# Civil Rights Dept. v. Cathy's Creations

> California Court of Appeal · March 5, 2025

URL: https://www.frixlaw.com/law-library/cases/10817267

## Case

- **Court:** California Court of Appeal
- **Decided:** March 5, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Filed 3/5/25 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

CIVIL RIGHTS DEPARTMENT,
F085800
Plaintiff and Appellant,
(Kern Super. Ct. No. BCV-18-102633)
v.
ORDER DENYING PETITION FOR
CATHY’S CREATIONS, INC. et al., REHEARING AND
MODIFYING OPINION
Defendants and Respondents; (NO CHANGE IN JUDGMENT)

EILEEN RODRIGUEZ-DEL RIO et al.,

Real Parties in Interest.

THE COURT:
It is ordered that respondents’ petition for rehearing is denied.
It is further ordered that the published opinion filed herein on February 11, 2025,
be modified as follows:
1. On page 5, footnote 2 is modified to add the following text at the end of
existing footnote 2:

“Additionally, while Mireya indicated they had separately purchased
a wedding topper, she testified they never requested a cake topper from
Tastries and the cake they ultimately obtained did not feature a topper.
Eileen similarly testified they did not request or discuss a cake topper with
the employee of Tastries, nor did they plan to purchase one from Tastries.”
2. On page 15, the first full paragraph is deleted in its entirety and replaced
with the following paragraph:

“Generally, policies that make a facial distinction based on an
enumerated protected characteristic have been held to be unlawful as
arbitrary, invidious or unreasonable discrimination. (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].) Likewise, policies that make a facial
distinction based on an unenumerated characteristic may be found unlawful
if the distinction constitutes “‘arbitrary, invidious or unreasonable
discrimination.’”1 (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]; Marina Point, supra, 30 Cal.3d at p. 745
[exclusion of children from an apartment complex unlawful under the
UCRA].) Strong public policy based on a compelling societal interest,
typically evidenced by statutory enactments, may support as reasonable
(and thus not arbitrary) an otherwise prohibited discriminatory distinction,
such as, for example, excluding children from bars. (Koire, supra, 40
Cal.3d at p. 31; accord, Marina Point, supra, at pp. 741–742.)”
3. On page 33, the second full paragraph, beginning with the text “However,”
is deleted in its entirety and replaced with the following paragraph:

“However, the decisional authority defendants point to as
recognizing lawful distinctions in treatment under the UCRA relate nearly
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. 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

1 We are not suggesting the lawfulness of a policy drawing a facial distinction based on a
protected characteristic is assessed under a different or less stringent standard because it is
unenumerated.

2.
distinctions based on age, for example, have been recognized as lawful
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].)”
4. On page 50, in original footnote 18 (now fn. 19), the following text is
added at the end of original footnote 18:

“We make this comment not because the cake the Rodriguez-Del Rios
sought was available from the daily display case, but as an observation the
design standards would preclude a same-sex couple from preordering a
cake for their wedding from the daily display case.”
5. On page 55, in the first and only full paragraph, the third sentence
beginning with the text “Miller’s personal intent,” is modified to read as follows:

“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—implicating the
second element discussed below.”
6. On page 58 (in part II.D. of the Discussion, under the heading Conclusion),
a new paragraph is inserted between the first and second paragraphs to read as follows:

“To hold otherwise would expand the concept of speech to
encompass routine consumer products bearing no indicia of
expression, which would drain the First Amendment of meaning in a
manner we find unsupported by our nation’s high court’s
jurisprudence. Considered as expressive conduct, the act of
preparing and delivering before a wedding celebration this
nondescript, multi-purpose cake is unlikely to be understood by a
viewer as communicating any message of the baker, let alone a
specific message about marriage. And no explanatory conversation

3.
about an intended message, such as through sales standards or a
conversation prior to sale, can transform such conduct into symbolic
speech. (FAIR, supra, 547 U.S. at p. 66.) Given the circumstances
here, a contrary conclusion would support an overly broad view that
producing and selling a routine consumer product for an event
constitutes the symbolic speech of the vendor whenever a message is
intended. Logically, this would apply to sales conduct beyond the
scope of weddings and sincerely held Christian beliefs about same-
sex marriage. We decline to extend the parameters of protected
expression to include such a broad variety of marketplace conduct.”
Except for the modifications set forth, the opinion previously filed remains
unchanged.
This modification does not effect a change in the judgment.

MEEHAN, J.

WE CONCUR:

DETJEN, Acting P. J.

SMITH, J.

4.
Filed 2/11/25 (unmodified opinion)

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-

2.
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).2
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

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

3.
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

4.
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.3 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

3 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.

5.
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

6.
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.

7.
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”4

4 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.

8.
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

9.
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

10.
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

11.
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.)

12.
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.

13.
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

14.
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

15.
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

16.
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.5 Different from the other standards, the preclusion on providing
wedding cakes for the purpose of same-sex marriage cannot be applied until and unless

5 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.

17.
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.6 (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.

6 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)].)7 If it
were otherwise, the assertion of a sincerely held religious belief (which is nonjusticiable)

7 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.8 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

8 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.9 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].)10
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.

9 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].”
10 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.11

11 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.12
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

12 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.13 (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’”].)

13 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].”14 (Cressman, supra, at pp. 951–952; see Johnson,

14 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,[15] a less stringent test than those
established for regulations of pure speech.”].)16
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.’”].)
15 United States v. O’Brien (1968) 391 U.S. 367, 376–377 (O’Brien).
16 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.)17
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).

17 “[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.,

43.
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.”18 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

18 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.19
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

19 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 stud

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10817267. Public record. Not legal advice.