On Thursday, February 8, 2018, Jimmy Kimmel performed a 4-minute sketch on his television show regarding my law firm's defense of the religious and free speech rights of Cathy Miller, the owner and operator of Tastries Bakery in Bakersfield, California. Cathy Miller is a devout Christian. She believes that God created marriage as a covenant between one man and one woman, and so she believes it is immoral for her to participate in a same-sex wedding.
In August of last year, a same-sex couple came to Tastries. According to their sworn court statements, they were welcomed by a Tastries employee who "treated us kindly and was very warm." However, when it was discovered that they sought a wedding cake for a same-sex wedding, Cathy told them that they could purchase anything in her store, since Tastries welcomes and serves everyone who enters the store, but that she could not make their wedding cake. Instead, Cathy told them that she would accommodate them by referring their order to a rival bakery with which she had a good relationship. The same-sex couple then reported Cathy to the California government, which brought a lawsuit against her. The state then also immediately filed for a preliminary order forcing Cathy to either stop make wedding cakes or essentially stop being a Christian.
The judge then, on Monday, Feb. 4, 2018, issued a detailed order explaining his ruling. That order is not hard to follow. The judge decided first that a wedding itself is speech. The same-sex couple "plan a celebration to declare the validity of their marital union and their enduring love for one another." The judge then decided that a wedding cake is also speech. It is "an artistic expression by the person making it that is to be used traditionally as a centerpiece in the celebration of a marriage. There could not be a greater form of expressive conduct." This is not a stretch. A wedding cake is more a temporary sculpture used as the focal point of a wedding reception than just a cake.
Nobody pays hundreds—if not thousands—of dollars for just a cake.
Then, the judge decided that by using a Tastries cake at their wedding, the couple would be co-opting Cathy's speech (the temporary sculpture) to support their own speech (the ritualized ceremony declaring their union). This is also not a stretch. Imagine a baker who in early October receives an order to make a gory fondant cake. At first she assumes it's for Halloween, but then she realizes that it is supposed to be delivered a little late, Nov. 9. She asks the client what the cake is for, and he says he's having a Kristallnacht-Holocaust party and he wants a monument celebrating what he, a Neo-Nazi, views as one of the greatest days in history. The baker has every right to be concerned about how her speech is being used.
Finally, the judge said that for California to force Cathy to engage in speech, it has a very high burden to meet. And it simply cannot meet that burden. Cathy was completely ready to satisfy the couple's need for a wedding cake by referring them to another baker with whom she already had a good relationship. "Miller is not the only wedding-cake creator in Bakersfield." And the judge said that "[s]malI-minded bigots will find no recourse in committing discriminatory acts" because there is a difference between being a bigot and being a person of faith.
For me, this logic is not that difficult to follow. But it apparently was for Mr. Kimmel. In his sketch, he analogizes Cathy's case to an absurd situation, a public restaurant, and tries to apply the judge's opinion in a whole litany of bizarre ways that are insulting to all people of faith. Apparently nobody at Kimmel's restaurant can have any beef because the chef is Hindu. Nor can men order for women because the owner is Wiccan. Homosexual individuals cannot order salads because making the salads violates the salad chef's unspecified religious beliefs. Finally, without any explanation, "The lasagna is not for Jews tonight." Because there is no explanation, we have to assume that Kimmel thinks that Hindus just hate Jews.
None of these examples are remotely similar to Cathy's case. As much as Kimmel wants to spin this case to be about discrimination, it just isn't. When, in "Obergefell v. Hodges," the Supreme Court made same-sex marriage the law of the land, it went out of its way to talk about and protect people of faith. It made a compromise: Homosexual individuals can get married, but people of faith will also be protected. This compromise was both possible and needed because millions of people believe that marriage should only be between one man and one woman, and millions of people disagree. So it's perfectly possible for all of us to simply coexist; there are other bakers in Bakersfield.
But beyond Kimmel's absolute misunderstanding of the judge's ruling was a crude smear of all people of faith. Hindus don't hate Jews, and Wiccans don't hate men. But apparently late-night comics hate Hindus, Wiccans and Christians. The whole point of the judge's ruling is that it is not "[s]malI-minded bigot[ry]" to be a person of faith. No, bigotry is believing Hindus, Wiccans and Christians need to be run out of business because, if allowed to exercise their faith, nobody will be allowed to have beef or salads—and no lasagna for the Jews. I'm no expert on Hindu or Wiccan beliefs, but I can assure you that result does not follow from practicing the Christian faith.
Jeffrey M. Trissell, Esq., is an attorney with Freedom of Conscience Defense Fund and the principal author of Tastries' legal briefing. He earned his J.D. from the George Washington University Law School in 2013. This article originally appeared on the Daily Caller. Reprinted with permission.
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