# 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:** 41
**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 15, 2018, 1:37pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/801 "2018-02-15T13:37:38Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Are you under the understanding that federal law, unlike state law, can trump the first amendment? Are you under the understanding that federal law has an easier time trumping the first amendment? > > If so, you need to explain yourself, because I think you’re wrong on that. > > If not, it’s completely goddamned irrelevant whether it’s a state protection or a federal protection, except that it determines where the suit is happening. Show me a case where a state level “protected class” that was NOT a federal level protected class survived a valid first amendment challenge? If federal protected classes are accorded more deference than state level protected classes then isn’t it goddam relevant whether its a state protected class or federal protected class? ---
**Author:** ![Euphrosyne](https://avatars.discourse-cdn.com/v4/letter/e/d9b06d/32.png) [@Euphrosyne](https://boards.straightdope.com/u/Euphrosyne)\ **Post date:** [February 15, 2018, 1:45pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/802 "2018-02-15T13:45:38Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Uh, yeah, the problem isn’t that I don’t care about the legalities. I’m certain that a person’s disinclination to take interest in legalities would tend to make his or her participation in a conversation around the legalities of a thing, somewhat problematic. > [@](#): > > I note the continued lack of verses. The precept regarding offering all to God is contained in Colossians 3:17. As for the precepts regarding the sexual relationships under discussion, that’s a can of worms I’m not going to open here. You can easily find the relevant verses on Google: Bible man “lie with.” You’ll get two million plus hits. ---
**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 15, 2018, 1:56pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/803 "2018-02-15T13:56:52Z")
> [@Whack-a-Mole](#): > > I do not know why people keep going here. Cake is not the same thing as an original manuscript. > > To be apples to apples it would be like going in to a store which had twenty paragraphs on display in a display case and then you ask the merchant to give you paragraphs 2, 3, 12 and 17. They then run to the back and print them out for you. > > The cake maker is doing much the same. The case says the couple looked at options available in the display case and made their choice from that. The baker was not being asked to invent a whole new cake recipe and design from scratch. The baker is closer to a cake assembler than a cake artist. Well I think that’s because so many people have been approaching this case as “religion” vs “gay rights” as opposed to “free speech” vs “gay rights” You’re basically just saying that baking a custom cake is not art. This court disagrees and I suspect most courts will disagree. I think that you need protected class status to overcome that. > [@](#): > > Maybe the right size cake for the wedding was not on display. > > Maybe they want a fresh cake for their wedding and not one sitting around a few days. > > Maybe the exact cake was not on display. So they choose vanilla cake from one option and chocolate frosting from another option. > > Maybe on their wedding day they do not want to be arsed running around collecting cakes and transporting them. > > There are many possible reasons. They have other things on their mind that day. > > The weird thing here is the judge says she would have to sell a display cake so the only difference is whether the baker knows ahead of time who will buy the cake. If she does she can refuse but if she only learns of it at the point of sale then she cannot. How does that make sense? That is not what the judge said. If you read the part I cited above, you will see that it is only the creative process that is protected. If they have already completed the creative process, they cannot discriminate based on who the buyer is. (see catalog example). They cannot make a cake for me and refuse to make the identical cake for you. > [@](#): > > The couple did not ask for any message or anything that was not on offer from the baker on their cake. That was just an example of something that the baker cannot be forced to do even with a cake in their display. ---
**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 15, 2018, 1:59pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/804 "2018-02-15T13:59:52Z")
> [@Euphrosyne](#): > > I’m certain that a person’s disinclination to take interest in legalities would tend to make his or her participation in a conversation around the legalities of a thing, somewhat problematic. Let’s be clear: because I didn’t explicitly mention “putting icing on a cake” when I talked about “baking a wedding cake,” you decided it was worth correcting me. And when I said that was a stupid thing for you to do, you decided I must not be interested in the law. Uh, okay. move over Ginsburg, we got a new legal eagle in town. ---
**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 15, 2018, 2:06pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/805 "2018-02-15T14:06:47Z")
> [@k9bfriender](#): > > Why not buy a display cake that is probably already stale from sitting in the case for weeks for a wedding that takes place in several more weeks? Is that really your question? > > My understanding is that is exactly what happened. They asked for a cake that was identical to the one that was already made. Then why would the court opinion read: “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.” If she has already made the cake, then hasn’t she already conceived it? Or does conceived here mean actually make rather than conceive? > [@](#): > > Yeah that’s what the judge said, and that was one of the main arguments of this thread is whether making something from a catalogue counts as artistic expression. OK, well I haven’t read all 800 posts but it seems to me that there is a difference between design and manufacture. To me it is the design aspect the part that is protected not the manufacture part. > [@](#): > > I don’t think that’s the case. Then it seems like you are ignoring the language you just cited in order to make a stronger argument against a judicial result you do not like. > [@](#): > > So, you are saying that the baker would have been happy to make them a cake if they had changed their orientation to something more acceptable? No, I am saying that perhaps sexual orientation is not as immutable as you are claiming it is. I also don’t think immutability is necessary for protected class (see religion and nationality). ---
**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 15, 2018, 2:08pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/806 "2018-02-15T14:08:46Z")
> [@Whack-a-Mole](#): > > Yeah…we know. We have discussed this earlier in this thread. > > Yes the judge made it a free speech issue. Many here disagree with the judge and feel if this counts as speech then there is no meaningful limit. The guy making your sandwich at Subway is engaging in speech and can deny you service for whatever reason pops into his/her head. I don’t see how the judge is saying that. If you are ordering off a menu, you are entitled to get the sandwich. Even if you ask for things like extra mayo. > [@](#): > > It is possible a given person’s sexuality may change over time but it is never a “choice”. Assuming you are heterosexual do you think it is trivial for you to choose, right now, to be homosexual? Not that you could go engage in homosexual sex but that you could change your personal sexuality to be a homosexual on a whim? So it isn’t immutable? So maybe you want to rethink whether immutability is a necessary component of protected class status? ---
**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 15, 2018, 2:14pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/807 "2018-02-15T14:14:37Z")
> [@Morgenstern](#): > > No, it means the baker was within her rights to refuse to bake a wedding cake for this couple. That’s all. I disagree. This case is a first amendment case and if they hold themselves out to the public as making cakes for sale and they make cakes out of a catalog that they make for straight couples, they must also make it for gay couples or the COTFSM couple. They don’t have to put a same sex topper or a colander on the cake but they have to at least make the same cake they already made at least once for that straight couple. ---
**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 15, 2018, 2:17pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/808 "2018-02-15T14:17:48Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Yes, we’re clear on what you, and the judge, said. That’s not what’s in question. > > The question is, what non-arbitrary criteria, if any, do you offer to distinguish this from other efforts, such that we may establish a consistent legal principle? And can we establish a consistent legal principle by which anti-discrimination laws fail to meet the strict scrutiny test for overcoming first amendment protections? > > Because I’ve let folks slide on claiming that federal or state law can’t trump the first amendment, but depending on how you establish the principle, that becomes a significant instead of a technical error. Of course law can trump the first amendment, if there’s a compelling state interest in doing so. > > If you can establish such a narrow legal principle that baking custom wedding cakes is the only public accommodation covered, then you might be able to say that there’s no compelling state interest in overcoming the first amendment. But I don’t think there’s a rational principle you can establish that makes that nice a distinction. > > Instead, any legal principle that treats customized cake-baking for hire as free speech is, if reasonably applied, going to include such a wide swath of mercantile activity that anti-discrimination laws will be rendered obsolete. And the state can make a very powerful case that it has a compelling interest in keeping the teeth in anti-discrimination laws. > > So it’s not enough to refer to the judge’s vacuous reasoning about why wedding cakes are speech, but other speech (“May I take your order?”) isn’t speech. If you want to defend this decision, you need to set out a legal principle far clearer than what this fool of a judge has set out. Have you read the opinion or just the article? ---
**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 15, 2018, 2:29pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/809 "2018-02-15T14:29:52Z")
> [@Left\_Hand\_of\_Dorkness](#): > > This is a twiddlingly ridiculous objection. Obviously when I talk about baking a wedding cake, I’m talking about the icing and decorating of the cake. Don’t be absurd. > > Instead, consider this: for whatever pedantic hairsplitting definition you’d like to give for what the happy couple is asking the baker to do, **there are no Bible “verses specifically, expressly forbidding” that behavior**. > > You’ve tried to duck and weave around what you said by going back to the “precept” business–but what you’ve not done is to show the verses that specifically, expressly forbid" baking that cake. I once heard a weird religious dude once say “guy on guy sex is prohibited but girl on girl action is OK” and it is in fact trivially easy to see prohibitions against male gay sex in the bible but you have to at least make a small leap that “unnatural” sexual acts in women is referring to lesbianism rather than anal sex. ---
**Author:** ![Euphrosyne](https://avatars.discourse-cdn.com/v4/letter/e/d9b06d/32.png) [@Euphrosyne](https://boards.straightdope.com/u/Euphrosyne)\ **Post date:** [February 15, 2018, 2:43pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/810 "2018-02-15T14:43:23Z")
> [@Damuri\_Ajashi](#): > > I disagree. This case is a first amendment case and if they hold themselves out to the public as making cakes for sale and they make cakes out of a catalog that they make for straight couples, they must also make it for gay couples or the COTFSM couple. They don’t have to put a same sex topper or a colander on the cake but they have to at least make the same cake they already made at least once for that straight couple. If to prepare and decorate such a cake would violate their consciences, then the legal protections of the First Amendment protect them from State coercion. ---
**Author:** ![Euphrosyne](https://avatars.discourse-cdn.com/v4/letter/e/d9b06d/32.png) [@Euphrosyne](https://boards.straightdope.com/u/Euphrosyne)\ **Post date:** [February 15, 2018, 2:51pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/811 "2018-02-15T14:51:22Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Let’s be clear: because I didn’t explicitly mention “putting icing on a cake” when I talked about “baking a wedding cake,” you decided it was worth correcting me. And when I said that was a stupid thing for you to do, you decided I must not be interested in the law. > > Uh, okay. move over Ginsburg, we got a new legal eagle in town. Well, I’m nobody’s idea of a “legal eagle.” But I’m interested in the law, and willing to think about as many aspects of it as necessary to show that a thing is either supportable or insupportable by current law. If you’re not interested in that, . . . well, then, you’re not interested in that. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 15, 2018, 2:54pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/812 "2018-02-15T14:54:55Z")
> [@Euphrosyne](#): > > If to prepare and decorate such a cake would violate their consciences, then the legal protections of the First Amendment protect them from State coercion. If the equal protection requirements of the Fourteenth Amendment, with the Civil Rights Act of 1964 requirements that stem from it, mean anything, then the bakers \*would \*have to do so. If their consciences absolutely do not permit that, then they don’t have to be in a public-accommodation business. ---
**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 15, 2018, 3:03pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/813 "2018-02-15T15:03:47Z")
> [@Euphrosyne](#): > > If to prepare and decorate such a cake would violate their consciences, then the legal protections of the First Amendment protect them from State coercion. Maybe but the opinion does not address freedom of conscience, its about artistic expression. The case is not based on whether they are offended by who will be using their cake, it is based on the creative process involved in making the cake itself. ---
**Author:** ![Euphrosyne](https://avatars.discourse-cdn.com/v4/letter/e/d9b06d/32.png) [@Euphrosyne](https://boards.straightdope.com/u/Euphrosyne)\ **Post date:** [February 15, 2018, 3:05pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/814 "2018-02-15T15:05:44Z")
> [@ElvisL1ves](#): > > If the equal protection requirements of the Fourteenth Amendment, with the Civil Rights Act of 1964 requirements that stem from it, mean anything, then the bakers \*would \*have to do so. If their consciences absolutely do not permit that, then they don’t have to be in a public-accommodation business. False. As the Constitution now stands, the State is legally precluded from penalizing them for exercising or reserving their right to their First Amendment conscience protections, by prohibiting, or in any way interfering with their right to set up and operate any business, even a public-accomodation business, in accordance with those protections. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 15, 2018, 3:07pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/815 "2018-02-15T15:07:39Z")
Well, there’s a bunch of Supreme Court rulings that say the Fourteenth’s guarantees of non-discrimination take precedence. Go tell them. ---
**Author:** ![Euphrosyne](https://avatars.discourse-cdn.com/v4/letter/e/d9b06d/32.png) [@Euphrosyne](https://boards.straightdope.com/u/Euphrosyne)\ **Post date:** [February 15, 2018, 3:23pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/816 "2018-02-15T15:23:32Z")
> [@ElvisL1ves](#): > > Well, there’s a bunch of Supreme Court rulings that say the Fourteenth’s guarantees of non-discrimination take precedence. Go tell them. The Fourteenth amendment doesn’t trump the First Amendment unless the class is federally protected. Individuals of races other than Caucasian are in a federally protected class. Individuals who identify as being of a sexual orientation other than heterosexual are not in a federally protected class. Therefore the First Amendment conscience rights - under discussion - take precedence over the Fourteenth Amendment right of freedom from discrimination - under discussion. ---
**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 15, 2018, 3:25pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/817 "2018-02-15T15:25:35Z")
> [@Damuri\_Ajashi](#): > > You’re right. It is a ludicrous idea to buy the one that is ACTUALLY in the display case. The cake would go bad before the wedding. > > But what do you say to the notion that the article says that the opinion seems to be saying that you are entitled to a cake that is EXACTLY LIKE THE ONE in the display case? > > Or are you just nitpicking? Not sure you follow. The judge said that the baker did not need to make a new cake, even if it was exactly the same as the one on display. ---
**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 15, 2018, 3:27pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/818 "2018-02-15T15:27:07Z")
> [@Euphrosyne](#): > > {…} Individuals of races other than Caucasian are in a federally protected class. {…} Cite?! CMC fnord! 'Cause I really want to see you explain how “Caucasian” isn’t a “race” that’s part of the “federally protected class”! ---
**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 15, 2018, 3:32pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/819 "2018-02-15T15:32:15Z")
> [@Damuri\_Ajashi](#): > > Then why would the court opinion read: > > “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.” > > If she has already made the cake, then hasn’t she already conceived it? Or does conceived here mean actually make rather than conceive? That’s a good question, and one that has been bandied about quite a bit in this thread. The facts of the matter is that they were not asking her to make a unique cake, but one directly from their “catalogue” of cakes. You’ll need to ask the judge who made the ruling why he called following directions “designing and creating” > [@](#): > > OK, well I haven’t read all 800 posts but it seems to me that there is a difference between design and manufacture. > > To me it is the design aspect the part that is protected not the manufacture part. And the design is already done. The couple was not asking for a new design. The manufacture was specifically the part that was being denied. > [@](#): > > Then it seems like you are ignoring the language you just cited in order to make a stronger argument against a judicial result you do not like. No, it seems you are missing the entire point of this thread. > [@](#): > > No, I am saying that perhaps sexual orientation is not as immutable as you are claiming it is. Take it you are a fan of gay conversion thearapy, then? > [@](#): > > I also don’t think immutability is necessary for protected class (see religion and nationality). People find their religions to be fairly important and immutable, and I have no idea how you think that national origin is something that you can change. You are born where you are born, you can’t change that without a time machine. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 15, 2018, 3:48pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/820 "2018-02-15T15:48:28Z")
> [@Euphrosyne](#): > > The Fourteenth amendment doesn’t trump the First Amendment unless the class is federally protected. > > Individuals of races other than Caucasian are in a federally protected class. > > Individuals who identify as being of a sexual orientation other than heterosexual are not in a federally protected class. > > Therefore the First Amendment conscience rights - under discussion - take precedence over the Fourteenth Amendment right of freedom from discrimination - under discussion. I don’t think you understand what the 14th Amendment or federal civil rights laws do. Except for certain age groups and certain rights accorded to Native Americans, federal law does not create “protected classes.” It creates _suspect classifications_. Caucasians receive the same protections as members of any other race. [Previous page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=40) [Next page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=42)