# 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:** 3
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [February 7, 2018, 6:29pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/41 "2018-02-07T18:29:09Z")
> [@CarnalK](#): > > That’s not quite the question, istm. How is a wedding cake different from a sloppy joe, in your view? No, it is exactly the question. If you cannot differentiate a wedding cake from a painting, then either you assert that a painter could be forced to paint a specific picture, or you agree that the judge is correct. > [@Jasmine](#): > > This so-called “artistic expression” is just an excuse to discriminate against human beings who live a lifestyle that the baker in question finds objectionable. There is obviously no doubt about that in all but the most narrow-minded amongst us. > > The fact of the matter is that these bigots have found a legal way to practice their bigotry, yet again proving, “Where there’s a will, there’s a way.” Unfortunately (for your sake), you must establish that what you believe to be true about how things should be is also what the law says things should be. If you cannot do that, then you must change the law. The assertion here is that the First Amendment protects certain things, among which are artistic expressions. Now, you could assert that this is not true, but I don’t think you want to do that, because the result would be that things like nude dancing, or otherwise objectionable performance art, would be able to be banned, and I suspect you have a more liberal viewpoint on that. So accepting that the assertion about the First Amendment is true, you must establish that it does not apply to the person being asked to make the cake. Hence, my question. How, in your opinion, is a wedding cake different from a painting? If you cannot establish a difference, then your assertion that this is a “hoot” is not going to go very far. I never, in all the years I practiced law, wrote an appellate brief that asserted that the decision I was appealing was based on a legal theory that was a “hoot.” 😉 ---
**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 7, 2018, 6:30pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/42 "2018-02-07T18:30:21Z")
> [@DSYoungEsq](#): > > Explain how, in your view, a wedding cake is different from a painting? Calling this wedding cake “artistic expression” makes the notion of “artistic expression” overly broad unless it was to be a truly unique pastry never before seen in the world. And I do not mean it is unique because the names squirted on the cake are ones she had not done before or that she changed the icing from green to blue. She is in the business of making wedding cakes and presumably she has a book of cakes she can make that she can show to customers. This is not artistic expression. It is a cake making business and differs little in principle from an assembly line making bread. The judge said that if the cake were in a display case she would have to sell it but since it was not made yet she did not have to make one which seems a weird distinction. Her artistic freedom is only compromised if she knows in advance a gay person will buy the cake? I also do not see this as a violation of her free speech. I do not see the cake as “her” speech. She is not endorsing anything with her cakes. Finally, the judge noted there is nothing “sacred or expressive” about a tire so presumably there is something sacred about a cake? Can judges decide cakes are sacred? ---
**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 7, 2018, 6:31pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/43 "2018-02-07T18:31:05Z")
[There’s a key fact that we need to consider here](http://www.chicagotribune.com/news/nationworld/ct-wedding-cake-religious-objections-20180207-story.html): > [@Chicago Tribune](#): > > The couple did not want any words or messages on the cake, but just the cake. Still, the owner, Cathy Miller, told them that “because she does not condone same-sex marriage,” according to the opinion, she would send their order to another bakery, called Gimme Some Sugar. As I understand it, they were asking for precisely the same sort of cake that a straight couple would ask for. They did not want interlocked vaginas on the cake, or “Lesbians RULE!!!1!one!!!” in cursive, or anything else that would require an artistic expression different from the artistic expression extended to straight couples. I find the decision absolutely bogus. If the baker doesn’t want to make cakes for gay couples, that’s totally fine; she simply needs to stop baking cakes for straight couples as well. What the law correctly forbids her from doing is offering a cake to a straight couple that she will not offer to a gay couple. ---
**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 7, 2018, 6:32pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/44 "2018-02-07T18:32:21Z")
> [@Snowboarder\_Bo](#): > > Until the gay couple requests that the slice be a little thinner or that the plate is served without the parsley or something, THEN it’ll be an artistic expression and not just standard fare. > > In fact, if the conceit of the restaurant was simply a-la-carte, and thus each dinner served is “a unique creation”, the owners could just discriminate like mofos! That’s exactly why after the segregation laws were overturned all the restaurants just became “a la carte” and continue denying black people entry to this day. Thanks for the thoughtful contribution! ---
**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 7, 2018, 6:34pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/45 "2018-02-07T18:34:59Z")
To dare to add some context… According to reports in the California case a same sex couple and other unnamed persons came into a bakery for a tasting. After making certain choices about flavor, design, etc… They did not request any written message. The couple returned a week or so later. Upon that second visit the couple spoke to the owner of the bakery who advised that she would not make a cake for them due to her religious beliefs and that she had an arrangement for a competitor to fill their order. Several weeks later the same sex couple filed a complaint. The legal matter resulting in the ruling just released is a ruling on a request for injunction which was filed by the state. The state sought to force the baker to fill the order herself or cease producing cakes. The couple’s attorney has expressed that she will proceed with some sort of lawsuit. The judge’s ruling made no mention regarding whether the business arrangement of the baker to refer the order to a competitor was of any weight. The judge denied the request for injunction on First Amendment Freedom of Speech grounds and stated he need not address Freedom of Religious Expression as a result. In his ruling the judge explicitly stated that a pre-made cake must be sold without regard but the state could not force the creation of a cake. That is the line he is setting. Similar arguments were made before the SCOTUS. Of course all of this will probably be settled by the SCOTUS ruling in Masterpiece Cakeshop barring some very narrow ruling. ---
**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 7, 2018, 6:35pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/46 "2018-02-07T18:35:36Z")
People don’t eat paintings. Paintings are meant to be looked at, and to persist, even beyond the artists life. Cakes are food, that are consumed. Do people buy and sell cakes at high end auctions like they do paintings? Do museums display cakes like they do paintings? I don’t understand this argument that there is no distinction between paintings and cakes. I see all kinds of distinctions. There’s much more daylight between paintings and cakes then there is between cakes, burgers, pizza and anything else that is meant to be eaten. ---
**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 7, 2018, 6:37pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/47 "2018-02-07T18:37:01Z")
> [@Snowboarder\_Bo](#): > > Until the gay couple requests that the slice be a little thinner or that the plate is served without the parsley or something, THEN it’ll be an artistic expression and not just standard fare. > > In fact, if the conceit of the restaurant was simply a-la-carte, and thus each dinner served is “a unique creation”, the owners could just discriminate like mofos! And that is the whole point. They are chipping away at civil rights, pushing their “religious liberties” as a right to discriminate. “I don’t want to discriminate against \, but god makes me.” Expecting us to be just fine with that. “Oh, well, if you have chosen to interpret the religious doctrines that you have chosen to follow in such a way that coincidentally reinforces your own personal prejudices, then you are exempt from following the law.” They want to discriminate. They want to be able to tell people that come from backgrounds of which they do not approve that they are not welcome. And not just owners, owners are probably the less discriminatory, as they often opened their businesses with the knowledge that they would have to serve all customers, regardless of personal prejudice. But, as a customer, right now, I would be foolish to complain to the manager that there is a black family at the table next to mine, and I don’t want to eat at a restaurant that puts black people so close to white people. “Sorry, that’s the law, and if you go to any other restaurant, you may be sat next to black people there, as well.” Ah, but John Smith, the devout christian, who has won his court case that allows him the religious liberty of denying anyone sporting the “mark of cain”, we can go eat there, and they won’t sit a black person down next to our nice white family. All of this is to use the courts to try to tear down the last 50 years of progress in civil liberties. > [@CarnalK](#): > > That’s exactly why after the segregation laws were overturned all the restaurants just became “a la carte” and continue denying black people entry to this day. Thanks for the thoughtful contribution! That is because they didn’t have the “artistic expression” argument going yet. As you can see, it is still having trouble getting traction, being decided against more often than for. Once artistic expression becomes a de facto standard waiver to allow discrimination, you can bet that is exactly what will happen. ---
**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 7, 2018, 6:37pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/48 "2018-02-07T18:37:23Z")
> [@DSYoungEsq](#): > > No, it is exactly the question. If you cannot differentiate a wedding cake from a painting, then either you assert that a painter could be forced to paint a specific picture, or you agree that the judge is correct. Wrong. The fact that you can’t discriminate when selling food is well established. Explaining why a wedding cake isn’t simply food is exactly the question and what the bakers are hanging their hats on. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [February 7, 2018, 6:40pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/49 "2018-02-07T18:40:15Z")
> [@iiandyiiii](#): > > … as long as the baker is willing to sell regular/standard/generic cakes to any customer. What if the baker doesn’t sell regular/standard/generic cakes? ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [February 7, 2018, 6:40pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/50 "2018-02-07T18:40:36Z")
> [@CarnalK](#): > > I meant no such thing and no, I can’t be arsed to read the article. As I posted just above, there’s already a case awaiting SC decision so who cares what this California judge said. So, you can’t be bothered to determine if your opinions on the matter are reasoned or not? You simply offer them in the absence of knowing if/how the judge’s determination is any different from what is currently before the Supreme Court? Excellent debating technique, that. :rolleyes: ---
**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 7, 2018, 6:41pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/51 "2018-02-07T18:41:40Z")
The judge says that the decision wouldn’t extend to a tire store refusing to sell tires. But by his reasoning, 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. Consider these cases: -A baker may refuse to bake a cake for a gay wedding. -A restaurant may refuse to host a wedding reception for a gay wedding. -A restaurant may refuse to make a custom dessert for a gay couple celebrating their anniversary. -A restaurant may refuse to plate a standard dessert (but e.g., arrange sauces on the cake) for a gay couple celebrating their anniversary. -A restaurant may refuse to plate that standard dessert for any gay couple. -A restaurant may refuse to plate that standard dessert for a mixed-race couple. -A restaurant may refuse to make any food for a mixed-race couple. With the judge’s decision, where is the line drawn? Or do we all agree that restaurants should be able to refuse service to mixed-race couples? ---
**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 7, 2018, 6:43pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/52 "2018-02-07T18:43:29Z")
> [@Ludovic](#): > > I wonder how many homophobic people feel the same way about this as they do about the bigoted baker’s case. I personally don’t know how I feel about _any_ case involving beliefs and public or quasi-public services. It’s a very very tricky subject. Much easier to sit at the sidelines and look for hypocrites 🙂 It’s not tricky at all. If your religion prohibits something that’s part of your business, get out of that business. Or suck it up. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [February 7, 2018, 6:43pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/53 "2018-02-07T18:43:53Z")
> [@CarnalK](#): > > Wrong. The fact that you can’t discriminate when selling food is well established. Explaining why a wedding cake isn’t simply food is exactly the question and what the bakers are hanging their hats on. But the judge did that, as you would find out if you, you know, read the article. 😉 ---
**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 7, 2018, 6:45pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/54 "2018-02-07T18:45:52Z")
> [@CarnalK](#): > > That’s exactly why after the segregation laws were overturned all the restaurants just became “a la carte” and continue denying black people entry to this day. Thanks for the thoughtful contribution! That is an excellent ending to a post that contains none; good job! ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [February 7, 2018, 6:48pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/55 "2018-02-07T18:48:33Z")
> [@Left\_Hand\_of\_Dorkness](#): > > The judge says that the decision wouldn’t extend to a tire store refusing to sell tires. But by his reasoning, 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. > > Consider these cases: > > -A baker may refuse to bake a cake for a gay wedding. > -A restaurant may refuse to host a wedding reception for a gay wedding. > -A restaurant may refuse to make a custom dessert for a gay couple celebrating their anniversary. > -A restaurant may refuse to plate a standard dessert (but e.g., arrange sauces on the cake) for a gay couple celebrating their anniversary. > -A restaurant may refuse to plate that standard dessert for any gay couple. > -A restaurant may refuse to plate that standard dessert for a mixed-race couple. > -A restaurant may refuse to make any food for a mixed-race couple. > > With the judge’s decision, where is the line drawn? Or do we all agree that restaurants should be able to refuse service to mixed-race couples? The danger of the reasoning used by the judge is that it can be applied to ANY situation otherwise prohibited by law. That’s why it is crucial to establish how or why expansive views of the First Amendment don’t include things like this. Note that, in the case before the Supreme Court, at a lower level the state of Colorado asserted that it would apply its law to a painter who sold paintings on commission as a business. THAT seems to me VERY difficult to reach as a conclusion, unless one adopts the reasoning that anything that a state forces you to do by law does not constitute speech on your part. And, as you can imagine, that has some serious issues… So it is incumbent on those who want to avoid this becoming a useful rift in anti-discrimination laws to create a well-reasoned legal limit to what is going on here. ---
**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 7, 2018, 6:49pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/56 "2018-02-07T18:49:40Z")
> [@DSYoungEsq](#): > > But the judge did that, as you would find out if you, you know, read the article. 😉 So the judge made what I said was the important distinction (cake vs food), but you’re arguing that’s not the important distinction (which is cake vs painting). And if I read the article, I would find that your other distinction was actually more important? Help me with your logic. ---
**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 7, 2018, 6:53pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/57 "2018-02-07T18:53:16Z")
> [@DSYoungEsq](#): > > Note that, in the case before the Supreme Court, at a lower level the state of Colorado asserted that it would apply its law to a painter who sold paintings on commission as a business. THAT seems to me VERY difficult to reach as a conclusion, unless one adopts the reasoning that anything that a state forces you to do by law does not constitute speech on your part. And, as you can imagine, that has some serious issues… > > So it is incumbent on those who want to avoid this becoming a useful rift in anti-discrimination laws to create a well-reasoned legal limit to what is going on here. Seems to me if you are in business to provide “X” then your ability to discriminate against people who want to buy “X” becomes severely curtailed. If you have a problem selling things to gay people or black people or whoever then get out of the business of selling things. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [February 7, 2018, 6:54pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/58 "2018-02-07T18:54:26Z")
> [@CarnalK](#): > > So the judge made what I said was the important distinction (cake vs food), but you’re arguing that’s not the important distinction (which is cake vs painting). And if I read the article, I would find that your other distinction was actually more important? Help me with your logic. The judge based his opinion on the determination that making a wedding cake is a form of artistic expression. Artistic expression is (presumably) covered by the First Amendment. So the key determination that must be made is, is the cake really artistic expression? Your question doesn’t preclude that determination. Indeed, the first thought that popped into my mind was a gourmet chef at a high-end restaurant, plating his special dish of the day for a high-end customer. Just because the cake is like other food doesn’t mean it isn’t like a painting. Your distinction is a difference without relevance to the determination. ---
**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 7, 2018, 6:56pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/59 "2018-02-07T18:56:21Z")
> [@DSYoungEsq](#): > > The judge based his opinion on the determination that making a wedding cake is a form of artistic expression. Artistic expression is (presumably) covered by the First Amendment. So the key determination that must be made is, is the cake really artistic expression? > > Your question doesn’t preclude that determination. Indeed, the first thought that popped into my mind was a gourmet chef at a high-end restaurant, plating his special dish of the day for a high-end customer. Just because the cake is like other food doesn’t mean it isn’t like a painting. Your distinction is a difference without relevance to the determination. It doesn’t preclude it, it’s just a pretty ridiculous. Like I said, the California judge’s opinion will be meaningless by the end of the year, so forgive me for not reading the article. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [February 7, 2018, 6:59pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/60 "2018-02-07T18:59:19Z")
> [@Inner\_Stickler](#): > > I don’t know what else there is to explain except that I have no problems with christians. I even have some friends who are christian. I just don’t see why they have to always be throwing their christianity in our faces. Or another way to put this is: I don’t see why they feel everyone has to live a Christian lifestyle like it’s the Bible and not the Constitution that runs this country. [Previous page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=2) [Next page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=4)