One week after California officials abruptly reopened their administrative prosecution of Cathy Miller, the Freedom of Conscience Defense Fund (FCDF) filed a motion today in state court asking Judge David Lampe to enforce his ruling upholding Cathy’s First Amendment rights.

The Department of Fair Employment and Housing (DFEH) began prosecuting Cathy, owner of Tastries Bakery after a same-sex couple filed a discrimination complaint last year alleging that she refused to bake a wedding cake for them because of their sexual orientation. DFEH officials then filed a motion for a preliminary injunction in California state court, seeking an order that would cause Cathy to lose 40% of her business. In ruling against the DFEH, Judge Lampe held that government cannot force Cathy to engage in expressive speech that violates her conscience.

The DFEH lawyers initially appealed the decision, but they quickly withdrew it, and instead relaunched their original prosecution of Cathy under California’s anti-discrimination law, the Unruh Civil Rights Act, which they argue still applies to Cathy’s case. DFEH lawyers informed Cathy last week that their first step is to interrogate her, her husband, and a Tastries employee. However, FCDF attorneys cautioned the DFEH that if their lawyers continue to “harass” Cathy, they will move to enforce the court’s First Amendment ruling.

“We warned the government lawyers that we will vigorously fight even their slightest attempt to continue persecuting Cathy. Unfortunately for them, Cathy has the Constitution on her side.”

FCDF’s motion argues that the DFEH cannot continue to prosecute Cathy for two main reasons. First, the legal doctrine of res judicata – which means “a matter judged” in Latin – bars the DFEH as the losing plaintiff from re-suing Cathy for the same alleged violation. In this case, that is Cathy’s alleged discrimination against a same-sex couple. Second, the doctrine of collateral estoppel prevents the DFEH from litigating issues that have already received a final judgment.

“The case is over. But it’s clear that the DFEH bureaucrats are more zealous about advancing their pro-LGBT agenda than obeying the court’s ruling.”

In today’s motion, FCDF also asks Judge Lampe to order the DFEH to pay the nearly $4,000 in litigation costs it owes Cathy. The government is required by law to pay Cathy the costs, but DFEH officials have refused to respond to the request for payment.

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