# 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:** 13
**Author:** ![ZPG\_Zealot](https://avatars.discourse-cdn.com/v4/letter/z/e47c2d/32.png) [@ZPG\_Zealot](https://boards.straightdope.com/u/ZPG_Zealot)\ **Post date:** [February 8, 2018, 7:10pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/241 "2018-02-08T19:10:22Z")
> [@Whack-a-Mole](#): > > Pretend you are a black farmer out in rural America. > > The locals won’t do business with you so you can’t get your machinery fixed or gas for your harvesters or seeds to plant and so on which raises your costs dramatically trying to get it done in remote locations or have stuff shipped in just for you. > > A-ok by you right? I think the farmer is a serious dumbass who made a very poor choice in where he choose to plant his farm. It sucks, but life can be like that. However, the farmer is not a slave or serf bound to a particular piece of land, he is free to move elsewhere and find or create a community that will accept him. ---
**Author:** ![Airbeck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/airbeck/32/6574_2.png) [@Airbeck](https://boards.straightdope.com/u/Airbeck)\ **Post date:** [February 8, 2018, 7:15pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/242 "2018-02-08T19:15:05Z")
> [@ZPG\_Zealot](#): > > I think the farmer is a serious dumbass who made a very poor choice in where he choose to plant his farm. It sucks, but life can be like that. However, the farmer is not a slave or serf bound to a particular piece of land, he is free to move elsewhere and find or create a community that will accept him. Holy Shit So basically just take the discrimination or get the f out? I am honestly kind of speechless here… ---
**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, 7:16pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/243 "2018-02-08T19:16:34Z")
> [@ZPG\_Zealot](#): > > I think the farmer is a serious dumbass who made a very poor choice in where he choose to plant his farm. It sucks, but life can be like that. However, the farmer is not a slave or serf bound to a particular piece of land, he is free to move elsewhere and find or create a community that will accept him. He has lived there for decades but the baker wins her court case and the ZPG Zealot’s of the world get their way so now the locals are free to discriminate effectively putting him out of business. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 8, 2018, 7:16pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/244 "2018-02-08T19:16:37Z")
Everything will be all right when the gays get their own Bantustans. ---
**Author:** ![ZPG\_Zealot](https://avatars.discourse-cdn.com/v4/letter/z/e47c2d/32.png) [@ZPG\_Zealot](https://boards.straightdope.com/u/ZPG_Zealot)\ **Post date:** [February 8, 2018, 7:17pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/245 "2018-02-08T19:17:21Z")
> [@running\_coach](#): > > You complain about the same bigotry that drives bigotry against African-Americans. > Yet all you’re demanding is to be treated as a white person. You seem to have no interest in equality. > > Just how are you identified so easily as Roma? Unless you’re dressed in the stereotypical clothing that most people are familiar with, I wouldn’t have a clue. Language and accent, come cultural mannerism etc. are all clues to ethnicity. Business owners in the neighborhoods I have lived in usually know the people of the surrounding community well enough to make accurate ethnic guesses. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [February 8, 2018, 7:23pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/246 "2018-02-08T19:23:26Z")
> [@andros](#): > > I reckon it’s safe to assume they would undoubtedly want to customize color, size, possibly flavor. That isn’t customization, though. At least, not in the sense being discussed. There is nothing about those choices that conveys any inherent meaning, so the person making it is not speaking. They’re just standard options, not asking the guy to do something he would not do for a straight customer. That’s the line. If you would do it for a straight customer, you should be required to do it for a gay customer. If you want to say “no rainbows” on all your cakes. Fine. If you want to say “no pro- or anti-gay messages” fine. No political symbols? Fine. Just make sure that everything you refuse to do is something you refuse EVERYONE. I don’t even find this a hard standard. We could have people who check (i.e. job creation!). Just have someone go in who is supposedly straight (or white, etc) and ask for a cake, and see if you get the same response you got when a gay (or non-white) person did it. Boom, instant inspection to see if they are adhering to non-discrimination laws. I don’t see how that’s different than making sure they adhere to health and safety laws. I do not see any reason why this is an unreasonable standard. I would uphold this standard for Nazis, for fuck’s sake. As long as nothing in my cake is promoting Nazism, why should I care? And I fucking hate Nazis! As long as nothing in the cake has the message “I support gay marriage,” I do not see the problem, even if you think gay marriage is anathema. ---
**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, 7:32pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/247 "2018-02-08T19:32:27Z")
> [@ZPG\_Zealot](#): > > Language and accent, come cultural mannerism etc. are all clues to ethnicity. Business owners in the neighborhoods I have lived in usually know the people of the surrounding community well enough to make accurate ethnic guesses. You are not a slave or serf bound to a particular piece of land, you are free to move elsewhere and find or create a community that will accept you. ---
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [February 8, 2018, 7:32pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/248 "2018-02-08T19:32:29Z")
> [@ZPG\_Zealot](#): > > Language and accent, come cultural mannerism etc. are all clues to ethnicity. Business owners in the neighborhoods I have lived in usually know the people of the surrounding community well enough to make accurate ethnic guesses. Why would they assume Roma are inveterate shoplifters to the point of excluding all? ---
**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, 7:32pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/249 "2018-02-08T19:32:43Z")
Let me ask a question. Assume a SS couple walked into a bakery and ask the baker, an atheist, to bake a wedding cake showing a black man hanging from a branch of a tree with the SS couple sitting on that branch exchanging vows. (SS = same sex, not the other thing) Different opinion anyone? ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [February 8, 2018, 7:33pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/250 "2018-02-08T19:33:51Z")
> [@running\_coach](#): > > Why would they assume Roma are inveterate shoplifters to the point of excluding all? You’ve never heard of the “thieving gypsies” stereotype? ---
**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, 7:35pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/251 "2018-02-08T19:35:09Z")
> [@Morgenstern](#): > > Let me ask a question. > > Assume a SS couple walked into a bakery and ask the baker, an atheist, to bake a wedding cake showing a black man hanging from a branch of a tree with the SS couple sitting on that branch exchanging vows. (SS = same sex, not the other thing) > > Different opinion anyone? If the baker makes cakes with images of lynching for the local KKK, then yeah, he can be compelled to do that for a SSM as well. If the baker does not make cakes with images of lynchings, then he cannot. Why is this so hard? ---
**Author:** ![sleestak](https://avatars.discourse-cdn.com/v4/letter/s/919ad9/32.png) [@sleestak](https://boards.straightdope.com/u/sleestak)\ **Post date:** [February 8, 2018, 7:36pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/252 "2018-02-08T19:36:57Z")
> [@CarnalK](#): > > I think the point is whether trying to buy a cake for a gay wedding is “shoving it down someone’s throat” anymore than a black man sitting at a whites only lunch counter is shoving his blackness down the diner owner’s throat. I guess for the first few trial cases that’s true but at the end of the day, they just want to eat lunch without worrying about their blackness. This analogy would work if the black man was trying to force the workers at the lunch counter to arrange his food in an artistic way so that it said ‘Christ loves black people’ or something similar. Since that isn’t what the lunch counter thing was about, your analogy fails. I think the owner of the bakery is an ass. But she should have the right to refuse to create art that goes against her beliefs. Just like a Jewish artist should not be required to take commissions to make art with swastikas. Slee ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [February 8, 2018, 7:38pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/253 "2018-02-08T19:38:30Z")
> [@Morgenstern](#): > > Let me ask a question. > > Assume a SS couple walked into a bakery and ask the baker, an atheist, to bake a wedding cake showing a black man hanging from a branch of a tree with the SS couple sitting on that branch exchanging vows. (SS = same sex, not the other thing) > > Different opinion anyone? Of course. The Colorado case addressed that specifically: > [@](#): > > Masterpiece appealed the decision with the aid of Alliance Defending Freedom, and refused to comply with the State’s orders, instead opting to remove themselves from the wedding cake business;[4] Phillips claimed that this decision cost him 40% of his business.[8] Alongside the Colorado Civil Rights Commission, the American Civil Liberties Union represented Craig and Mullins during the appeals.[3] The State’s decision was upheld by the Colorado Court of Appeals on appeal. In its decision, the Colorado Court of Appeals asserted that despite the artistic nature of creating a custom cake, the act of making the cake was part of the expected conduct of Phillips’ business, and not an expression of free speech nor free exercise of religion.[4][9] The Court of Appeals distinguished its decision in Craig from another case in which three bakeries refused to create a cake with the message “Homosexuality is a detestable sin. Leviticus 18:22”,[2]:21 citing that in the latter, the bakeries had made other cakes for Christian customers and declined that order based on the offensive message rather than the customers’ creed, whereas Masterpiece Cakeshop’s refusal to provide Craig & Mullins with a wedding cake “was because of its opposition to same sex marriage which…is tantamount to discrimination on the basis of sexual orientation.” ---
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [February 8, 2018, 7:39pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/254 "2018-02-08T19:39:08Z")
> [@CarnalK](#): > > You’ve never heard of the “thieving gypsies” stereotype? But surely that’s outdated, right? ---
**Author:** ![begbert2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/begbert2/32/3357_2.png) [@begbert2](https://boards.straightdope.com/u/begbert2)\ **Post date:** [February 8, 2018, 7:50pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/255 "2018-02-08T19:50:04Z")
> [@mazinger\_z](#): > > I think **DSYoungEsq’s** explanation in post #146 hit the decision on the head (or maybe it’s all us lawyers agreeing with each other). This idea of artistic impression has been around since people have been paying for the arts. For all that disagree with this position, I have to ask: have any of you actually created something? I don’t mean putting together Ikea furniture or paint-by-numbers. I mean, from scratch, create something with your own two hands. I find baking to be a perfect example of the point I’m trying to make. However, given the amount of argumentation, I think woodworking is a better example. My father-in-law is an amateur furniture maker. We made an armoire together. It was pains-taking, highly customizable, precision-laden, but entirely up to me to fulfill the design elements. Or put another way, all those episodes of watching Ron Swanson on Parks and Recs hit me on whole different level. > > That’s how I see the baker providing an artistic service. One that the baker can refuse to perform at his detriment, but entirely upon his own volition. Even at the corporate level, where I work, we refuse customization work with established clients all the time (in this case, it has to meet certain levels of profitability, not merely be profitable). Artist have boycotted or refused to accept awards. Or thought another way, would we require all those bands that refused to play at Donald Trump’s inauguration? > > At the case at hand, the couple refused to buy a cake already made, i.e. a cake made from ordinary services. They specifically wanted the baker to make a cake. Why? At some level, they were acknowledging his artistic talent and wanted to patronize it. It’s at this instance that the baker may choose to work or not work. Without other reasoning, we should always defer to our natural freedoms. If we accept the claim that all cooking is speech due to the complexity and artistry of cooking something (anything), then why does the cake, cookies, or donuts lose their status as speech just because they’ve been put in a display case? They’re still exactly as cooked and have exactly as much artistry as they had before. Everything “speechy” about them is unaltered. Presuming that this ruling was based on speech and law (rather than naked bigotry that’s just trying to carve out as large a loophole as it can) it seems clear that the products would retain their speech protections for as long as they existed in their original forms. Which is to say, _no food allowed for gay people_. (Well, okay, they can probably buy raw fruits and vegetables and other basic ingredients, presuming that don’t require a butcher to artisinally slice them or something.) So why the weird distinction between goods inside and outside of display cases? Presuming that this is actually based on speech concerns. ---
**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, 7:55pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/256 "2018-02-08T19:55:43Z")
> [@begbert2](#): > > If we accept the claim that all cooking is speech due to the complexity and artistry of cooking something (anything), then why does the cake, cookies, or donuts lose their status as speech just because they’ve been put in a display case? They’re still exactly as cooked and have exactly as much artistry as they had before. Everything “speechy” about them is unaltered. > > Presuming that this ruling was based on speech and law (rather than naked bigotry that’s just trying to carve out as large a loophole as it can) it seems clear that the products would retain their speech protections for as long as they existed in their original forms. Which is to say, _no food allowed for gay people_. (Well, okay, they can probably buy raw fruits and vegetables and other basic ingredients, presuming that don’t require a butcher to artisinally slice them or something.) Picking and harvesting can be an expression of art as well. > [@](#): > > So why the weird distinction between goods inside and outside of display cases? Presuming that this is actually based on speech concerns. I am not agreeing with this, but it is a matter of speech cannot be compelled. You cannot make them do something in the future. As these cakes are already made, you are not compelling them to make something new, just to sell you what they already have. ---
**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, 7:58pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/257 "2018-02-08T19:58:18Z")
> [@k9bfriender](#): > > Picking and harvesting can be an expression of art as well. > I am not agreeing with this, but it is a matter of speech cannot be compelled. You cannot make them do something in the future. As these cakes are already made, you are not compelling them to make something new, just to sell you what they already have. The cakes offered for sale in the case are already made, offered to the public. They are mass produced copies of each other. I can clearly see where the judge drew the line here with respect to artistic expression. ---
**Author:** ![begbert2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/begbert2/32/3357_2.png) [@begbert2](https://boards.straightdope.com/u/begbert2)\ **Post date:** [February 8, 2018, 8:01pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/258 "2018-02-08T20:01:38Z")
> [@k9bfriender](#): > > Picking and harvesting can be an expression of art as well. Well, naturally! > [@k9bfriender](#): > > I am not agreeing with this, but it is a matter of speech cannot be compelled. You cannot make them do something in the future. As these cakes are already made, you are not compelling them to make something new, just to sell you what they already have. Alright, I suppose that makes sense. I wonder if bars that serve everything from the tap will use this as an excuse to ban black people from their bars (or at least from buying anything). The law would back that up, right? ---
**Author:** ![begbert2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/begbert2/32/3357_2.png) [@begbert2](https://boards.straightdope.com/u/begbert2)\ **Post date:** [February 8, 2018, 8:03pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/259 "2018-02-08T20:03:06Z")
> [@Morgenstern](#): > > The cakes offered for sale in the case are already made, offered to the public. They are mass produced copies of each other. I can clearly see where the judge drew the line here with respect to artistic expression. Massed produced speech is still speech. All traction this distinction has would be related to idea you can’t be compelled to cook at all. ---
**Author:** ![ZPG\_Zealot](https://avatars.discourse-cdn.com/v4/letter/z/e47c2d/32.png) [@ZPG\_Zealot](https://boards.straightdope.com/u/ZPG_Zealot)\ **Post date:** [February 8, 2018, 8:03pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/260 "2018-02-08T20:03:18Z")
> [@k9bfriender](#): > > You are not a slave or serf bound to a particular piece of land, you are free to move elsewhere and find or create a community that will accept you. Find or create a community that does accept me, is exactly what I do. I choose not to patronize those businesses who have attitude because I am Roma. It’s really as simple as that. [Previous page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=12) [Next page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=14)