# 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:** 18
**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, 10:45pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/341 "2018-02-08T22:45:12Z")
Honestly, no I don’t. I see a skilled chef doing the same thing, day after day with his only choice being rare, med or well done. What he serves Monday is probably no different than the same as it would be on Friday. I see the baker having to meet additional customer selected goals, size, shape, texture, flavor, icing, design, hearts, unicorns, wedding theme and colors. Every one is different than the last. ---
**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, 10:48pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/342 "2018-02-08T22:48:53Z")
> [@Morgenstern](#): > > Honestly, no I don’t. I see a skilled chef doing the same thing, day after day with his only choice being rare, med or well done. What he serves Monday is probably no different than the same as it would be on Friday. > > I see the baker having to meet additional customer selected goals, size, shape, texture, flavor, icing, design, hearts, unicorns, wedding theme and colors. Every one is different than the last. So just to be clear, if the baker bakes two cakes in a row based on the same picture in his book of cakes, then in your opinion both those two cakes are different from an artistic standpoint? And if two burgers are made, one with pickles and one without, they’re the same? ---
**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, 10:50pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/343 "2018-02-08T22:50:02Z")
> [@begbert2](#): > > And there goes the goalpost, crossing the horizon. > > The cake in question was _not_ a unique work of art. It was to be directly modeled on a display case cake. Let me say that again. From the standpoint of artistry, the cake **was** a display case cake - the type of cake that was explicitly stated to **not** have sufficient artisitry/sacredness/whichever to allow the baker to refuse to sell it. > > Which means, unless the judge was _completely_ full of shit, that he was saying that the mere act of creation - of baking, of preparing it, is sufficient to trigger speech protection. > > OR > > That he was saying that all wedding cakes, regardless of their complexity or appearance, are sufficiently “sacred” to trigger free speech protections. Unless they had been baked in advance, in which case the speechiness drains away from them as though sucked out by the pre-preparation vampire. > Me? My vote is on the “the judge was completely full of shit” option. You apparently don’t understand the concept of a custom cake being specifically made for a specify purpose. It has yet to be created. The customer is free to choose the same cake (according to you) from the display case and the baker already said that was fine. Just don’t ask her to “create” a cake. Really stupid business plan, but clearly she did not (at least as of this ruling) break any law. ---
**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, 10:52pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/344 "2018-02-08T22:52:53Z")
> [@Morgenstern](#): > > Honestly, no I don’t. I see a skilled chef doing the same thing, day after day with his only choice being rare, med or well done. What he serves Monday is probably no different than the same as it would be on Friday. > > I see the baker having to meet additional customer selected goals, size, shape, texture, flavor, icing, design, hearts, unicorns, wedding theme and colors. Every one is different than the last. I feel like you’re deliberately minimizing the creative process of designing, preparing, and plating a high-dish, and deliberately heightening the same process for baking a cake. Because, seriously–grilling a steak does not earn a star. You’re right–there are more variables on a cake, and they are variables requested at commission. Not so much on the one in this case, of course, but on some. Is that the legal standard you’re interested in settling on, “Has _x_ variables in its construction, requested by the consumer?” Because otherwise, again–for cakes like the one in this case, the recipe, tools, and techniques are precisely the same from cake to cake. . ---
**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, 10:54pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/345 "2018-02-08T22:54:37Z")
> [@begbert2](#): > > So just to be clear, if the baker bakes two cakes in a row based on the same picture in his book of cakes, then in your opinion both those two cakes are different from an artistic standpoint? > And if two burgers are made, one with pickles and one without, they’re the same? We’re talking about a cake \*that was ordered \*that obviously required more than selecting one from the display case. It required the blessing of, per the judge, an individuals artistic expression. We can talk about cars and sailboats if you like, but not hamburgers. ---
**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, 10:55pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/346 "2018-02-08T22:55:16Z")
> [@Morgenstern](#): > > You apparently don’t understand the concept of a custom cake being specifically made for a specify purpose. It has yet to be created. The customer is free to choose the same cake (according to you) from the display case and the baker already said that was fine. Just don’t ask her to “create” a cake. > > Really stupid business plan, but clearly she did not (at least as of this ruling) break any law. It is my understanding that the specific cake in question, for the case the judge ruled on, was **NOT** “a custom cake being specifically made for a specify purpose”. It was, in this specific case in question that we’re discussing in this thread, “the same cake (according to you) from the display case and the baker already said that was fine”. (Specifically they wanted a copy of an existing cake.) Except the baker did not say it was fine, they said no, because they’re a bigot. In the case in question that we’re discussing in this thread, that the judge made his ruling about. Unless I’m wrong about what happened? ---
**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, 10:56pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/347 "2018-02-08T22:56:58Z")
> [@mazinger\_z](#): > > Let’s put it this way for anyone who can’t distinguish between dinner and cakes. Is the dinner custom made? Do people put in orders, sometimes weeks in advance that their dinner is made a specific way? No? Then, more than likely that dinner is made for mass consumption. Artistic intent is most likely low. The customization is the key. The customization belies the artistry. > > If anyone wants to come up with some example of a chef, custom-making some tofu reduction that looks and tastes like a hot dog and fries or whatever. I’ll argue that such a chef has artistic intent as well and is afforded the same protection as the baker. As a chef, not only did I create an original creation every day for my feature, but I also took many custom orders for specific dishes, whether for dietary reasons or just preferences. The only part that I didn’t do there was to take an order weeks in advance, which I do not see how relates at all to art, but in any case, have you ever noticed that there is more than just a cake at a reception? There is food too, food that wsa custom ordered weeks in advance. ---
**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, 10:59pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/348 "2018-02-08T22:59:30Z")
> [@Morgenstern](#): > > We’re talking about a cake \*that was ordered \*that obviously required more than selecting one from the display case. It required the blessing of, per the judge, an individuals artistic expression. > > We can talk about cars and sailboats if you like, but not hamburgers. We’re ripping apart the judge’s shitty ruling. Since the cake in question was _not_ unique from an artistic perspective, the only possible thing that makes it and not other things speech protected is the fact it’s being created fresh - or its “sacredness”. Which means that either you define “sacred” from a legal perspective to specifically exclude them, or the ruling _totally_ applies to hamburgers. ---
**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, 11:06pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/349 "2018-02-08T23:06:15Z")
> [@begbert2](#): > > We’re ripping apart the judge’s shitty ruling. Since the cake in question was _not_ unique from an artistic perspective, the only possible thing that makes it and not other things speech protected is the fact it’s being created fresh - or its “sacredness”. > > Which means that either you define “sacred” from a legal perspective to specifically exclude them, or the ruling _totally_ applies to hamburgers. I get it. You’re upset that the judge applied reason to the law and provided a learned opinion in his ruling. He said someone’s constitutional rights trumped another person’s rights. That’s what they are paid to do. Look at the facts, apply the law, and make a ruling. It sucks, but it’s how our laws work. ---
**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, 11:09pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/350 "2018-02-08T23:09:41Z")
> [@Morgenstern](#): > > I get it. You’re upset that the judge applied reason to the law and provided a learned opinion in his ruling. He said someone’s constitutional rights trumped another person’s rights. That’s what they are paid to do. Look at the facts, apply the law, and make a ruling. It sucks, but it’s how our laws work. I’m saying that if this new ruling is a fair interpretation of the constitution then several existing civil rights laws are unconstitutional and have been for a very, very long time. And nobody noticed or said anything until now. Not even bigots! Now pull the other one. ---
**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, 11:21pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/351 "2018-02-08T23:21:01Z")
> [@begbert2](#): > > I’m saying that if this new ruling is a fair interpretation of the constitution then several existing civil rights laws are unconstitutional and have been for a very, very long time. And nobody noticed or said anything until now. Not even bigots! > > Now pull the other one. It’s not an interpretation of the Constitution, it’s an interpretation of the application of the Constitutional rights of one person in a particular situation. It doesn’t go any further than that. Assuming it’s a published decision, it can be used to argue similar situations by other lawyers, but that would require a judge agreeing with the moving party logic, and that’s not automatic. ---
**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, 11:22pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/352 "2018-02-08T23:22:08Z")
> [@begbert2](#): > > Is it clear that that matters? If the issue is free speech, which it allegedly is, then it doesn’t have to be clever speech. Or complicated speech. Or unique speech. It just has to be speech. And it’s my understanding that there were no downward limitations on the complexity of the cake or baking or preparation to qualify as speech under the judge’s ruling. > > So making an elaborate cake is speech. > Making a simple cake is speech. > Making a completely plain cake is speech. > Making a donut is speech. > Making a loaf of bread is speech. > Making a hot dog is speech. > Making a salad is speech. > Carefully arranging pretzels on a plate is speech. > Carelessly pouring pretzels onto a plate is speech. > Pouring a shot is speech. > > Though, for some reason, the words exchanged in making a sale of a premade product are apparently _not_ speech. I’m not really sure why. You have a fundamental misunderstanding of the issue. A gay couple comes in and wants to by a pre-made generic wedding cake. The baker cannot deny the couple. Same couple comes in and requests a \*\*\*custom \*\*\*cake. The baker can deny the couple if she finds it objectionable on religious grounds. It is the customization that is the problem. Since this seems like a very hard idea for a bunch of folks to understand lets try an analogy. Dan and Bob buy a song from a singer to play at their wedding. The singer is christian, already wrote and recorded the song and will sell it to other people. The singer, under this ruling, would need to sell them the song. Dan and Bob go to the same singer and ask him to write a song celebrating \*their \*love and \*their \*wedding specifically. The singer does not have to do this as it goes against his religious convictions. Does that make sense? Really, this isn’t that hard. Slee ---
**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, 11:22pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/353 "2018-02-08T23:22:42Z")
> [@nelliebly](#): > > … > > If the owner’s claim is in artistic expression, and she is not, in fact, designing and creating each wedding cake herself, then she has no basis for her claim. The owner has stated that she is involved in the production of each and every custom cake that her business sells. ---
**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, 11:28pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/354 "2018-02-08T23:28:45Z")
> [@sleestak](#): > > Since this seems like a very hard idea for a bunch of folks to understand… No, I think you’re wrong about this. It really looks like people totally understand this point. Are you able to define the degree and nature of customization necessary to exempt a creation from nondiscrimination laws? . ---
**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, 11:30pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/355 "2018-02-08T23:30:03Z")
> [@Iggy](#): > > The owner has stated that she is involved in the production of each and every custom cake that her business sells. What degree of artist involvement is required? Planning? Tasting? Creating the recipe? Simply owning the shop? ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [February 8, 2018, 11:31pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/356 "2018-02-08T23:31:52Z")
> [@Morgenstern](#): > > Perhaps your argument would be better served using Benihana’s as the example. There the chef has a definite artistic expression in his creation. Subway is to art as fart is to perfume. Sorry, but it’s art if the cake is art. Just like The Ramones and Beethoven are both artists. Scale and popularity have nothing to do with art. If “custom made” is the distinguishing factor, then both are artists. ---
**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, 11:32pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/357 "2018-02-08T23:32:12Z")
> [@andros](#): > > … > > Are you able to define the degree and nature of customization necessary to exempt a creation from nondiscrimination laws? > . How do you propose to judge the degree and nature of customization? A point scale, how many sides are covered, choice of font, patterns? It is obviously a case by case basis. That’s why rulings typically point at people and specific facts. ---
**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, 11:32pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/358 "2018-02-08T23:32:59Z")
> [@sleestak](#): > > You have a fundamental misunderstanding of the issue. > > A gay couple comes in and wants to by a pre-made generic wedding cake. The baker cannot deny the couple. > > Same couple comes in and requests a \*\*\*custom \*\*\*cake. The baker can deny the couple if she finds it objectionable on religious grounds. > > It is the customization that is the problem. > > Since this seems like a very hard idea for a bunch of folks to understand lets try an analogy. > > Dan and Bob buy a song from a singer to play at their wedding. The singer is christian, already wrote and recorded the song and will sell it to other people. The singer, under this ruling, would need to sell them the song. > > Dan and Bob go to the same singer and ask him to write a song celebrating \*their \*love and \*their \*wedding specifically. The singer does not have to do this as it goes against his religious convictions. > > Does that make sense? Really, this isn’t that hard. > > Slee Except by my understanding of the case this is a moved goalpost. The cake in question was to have no customization and the design of the cake to be made itself wasn’t considered, by the baker, to be objectionable on religious grounds. The _customers_ were considered objectionable on religious grounds, as was the very idea that _those people_ would use one of _her_ cakes. It’s a straight up bigotry thing against people who are, as I understand it, considered to be members of a protected class in California. Bigotry against them based on their sexuality is illegal. Unless this judge is ruling the matter, anyway. In his eyes if a gay person asks you to make a cake, or a donut, or a burger, then you can totally tell them to fuck off - as long as the item itself hadn’t already been made at the time of it being ordered. It has precisely fuck-all to do with the uniqueness of the cake, or the complexity of the cake, or the difficulty in making the cake. Per the judge, it has to do with the _sacredness_ of the cake. ---
**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, 11:33pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/359 "2018-02-08T23:33:37Z")
> [@Morgenstern](#): > > I get it. You’re upset that the judge applied reason to the law and provided a learned opinion in his ruling. That seems really unfair. Calling out perceived flaws in the judge’s “reason” and “learned opinion” is not the same as being butthurt that he used them in the first place. It’s an unpleasant and inaccurate characterization of your interlocutors’ positions, IMHO. . ---
**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, 11:35pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/360 "2018-02-08T23:35:44Z")
> [@andros](#): > > That seems really unfair. Calling out perceived flaws in the judge’s “reason” and “learned opinion” is not the same as being butthurt that he used them in the first place. It’s an unpleasant and inaccurate characterization of your interlocutors’ positions, IMHO. > . When you can’t rebut, ad-hominem. [Previous page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=17) [Next page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=19)