# California Judge Rules Making a Cake is "Artistic Expression" - Denies LGBT Discrimination Claim **URL:** \ **Category:** Great Debates\ **Created:** [February 7, 2018, 4:46pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372 "2018-02-07T16:46:12Z")\ **Posts on this page:** 20\ **Page:** 10
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [February 8, 2018, 1:58pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/181 "2018-02-08T13:58:37Z")
> [@running\_coach](#): > > That should be disclosed to the customer beforehand. You go to a service provider because you want _them_ to do the work. It was disclosed. The baker told the gay couple right up front, before any contract was formed. “I sense a disturbance in the Force.” Having once discovered that someone doesn’t agree with me, by gosh I am going to use the power of the state to _make_ them agree. It isn’t enough that I win - my enemies have to lose. Regards, Shodan ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [February 8, 2018, 2:27pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/182 "2018-02-08T14:27:02Z")
> [@billfish678](#): > > Lets assume that is true. > > If that is so…well apparently they told the baker it was for a gay wedding…which brings us back to my A/B scenario. > > I’ll sell that teenager a can of spray paint to bling up his Yugo. I ain’t selling the little shit a can of spray paint when he say’s he’s going to bling up the local train car. In this instance, you are talking about giving someone something with which they plan on breaking the law and causing harm. Not relevant. > [@billfish678](#): > > Change the analogy then if it bothers you. > > There is a LARGE gray area (that everyone has) between behavior/actions that one might or might not endorse and that are outright illegal. Okay, here are more relevant analogies. You are a shoe salesman. You will sell anyone shoes, unless you know that they plan to use them to go dancing in a gay club. You work at a drug store, and you will sell anyone condoms, unless you know that they plan to use them to have gay sex. You work at a restaurant, and on Valentine’s Day, you will serve any couple that requests it a special Valentine’s Day cake, unless they are a gay couple. > [@billfish678](#): > > I take you are not familiar with the concept of what might or might not be considered unethical or immoral (or hell, just even not nice) by someone does not map one to one with what is illegal. It seems you are not familiar with the reason why we have laws, as opposed to people just making up their own moral codes and attempting to enforce them upon others. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [February 8, 2018, 2:28pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/183 "2018-02-08T14:28:38Z")
> [@Shodan](#): > > It was disclosed. The baker told the gay couple right up front, before any contract was formed. > > “I sense a disturbance in the Force.” Having once discovered that someone doesn’t agree with me, by gosh I am going to use the power of the state to _make_ them agree. It isn’t enough that I win - my enemies have to lose. You’ve been called on this before but have not responded. By this reckoning the civil rights protests should never have happened. Just go down the block to someplace that welcomes your business. Why make a fuss? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 8, 2018, 2:35pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/184 "2018-02-08T14:35:50Z")
> [@Whack-a-Mole](#): > > You’ve been called on this before but have not responded. > > By this reckoning the civil rights protests should never have happened. Just go down the block to someplace that welcomes your business. Why make a fuss? Who is saying that Gays should not _protest_ if they want to: 1. Change the law 2. Change business practices regardless of the law ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [February 8, 2018, 2:40pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/185 "2018-02-08T14:40:32Z")
> [@John\_Mace](#): > > Who is saying that Gays should not _protest_ if they want to: > > 1. Change the law > 2. Change business practices regardless of the law Unless I am mistaken the law in California already prohibits discrimination (see: [Unruh Act](https://en.wikipedia.org/wiki/Unruh_Civil_Rights_Act)). As to **Shodan’s** post we got the Civil Rights Act so again, we did change the law. So what law is it you would have us change? ---
**Author:** ![cmkeller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cmkeller/32/118_2.png) [@cmkeller](https://boards.straightdope.com/u/cmkeller)\ **Post date:** [February 8, 2018, 2:49pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/186 "2018-02-08T14:49:20Z")
Let’s say a baker doesn’t like football. Can he be compelled to bake a cake for a Super Bowl Party? Even if he has previously baked World Series Party cakes and Stanley Cup Party cakes? ---
**Author:** ![D\_Anconia](https://avatars.discourse-cdn.com/v4/letter/d/67e7ee/32.png) [@D\_Anconia](https://boards.straightdope.com/u/D_Anconia)\ **Post date:** [February 8, 2018, 2:51pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/187 "2018-02-08T14:51:20Z")
The First Amendment supersedes California’s Unruh Act. From the ruling: “The right to freedom of speech under the First Amendment outweighs the State’s interest in ensuring a freely accessible marketplace”. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [February 8, 2018, 3:02pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/188 "2018-02-08T15:02:06Z")
> [@D\_Anconia](#): > > The First Amendment supersedes California’s Unruh Act. > > From the ruling: > > “The right to freedom of speech under the First Amendment outweighs the State’s interest in ensuring a freely accessible marketplace”. Yes and the ruling is a ridiculous reach as has been discussed in this thread already. There was no sentiment, whatsoever, written on the cake. There is no speech involved. More, imagine she made a cake for Nancy Pelosi that said, “Pelosi for Congress!”. Would anyone, anywhere, deem that an endorsement for Pelosi by the baker? Of course not. It’s ridiculous. It is not the baker’s words and making the cake does not count as speech from the baker endorsing Pelosi. You would not see in the news a story about a local baker endorsing Pelosi for congress because she didn’t. Now imagine she made a cake for Pelosi with nothing written on it. Would that be endorsing Pelosi? Nope. She just made a cake which is her business. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [February 8, 2018, 3:07pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/189 "2018-02-08T15:07:43Z")
> [@cmkeller](#): > > Let’s say a baker doesn’t like football. Can he be compelled to bake a cake for a Super Bowl Party? Even if he has previously baked World Series Party cakes and Stanley Cup Party cakes? Is sports affiliation a protected class? ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [February 8, 2018, 3:08pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/190 "2018-02-08T15:08:26Z")
> [@D\_Anconia](#): > > The First Amendment supersedes California’s Unruh Act. > > From the ruling: > > “The right to freedom of speech under the First Amendment outweighs the State’s interest in ensuring a freely accessible marketplace”. Obviously, if there is a compelling free speech issue, the first amendment will supersede. But that free speech claim is far from settled. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [February 8, 2018, 4:24pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/191 "2018-02-08T16:24:27Z")
> [@Whack-a-Mole](#): > > Yes and the ruling is a ridiculous reach as has been discussed in this thread already. There was no sentiment, whatsoever, written on the cake. There is no speech involved. > … In quite a few rulings at the Supreme Court various activities have been given First Amendment protection as speech even though no spoken or written word is involved. Wearing black armbands to protest a war, contributing money to political campaigns, or burning the flag in protest have all been ruled to be protected speech and even not speaking has been deemed [protected speech](http://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/what-does). The judge in this California case ruled the baker’s cakes are similarly expressive conduct of the sort already recognized by the Supreme Court as worthy of First Amendment protection as protected speech. And since a largely similar case (Masterpiece Cakeshop) has already been heard at the Supreme Court we may soon see if the high court agrees. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [February 8, 2018, 4:33pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/192 "2018-02-08T16:33:32Z")
> [@Iggy](#): > > In quite a few rulings at the Supreme Court various activities have been given First Amendment protection as speech even though no spoken or written word is involved. Wearing black armbands to protest a war, contributing money to political campaigns, or burning the flag in protest have all been ruled to be protected speech and even not speaking has been deemed [protected speech](http://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/what-does). There is a categorical difference, which is that in none of those cases was it speech for sale that was deemed protected. If I was selling black armbands, but I refused to sell them to Jews; if I would funnel money into political campaigns for you, but not if you were a woman; if I would set flags on fire for you, but only if you were white–in any of those cases, the circumstances would change. ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [February 8, 2018, 4:43pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/193 "2018-02-08T16:43:38Z")
I really have hard time understanding the baker here, from a business point of view. I’m betting, like most small business owners, there are sleepless nights wondering if the next customer will come in for a cake before the power bill is due. I hope the power bill is due and the baker is already overdrawn. An exceptional cake might have been a foothold in the LGBT community directory of awesome services too, instead of an “avoid at all costs” rating. Bad business model, very bad. Terrible. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [February 8, 2018, 4:50pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/194 "2018-02-08T16:50:19Z")
> [@Left\_Hand\_of\_Dorkness](#): > > There is a categorical difference, which is that in none of those cases was it speech for sale that was deemed protected. If I was selling black armbands, but I refused to sell them to Jews; if I would funnel money into political campaigns for you, but not if you were a woman; if I would set flags on fire for you, but only if you were white–in any of those cases, the circumstances would change. [The New York Times](https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan) has been up to the Supreme Court too. Their written word, most certainly for sale, was deemed protected speech too. Not really a surprise though. Just avoid actual malice and the First Amendment protects them even if what they write about a public official is false. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [February 8, 2018, 4:53pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/195 "2018-02-08T16:53:15Z")
> [@Iggy](#): > > [The New York Times](https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan) has been up to the Supreme Court too. Their written word, most certainly for sale, was deemed protected speech too. Not really a surprise though. Just avoid actual malice and the First Amendment protects them even if what they write about a public official is false. Yes–but there’s a categorical difference here as well, which is that they weren’t asking if they could sell newspapers in Christian-owned cafes but not in Jewish-owned Delis. It’s categorically different to ask if you are allowed to sell your speech, but to discriminate in whom you sell your speech to based on a characteristic of the person to whom you’re selling it. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [February 8, 2018, 4:54pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/196 "2018-02-08T16:54:25Z")
> [@Iggy](#): > > [The New York Times](https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan) has been up to the Supreme Court too. Their written word, most certainly for sale, was deemed protected speech too. Not really a surprise though. Just avoid actual malice and the First Amendment protects them even if what they write about a public official is false. Yeah but the people wearing armbands and the NY Times were very explicitly speaking on their own behalf. They were purposely sending a message to the world. The baker making a cake for sale to a same-sex couple with nothing written on it is not “speaking” in defense of same sex marriage. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [February 8, 2018, 4:54pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/197 "2018-02-08T16:54:35Z")
> [@Morgenstern](#): > > I really have hard time understanding the baker here, from a business point of view. I’m betting, like most small business owners, there are sleepless nights wondering if the next customer will come in for a cake before the power bill is due. I hope the power bill is due and the baker is already overdrawn. An exceptional cake might have been a foothold in the LGBT community directory of awesome services too, instead of an “avoid at all costs” rating. Bad business model, very bad. Terrible. Correct, which is another argument against the government getting involved. If this baker wants to lose business to other bakers who could not care less if it’s Adam and Eve or Adam and Steve, it becomes self-limiting behavior, and the baker can either compromise her principles or go out of business. Regards, Shodan ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [February 8, 2018, 4:58pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/198 "2018-02-08T16:58:05Z")
> [@Morgenstern](#): > > I really have hard time understanding the baker here, from a business point of view. I’m betting, like most small business owners, there are sleepless nights wondering if the next customer will come in for a cake before the power bill is due. I hope the power bill is due and the baker is already overdrawn. An exceptional cake might have been a foothold in the LGBT community directory of awesome services too, instead of an “avoid at all costs” rating. Bad business model, very bad. Terrible. At this time, that is a true perception. However, if the court battle goes in the baker’s favor, will we see more discrimination? It is perfectly legal for customers to discriminate against businesses. If you don’t want to go to a business because it is run by a minority that you disapprove of, that’s your right. You may also boycott a business if it caters to a minority you disapprove of. If you realize that homosexuals only make up a very small part of the population, and that a larger part of the population than they represent will boycott your business for serving them, then you may find yourself discriminating against them, even if you don’t have any personal reason to do so. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [February 8, 2018, 4:58pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/199 "2018-02-08T16:58:32Z")
> [@Whack-a-Mole](#): > > Yeah but the people wearing armbands and the NY Times were very explicitly speaking on their own behalf. They were purposely sending a message to the world. > > The baker making a cake for sale to a same-sex couple with nothing written on it is not “speaking” in defense of same sex marriage. So sayeth Whack-a-Mole. The California court disagrees. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [February 8, 2018, 5:08pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/200 "2018-02-08T17:08:14Z")
> [@Iggy](#): > > So sayeth Whack-a-Mole. The California court disagrees. If the California court prevails then the Subway guy making you a sandwich is engaging in speech. It would be a ridiculous result. You really want to go down that rabbit hole? [Previous page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=9) [Next page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=11)