# 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:** 32
**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 10, 2018, 10:28pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/621 "2018-02-10T22:28:06Z")
> [@Morgenstern](#): > > Yes, however beware, your 1st Amendment rights end at the tip of my nose. > Otherwise, I’m pretty sure they were pretty important to the Founding Fathers as they edged out the right to a public trial and bail. So, you can bake a cake with child pornography dipicted on it? ---
**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 10, 2018, 10:30pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/622 "2018-02-10T22:30:04Z")
> [@Morgenstern](#): > > I hope this is sarcasm, and knowing that you sometimes do, so I suspect it may be. Otherwise I’m not seeing that you comprehend how SCOTUS really works. > > Generally, Attorneys rarely ever expect to have a law declared unconstitutional, they typically claim the law, as it applies to their client, or their clients position, is unconstitutional. > That is far easier to prove than attacking an existing law. SCOTUS can create law as well as define laws and ultimately invalidate laws. There aren’t too many sweeping rulings like Miranda was. > > If SCOTUS rules that a particular Colorado statute is unconstitutional, as applied to a person in Colorado, then it might have zero effect on anyone in California. Or they may rule that such a rule is valid and provide a test of sort that may or may not have been met. IE, they can rule yes, but no in this case. Or, they may set forth a test that has to be met before finding in a case such as this. > > Or, SCOTUS may rule that no one can be denied a cake in American due to race, etc. provided there is a unique reason, like government sponsored business loans (if they even have that). We’ll know when we read the ruling. I do know all that. Yes, if they rule the Colorado law is unconstitutional it might not have an effect on the California law but I highly doubt it. Same sex marrige is the law of the land. 21 states have added sexual orientation to their protected classes. The Supreme Court accepted this case and I highly doubt they did so to provide narrow judgement; I assume they did it to provide proper guidance and framework. And overturning Colorado and adopting something like this idiotic judgement you’re defending is a recipe for more court cases, not guidance. And your “only adult in the room” shtick is wearing real real thin. ---
**Author:** ![andros](https://avatars.discourse-cdn.com/v4/letter/a/e480ec/32.png) [@andros](https://boards.straightdope.com/u/andros)\ **Post date:** [February 10, 2018, 10:31pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/623 "2018-02-10T22:31:36Z")
> [@Morgenstern](#): > > Yes, however beware, your 1st Amendment rights end at the tip of my nose. > Otherwise, I’m pretty sure they were pretty important to the Founding Fathers as they edged out the right to a public trial and bail. “Edged out?” In what sense? Both were ratified at the same time. (Or do you argue that because it’s the _First_ Amendment, the Framers thought it more important?) ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [February 10, 2018, 10:34pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/624 "2018-02-10T22:34:52Z")
> [@k9bfriender](#): > > So, you can bake a cake with child pornography dipicted on it? I can’t bake for shit. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [February 10, 2018, 10:35pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/625 "2018-02-10T22:35:04Z")
> [@Ibn\_Warraq](#): > > Even that only goes so far. As I’ve noted before tattoos are clearly art but tattoo parlors are also bound by anti-discrimination laws and couldn’t refuse to serve some clients due their religious beliefs. > > They could certainly refuse certain types of tattoos and do so for a number of reasons, including ones they find offensive, but couldn’t refuse to do any tattoo for a customer. What if the tattoo artist is a Hasidic Jew? Could he draw on gentiles all day, yet draw the line at tattooing another Hasidic Jew? ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [February 10, 2018, 10:35pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/626 "2018-02-10T22:35:55Z")
> [@andros](#): > > “Edged out?” In what sense? Both were ratified at the same time. (Or do you argue that because it’s the _First_ Amendment, the Framers thought it more important?) One was number 1, the others weren’t. ---
**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 10, 2018, 10:36pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/627 "2018-02-10T22:36:52Z")
> [@Morgenstern](#): > > I can’t bake for shit. Irregardlessly (heh, the 1st says I can use that), were you to have the ability to do so, would you be allowed to do so? You said it yourself, your first amendment ends at the tip of my nose, which means that even you acknowledge that the fist does not give you license to do harm to others and claim it as “free speech.” ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [February 10, 2018, 10:44pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/628 "2018-02-10T22:44:16Z")
> [@k9bfriender](#): > > Irregardlessly (heh, the 1st says I can use that), were you to have the ability to do so, would you be allowed to do so? Of course not, I can’t bake for shit. > [@k9bfriender](#): > > You said it yourself, your first amendment ends at the tip of my nose, which means that even you acknowledge that the fist does not give you license to do harm to others and claim it as “free speech.” You failed to understand the issue of the 1st Amendment related to compelling an artist to create an artistic work that offends their moral character, in this case, a wedding case. That’s the issue here, not some minimum wage hire tossing pickles on a hamburger. We don’t need to judge either party to look at what their respective rights are. And that’s what the discussion should be here, not moaning about a decision with undesirable consequences. ---
**Author:** ![Euphrosyne](https://avatars.discourse-cdn.com/v4/letter/e/d9b06d/32.png) [@Euphrosyne](https://boards.straightdope.com/u/Euphrosyne)\ **Post date:** [February 10, 2018, 10:54pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/629 "2018-02-10T22:54:42Z")
> [@k9bfriender](#): > > That is your interpretation. Others have other interpretations. If someone has the profoundly held religious belief that the Law of Christ does indeed permit men to punish others for their ancestral sins, who are you to argue? ========================== I’m no one to argue. But I would support the State distinguishing between acts and institutions which would cause at most fleeting _inconvenience_ or _emotional distress_ to one’s reasonable neighbor, of whatever sexual orientation as opposed to acts and institutions which place one’s neighbor and his eventual children into a state equivalent to penal servitude. You don’t equate having to go elsewhere to order a cake with being chained to a gang laboring in the hot sun day in and day out, being screamed at and whipped by an overseer, with no hope of escape, and knowing this will be your lot for the rest of your life . . . do you? I would support, for the sake of religious liberty, the State permitting the one, but not permitting the other. And I believe most reasonable Americans would understand the distinction, and would support the State making the distinction. Furthermore, I would support the State forbidding any harm or inconvenience to one’s neighbor that result from doing what is simply _permitted_ by one’s religious beliefs vs. harm or inconvenience to one’s neighbor that result from avoiding the negative precept on the one hand, and obeying the positive precept on the other . . . precept being not that is permitted, but what is commanded. I would support the State making that distinction, too, and I believe most Americans would understand and support the State making the distinction, and enacting it into law, accordingly. ======================================== > [@](#): > > So, what you said in all of that is that anything that you do that is in furtherance of allowing a SSM to take place is forbidden. > > You disagree with the judge, in that the couple could not have bought a “pre-made” cake for their wedding, as it still would have been a celebration of what you claim in the name of god is forbidden. > > Just so we are clear here, you are claiming that anything at all this baker does that would facilitate a SSM would offend god. And so we are clear, anything that anyone at all does to facilitate a SSM offends god. > > You are looking for a much broader ruling than this. =============================== (Look, I’m not a theologian, a philosopher, or an attorney. I have thought about this issue in general a great deal, but I’m not trained or that smart, and so I don’t know how to unpack what I think and believe part of the time. Plus people around me keep interrupting me, and I have to tear myself away to go shopping or make dinner or go to bed. So you are by no means getting the best quality thought on this matter from a person of traditional faith, is what I’m getting at.) > [@](#): > > “you are claiming that anything at all this baker does that would facilitate a SSM would offend god. And so we are clear, anything that anyone at all does to facilitate a SSM offends god.” I don’t think so. And I don’t think that most Americans would agree with these statements, either, or most judges, nor do I think such claims could be enacted into law, even if I agreed with them, which I don’t. Not anything the baker does, but anything the baker does that would (1) engage her artistic expression, which I think may be understood as a subspecies of _speech_, and that would (2) foreseeably and (3) specifically facilitate the (4) celebration of the union of two men or of two women, would be an unsuitable offering to the Name of Jesus Christ. > [@](#): > > “No, the state is asking her to make a choice as to whether she wants to be open to the public and serve everyone, or not be open to the public, in which case she can do as her conscience dictates.” However, this would be in effect for the State to demand that she serve all comers in anything they may desire, . . . or close her business, which amounts, in her case, to a loss of her livelihood. I don’t agree that the State has the right to demand that a business owner choose between violating her conscience or losing her livelihood. And I don’t believe many Americans would support such a position, either. And I don’t think that if such were to be enacted into a broader law, it could pass Constitutional muster. ============================== > [@](#): > > There is no argument that you used that cannot be used to also discriminate against anyone else that someone decides offends their god. There is no argument that you used that limits this to creative expression, or to wedding cakes, or even to SSM at all. Every argument you used can be used by any bigot to justify any discrimination that they feel like doing. Not so. My arguments are very much in keeping with the mainstream of most Americans, and laws enacted that reflect these views would very much be supported by most Americans. It is your extremist views, which steadfastly refuse to admit of distinction or nuance in resolving these questions, that would turn any such laws into “Paradise for All Bigots.” I don’t advocate laws broad enough to accomodate any such thing. But you continue to insist that either we have “Paradise for All Bigots” or “Reduce All Business Owners to Chattels of the State,” either . . . or; and that no distinctions are possible, because no one “has the right to decide” on such matters. Yes, they do. That’s what public opinion is for. That’s what State legislatures are for. To consider laws that consider and make such distinctions, and enact them. ==================================== > [@](#): > > Anyway, here’s a question for you. Let’s say that the bakery is not owned by the baker, it is, as many places that actually end up being profitable, owned by someone with business and financial sense, rather than an “artist.” The owner takes an order for a wedding cake to be served at a SSM reception. The baker complains that they don’t want to have to make a cake for this, as it “violates their conscience”. Can the owner compel their employee to make the cake, on pain of termination? Since I’ve answered so many of your questions, I’ll ask you a question in return: Can a business owner operating in a remote area of fly-over country, require that his female Muslim receptionist remove her head scarf while she’s at work, after several customers confide to him that her head scarf makes them “uncomfortable,” on pain of termination? ---
**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 10, 2018, 11:07pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/630 "2018-02-10T23:07:21Z")
> [@Morgenstern](#): > > Of course not, I can’t bake for shit. And your point is? > [@](#): > > You failed to understand the issue of the 1st Amendment related to compelling an artist to create an artistic work that offends their moral character, in this case, a wedding case. That’s the issue here, not some minimum wage hire tossing pickles on a hamburger. I did not fail in anyway to understand this. What is at issue is that you are trying to say that someone cannot be compelled to do anything they don’t want to do, ever, for any reason. Unless you are trying to say that the person making hamburgers doesn’t make enough money to be afforded the same protections as someone who makes more baking cakes, I do not think that you have anything to argue here. > [@](#): > > We don’t need to judge either party to look at what their respective rights are. And that’s what the discussion should be here, not moaning about a decision with undesirable consequences. You are correct, there is no juegment needed. Unfortunately, the baker is judging the SS couple as offensive to _her_ god, and therefor discriminates against them. ---
**Author:** ![boytyperanma](https://avatars.discourse-cdn.com/v4/letter/b/4491bb/32.png) [@boytyperanma](https://boards.straightdope.com/u/boytyperanma)\ **Post date:** [February 10, 2018, 11:07pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/631 "2018-02-10T23:07:22Z")
In your opinion the 1st amendment protections for artistic expression is absolute? Are there any limits to how the bakers handle themselves when expressing their rights? Is there a level of meanness the 1st amendment would not protect? Can they subject customers to humiliating rejections and film their reactions for U-tube stardom? Should a baker be able to put rainbow flags or other signage up that might lead gay people to attempt to do business there? Can the do this for the sole pleasure or seeing the heartbroken faces of gay people when their orders are rejected? Can they lead people on that they will fulfill the order and have a crisis on conscience later, canceling their obligation? What about unintentional conflicts of conscience. Wedding cerimony’s and cakes are often planned out months in advance. If a baker is planning to prepare the cake a few days before the wedding so it’s fresh, but doesn’t realize the Pat&Sue wedding is actually two men, is it right to tell them "Sorry I’m only giving you a days notice, but I can’t make your cake for religious reasons. You’ll have to find someone else’? How about in an instance where one of their staff takes the order, if the order has been placed and paid for, can the state still not compel the service of a binding contract? ---
**Author:** ![andros](https://avatars.discourse-cdn.com/v4/letter/a/e480ec/32.png) [@andros](https://boards.straightdope.com/u/andros)\ **Post date:** [February 10, 2018, 11:15pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/632 "2018-02-10T23:15:45Z")
> [@Morgenstern](#): > > One was number 1, the others weren’t. Yeah, no worries. Niggling point, not worth pursuing. Suffice to say that the First, while certainly, well, first, holds no more force of law than the rest of the Constitution. . ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [February 10, 2018, 11:23pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/633 "2018-02-10T23:23:40Z")
> [@boytyperanma](#): > > In your opinion the 1st amendment protections for artistic expression is absolute? > > Are there any limits to how the bakers handle themselves when expressing their rights? > Is there a level of meanness the 1st amendment would not protect? > > Can they subject customers to humiliating rejections and film their reactions for U-tube stardom? > Should a baker be able to put rainbow flags or other signage up that might lead gay people to attempt to do business there? Can the do this for the sole pleasure or seeing the heartbroken faces of gay people when their orders are rejected? Can they lead people on that they will fulfill the order and have a crisis on conscience later, canceling their obligation? > > What about unintentional conflicts of conscience. Wedding cerimony’s and cakes are often planned out months in advance. If a baker is planning to prepare the cake a few days before the wedding so it’s fresh, but doesn’t realize the Pat&Sue wedding is actually two men, is it right to tell them "Sorry I’m only giving you a days notice, but I can’t make your cake for religious reasons. You’ll have to find someone else’? How about in an instance where one of their staff takes the order, if the order has been placed and paid for, can the state still not compel the service of a binding contract? Did you have a question? ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [February 10, 2018, 11:30pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/634 "2018-02-10T23:30:58Z")
> [@ZPG\_Zealot](#): > > Context is everything. An object and an action can mean different things. > Example 1. Two students burn a flag to protest Trump’s policies = Republicans are outraged and want their heads. > Example 2. Two Boy Scouts burn a flag because it touched the ground = Republicans praise them for adhering to flag etiquette In Example 1. The two students are (correctly) stating that the America-hating fuckstick’s policies are metaphorically indistinguishable from deliberately lowering the American flag into a vat of raw sewage. That flag needs burning no less than the ground-touching one in Example 2. ---
**Author:** ![boytyperanma](https://avatars.discourse-cdn.com/v4/letter/b/4491bb/32.png) [@boytyperanma](https://boards.straightdope.com/u/boytyperanma)\ **Post date:** [February 10, 2018, 11:33pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/635 "2018-02-10T23:33:37Z")
> [@Morgenstern](#): > > Did you have a question? Several actually. You quoted them. Do you care to offer an answer for any of them? What’s your opinion of the various situations and how should our laws apply? ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [February 10, 2018, 11:49pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/636 "2018-02-10T23:49:04Z")
> [@boytyperanma](#): > > Several actually. You quoted them. > > Do you care to offer an answer for any of them? What’s your opinion of the various situations and how should our laws apply? I really don’t want bother playing “what if.” Sorry. ---
**Author:** ![boytyperanma](https://avatars.discourse-cdn.com/v4/letter/b/4491bb/32.png) [@boytyperanma](https://boards.straightdope.com/u/boytyperanma)\ **Post date:** [February 10, 2018, 11:57pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/637 "2018-02-10T23:57:07Z")
> [@Morgenstern](#): > > I really don’t want bother playing “what if.” > Sorry. I understand. Seems an odd position for you considering earlier in the thread you were comfortable asking others to answer your hypotheticals. ---
**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 11, 2018, 12:03am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/638 "2018-02-11T00:03:05Z")
> [@boytyperanma](#): > > I understand. > > Seems an odd position for you considering earlier in the thread you were comfortable asking others to answer your hypotheticals. You might have gotten a bite if you hadn’t done a hypothetical question avalanche. ---
**Author:** ![Ludovic](https://avatars.discourse-cdn.com/v4/letter/l/7ab992/32.png) [@Ludovic](https://boards.straightdope.com/u/Ludovic)\ **Post date:** [February 11, 2018, 12:13am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/639 "2018-02-11T00:13:05Z")
> [@boytyperanma](#): > > In your opinion the 1st amendment protections for artistic expression is absolute? > > Are there any limits to how the bakers handle themselves when expressing their rights? > Is there a level of meanness the 1st amendment would not protect? > > Can they subject customers to humiliating rejections and film their reactions for U-tube stardom? > Should a baker be able to put rainbow flags or other signage up that might lead gay people to attempt to do business there? Can the do this for the sole pleasure or seeing the heartbroken faces of gay people when their orders are rejected? Can they lead people on that they will fulfill the order and have a crisis on conscience later, canceling their obligation? > > What about unintentional conflicts of conscience. Wedding cerimony’s and cakes are often planned out months in advance. If a baker is planning to prepare the cake a few days before the wedding so it’s fresh, but doesn’t realize the Pat&Sue wedding is actually two men, is it right to tell them "Sorry I’m only giving you a days notice, but I can’t make your cake for religious reasons. You’ll have to find someone else’? How about in an instance where one of their staff takes the order, if the order has been placed and paid for, can the state still not compel the service of a binding contract? > [@Morgenstern](#): > > Did you have a question? In English orthography, a sentence ending with this symbol – “”?" – denotes a question. There are several of these glyphs in **boytyperanma** ’s post, so if the post uses traditionally-accepted orthgraphic rules, there are several questions contained in it. Hope that helps. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [February 11, 2018, 12:22am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/640 "2018-02-11T00:22:19Z")
> [@k9bfriender](#): > > So, you can bake a cake with child pornography dipicted on it? I’m envisioning a sheet cake tarted up to look like a cheap motel. On the base, you place little figurines of Chris Hansen and a camera crew knocking on the door of one of the rooms. Would that count? [Previous page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=31) [Next page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=33)