Content Regulation / Censorship, Religious Expression
Otto-Preminger-Institut v. Austria
Closed Mixed Outcome
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
Kern County Superior Court of California denied the State’s application for a preliminary injunction to restrain Cathy Miller, owner of Cathy’s Creations, a cake baking shop that catered to wedding cakes, from refusing to design and bake a cake for a couple for a same-sex marriage. The Department of Fair Employment and Housing complained that Miller had violated the Unruh Civil Rights Act which prohibits public businesses from denying service to anyone on the basis of a number of characteristics including race, gender, religion or sexual orientation. The Court reasoned that Miller’s right to freedom of speech through the artistic expression of baking a cake outweighed the State’s interest in preventing discrimination because generally-applicable public accommodation laws such as the Unruh Act could not be used to ‘compel speech’.
This ruling is in direct contrast to another recent decision that is currently on appeal to the U.S. Supreme Court, Masterpiece Cakeshop v. Craig.
Complainants Eileen and Mireya Rodriguz-Del Rio, a same-sex married couple, visited the Defendant’s cake shop (Cathy of Cathy’s Creations) in the hopes of finding a caterer for their wedding cake. When the couple visited the store an employee showed them the cake offerings and they placed a cake order through the store. However, after the cake was ordered the owner, Cathy, informed the couple that she would transfer the order to another bakery because she did not condone same-sex marriage and refused to make the cake. She did not refuse service of her pre-made items to same-sex couples, but felt by custom-creating a cake (with no written words requested on the cake), she would effectively be condoning the practice of same-sex marriage which her religion did not support. Cathy has an agreement with another bakery to refer out custom-cake orders for same-sex marriage couples.
The Rodriguez-Del Rios filed an administrative complaint with the California Department of Fair Employment and Housing on October 18, 2017, complaining that Miller had violated the Unruh Civil Rights Act. The Act prohibits public businesses from denying service to anyone on the basis of a number of characteristics including race, gender, religion or sexual orientation.
The State, through the Department of Fair Employment and Housing, brought an action seeking a preliminary injunction.
The Court held that the Defendant’s freedom of expression rights outweighed the State’s interest in preventing discrimination and denied the application for a preliminary injunction at the trial court level.
The State argued that forcing the Defendant to serve the complainants does not compel speech, but rather only compels conduct; the baking and selling of a cake. The State also argued that this was not a case of compelled speech because the Defendant is not being required to bake a cake with a message on it condoning same sex marriage. The Court disagreed, finding that the compelled speech doctrine was applicable in this situation, because the Defendant was being forced to bake a cake that would promote the message desired by same-sex marital partners and with which Miller disagreed.
The Court went on to find that a wedding cake is a form of artistic expression, and as such should receive protection under the First Amendment. Finding that this type of expressive conduct was protected under the First Amendment, the Court next turned to the issue of whether the state had an overriding interest that would justify infringement on freedom of speech. The State argued that the protection against discrimination based on sexual orientation was a sufficient justification to infringe on freedom of speech in this case. However, the Court again disagreed. It said that the application of the Unruh Act in these circumstances required ”strict scrutiny” by the Court. Under strict scrutiny, law cannot be applied in manner that substantially burdens constitutional right unless the State shows that the law represents the least restrictive means of achieving compelling interest. On this basis, the Court found that the Defendant’s freedom of speech rights outweighed the states interest in protecting against discrimination as this was not the least restrictive means of doing so.
Finally, the Court turned to Defendant’s argument that the case implicated the Free Exercise of Religion Clause and that her free exercise of religion was violated. The Court said that, having found an infringement of freedom of speech, it was not necessary to consider whether the application of the Unruh Act in these circumstances violated the Free Exercise clause.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case presents a mixed outcome, because although it protects freedom of speech, it seems to promote discrimination against same-sex couples by allowing bakeries to refuse to create wedding cakes for same-sex marriage ceremonies. This is currently an ongoing issue in the courts; weighing freedom of artistic expression against individuals’ rights to be free from discriminatory practices. This decision is in direct contrast to another recent decision that is currently on appeal to the Supreme Court of the United States. See Masterpiece Cakeshop v. Craig.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Let us know if you notice errors or if the case analysis needs revision.