# 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:** 19
**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, 11:35pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/361 "2018-02-08T23:35:57Z")
> [@Morgenstern](#): > > 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. Fair point…but I’m not the one arguing that some degree of customization should be the legal standard here. I’m not super comfortable with the idea of having a purely case-by-case legal standard for what is or is not exempt artistic expression. That seems like a recipe for chaos. . ---
**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, 11:36pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/362 "2018-02-08T23:36:45Z")
> [@Snowboarder\_Bo](#): > > 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. You’re missing the common denominator in this case. Custom wedding cake. A cake designed by someone who professionally designs custom wedding cakes. That person is the subject of the ruling, not Beethoven. In this case the judge found that there was artistic expression with respect to those wedding cakes. Nothing more. ---
**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, 11:39pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/363 "2018-02-08T23:39:14Z")
> [@Morgenstern](#): > > You’re missing the common denominator in this case. Custom wedding cake. A cake designed by someone who professionally designing custom wedding cakes. That person is the subject of the ruling, not Beethoven. In this case the judge found that there was artistic expression with respect to those wedding cakes. Nothing more. Or more precisely he found that there was first-amendment protected speech inherent in _all_ wedding cakes. Unless they were already sitting on the counter when you came in to place their order. ---
**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, 11:42pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/364 "2018-02-08T23:42:22Z")
> [@begbert2](#): > > Or more precisely he found that there was first-amendment protected speech inherent in _all_ wedding cakes. > … Show me where he said that. I’m betting he didn’t. ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [February 8, 2018, 11:42pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/365 "2018-02-08T23:42:31Z")
> [@Morgenstern](#): > > It’s really simple. Assume those cakes are in the display case. They are for sale to anyone. > > Ask Buddy to create a cake. Watch him draw out his design. Watch him change and perfect it. Watch him spend hours decorating it in the colors of choice of the couple around a theme of their choosing. > > Now watch June frost a cake and shove it in the case. > > Can you see that one is clearly an artist? But what is Buddy when he bakes and decorates the 497th copy of a cake that maybe his father designed 40 years ago? I very clearly said that cake/decorating _can_ be artistic, but I’m wondering if you have ever ordered a cake for a wedding or any other event. Here is how it goes in _most_ places, _most_ of the time. 1. The customer chooses a design from a book or a display. The baker is not making a custom design for this cake. The cake has already been designed and at this point, the baker is simply baking and assembling it. The act of baking itself isn’t artistic and assembling the cake is no more artistic than assembling an IKEA table is. 2)The customer chooses the flavor of the cake, the flavor of any filling, the type and color of any frosting. The baker isn’t making any of these choices, so the choices are not an expression of the baker’s artistry. This _could_ be artistic if the baker was creating a brand new flavor for the cake,filling or frosting but typically the customer must choose from a pre-determined list. Now , if I met my husband while we were both working at an amusement park, and I ask Buddy to design a cake in the shape of a roller coaster, chances are that he has not already designed such a cake, and he will be making a custom design. That is clearly artistic. But if one of Buddy’s employees (or even Buddy himself) bakes, assembles and decorates wedding cake #W500 using my choice of colors,filling and cake flavor from his pre-determined list , I’m not sure how that is more artistic than when a Costco employee does the same thing. ---
**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, 11:43pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/366 "2018-02-08T23:43:39Z")
> [@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 Your song example would fit better if the songwriter burned a CD of several of the writer’s songs when people ordered it, rather than having them pre-made. Because it is for a gay wedding, he refuses to be compelled to make them a copy, like he would for a straight wedding. You are correct that he cannot be forced to write a new song. But if he makes compilation tapes for customers, then he has to make them for all. That’s basically the same as the baker. He was not going to create something new and unique, but instead, use old designs to make something very similar or even exactly the same as he has done for same sex couples. ---
**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, 11:45pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/367 "2018-02-08T23:45:16Z")
> [@Morgenstern](#): > > Show me where he said that. I’m betting he didn’t. > [@From the article linked in the OP](#): > > “A wedding cake is not just a cake in a Free Speech analysis. It is an artistic expression by the person making it that is to be used traditionally as a centerpiece in the celebration of a marriage,” Lampe wrote. “There could not be a greater form of expressive conduct. Here, Rodriguez—Del Rios plan to engage in speech. They plan a celebration to declare the validity of their marital union and their enduring love for one another. The State asks this court to compel Miller against her will and religion to allow her artistic expression in celebration of marriage to be co-opted to promote the message desired by same-sex marital partners, and with which Miller disagrees.” There ain’t nothing here that says the cake has to be custom or unique. ---
**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, 11:46pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/368 "2018-02-08T23:46:31Z")
> [@k9bfriender](#): > > … > > You are correct that he cannot be forced to write a new song. But if he makes compilation tapes for customers, then he has to make them for all. > … And that’s it right there. He can’t be forced to create a new song (bake a custom cake) but he can be required to sell previously existing “for sale” songs (the display case). This is what people are missing in this case, choosing instead to compare it to placing one or two pickles on a hamburgers etc. ---
**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, 11:47pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/369 "2018-02-08T23:47:44Z")
> [@begbert2](#): > > There ain’t nothing here that says the cake has to be custom or unique. I guess you missed the …\*It is an artistic expression by the person making \*… part of the ruling. ---
**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, 11:53pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/370 "2018-02-08T23:53:14Z")
> [@Morgenstern](#): > > I guess you missed the …\*It is an artistic expression by the person making \*… part of the ruling. No, I simply read the whole damn thing I quoted. The first two sentences of the quote: “A wedding cake is not just a cake in a Free Speech analysis. It is an artistic expression by the person making it that is to be used traditionally as a centerpiece in the celebration of a marriage” THAT is the goddamn “artistic expression” he’s talking about. _Any wedding cake qualifies_. Because, and I quote here, it “is not just a cake”. Due to the fact it’s a wedding cake _alone_. In other quotes in the article he clarifies that the thing that gives the wedding cakes this magical quality of specialness is because they’re “sacred”. Surely a legal term of art. ---
**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, 11:55pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/371 "2018-02-08T23:55:40Z")
> [@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 The baker has a set of options: -Vanilla or chocolate or golden or carrot -Buttercream or ganache or cream cheese or that plaster shit whose name I can’t think of that looks pretty but tastes like glue. Fondant! Thanks google! -Rosettes or full roses or vines or simple piping -Ornaments or no ornaments. The people in question based theirs off a display cake, meaning they didn’t ask for anything unusual. So here’s my question. Cake A is in the display case and is already made. Cake B is one that’s identical to the one in the display case but it’s not been made yet. What specific ideas are communicated by the second cake that are not communicated by the first cake? How is this effectively communicated (as opposed to being some mystical bullshit about communication that doesn’t reflect how communication works in the real world)? ---
**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 9, 2018, 12:00am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/372 "2018-02-09T00:00:22Z")
> [@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”… You keep harping on the idea that somehow a cake prepared after showing a customer a book of images of samples somehow cannot be custom? Who do you think came up with the examples in the binder full of pictures of cakes? Artists quite commonly present portfolios as samples of their works. Painters, sketch artists, and graphic designers among others commonly present visual portfolio representations of a history of their work. Singers, musicians, composers, and speakers may provide sample audio tracts as a portfoilo. And none lose their right to control works by virtue of having already painted/drew/sang/etc… the work once before. So when the representative of the MLK family who oversee his legacy decide to let a car company use a portion of one of his speeches in a truck commercial that does not obligate them to do so again or for a different organization that might represent a protected class for that matter. The whole - OMG the customer made choices based upon what they saw in a porfolio so its not really custom - is not an even a halfway decent argument. ---
**Author:** ![crowmanyclouds](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crowmanyclouds/32/19884_2.png) [@crowmanyclouds](https://boards.straightdope.com/u/crowmanyclouds)\ **Post date:** [February 9, 2018, 12:02am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/373 "2018-02-09T00:02:49Z")
I’m just glad that I live in an America where all bakers are Buddy Valastro (et al). It was Trump wasn’t it? CMC fnord! ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [February 9, 2018, 12:09am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/374 "2018-02-09T00:09:40Z")
> [@begbert2](#): > > No, I simply read the whole damn thing I quoted. The first two sentences of the quote: > > “A wedding cake is not just a cake in a Free Speech analysis. It is an artistic expression by the person making it that is to be used traditionally as a centerpiece in the celebration of a marriage” > > THAT is the goddamn “artistic expression” he’s talking about. _Any wedding cake qualifies_. Because, and I quote here, it “is not just a cake”. Due to the fact it’s a wedding cake _alone_. > > In other quotes in the article he clarifies that the thing that gives the wedding cakes this magical quality of specialness is because they’re “sacred”. Surely a legal term of art. color mine. You’ll need to get around that sentence, as it applies to the cake in question, to rebut any of this and you’re not doing that. ---
**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 9, 2018, 12:10am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/375 "2018-02-09T00:10:05Z")
> [@Iggy](#): > > You keep harping on the idea that somehow a cake prepared after showing a customer a book of images of samples somehow cannot be custom? > > Who do you think came up with the examples in the binder full of pictures of cakes? > > Artists quite commonly present portfolios as samples of their works. Painters, sketch artists, and graphic designers among others commonly present visual portfolio representations of a history of their work. Singers, musicians, composers, and speakers may provide sample audio tracts as a portfoilo. And none lose their right to control works by virtue of having already painted/drew/sang/etc… the work once before. > > So when the representative of the MLK family who oversee his legacy decide to let a car company use a portion of one of his speeches in a truck commercial that does not obligate them to do so again or for a different organization that might represent a protected class for that matter. > > The whole - OMG the customer made choices based upon what they saw in a porfolio so its not really custom - is not an even a halfway decent argument. I’m harping on this because the _judge_ said it mattered. The baker has to sell you any cake sitting on the counter, but if you point at a cake sitting on the counter and say “I want you to make me a cake exactly like that one,” then the baker can tell you to shove off. Is that stupid? Yes! Does that utterly annihilate the idea that the issue is speech-as-creativity? Yes! That’s kind of the whole point. The judge constructed a situation where creativity is _provably_ not the point. It’s not the uniqueness or creativity or difficulty of creation that matters here - it _can’t_ be, or the ‘sitting on counter’ exception wouldn’t be possible. Having utterly deprived himself of any rational basis for saying new-made cakes are speech and (for example) hamburgers are not, the judge fell back on “sacredness”. I’m no lawyer, but that sounds tenuous from a legal standpoint. So why did the judge blow this giant hole in his own case? Well if he didn’t then any baker could just put up a sign saying “Black people not served” and it would be covered by his case’s precedent. No way this wouldn’t get reversed in seconds by higher, non-bigoted courts. ---
**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 9, 2018, 12:10am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/376 "2018-02-09T00:10:21Z")
As to how to distinguish that which is artistic and deserving of protection from that which is not… In the Masterpiece Cakeshop oral arguments at the SCOTUS this issue was raised. And one of the proposed ideas which was not immediate torn apart by the justices was to the effect that if a significant premium above cost of materials was being paid then that is a sign that the customer values the artistic intent. The flour, butter, sugar, and flavorings that go into making a cake the size of a three tiered wedding cake cost maybe $50, generously. That the customer is willing to pay $750 is a sign that they ascribe value to the artistic effort of creation. If the supermarket bakery can only turn that $50 of ingredients into $100 of product then perhaps that is more a retail markup and not a sign of artistic value. ---
**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 9, 2018, 12:11am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/377 "2018-02-09T00:11:55Z")
> [@Morgenstern](#): > > color mine. > > You’ll need to get around that sentence, as it applies to the cake in question, to rebut any of this and you’re not doing that. Unfortunately I have some modicum of skill in reading comprehension, so I know that the sentence in question doesn’t mean what you think it does. So I don’t have to get around anything -_you_ do. Have a nice day. ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [February 9, 2018, 12:14am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/378 "2018-02-09T00:14:05Z")
Okay fine. You tell us what _"A wedding cake is not just a cake in a Free Speech analysis. It is an artistic expression by the person making it …_ means. I don’t think you’re comprehending the judges order. ---
**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 9, 2018, 12:15am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/379 "2018-02-09T00:15:03Z")
> [@Iggy](#): > > As to how to distinguish that which is artistic and deserving of protection from that which is not… > > In the Masterpiece Cakeshop oral arguments at the SCOTUS this issue was raised. And one of the proposed ideas which was not immediate torn apart by the justices was to the effect that if a significant premium above cost of materials was being paid then that is a sign that the customer values the artistic intent. The flour, butter, sugar, and flavorings that go into making a cake the size of a three tiered wedding cake cost maybe $50, generously. That the customer is willing to pay $750 is a sign that they ascribe value to the artistic effort of creation. If the supermarket bakery can only turn that $50 of ingredients into $100 of product then perhaps that is more a retail markup and not a sign of artistic value. The SCOTUS must be pretty out of touch if they think things are usually sold at cost. Profit margin is a result of _lots_ of factors - and for wedding cakes I suspect “what the market will bear” is the biggest one. ---
**Author:** ![sleestak](https://avatars.discourse-cdn.com/v4/letter/s/919ad9/32.png) [@sleestak](https://boards.straightdope.com/u/sleestak)\ **Post date:** [February 9, 2018, 12:18am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/380 "2018-02-09T00:18:14Z")
> [@andros](#): > > 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? > . When people compare making a custom cake to pouring a tap beer or making a burger, I don’t really think they get it. And considering the judge in the case said the following: > [@](#): > > A retail tire shop may not refuse to sell a tire because the owner does not want to sell tires to same sex couples. There is nothing sacred or expressive about a tire. No artist, having placed their work for public sale, may refuse to sell for an unlawful discriminatory purpose. No baker may place their wares in a public display case, open their shop, and then refuse to sell because of race, religion, gender, or gender identification and people in the thread respond with idiotic shit like: > [@](#): > > I’d think any restaurant could refuse service to black customers by claiming that the cooking and plating of food comprises artistic expression, that because the meal is not already made, the law compels speech in compelling the restaurant to serve diners regardless of their protected status. No, I don’t think they really get it. I think they are more interested in being outraged than principled. As far as to the amount of customization, I’d say any bespoke order. Possibly adding wording, though I suspect that depends on the actual phrase. For example, taking a stock cake and putting the names Dan and Bob on it? Baker probably has to do it. Putting ‘Dan and Bob married under our lord Jesus Christ’, probably not. But then again, I am not a judge… Slee [Previous page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=18) [Next page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=20)