policy, and requires examination

23 Defendants are not an appealing party, but they may raise an issue of error in the context

of ascertaining whether the CRD was prejudiced by the trial court’s erroneous conclusions under

the UCRA. In relevant part, Code of Civil Procedure section 906 provides as follows: “The

respondent, or party in whose favor the judgment was given, may, without appealing from such

judgment, request the reviewing court to and it may review … matters for the purpose of

determining whether or not the appellant was prejudiced by the error or errors upon which he

relies for reversal or modification of the judgment from which appeal is taken.”

61.

of policymakers’ subjective intent; the general-applicability inquiry, on the other hand,

“focuses on the objective sweep of a policy: whom it covers, whom it exempts, and how

it makes that distinction.” (Spivack v. City of Philadelphia (3d Cir. 2024) 109 F.4th 158,

167.)

Relying on Fulton, defendants argue the UCRA incorporates discretionary

exceptions indicating it is not generally applicable. Defendants maintain that because the

UCRA “asks courts to consider on a case-by-case basis whether a particular

discriminatory act is ‘reasonable,’ it is the antithesis of general applicability .…”

Specifically, defendants point to a variety of cases that recognize certain judicially

acknowledged public policy exceptions related to protected characteristics not expressly

enumerated in the statute.

Fulton involved foster care agency Catholic Social Services (CSS) to whom

Philadelphia had stopped referring children after discovering CSS would not certify

same-sex couples to be foster parents due to its religious beliefs about marriage. (Fulton,

supra, 593 U.S. at pp. 526–527.) When children could not remain in their homes, the

city’s human services department would assume custody of the children; the department

would enter into standard annual contracts with private foster care agencies to place some

of those children with foster families. (Id. at p. 529.) State-licensed foster agencies like

CSS were given authority to certify foster families; when the department would seek to

place a child, it would send agencies a request and the agencies would determine whether

any of their certified families were available. (Id. at p. 530.) CSS believed that marriage

is a sacred bond between a man and a woman, and it understood the certification of

prospective foster families to be an endorsement of their relationship, and, to that end, it

would not certify same-sex couples or unmarried couples. (Ibid.) The city concluded

CSS’s refusal to certify same-sex couples violated a nondiscrimination provision in its

contract with the city and a separate nondiscrimination provision in a citywide ordinance.

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(Id. at p. 531.) The city refused to execute a full foster contract with CSS in the future

unless the agency agreed to certify same-sex couples. (Ibid.)

The high court determined the contract provision was not generally applicable

under Smith because it incorporated individual exceptions permitting a provider to reject

certain prospective or foster parents at the sole discretion of a city official. (Fulton,

supra, 593 U.S. at p. 535.) Specifically, the contract stated that a “‘[p]rovider shall not

reject a child or family including, but not limited to, … prospective foster or adoptive

parents, for Services based upon … their … sexual orientation … unless an exception is

granted by the Commissioner or the Commissioner’s designee, in his/her sole

discretion.’” (Ibid.) “[T]he inclusion of a formal system of entirely discretionary

exemptions in [the contract] render[ed] the contractual nondiscrimination requirement not

generally applicable.” (Id. at p. 536.) Further, the city’s nondiscrimination ordinance did

not apply to CSS’s certification of a foster parent because CSS did not qualify as a public

accommodation under the ordinance. (Id. at pp. 539–540.) Because the contractual

nondiscrimination requirement imposed a burden on CSS’s religious exercise and did not

qualify as generally applicable, it was subject to the most rigorous of scrutiny requiring

that it advance “‘interests of the highest order’” and is narrowly tailored to achieve those

means. (Id. at p. 541.) The question was not whether the city had a compelling interest

in enforcing its nondiscrimination policies generally, but whether it had such an interest

in denying an exception to CSS. (Ibid.) The court concluded the city’s interests in

maximizing the number of foster families and minimizing liability were not shown to be

put at risk by granting an exception to CSS—excluding CSS would reduce the number of

foster families, and the city offered only speculation that it might be sued over CSS’s

certification practices. (Id. at pp. 541–542.)

Although clarifying Smith regarding what it means for a law or regulation to be

“generally applicable” (see Fellowship of Christian Athletes v. San Jose Unified Sch.

Dist. Bd. of Educ. (9th Cir. 2023) 82 F.4th 664, 685), we conclude Fulton does not fatally

63.

undercut North Coast, nor does it provide analogous support for defendants’ assertions

regarding the UCRA. First, Fulton did not overrule Smith and relied on it for the

proposition a law is not generally applicable if it invites the government to consider the

particular reasons for a person’s conduct by providing a mechanism for individualized

exceptions, regardless whether any exceptions have been given. (Fulton, supra, 593 U.S.

at pp. 534–535, 537.) Second, Fulton’s ruling was framed around the city’s “inclusion of

a formal system” of discretionary exceptions. (Id. at p. 536; see Tingley v. Ferguson (9th

Cir. 2022) 47 F.4th 1055, 1088 [holding a statute generally applicable in part because it

lacked any provision providing a formal discretionary mechanism for individual

exceptions].) Unlike the contractual nondiscrimination provision in Fulton, the UCRA

contains no formal system for discretionary exemptions or any other system for obtaining

individualized exemptions.

Defendants contend that, under the UCRA, courts are required to consider the

circumstances underlying facially discriminatory policies and determine whether they are

reasonable and supported by public policy. As such, defendants argue, discretionary

exemptions are built into the statute. As explained ante in addressing defendants’ public

policy argument under the statute, the UCRA prohibits business establishments from

discriminating on the basis of expressly articulated protected characteristics, but it has

also been interpreted to prohibit discrimination based on categories that are not expressly

identified in the statute where the disparate treatment is deemed “arbitrary, invidious or

unreasonable .…” (Sargoy, supra, 8 Cal.App.4th at p. 1043.) Within these unenumerated

categories, California courts have concluded that some distinctions in treatment—

particularly those that promote the welfare of children and seniors—are not arbitrary or

unreasonable because they are based on public policy objectives, typically explicitly

stated by the Legislature in statutory enactments, that are often very different from

distinctions made with respect to expressly identified characteristics such as sex. (See

Koire, supra, 40 Cal.3d at pp. 37–39.)

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For example, age is not an identified characteristic and differential price policies

designed to benefit senior citizens and children have been held permissible. (See, e.g.,

Pizarro v. Lamb’s Players Theatre (2006) 135 Cal.App.4th 1171, 1176 [discount theater

tickets for “‘baby-boomers’” to attend a musical]; Starkman, supra, 227 Cal.App.3d at

pp. 1498–1499 [discounted theater admissions for children and seniors]; Sargoy, supra, 8

Cal.App.4th at pp. 1048–1049 [higher interest-earning rates for seniors].) Likewise, a

distinction limiting children from swimming in certain pools of a condominium

association was supported by safety concerns, among other things, and thus not

unreasonable. (Proud, supra, 190 Cal.App.3d at p. 382.) Further, age distinctions made

by car rental companies have been held nondiscriminatory under the UCRA because the

Legislature has regulated vehicle rental agreements to specifically permit such

restrictions. (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1503–1505 (Lazar).)

Parental status and motherhood are also unenumerated characteristics, and a tote

bag giveaway for women over age 18 years to celebrate Mother’s Day at a baseball game

meant as a noncompensatory gift, not a discount on admission, was not unlawful

discrimination. (Cohn v. Corinthian Colleges, Inc. (2008) 169 Cal.App.4th 523, 528–

530.) Similarly, the California Supreme Court in Koebke examined various public policy

considerations to determine whether drawing a distinction based on marital status—then

an unenumerated characteristic—was arbitrary or unreasonable. (Koebke, supra, 36

Cal.4th at pp. 844–846.)

This decisional authority represents California courts’ efforts to define the

contours of what constitutes unreasonable, arbitrary or invidious discrimination under the

UCRA in the context of unenumerated characteristics, and examine where bona fide

public policy may justify a distinction. It does not constitute a formalized system of

discretionary, individualized exemptions to the UCRA within the contemplation of

Fulton. (Emilee Carpenter, LLC v. James (2d Cir. 2024) 107 F.4th 92, 110 (Emilee

Carpenter) [challenged laws did not constitute a mechanism for individualized

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exemptions under Fulton because they did not “invite government officials to consider

whether an individual’s reasons for requesting an exemption are meritorious”]; see

Canaan Christian Church v. Montgomery County (4th Cir. 2022) 29 F.4th 182, 203 (conc.

opn. of Richardson, J.) (Canaan Christian Church) [noting the unconstrained discretion

rule as articulated in Fulton relates to “unconstrained discretion to make essentially ad-

hoc decisions about what circumstances warrant an exception”].)

Defendants argue the UCRA is not neutral or generally applicable under Tandon v.

Newsom (2021) 593 U.S. 61 (Tandon) because it contains “‘myriad exceptions’” that treat

secular activity more favorably than religious activity. They point to “categorical

exemptions” for specific housing reservations for senior citizens (§§ 51.2–51.4, 51.10–

51.12) and “for all discriminatory distinctions that comply with other laws” (§ 51,

subd. (c)).

In Tandon, the high court considered an application for injunctive relief pending

appeal based on a free exercise challenge to the restriction on the size of in-home

religious gatherings during the Covid-19 pandemic.24 In a per curiam order, the high

court observed that “government regulations are not neutral and generally applicable, and

therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any

comparable secular activity more favorably than religious exercise.” (Tandon, supra, 593

U.S. at p. 62.) “[W]hether two activities are comparable for purposes of the Free

Exercise Clause must be judged against the asserted government interest that justifies the

regulation at issue.” (Ibid.) In other words, courts are to look to the “asserted interests”

of a rule and consider whether exempted secular conduct undermines those asserted

interests in a similar way to religious conduct. (Fulton, supra, 593 U.S. at p. 534.) “If

24 California had permitted hair salons, retail stores, movie theaters, private suites at

sporting events and concerts, and indoor restaurants to bring more than three households together

under the restrictions, but it had not permitted the same for people who wanted to gather for at-

home religious exercise. (Tandon, supra, 593 U.S. at p. 63.)

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the government regulates religious activities while excepting secular activities for which

its stated interest equally applies, then it unjustifiably belittles the religious practice.”

(Cannan Christian Church, supra, 29 F.4th at p. 204 (conc. opn. of Richardson, J.).)

Here, the UCRA does not draw any distinctions between secular and religious

activities, and there is no evidence the UCRA was enacted as a means to discriminate

against religion. Moreover, defendants’ argument the statutory provisions relating to the

preservation of housing for senior citizens (§§ 51.2–51.4, 51.10–51.12) are contradictory

secular exemptions under the UCRA, rendering it not generally applicable, is

unpersuasive. The UCRA expressly bars sexual orientation discrimination “in all

business establishments of every kind whatsoever” (§ 51, subd. (b)), and the UCRA’s

“fundamental purpose” in doing so is to “secure to all persons equal access to public

accommodations” no matter what their sexual orientation (Harris, supra, 52 Cal.3d at

p. 1169). These senior housing sections do not represent a system of exemptions for

comparable secular activities that undercuts or contradicts the UCRA’s purpose with

respect to ensuring full and equal access irrespective of sexual orientation. (Emilee

Carpenter, supra, 107 F.4th at p. 111 [regarding New York public accommodation laws,

under Tandon, “religious conduct that [the plaintiff] seeks to engage in is not

‘comparable’ to any sex-based discrimination justified by bona fide public policy

reasons”; “limited public policy exemption for sex discrimination does not ‘undermine[]

the government’s asserted interest[]’ in prohibiting sexual orientation discrimination ‘in a

similar way’”].) Nor does the UCRA’s statement that its scope is “not [to] be construed

to confer any right or privilege on a person that is conditioned or limited by law” operate

in such a manner. (§ 51, subd. (c).) The UCRA’s scope provision merely provides

guidance as to which law applies in the event of a conflict, and defendants point to no

California law that permits disparate treatment on the basis of sexual orientation. (See

Lazar, supra, 69 Cal.App.4th at p. 1504.) Nothing in defendants’ arguments persuades us

North Coast’s conclusions regarding the UCRA’s general applicability and neutrality

67.

have been fatally undermined by Fulton or Tandon. (North Coast, supra, 44 Cal.4th at

p. 1156; see Correia v. NB Baker Electric, Inc. (2019) 32 Cal.App.5th 602, 619 [“On

federal questions, intermediate appellate courts in California must follow the decisions of

the California Supreme Court, unless the United States Supreme Court has decided the

same question differently.”], citing Auto Equity Sales, Inc. v. Superior Court (1962) 57

Cal.2d 450, 455.)

2. The CRD’s Neutrality

Defendants maintain the CRD violated its obligation under the free exercise clause

to “proceed in a manner neutral toward and tolerant of [Miller’s] religious beliefs.”

(Masterpiece, supra, 584 U.S. at p. 638.) The trial court concluded the CRD’s

administrative investigation and prosecution did not amount to hostility: “While [the

CRD] may have stepped on the line at times, it did not commit a personal foul sufficient

to constitute a [free exercise] defense in this case.” Defendants argue this was error.

Defendants assert the CRD has prosecuted the case for six years and has asserted there is

no burden on Miller’s religious exercise because she has options other than an outright

refusal to make a wedding cake for a same-sex couple, which lacks sensitivity to and

neutrality toward Miller’s beliefs. Defendants also contend the CRD has made comments

and statements like those the Colorado Civil Rights Commission made in Masterpiece,

which the high court found hostile to the baker’s religion or religious viewpoint. Finally,

defendants contend the CRD has done nothing to address the “rampant, ongoing religious

discrimination against Miller.”

In Masterpiece, the court concluded that the Colorado Civil Rights Commission,

the adjudicatory body deciding the case at the administrative level, made hostile

comments that “cast doubt on the fairness and impartiality of the Commission’s

adjudication of [the cake baker] Phillips’ case.” (Masterpiece, supra, 584 U.S. at p. 636.)

During public hearings, commissioners endorsed the view that religious beliefs cannot

legitimately be carried into the public sphere or commercial domain, “implying that

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religious beliefs and persons are less than fully welcome in Colorado’s business

community.” (Id. at p. 634.) Although standing alone, the comments could have been

construed to mean that a business cannot refuse to provide service based on sexual

orientation, comments made at a separate meeting indicated these original comments

were likely meant dismissively, showing a lack of consideration of the baker’s free

exercise rights. (Id. at p. 635.) Specifically, at a subsequent public meeting of the

commission, a commissioner commented that religion had “‘been used to justify all kinds

of discrimination throughout history,’” including slavery and the holocaust, and

commented that “‘it is one of the most despicable pieces of rhetoric that people can use

to—to use their religion to hurt others.’” (Ibid.) The Supreme Court found this

sentiment to be “inappropriate for a Commission charged with the solemn responsibility

of fair and neutral enforcement of Colorado’s antidiscrimination law—a law that protects

against discrimination on the basis of religion as well as sexual orientation.” (Id. at

pp. 635–636.) Taken together, the high court could not “avoid the conclusion that these

statements cast doubt on the fairness and impartiality of the Commission’s adjudication

of [the baker’s] case,” leading to an inescapable inference that the baker’s defenses were

not considered with the neutrality the free exercise clause requires. (Id. at pp. 636, 639.)

The situation and the CRD’s litigation statements are distinguishable from

Masterpiece. The CRD is not an adjudicatory body. Under its statutory mandate as the

state’s civil rights enforcement agency, the CRD has brought a civil action on behalf of

the real parties in interest and the public. (Gov. Code, § 12965, subd. (a)(1).) The CRD’s

role is not one of neutral decisionmaker, which is fundamentally different from that of the

commission in Masterpiece. The CRD, as a party to litigation, is entitled to mount a

zealous and forceful legal challenge. Most importantly, we find nothing in the CRD’s

conduct or litigation statements that presented anything amounting to hostility or

comparable to that voiced by the commission members in Masterpiece.

69.

Defendants’ claim that the CRD gravely distorted Miller’s sincerely held religious

beliefs in public filings, and thus exhibited hostility, is without support. As an adversary

in litigation, the CRD has consistently argued Miller’s denial of any preordered cake for

same-sex weddings constitutes discrimination on the basis of sexual orientation because

it creates a distinction in service turning exclusively on the sexual orientation of the end

users. That argument does not denigrate Miller’s religious beliefs about marriage,

question whether those beliefs are sincerely held, or insinuate that Miller’s policy is a

pretext for underlying malice or ill will toward those of nonheterosexual orientation. 25

25 Defendants construe statements in the CRD’s filings as targeting Miller personally and

her religious beliefs, but the record reflects the CRD took aim at Miller’s policy and conduct in

refusing any preordered cake for a same-sex wedding and argued it caused disparate treatment of

a protected group. The CRD argued that policy harmed the dignity of all Californians because it

relegates certain individuals to second-class status based on a protected characteristic. The

CRD’s argument is one of the central issues in the case, and these are points of good-faith legal

disagreement among lawyers and judges across the country in the context of other public

accommodations laws. (See, e.g., 303 Creative, supra, 600 U.S. at p. 637 (dis. opn. of

Sotomayor, J.) [commenting that the majority’s decision allowing website designer to refuse

websites for same-sex weddings gives “new license to discriminate” and the “immediate,

symbolic effect of the decision is to mark gays and lesbians for second-class status”]; Telescope

Media Group v. Lucero (8th Cir. 2019) 936 F.3d 740, 771 (conc. & dis. opn. of Kelly, J.) [while

reason for differential treatment in supplying wedding videos to same-sex couples may not be

because of prejudice against homosexuals, it does not make intended conduct any less

discriminatory under the law]; Brush & Nib, supra, 247 Ariz. at p. 316 (dis. opn. of Bales, J.

(Ret.)) [observing that beyond injury to particular customers who are denied goods or services,

majority’s approval of policy refusing custom wedding invitations to same-sex couples threatens

to create a marketplace in which vendors can openly proclaim their refusal to sell to customers

whom they disfavor, a prospect that “diminishes our defining statement that all are created

equal”].)

Nor was the CRD acting with hostility against Miller or her religion in relying on race-

discrimination decisional authority to argue its case—such precedent is undeniably part of the

high court’s constitutional jurisprudence, including in the context of public accommodation laws.

It is pertinent to our understanding of the issues, how legal principles have been applied in

different factual circumstances that may have important analogous value, and the consequences

that flow from their application. (303 Creative, supra, 600 U.S. at pp. 619–623 (dis. opn. of

Sotomayor, J.) [describing and comparing various exemptions sought from public

accommodations laws in the “civil rights and women’s liberation eras”].)

70.

We, like the trial court, do not find any conduct by the CRD that rises to the level of

hostility or non-neutrality, particularly in the context of adversarial litigation.

Finally, defendants argue the CRD has demonstrated hostility by treating Miller

differently in failing to address “the rampant, ongoing religious discrimination against

[her].” Miller asserts the CRD knew that many of her corporate clients had “dropped

their contracts [with her] because of her beliefs,” but the CRD did nothing. However,

there is no evidence Miller filed an administrative complaint with the CRD that it failed

to pursue. (See Gov. Code, § 12963 [investigation prompted by filing a complaint].)

Defendants also argue Miller sustained a deluge of harassing phone calls and threats of

violence, which defendants claim the CRD did nothing about.26 But the CRD is not a

criminal law enforcement agency and is without the necessary authority or jurisdiction to

criminally prosecute acts of harassment or threats against Miller, her staff or the

Rodriguez-Del Rios.27 Even to the extent the CRD has the ability to provide resources or

the authority to bring a civil action under the Ralph Civil Rights Act of 1976 (§ 51.7) for

violence or threats of violence based on a protected characteristic, there is no evidence in

26 We decline to address any evidence proffered on appeal that the trial court excluded at

trial, including third party social media threats, vandalism, and violent conduct. Defendants

make no argument this evidence was improperly excluded at trial, and we have no basis to

conclude the trial court abused its discretion in doing so. (See People v. Ashford University, LLC

(2024) 100 Cal.App.5th 485, 533, fn. 11; see also Glassman v. Safeco Ins. Co. of America (2023)

90 Cal.App.5th 1281, 1307 [documents not presented in the trial proceeding generally

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