# 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:** 14
**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, 8:04pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/261 "2018-02-08T20:04:25Z")
> [@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. I certainly agree that the line should not have been drawn more favorable to the baker, I am arguing that the line should have been drawn to require the baker to serve all members of the public equally. ---
**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, 8:09pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/262 "2018-02-08T20:09:41Z")
> [@ZPG\_Zealot](#): > > It’s not Jim Crow if the right of any small business owner (black, white, hispanic, asian, etc.) to refuse service are respected. For once, I think ZPG is right. Not how she thinks she’s right, but in effect she’s right: this decision will gut the Civil Rights Act beyond recognition, to mix metaphors. As I pointed out before, and as others have pointed out, **and as nobody has bothered to refute** , if this decision stands, any restaurant that wants to refuse service to blacks or Jews or any other **protected** group will find it trivially easy to do so. All they need to do is to add some minor artistic flourish to their food–a sauce swirl, a garnish, a festive slash across the bread–and call it artistic expression. They then claim that artistic expression is speech, and that compelling them to serve black customers (or whoever) comprises compelled speech, and that this violates their first amendment rights. Given **octopus’s** (?) point that the first amendment trumps local law–and indeed would trump federal law like the Civil Rights Act of 1964–if this decision stands, there no longer remains an effective barrier to discrimination in public accommodation in restaurants. And other businesses who wanted to discriminate could find equally effective “compelled speech” fig leaves to cover their discrimination. ---
**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, 8:10pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/263 "2018-02-08T20:10:09Z")
> [@begbert2](#): > > 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. No, they can’t compel you to cook. They can however, compel you to \*not cook \*if you don’t follow the rules with respect to everyone’s civil rights. And they can punish you for disobeying their orders. So, for items that require little more than following a published recipe, day after day, then put in a display case, there’s clearly no artistic expression. ---
**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, 8:13pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/264 "2018-02-08T20:13:11Z")
> [@k9bfriender](#): > > I certainly agree that the line should not have been drawn more favorable to the baker, I am arguing that the line should have been drawn to require the baker to serve all members of the public equally. That’s why this was a terrible case to pin their hopes on. As the judge has pointed out, she (the baker) is not in violation of the law. (this may change, etc.) But for now, the victim is branded the loser. Nothing in this is fair. ---
**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, 8:16pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/265 "2018-02-08T20:16:59Z")
k9befriender: > [@](#): > > Is sports affiliation a protected class? No, but neither are homosexuals, at least not on a Federal level. But more to the point, isn’t his refusal to make a cake for a Super Bowl Party an expression of his opinion on football, i.e., speech? Why the skepticism that baking a cake (or refusing to do so) can be a genuine mode of expression? ---
**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, 8:22pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/266 "2018-02-08T20:22:16Z")
> [@begbert2](#): > > Well, naturally! > 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? By this judge’s interpretation of it, it would appear so. > [@ZPG\_Zealot](#): > > 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. That is your choice, you are welcome to choose to not patronize a business for any reason you choose, protected class or not. If you do not like the service that they give you, then you are welcome to take your business somewhere else. They don’t have the option of treating you differently because of your ethnic background. Now, if they have caught you stealing, or have caught people you were with stealing, that’s a different matter. Personally, I’ve never heard of stereotypes against Roma, except from you, so I am hard pressed to think that you would find yourself treated differently in any local places where your Roma community has not already given a reason to mistrust. Ethnic and orientation minorities do not have that luxury. More people will discriminate against a person for being black or gay than for being Roma. ---
**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, 8:23pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/267 "2018-02-08T20:23:38Z")
If you’ve ever seen “Cake Boss” on TV it’s really clear that baking wedding cakes is far more than opening a box of Betty Crocker. It’s clearly an artistic event. ---
**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, 8:25pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/268 "2018-02-08T20:25:38Z")
> [@cmkeller](#): > > k9befriender: > > No, but neither are homosexuals, at least not on a Federal level. > > But more to the point, isn’t his refusal to make a cake for a Super Bowl Party an expression of his opinion on football, i.e., speech? Why the skepticism that baking a cake (or refusing to do so) can be a genuine mode of expression? Baking a cake can absolutely be a form of expression. The relevant questions seem to be twofold: 1. Can a business agree to sell its expression to one person, and refuse to sell its functionally identical expression to another person, for reasons that for other products/services would be illegal? 2. Will this judge’s decision allow most restaurants and many other businesses to bypass the Civil Rights Act and other laws preventing discrimination? ---
**Author:** ![andros](https://avatars.discourse-cdn.com/v4/letter/a/e480ec/32.png) [@andros](https://boards.straightdope.com/u/andros)\ **Post date:** [February 8, 2018, 8:29pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/269 "2018-02-08T20:29:29Z")
> [@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, because it’s an entirely different situation. Depicting a violent, racist image is not in the same ballpark as a cake without any specific imagery. Hell, exclude the ridiculously OTT lynching image–just asking someone to depict a same-sex couple qualifies for a different opinion. Fortunately, those are worlds away from the actual situation. . ---
**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, 8:29pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/270 "2018-02-08T20:29:54Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Baking a cake can absolutely be a form of expression. The relevant questions seem to be twofold: > > 1. Can a business agree to sell its expression to one person, and refuse to sell its functionally identical expression to another person, for reasons that for other products/services would be illegal? > … I don’t understand. What is illegal, the refusal or the subject? ---
**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, 8:37pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/271 "2018-02-08T20:37:24Z")
> [@k9bfriender](#): > > Personally, I’ve never heard of stereotypes against Roma, except from you, so I am hard pressed to think that you would find yourself treated differently in any local places where your Roma community has not already given a reason to mistrust. Ethnic and orientation minorities do not have that luxury. More people will discriminate against a person for being black or gay than for being Roma. Your lack of knowledge about anti-Roma prejudice does not make it disappear. But we are an ethnic (and in my opinion also religious) minority that does not have the luxury of disappearing nor the desire to die out. Personally, I have never seen a Black person being discriminated against because of the color of the skin (for being a jerk yes, but not for just being black); however, I do admit such prejudice exists. ---
**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, 8:37pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/272 "2018-02-08T20:37:52Z")
> [@Morgenstern](#): > > If you’ve ever seen “Cake Boss” on TV it’s really clear that baking wedding cakes is far more than opening a box of Betty Crocker. It’s clearly an artistic event. And if you have ever seen Iron Chef, it would be clear that cooking a meal is far more than microwaving a box of Marie Callender. That is very much an artistic event. So, are restaurants going to be able to discriminate against gay people because food is art? > [@Morgenstern](#): > > I don’t understand. What is illegal, the refusal or the subject? The refusal. The subject being illegal would make no sense. ---
**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, 8:46pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/273 "2018-02-08T20:46:02Z")
> [@Morgenstern](#): > > I don’t understand. What is illegal, the refusal or the subject? The refusal. Lemme rephrase, in a more wordy fashion: 1. Public accommodations may not discriminate according to protected classes in their products on offer. (If someone needs to remind us all that gay folks aren’t a protected class under federal law, I’ve got some rolleyes cued up and waiting for you). If I offer to create a particular product for one customer, a product in which I engage in some expression, may I refuse to offer a functionally equivalent product to another customer base on their membership in a protected class? There is, of course, another question. IIRC, and I’m welcome to correction on this point, the SC’s ruling on SSM involved equal protection of the sexes. Namely, if a Lisa is allowed to marry Jed, but Larry is not, then the law does not provide equal protection to Larry. Correct? In this case, I can see similar sex-based discrimination. If I’ll bake a wedding cake for Lisa when she marries Jed, but I refuse to bake one for Larry when he marries Jed, am I not engaging in precisely the sort of sex-based discrimination called out by the SC? And if I am, doesn’t the Civil Rights Act prohibit it, regardless of whether sexual preference is a protected class? ---
**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, 8:46pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/274 "2018-02-08T20:46:27Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Baking a cake can absolutely be a form of expression. The relevant questions seem to be twofold: > > 1. Can a business agree to sell its expression to one person, and refuse to sell its functionally identical expression to another person, for reasons that for other products/services would be illegal? > 2. Will this judge’s decision allow most restaurants and many other businesses to bypass the Civil Rights Act and other laws preventing discrimination? I think an equally relevant question is also is whether a person can be compelled to involuntarily work on someone’s behalf. I think the obvious answer is no. We have a constitutional amendment against involuntary servitude. ---
**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, 8:47pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/275 "2018-02-08T20:47:29Z")
> [@ZPG\_Zealot](#): > > I think an equally relevant question is also is whether a person can be compelled to involuntarily work on someone’s behalf. I think the obvious answer is no. We have a constitutional amendment against involuntary servitude. That’s not a relevant question at all. ---
**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, 8:48pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/276 "2018-02-08T20:48:18Z")
So if an ER Doctor refuses to treat black people, that’s ok? (in response to the last post by **ZPG Zealot** ) ---
**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, 8:49pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/277 "2018-02-08T20:49:44Z")
> [@Left\_Hand\_of\_Dorkness](#): > > That’s not a relevant question at all. Baking and decorating a cake are labor, especially a wedding cake which can requires hours to decorate. ---
**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, 8:51pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/278 "2018-02-08T20:51:13Z")
To be perfectly clear, [that shit is settled law](https://en.wikipedia.org/wiki/Heart_of_Atlanta_Motel,_Inc._v._United_States). > [@the text of the decision](#): > > We find no merit in the remainder of appellant’s contentions, including that of “involuntary servitude.” As we have seen, 32 States prohibit racial discrimination in public accommodations. These laws but codify the common-law innkeeper rule which long predated the Thirteenth Amendment. It is difficult to believe that the Amendment was intended to abrogate this principle. Indeed, the opinion of the Court in the Civil Rights Cases is to the contrary as we have seen, it having noted with approval the laws of “all the States” prohibiting discrimination. We could not say that the requirements of the Act in this regard are in any way “akin to African slavery.” Butler v. Perry, 240 U.S. 328, 332 (1916). > [@ZPG\_Zealot](#): > > Baking and decorating a cake are labor, especially a wedding cake which can requires hours to decorate. Yes, and cakes are made of flour and butter and sugar, but your question is still not relevant. I get it: you think the 1964 Civil Rights Act is a freedom-hating dumdum law, and you want it to go away. The important point for folks who support this judge’s decision is that your viewpoint–one that most people find odious–flows naturally from this judge’s decision. ---
**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, 8:56pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/279 "2018-02-08T20:56:02Z")
> [@Airbeck](#): > > So if an ER Doctor refuses to treat black people, that’s ok? (in response to the last post by **ZPG Zealot** ) Well, if a pharmacist can get away with not filling prescriptions for emergency contraceptives or RU-486 . . . . . . There’s am obvious difference between denying someone life saving treatment and denying them processed sugar and buttercream. Wedding cakes which can only be made by one baker on the planet are not necessary to anybody’s survival ---
**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, 8:57pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/280 "2018-02-08T20:57:36Z")
> [@ZPG\_Zealot](#): > > I think an equally relevant question is also is whether a person can be compelled to involuntarily work on someone’s behalf. I think the obvious answer is no. We have a constitutional amendment against involuntary servitude. Well, yeah. If you take the baker hostage, chain them to a wall, and make them bake cakes for you, that’d be a bit wrong. If instead, you engage in the same sort of commercial trade that everyone else is participating in, then the baker is volunteering his services to be consumed by the public at his profit. There is nothing involuntary about that. If I walk into a baker’s place, and say, “I want a cake for my big gay wedding!”, he can say, “No, I won’t bake a cake for you, I am quitting and closing my doors.” Then there is no longer any legal compulsion for him to make me a cake. [Previous page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=13) [Next page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=15)