First I wanna say that your idea of “art” and “artist” is both limiting and too expansive at the same time. Many in the professions or situations you use as examples, do not think of what they do as art, or as themselves as artists. Others do. In one case, it’s not art. In the other it is.
Other than that, if you’ve entered a legal contract with someone to produce something for them, you’re obligated to do so. The details of the contract will determine to what point the artist can be compelled, and what creative freedom they have. Any artist is free to not enter a contract and cannot be forced to do so.
And I strongly disagree that the greatest choice belongs to the buskers in the park. They usually do what they do in spite of unfortunate circumstances and financial compromises. Leaders in any creative field are free to work and express with anything they want and still earn a profit, mostly because of luck and name-recognition. And they are still free to enter a contract or not, just as a busker in the park.
Unless the store is deciding they don’t want to sell to someone because they’re a member of a protected class. If Aldi suddenly stopped selling milk to black people, they’d get squashed like a bug. And if they stopped selling milk to gay people, there’d at least be a lawsuit, though the result of that lawsuit isn’t completely certain since the courts have been vague on just how protected a class sexual orientation is.
Art is arguably more protected by modern first-amendment jurisprudence than political speech.
In any event, what the S.Ct. says the 1st A protects is “expression.” And even when something constitutes “expression,” it can still be regulated based on countervailing societal considerations. A good exemplar of this was the nude-dancing case from 1991 (what? nudity? students’ heads in the back of the class start to pop up). The majority ruled that nude dancing is expressive conduct, but that the societal interests in opposing public nudity were strong enough to overcome the 1st A protection that attaches. Scalia’s concurrence, by contrast, concluded that such dancing was only “conduct,” not expression, and thus not protected at all. The dissent argued instead that the dancing was protected expression and that the societal interest in quashing it was not sufficient.
Here, the baker is arguing that his baking constitutes “expression,” whereas cakes made on some sort of assembly line are just “conduct,” and that the societal interests involved are not sufficient to overcome the protection attached to his expression. (Presumably he would have to concede, however, that the state could require him not to work in the nude).
To use my movie-casting analogy from above, casting the part of FDR in a film would likely be considered “expression,” and the director could insist on a white actor. A TV station hiring a newscaster, however, is probably engaging in something much more like mere conduct, and it could not insist on hiring a white person without regard to antidiscrimination law.
The argument is that it can’t be compelled by the government. I’m not sure how you could miss that part. If you have a contract with a private party, that’s a different matter. If you don’t fulfill the contract, they can sue for restitution even if they don’t get the art.
It’s a foolish argument. If an amateur cake decorator wants to say they only decorate cakes when they feel like it, that’s fine.
But this guy is a professional cake decorator. He set himself up in the business of being “compelled” to decorate cakes when customers want them. If he allows straight customers to have the right to compel him then gay customers are entitled to the same right.
It is one thing to be compelled to fulfill a contract, a different thing altogether to compel someone to engage in a contract. On the other hand, you can be compelled to engage in certain contracts when you off those contracts to the public at large but want to exclude certain members of the public. Therein lies the sticking point, are these wedding cakes individual artistic expressions or standard products.
In this case an examination of the wedding cakes this baker has produced in the past should provide the answer, though still some subjective evaluation is required. If this baker has provided virtually identical wedding cakes to different couples save for the names and what the two little dolls on the top look like then he can’t claim every cake is a work of artistic expression, he would have to supply such a cake to a gay couple if they request it.
If each cake he produces is substantially unique, I would let him go on working in his bubble of intolerance, hoping good people would not place their wedding cake above principle and get their cakes somewhere else.
This argument only holds up if you feel that being gay is the equivalent of being a pedophile.
Nobody is arguing for equal tolerance for everything. What people are saying is that gay people are entitled to the same rights and same treatment as straight people are entitled to. Just like black people and white people or men and women.
If you want to discriminate against pedophiles or criminals or bigots, you can. You can’t commit crimes against them but you can refuse to do business with them.
You can compel somebody to engage in contracts with gay people the same way they engage in contracts with straight people.
They can sign every contract. They can refuse every contract. They can flip a coin over what contracts they sign. They can sign contracts on a “first come first serve” basis. They can sign contracts for the highest monetary offers. But they can’t sign contracts with straight customers and refuse to sign contracts with gay customers.
I think when it comes to artistic expression you can refuse to sign a contract based on content. That’s not the same thing as the customer, it’s possible that baker has signed contracts with gay wedding planners for straight customers. If he refused to do that it’s clear discrimination.
However, except for the writing on the cake, I am not seeing all that much artistic expression based on the cake itself anyway. I believe an examination of the wedding cakes he makes would show most of then are substantially the same, and the differences have nothing to do with the genders of the couple getting married.
My response was in the context of the Colorado cake maker case.
One of the many lame attempts to get around the COLORADO* law against discrimination is to assert that he can’t get into his proper artistic mood to make a gay wedding cake.
Bull … loney.
Where do you draw the line? Can’t get in the mood to make a case for interracial couples? Catholics?
According to COLORADO law, if you’re in business to the public, you cannot discriminate against a protected class. If you have a problem with this, don’t do business there.
He violated STATE law where homosexuals are a protected class. Not a federal law.
So I have a question, and forgive me if it’s been answered.
Imagine three bakers:
Bob has a bog-standard wedding cake he makes. Well, twelve bog-standard cakes. You can order any of the twelve, and he’ll make it for you. Unless it’s for a gay wedding, then he won’t.
Sheila is like Bob, only she’s got a list of custom doohickeys she’ll add: you can choose the roses, you can choose the dragees, you can even choose letters arranged in order. She’ll put any of those on the cake for you. Unless it’s for a gay wedding, then she won’t.
Alice sits down with the couple and really groks their relationship. Based on these personal conversations, not on a build-to-order request, she crafts a work of art in flour and fondant that reflects her understanding of their love. Unless they’re gay, then she won’t.
Which of these bakers is before the court? My guess is it’s Bob or Sheila, in which case I think their claim is bullshit. If it’s Alice, I’m a little more sympathetic.
Of course if everything were as obvious as that, SCOTUS would have never taken the case. And yet they have. The issue is the tension between the state law and the federal protection under the 1st amendment for free speech and free exercise of religion.
The baker’s brief certainly portrays him as category 3. I don’t know whether that’s in serious dispute, but the S.Ct. actually doesn’t have to resolve that point as to him in particular. It could announce a rule that category 3 is protected while categories 1 and 2 are not, and send the case back to the lower courts for a factual determination of which category this particular baker falls into.
This is probably the best place for me to ask this question since I don’t like going to in GD.
How can you draw a line saying what someone should or should not be forced to make as a baker? Because at some point there has to be a line where people will say, ‘no they don’t have to make a Swastika cake’.
What happens if I, a middle aged, 6 foot+, white male walks in to a baker and says I want a big Swastika on a cake. Does it matter if I’m Latvian and it’s a traditional symbol? While I’m not Latvian, I do know a few and went to Latvia a few years ago. They have Swastikas on the backs of chairs there, something that was strange for me the first time I saw it. They had Christmas ornaments in that shape.
Can a baker be compelled to make such a cake? If I’m in the states for a Latvian wedding and I’m buying the cake is there any difference between this and a cake for a gay wedding?
The issue is not the design of the cake. The issue is the identity of the customer. This baker is saying that he can make wedding cakes for straight couples, but cannot make wedding cakes, even with the same design, for gay couples.
This argument only holds up if you feel that being gay is the equivalent of being a [del]pedophile[/del] Nazi.
Nobody is arguing for equal tolerance for everything. What people are saying is that gay people are entitled to the same rights and same treatment as straight people are entitled to. Just like black people and white people or men and women.
If you want to discriminate against [del]pedophiles or criminals or bigots[/del] Nazis, you can. You can’t commit crimes against them but you can refuse to do business with them.
Is that really the case though? Not all of the facts are in. The vendor was willing to sell a cake, reportedly, just not to decorate it. I’m not sure if wording has entered into the record yet.
In this case, reportedly, the sellers were willing to provide a cake, but they weren’t willing to decorate it in accordance with the customers’ wishes. I think this is a distinguishing factor.
If you’re Walmart, you can’t refuse to sell that crudite to anyone based on, well, pretty much anything. And the bakery was willing to sell the cake, just not to decorate it. The decoration is the speech. And speech is repeated. “I got this cake at Masterpiece. They endorse the message on this cake.” Although I think it’s repugnant to worry about, Masterpiece might have a reputation to uphold (personally, I think their reputation as bigots would outweigh, this, but it’s their right to protect).
Masterpiece are bigots. Maybe their religious objections are sincere (I honestly respect that). In the end, let’s decide whether their sincere objections survive the market or not.
Well good, because I didn’t say anything about Nazis did I? I asked about a Latvian, who would have zero to do with Nazis. They happen to use Swastikas in their artwork and culture.
At which culture, sex, race, religion, or whatever does the line get drawn? The only thing I ever hear from people is protected classes.
Just supposing, the cake artist said “I’m sorry, but I’m not familiar enough with the culture, and I’m afraid if I tried to make a representation considered appropriate to people of that culture, I would unintentionally include a feature or characteristic that they might find offensive or condescending. So I really think you would be safer commissioning another artist to do this particular work.” Just as a gentile artist might be concerned that a Bar Mitvah cake or Ramadan cake might, very unintentionally, convey some kind of an offensive oversight.
If a dog lover or a gun owner came to me and asked me to make a representation reflecting that sentiment, I might decline, saying I’d be afraid my characterization would be misunderstood by people who hold such things to be sacred.
Some widgets are customizable. It doesn’t mean that customization is “speech”.
And, in the case currently in the news it’s clear that the issue is not what is on the cake but rather who is using it. So, we’re not talking about a situation where the customers are asking for a service or creation that the store didn’t already provide, but one where they wanted, fundamentally, the exact same product that a straight person could walk out with.