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Old 02-13-2018, 12:11 PM
Kimstu Kimstu is offline
Join Date: Dec 1999
Posts: 21,196
Originally Posted by John Mace View Post
Not to mention that this case is about speech, not religion.
Sort of. IANAL, but the OP's description of the judge's decision made it sound to my layperson's ears like a rather weird-ass melange of artistic expression and commercial nondiscrimination.

Namely, the baker's refusal was ruled legally permissible merely because the desired cake had not yet been made, and thus requiring the baker to make it for the gay couple would have been "forcing an act of artistic expression".

However, if the gay couple had decided that what they wanted was a cake that the baker had already made, using that very same artistic expression, and put in the display case for sale, it would have been considered an entirely different situation. In that case the couple could have said to the baker "We would like to buy your lovely artistic cake for our gay wedding, and consume it together with our gay-marriage-supporting friends and family and officiating clergy in celebration of our gay union, and save a couple slices for our wedding night in order to lick the frosting off each other's gay penises", and the baker could not legally have refused to sell them the cake.

That strikes me as an extremely weird distinction to draw. If something is a form of artistic expression, you get to control its use even after you've created it. For instance, if you offer your movie screenplay for sale to Hollywood producers, or your book manuscript to publishers, you can refuse to sell it to a buyer you don't happen to like.

The cake decision just seems like a tangled conflation of the concepts of creative work and commercial product. If the gay couple had requested the baker to make them a cake exactly like one that was already for sale in the display case, which according to the judge's decision they would have been fully entitled to buy, could the baker have refused to do so? What's the "artistic expression" justification for that?

Likewise, if I go to my hairdresser with a very specific hairstyle request, is she legally allowed to refuse to serve me on ideological grounds? If she's selling in her shop a wig she made with that exact same hairstyle, is she legally required to let me buy it? In terms of artistic expression, what's the difference?

ISTM that by this reasoning, pretty much any form of individualized service or product could be considered a form of "artistic expression" and denied to specific customers on ideological grounds. Suppose I'm running a lunch counter and am really fussy about the plating and presentation of my hotdogs. And I happen to be ideologically opposed for religious reasons to black people eating in the same establishments as white people. Why can't I just refuse to serve black customers on the grounds that I shouldn't be compelled to engage in the artistically expressive act of preparing and plating a hotdog for customers of whom I disapprove?