US Supreme Court Decision Favoring 303 Creative Solidifies Tastries Bakery Free Speech Win

June 30, 2023
Tom Ciesielka

Thomas More Society Attorneys Praise High Court Vindication of Practicing Christian Principles in the Marketplace

(June 30, 2023 – Bakersfield, California) The Thomas More Society applauds today’s United States Supreme Court decision in 303 Creative protecting the free speech rights of creative professionals. The Society has numerous clients whose livelihoods were at risk before today, due to their sincere religious beliefs on same-sex marriage. Most notably, today’s ruling will be strong support in the Society’s defense against the State of California, which sued Tastries Bakery for declining to celebrate same-sex marriage. Society attorneys won at the trial court, but the State of California has appealed the decision.

Cathy Miller, proprietor of Tastries Bakery in Bakersfield, California, was hauled into court—not once, but twice—by the California Department of Fair Employment and Housing (now the California Civil Rights Department) for declining to design a custom wedding cake celebrating the same-sex marriage of two women. Miller’s freedom to exercise her sincere religious beliefs through her culinary craft was affirmed by a California Superior Court, despite aggressive attacks and litigation backed by the full weight of California’s bureaucratic apparatus.

“There’s a certain irony here,” observed Charles LiMandri, Thomas More Society Special Counsel and partner at LiMandri & Jonna LLP, “that laws intended to protect individuals from religious discrimination were used to discriminate against both Cathy Miller and Lorie Smith for their sincerely held religious beliefs. We are pleased that the High Court has upheld the First Amendment rights of Ms. Smith, allowing artisans like her and Cathy Miller to ply their trade according to their deeply held religious beliefs.”

In Tastries, the Hon. J. Eric Bradshaw of the Superior Court of California in Kern County, decided for Miller, concluding that the Department of Fair Employment and Housing’s enforcement action sought to compel Miller and Tastries to express support for same-sex marriage, or be silent. “No compelling state interest justifies such a result under strict scrutiny,” wrote Judge Bradshaw.

Judge Bradshaw noted the inconsistency in California’s alleged respect for Miller’s sincere religious beliefs while trying to force her to either violate her beliefs or stop selling wedding cakes. The Department of Fair Employment and Housing proposed that Tastries could either sell all its goods and services to all customers, cease to offer wedding cakes for sale to anyone, or have Miller and those of her employees that shared her religious objections to same-sex marriage “step aside” and allow her “willing” employees to manage the process.

Smith faced an almost identical situation as the 303 Creative plaintiff in Colorado—to make wedding websites for any and all types of unions or make none. As sole operator and only staff person at 303 Creative, employees were not part of the equation.

Paul Jonna, Thomas More Society Special Counsel and partner at LiMandri & Jonna LLP, added: “We are optimistic that the ruling in 303 Creative will protect all creative professionals involved in the wedding industry, including Cathy Miller. The Supreme Court’s ruling makes abundantly clear that there is room in our great county for people of all views on marriage.”

Justice Neil Gorsuch authored the majority opinion in the High Court’s 6-3 decision. Justice Gorsuch rejected Colorado’s goal of “excis[ing] certain ideas or viewpoints from the public dialogue” as illegitimate and rejected Colorado’s argument that there was no other means of ensuring that same-sex couples have access to the full marketplace. “In some sense, of course, [Lorie Smith’s] voice is unique; so is everyone’s. But that hardly means a State may coopt an individual’s voice for its own purposes… Were the rule otherwise, the better the artist, the finer the writer, the more unique his talent, the more easily his voice could be conscripted to disseminate the government’s preferred messages. That would not respect the First Amendment; more nearly, it would spell its demise.”

Read the Supreme Court of the United States decision in 303 Creative LLC v. Elenis, handed down on June 30, 2023, here.

Read the amicus curiae brief submitted by Thomas More Society Special Counsel and LiMandri & Jonna LLP Senior Associate Jeffrey Trissell in 303 Creative LLC v. Elenis here.

Read more about Thomas More Society’s defense of artisan cake designer Cathy Miller:

· The Superior Court of California County of Kern Decision in Department of Fair Employment and Housing v. Cathy’s Creations, Inc. (dba Tastries) issued October 21, 2022, by Judge Eric Bradshaw

· Department of Fair Employment and Housing v. Tastries Bakery

· Client Profile: Tastries Bakery and Bakery Artist Cathy Miller