T Nation

The First Bakery Decision


Not the one before the Supreme Court…but one of the first…

Kern County Superior Court Judge David Lampe agreed with the argument that Tastries Bakery in Bakersfield owner Cathy Miller’s right to free speech and free expression of religion trumps the argument that she violated a state anti-discrimination law. HOWEVER:

“A retail tire shop may not refuse to sell a tire because the owner does not want to sell tires to same sex couples,” Lampe wrote. “No baker may place their wares in a public display case, open their shop, and then refuse to sell because of race, religion, gender, or gender identification.”

In other words…you don’t have the right to not sell a cake to a group or groups that you feel are an affront to your beliefs…but the Freedom of Artistic and Religious Expression mean’s you also can’t be forced to create one.

I thought the ruling was reasonable and correct.



So in full transparency I paid very very little attention to the gay cake series of events, so forgive me if this was a common view and the judge simply shared it.

I was originally of the opinion that no business should be forced to sell anything to anyone unless it was of a dire situation (like Rite Aid won’t let you use the gauze you need to stop yourself from bleeding out because you’re gay dire).

I like this way a lot better actually. It just makes a lot of sense.


Yeah, I have the same thought for every one of these cases. A private business should have the right to deny service to anyone for any reason.


Am I missing your point, Alrightmiami?

This isn’t what the Judge said.


Based on what you posted, it seems like Judge Lampe just kicked the can down the road. You don’t generally just walk into a bakery and say “I’ll take that one (wedding cake)”. They’re made to order.

Thanks for the legal paradox, judge…


I see where you get “you don’t have the right to not sell…” from the decision, but where do you get “you also can’t be forced…”? Do you interpret the decision to mean that a business doesn’t have to sell anything that’s not displayed?


I disagree.

In this VERY narrow decision…this Baker could not be forced to create something that she deemed offensive…but once made and sold to the public as a whole; one could not refuse to sell a product to that same group one deems offensive.

Again; as these decision often are; they are meant to apply to a specific case, and not to every “What if” scenario that one can come up with. With that said; they can begin to set a “Legal Precedent”.

The decisions made by the SCOTUS should be an interesting read.


I don’t understand the question, Nick.


You said the decision means that a business can’t be forced to create something, but I don’t see that. It seems to say that a business can, indeed, be forced to create. Am I missing something?


Okay, well then this decision is patently absurd, IMO, or I’m completely misunderstanding. The second she bakes and sells a wedding cake she no longer has a right to artistic and religious expression? That is utter nonsense, IMO.

It appears to me that this judge does try to create a precedent that applies to a lot of “what-if” scenarios by interjecting the tire analogy (which is a poor one, imo). Tires are manufactured in mass and are all the same. Wedding cakes are unique and made to order. You don’t really pre-make wedding cakes.


That is how it reads to me.

A bakery can be forced to make and sell a wedding cake to a same-sex couple because they’ve already made and sold wedding cakes to the public and can’t claim artistic and religious expression any longer.

Is that accurate.


Or so could I!

I am certainly viewing the decision much differently from you, MC…and certainly don’t view it as absurd.


Lol. FTR, I think the bakers that refuse to sell cakes to gay couples are idiots, but I’m also not a fan of “legal” coercion being a part of private transactions either.


That’s completely counter to what the Judge wrote, MC…


Tastries Bakery has placed their wares in a public display case, opened shop, and then refused to sell their goods to a same-sex couple, have they not?

To me, that implies she has to make and sell wedding cakes to same-sex couples since she bakes and sells wedding cakes to the public.

Is that not accurate?

*Which circles back to my paradox comment.


In which case, I find the logic unconvincing.

EDIT: For similar reasons already mentioned.


Is gouging worse than refusal? My friends seemed to think so, couldn’t really grasp the distinction.


When the baker bakes those cakes all he can assume is that a paying customer will purchase it. He has no idea if that customer will be gay, black, Jewish, an illegal alien, a murderer, the dude who is banging his wife while he is at work, etc.

Also, once made and sold what business is it of his to object to how what has become someone else’s property is used?


When my wife and I bought our wedding cake, we went into the bakery, tried a bunch of different flavors, and then ordered what we wanted. The Baker then made the cake right before the wedding. We didn’t just pick one off the shelf.

I’m pretty sure that’s how most wedding cakes are done.

Ya, I don’t think this has anything at all to do with this or other similar cases…



Reading the article helped… It seems the judge is saying a bakery can refuse to bake a cake for a specific event ie a wedding, but cannot refuse to sell a pre-made cake to a same-sex couple.

I guess that’s fine. I still don’t love it, but it’s not how I originally interpreted the quote.