# 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:** 38
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [February 13, 2018, 6:02am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/741 "2018-02-13T06:02:02Z")
> [@running\_coach](#): > > Why is that a question? Didn’t Jesus himself say that you can’t remarry? Meh, Jesus also said you should pay government taxes and love your enemies and not respond to violence with violence, and a lot of Christians are not really on board with those positions either. ---
**Author:** ![raventhief](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/raventhief/32/4_2.png) [@raventhief](https://boards.straightdope.com/u/raventhief)\ **Post date:** [February 13, 2018, 6:13am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/742 "2018-02-13T06:13:49Z")
The Bible also says that if a woman is raped, and has no previous betrothal, she is to be shackled to her rapist forever in holy matrimony, so…yeah. ---
**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 13, 2018, 6:22am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/743 "2018-02-13T06:22:41Z")
> [@Kimstu](#): > > Meh, Jesus also said you should pay government taxes and love your enemies and not respond to violence with violence, and a lot of Christians are not really on board with those positions either. > [@raventhief](#): > > The Bible also says that if a woman is raped, and has no previous betrothal, she is to be shackled to her rapist forever in holy matrimony, so…yeah. Then baking a cake for a same sex marriage shouldn’t be all that hard to do. ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [February 13, 2018, 6:50am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/744 "2018-02-13T06:50:04Z")
ISTM that part of the reason so many people have fallen for this bogus justification of blatant discrimination is the heavily commercial “pseudo-sacralization” of the consumerist rituals of modern weddings. Marketers figured out that you can get people to pay several times the going rate for, say, fancy rings or stationery or dresses or cakes if they’re believed to be a mandatory feature of your “special day” and an important “symbol of your union”. So service providers naturally started to perceive themselves as quasi-official participants in the rites of marriage, as though it involved some kind of spiritual endorsement on their part and they could refuse to “officiate” on personal ethical grounds. In reality, they are selling a product and shouldn’t expect to be able to discriminate against purchasers of their product, any more than a supermarket clerk can. ---
**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 13, 2018, 7:21am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/745 "2018-02-13T07:21:46Z")
You remind me of a Kevin O’Leary line: "I love two industries. I love weddings and I love people dying, because when both of those happen people make stupid decisions. Emotional decisions. Not financial decisions. And because that is the case, there’s huge industries behind both of those.” ---
**Author:** ![cmkeller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cmkeller/32/118_2.png) [@cmkeller](https://boards.straightdope.com/u/cmkeller)\ **Post date:** [February 13, 2018, 8:33am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/746 "2018-02-13T08:33:55Z")
Kimstu: > [@](#): > > Not to mention the “one” thing. Polygyny is still widely practiced among Muslims and occasionally in some Jewish subcultures, and it is a prominent cultural feature in the ancient sacred scriptures of Islam, Judaism and Christianity alike. Polygyny of this sort is still marriage between one man and one woman, it’s just more then one such marriage running concurrently. It is not a tri-or-more-party arrangements between the husband and the multiple wives. A polygamous husband could divorce one of his wives without any legal effect on his marriage to the others. > [@](#): > > There’s also the question of who gets to define “closely related”. First-cousin marriage is permitted in about half of US states, for example, and banned in many others. Just because there might be some variation on the furthest extent of it, the core of close relationships that are precluded from marrying one another has been part of the definition for quite a long time. ---
**Author:** ![Euphrosyne](https://avatars.discourse-cdn.com/v4/letter/e/d9b06d/32.png) [@Euphrosyne](https://boards.straightdope.com/u/Euphrosyne)\ **Post date:** [February 13, 2018, 1:16pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/747 "2018-02-13T13:16:12Z")
I’ve carefully read all of the posts since my last. I don’t want any reply I might make to provoke anyone to further anger. That won’t help anything. I think all that can be said about the First Amendment rights of people of faith has been said. ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [February 13, 2018, 1:42pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/748 "2018-02-13T13:42:44Z")
> [@cmkeller](#): > > Polygyny of this sort is still marriage between one man and one woman, it’s just more then one such marriage running concurrently. It is not a tri-or-more-party arrangements between the husband and the multiple wives. A polygamous husband could divorce one of his wives without any legal effect on his marriage to the others. I see the point you’re making, but I seriously doubt that most of the advocates of the “marriage is between one man and one woman” position consider polygyny to fall under that definition. Not to mention, of course, that many past and present polygyny systems do require some kind of consent from current wife/ves in order for a husband to contract an additional marriage, and also make rules about how the husband must treat multiple wives. AFAIK there is not and never has been any social polygyny system that doesn’t take into account in any way the multi-party nature of polygynous marriage, rather than treating it merely as multiple separate instances of monogamous marriage. ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [February 13, 2018, 1:49pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/749 "2018-02-13T13:49:56Z")
> [@Euphrosyne](#): > > I’ve carefully read all of the posts since my last. > > I don’t want any reply I might make to provoke anyone to further anger. That won’t help anything. That kind of comes across as a passive-aggressive way of saying “Nyah nyah, I’m not gonna change my mind and you can’t make me”, while superficially trying to look compassionate and caring. And as a matter of fact, anger against bigotry and discrimination often **does** help things when it comes to fighting for freedom and justice. There’s nothing wrong with being angry at having one’s loving consensual relationships denigrated as “evil”, for example. Often such anger is a necessary catalyst for a society to examine and change its behavior. ---
**Author:** ![Euphrosyne](https://avatars.discourse-cdn.com/v4/letter/e/d9b06d/32.png) [@Euphrosyne](https://boards.straightdope.com/u/Euphrosyne)\ **Post date:** [February 13, 2018, 2:08pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/750 "2018-02-13T14:08:56Z")
> [@Kimstu](#): > > That kind of comes across as a passive-aggressive way of saying “Nyah nyah, I’m not gonna change my mind and you can’t make me”, while superficially trying to look compassionate and caring. Anyone who wants to, may attribute bad motives to anything anyone says or does. I know that. _C’est la vie._ And conversely, anyone who wants to, may attribute good motives to anything anyone says or does. Especially to oneself. I know that also. _C’est la vie, aussi._ > [@](#): > > And as a matter of fact, anger against bigotry and discrimination often **does** help things when it comes to fighting for freedom and justice. There’s nothing wrong with being angry at having one’s loving consensual relationships denigrated as “evil”, for example. Often such anger is a necessary catalyst for a society to examine and change its behavior. As a Christian, I believe that most anger harms the angry person and offends God. And certainly in such a case as this, offends God, harms the angry person, and harms the entire human race. However, that’s a topic for another thread. Please begin one if you wish. ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [February 13, 2018, 3:29pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/751 "2018-02-13T15:29:30Z")
> [@Euphrosyne](#): > > As a Christian, I believe that most anger harms the angry person and offends God. And certainly in such a case as this, offends God, harms the angry person, and harms the entire human race. What do you mean by “in such a case as this”? Are you saying that God is offended by humans being angry at injustice and bigotry? > [@Euphrosyne](#): > > However, that’s a topic for another thread. Please begin one if you wish. It seems to me that the topic of the role of anger in response to discrimination against LBGQT people is eminently relevant to this thread. Of course, that doesn’t mean that **you** have to go on talking about it here if you don’t want to. ---
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [February 13, 2018, 4:06pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/752 "2018-02-13T16:06:09Z")
> [@Euphrosyne](#): > > I think all that can be said about the First Amendment rights of people of faith has been said. That they have the rigth to believe what they want - that they do not have the right to force that belief on others - and further that there are laws/regulations that control how they should act (toward others) when running a public business. They can have as much religious idolatry as they want in thier business - they cannot refuse service to members of protected classes. yep -thats about it. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 13, 2018, 4:19pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/753 "2018-02-13T16:19:13Z")
> [@simster](#): > > That they have the rigth to believe what they want - that they do not have the right to force that belief on others - and further that there are laws/regulations that control how they should act (toward others) when running a public business. > > They can have as much religious idolatry as they want in thier business - they cannot refuse service to members of protected classes. > > yep -thats about it. Can to cite the federal law or SCOTUS decision that declares gays to be in a protected (i.e., suspect) class? See, that’s the problem with your argument. You have not made the case for the gay couple. If anything, you just made the case _for the baker_. Not to mention that this case is about speech, not religion. ---
**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 13, 2018, 4:38pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/754 "2018-02-13T16:38:17Z")
> [@Euphrosyne](#): > > As a Christian, I believe that most anger harms the angry person and offends God. And certainly in such a case as this, offends God, harms the angry person, and harms the entire human race. However, that’s a topic for another thread. Please begin one if you wish. Did Jesus’s anger at the money changers harm him and offend god? ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [February 13, 2018, 5:06pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/755 "2018-02-13T17:06:35Z")
I don’t think anyone here believes that sexual orientation is a suspect class at the Federal level. But that’s not really the question in any of these cases. The question is whether and to what extent state and local governments can prohibit discrimination against groups who are _not_ suspect classes under Federal law. The thing is though, I don’t think it makes much of a difference to the people on either side of the debate whether it’s a free speech issue or a religious freedom issue or whether sexual orientation is a suspect class at the Federal level. ``` The free speech vs. religion issue might make a difference to some of those who believe the baker should not be able to refuse to bake a pre-designed cake for the gay couple because it's entirely possible for someone to believe that any speech is in the designing, not the baking. But I truly don't believe it matters to anyone whether sexual orientation is a suspect class for Federal purposes. It clearly doesn't matter to those who believe that state and local governments should be able to protect groups that aren't protected Federally. But I don't think for one moment that those who believe the baker's rights are being violated are going to suddenly be OK with it if SCOTUS decides anything other than that these bakers do not have to bake these cakes. It doesn't matter what SCOTUS decides- if they decide that the situations in these cases don't qualify as speech, if they decide that the state/local governments have a compelling interest in ending discrimination on this basis, whatever - those people are not just going to say " Well, now that SCOTUS has said it's legal for a state to require a baker not to discriminate against same-sex couples, I'm fine with it." ``` ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [February 13, 2018, 5:11pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/756 "2018-02-13T17:11:28Z")
> [@John\_Mace](#): > > Not to mention that this case is about speech, not religion. Sort of. IANAL, but the OP’s description of the judge’s decision made it sound to my layperson’s ears like a rather weird-ass melange of artistic expression and commercial nondiscrimination. Namely, the baker’s refusal was ruled legally permissible merely because _the desired cake had not yet been made_, and thus requiring the baker to make it for the gay couple would have been “forcing an act of artistic expression”. However, if the gay couple had decided that what they wanted was a cake that the baker _had already made_, using that very same artistic expression, and put in the display case for sale, it would have been considered an entirely different situation. In that case the couple could have said to the baker _“We would like to buy your lovely artistic cake for our gay wedding, and consume it together with our gay-marriage-supporting friends and family and officiating clergy in celebration of our gay union, and save a couple slices for our wedding night in order to lick the frosting off each other’s gay penises”_, and the baker could **not** legally have refused to sell them the cake. That strikes me as an extremely weird distinction to draw. If something is a form of artistic expression, you get to control its use even after you’ve created it. For instance, if you offer your movie screenplay for sale to Hollywood producers, or your book manuscript to publishers, you can refuse to sell it to a buyer you don’t happen to like. The cake decision just seems like a tangled conflation of the concepts of creative work and commercial product. If the gay couple had requested the baker to make them a cake exactly like one that was already for sale in the display case, which according to the judge’s decision they would have been fully entitled to buy, could the baker have refused to do so? What’s the “artistic expression” justification for that? Likewise, if I go to my hairdresser with a very specific hairstyle request, is she legally allowed to refuse to serve me on ideological grounds? If she’s selling in her shop a wig she made with that exact same hairstyle, is she legally required to let me buy it? In terms of artistic expression, what’s the difference? ISTM that by this reasoning, pretty much **any** form of individualized service or product could be considered a form of “artistic expression” and denied to specific customers on ideological grounds. Suppose I’m running a lunch counter and am really fussy about the plating and presentation of my hotdogs. And I happen to be ideologically opposed for religious reasons to black people eating in the same establishments as white people. Why can’t I just refuse to serve black customers on the grounds that I shouldn’t be compelled to engage in the artistically expressive act of preparing and plating a hotdog for customers of whom I disapprove? ---
**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 13, 2018, 5:41pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/757 "2018-02-13T17:41:29Z")
> [@John\_Mace](#): > > Can to cite the federal law or SCOTUS decision that declares gays to be in a protected (i.e., suspect) class? See, that’s the problem with your argument. You have not made the case for the gay couple. If anything, you just made the case _for the baker_. Not to mention that this case is about speech, not religion. ::sigh:: _“All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”_ [Unruh Civil Rights Act in California](https://en.wikipedia.org/wiki/Unruh_Civil_Rights_Act) I am pretty sure the baker and the couple suing are both in California and thus subject to California’s laws which make homosexuals a protected class in that state. But you wanted a SCOTUS decision and I am sure it is no surprise to you that they have never explicitly held homosexuals to be a protected class. That said they are tiptoeing mighty close to that: > [@](#): > > Two U.S. Supreme Court decisions have undermined the reasoning of both lines of cases and, as a result, recent cases have held that LGBT people may be entitled to protection under Title VII in some circumstances. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court held that Title VII was not limited to discrimination on the basis of one’s biological status as a man or a woman but instead prohibits the “entire spectrum” of discrimination on the basis of sex, including discrimination on the basis of gender stereotypes. In Price Waterhouse, plaintiff Ann Hopkins was denied a partnership at an accounting firm because she was deemed to be insufficiently “feminine.” Id. at 234–35. To improve her chances for partnership, Hopkins was told she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id. at 235. The employer argued that Title VII did not prohibit discrimination based on gender stereotypes. The Supreme Court disagreed. “As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for ‘in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’” Id. at 251 (internal citations omitted). Nine years later, in Oncale v. Sundowner, 523 U.S. 75 (1998), the Supreme Court removed another barrier when it held that a plaintiff could state a Title VII claim where sexual harassment was perpetrated by a person of the same sex. > > Based on these Supreme Court decisions, courts across the country have held that LGBT people may be entitled to protection under Title VII. For example, in Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212 (D. Or. 2002), the district court denied summary judgment for an employer in a Title VII suit brought by a lesbian employee. The plaintiff presented evidence that throughout her employment, her female supervisor made disparaging and harassing comments based on gender stereotypes, including: “Oh, I thought you were a man”, “Do you wear the dick in the relationship?” and, “I thought you wore the pants.” In ruling in favor of the employee, the court relied upon a recent Ninth Circuit case— Nicholas v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001)—abrogating its earlier decision in DeSantis and holding that a male employee is entitled to redress under Title VII if he can prove that he was discriminated against for failing to comport with stereotypical notions of how men should appear and behave. Similarly, a concurring opinion in the en banc decision Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061 (9th Cir. 2002), revived a Title VII claim brought by a gay male plaintiff who had presented evidence that his former coworkers taunted him by calling him feminine names and endearments, and ridiculed him for walking in a feminine manner. > > SOURCE: [https://www.americanbar.org/publications/human\_rights\_magazine\_home/human\_rights\_vol31\_2004/summer2004/irr\_hr\_summer04\_protectlgbt.html](https://www.americanbar.org/publications/human_rights_magazine_home/human_rights_vol31_2004/summer2004/irr_hr_summer04_protectlgbt.html) And of course when you look at the reasoning the SCOTUS uses to determine a protected class you are pretty much forced to conclude that homosexuals meet the requirements since sexuality is an immutable characteristic (which is one reason conservatives cling so zealously to the notion that being gay is a choice when it manifestly is not). ---
**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 13, 2018, 5:45pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/758 "2018-02-13T17:45:12Z")
> [@Euphrosyne](#): > > As a Christian, I believe that most anger harms the angry person and offends God. And certainly in such a case as this, offends God, harms the angry person, and harms the entire human race. I’m not a Christian, but when I think about this desire to situation merchant activities within a church setting, I imagine Jesus reacting to your proposal like [this](https://lynnmosher.com/wp-content/uploads/2013/03/Jesus-turning-tables-4c.jpg). ---
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [February 13, 2018, 6:08pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/759 "2018-02-13T18:08:49Z")
> [@John\_Mace](#): > > Can to cite the federal law or SCOTUS decision that declares gays to be in a protected (i.e., suspect) class? See, that’s the problem with your argument. You have not made the case for the gay couple. If anything, you just made the case _for the baker_. Not to mention that this case is about speech, not religion. Where did I state they were? IMHO, they should be, and ‘on the basis of sex’ should include them ‘by definition’ - but that is not settled yet. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [February 13, 2018, 7:53pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/760 "2018-02-13T19:53:15Z")
> [@Kimstu](#): > > Sort of. IANAL, but the OP’s description of the judge’s decision made it sound to my layperson’s ears like a rather weird-ass melange of artistic expression and commercial nondiscrimination. > > Namely, the baker’s refusal was ruled legally permissible merely because _the desired cake had not yet been made_, and thus requiring the baker to make it for the gay couple would have been “forcing an act of artistic expression”. > > However, if the gay couple had decided that what they wanted was a cake that the baker _had already made_, using that very same artistic expression, and put in the display case for sale, it would have been considered an entirely different situation. In that case the couple could have said to the baker _“We would like to buy your lovely artistic cake for our gay wedding, and consume it together with our gay-marriage-supporting friends and family and officiating clergy in celebration of our gay union, and save a couple slices for our wedding night in order to lick the frosting off each other’s gay penises”_, and the baker could **not** legally have refused to sell them the cake. > > That strikes me as an extremely weird distinction to draw. If something is a form of artistic expression, you get to control its use even after you’ve created it. For instance, if you offer your movie screenplay for sale to Hollywood producers, or your book manuscript to publishers, you can refuse to sell it to a buyer you don’t happen to like. If you opened a store open to the public and held your manuscripts out for sale and you sold to the straight dude but refused to sell to the gay dude, then the judge would probably say that is different than writing a romantic comedy for the straight dude but not one for the gay dude. > [@](#): > > The cake decision just seems like a tangled conflation of the concepts of creative work and commercial product. If the gay couple had requested the baker to make them a cake exactly like one that was already for sale in the display case, which according to the judge’s decision they would have been fully entitled to buy, could the baker have refused to do so? What’s the “artistic expression” justification for that? So why not just buy the one in the display case? > [@](#): > > Likewise, if I go to my hairdresser with a very specific hairstyle request, is she legally allowed to refuse to serve me on ideological grounds? If she’s selling in her shop a wig she made with that exact same hairstyle, is she legally required to let me buy it? In terms of artistic expression, what’s the difference? I think you are picking up on a distinction that the court did not address because it was not necessary to address it. If the baker had a catalog of cake designs, they would have to make one for the gay couple as well, they wouldn’t have to put a gay topper on it or say “god bless the union between Adam and Steve” but they would have to make the cake. "The State asks this court to compel Miller to use her talents to design and create a cake she has not yet conceived with the knowledge that her work will be displayed in celebration of a marital union her religion forbids. For this court to force such compliance would do violence to the essentials of Free Speech guaranteed under the First Amendment.” > [@](#): > > ISTM that by this reasoning, pretty much **any** form of individualized service or product could be considered a form of “artistic expression” and denied to specific customers on ideological grounds. Suppose I’m running a lunch counter and am really fussy about the plating and presentation of my hotdogs. And I happen to be ideologically opposed for religious reasons to black people eating in the same establishments as white people. Why can’t I just refuse to serve black customers on the grounds that I shouldn’t be compelled to engage in the artistically expressive act of preparing and plating a hotdog for customers of whom I disapprove? I think you are misreading the article. [Previous page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=37) [Next page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=39)