# 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:** 43
**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, 5:54pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/841 "2018-02-15T17:54:26Z")
> [@Euphrosyne](#): > > * * * > > The First Amendment forbids Congress making any law which \*\*PROHIBITS the FREE EXERCISE \*\*of one’s religion. > > **Exercise** is not simply holding one’s inner beliefs in silence WHILE ALLOWING ONESELF TO BE COERCED BY THE STATE TO BEHAVE IN A MANNER WHICH VIOLATES THOSE RELIGIOUS BELIEFS. > > “Exercise” is “exercise” night or day. At home or at work. In church or out of church. May the state prohibit a baker from refusing to make a cake for an interracial wedding if her religious beliefs are incompatible with interracial marriage? If so, how is that distinguishable from a same-sex wedding with regard to the First Amendment? ---
**Author:** ![MaxTheVool](https://avatars.discourse-cdn.com/v4/letter/m/9fc29f/32.png) [@MaxTheVool](https://boards.straightdope.com/u/MaxTheVool)\ **Post date:** [February 15, 2018, 5:54pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/842 "2018-02-15T17:54:57Z")
> [@raventhief](#): > > Max, no one is asking you to write a poem. The couple in question heard a beautiful poem you wrote, and want to pay you for a printed copy to have read at their wedding. Which in this analogy, is a service you offer, having poems in the display case. No analogy is perfect. If there’s a continuum where on one side is writing poems, and on the other side is taking a pre-written poem and printing it out, then somewhere in between them you have things like: -I have some rough ideas for a poem, but want a professional poet to help flesh them out -I have a poem written, but want a professional graphic designer to help me choose the art and layout and other visual artistic elements which will best enhance and enforce the message of the poem etc. Even if we all agree that writing a poem is art and printing a poem is not art, there’s no reason to think that everyone will agree exactly where the line needs to be drawn between them. (Although, again, my instinct is to say that the court drew the line in the wrong place in this particular case.) ---
**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, 6:12pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/843 "2018-02-15T18:12:45Z")
> [@MaxTheVool](#): > > No analogy is perfect Yeah, but you know how you offered this one without reading the thread first? Analogies very like this one have been discussed, and pretty well refuted, over the pages that you didn’t read. It may be worth reading the previous discussion around it before asking everyone to rehash it. ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [February 15, 2018, 6:14pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/844 "2018-02-15T18:14:42Z")
> [@Euphrosyne](#): > > * * * > > The First Amendment forbids Congress making any law which \*\*PROHIBITS the FREE EXERCISE \*\*of one’s religion. > > **Exercise** is not simply holding one’s inner beliefs in silence WHILE ALLOWING ONESELF TO BE COERCED BY THE STATE TO BEHAVE IN A MANNER WHICH VIOLATES THOSE RELIGIOUS BELIEFS. > > “Exercise” is “exercise” night or day. At home or at work. In church or out of church. The Constitution does not concern itself with your religious beliefs, it merely protects your right to those beliefs and practices. Claiming God made me do it, or God prevented me from doing it, is going to be really hard to prove. \* Miracle on 34th Street\* hard to prove. If it was up to God to decide, I’m pretty sure he’d be all for it provided it was red velvet cake with sour cherry frosting. Don’t fucking try sneaking devils food past him. ---
**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 15, 2018, 6:23pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/845 "2018-02-15T18:23:50Z")
> [@Euphrosyne](#): > > * * * > > The First Amendment forbids Congress making any law which \*\*PROHIBITS the FREE EXERCISE \*\*of one’s religion. > > **Exercise** is not simply holding one’s inner beliefs in silence WHILE ALLOWING ONESELF TO BE COERCED BY THE STATE TO BEHAVE IN A MANNER WHICH VIOLATES THOSE RELIGIOUS BELIEFS. > > “Exercise” is “exercise” night or day. At home or at work. In church or out of church. You keep going back to this. Do you realize that the judge in this case decided the case on Free Speech grounds and NOT Free Exercise grounds right? Yes the baker has religious reasons but the argument was a free speech one. ---
**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, 6:31pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/846 "2018-02-15T18:31:23Z")
> [@MaxTheVool](#): > > No analogy is perfect. If there’s a continuum where on one side is writing poems, and on the other side is taking a pre-written poem and printing it out, then somewhere in between them you have things like: > -I have some rough ideas for a poem, but want a professional poet to help flesh them out > -I have a poem written, but want a professional graphic designer to help me choose the art and layout and other visual artistic elements which will best enhance and enforce the message of the poem > etc. > > Even if we all agree that writing a poem is art and printing a poem is not art, there’s no reason to think that everyone will agree exactly where the line needs to be drawn between them. > > (Although, again, my instinct is to say that the court drew the line in the wrong place in this particular case.) It’s more like: You have written a poem about weddings. You will print that poem to anyone for a fee. I want you to print me a copy of that poem to use in my gay wedding. You refuse, based on you not wanting to use your artistic expression for something you disapprove of. There was nothing new or unique being asked for in this cake. There was no fleshing out. There was not asking the baker to help with layout or other artistic elements. ---
**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, 7:25pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/847 "2018-02-15T19:25:08Z")
> [@Morgenstern](#): > > The Constitution does not concern itself with your religious beliefs, it merely protects your right to those beliefs and practices. Claiming God made me do it, or God prevented me from doing it, is going to be really hard to prove. \* Miracle on 34th Street\* hard to prove. > > If it was up to God to decide, I’m pretty sure he’d be all for it provided it was red velvet cake with sour cherry frosting. Don’t fucking try sneaking devils food past him. Morgenstern, I’m a little surprised at this from you. I had the impression, that you were . . . well, sort of a class act. ---
**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, 7:35pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/848 "2018-02-15T19:35:58Z")
> [@Miller](#): > > Oh, fuck! Caps _and_ bold text! > > You’re screwed now, **Really Not All That Bright**. There’s no coming back from that sort of rhetorical power move. Miller. Steady on. ---
**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, 7:37pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/849 "2018-02-15T19:37:41Z")
> [@k9bfriender](#): > > Which is why we allow religions to practice human sacrifice. Your phrase of the day: "Unless there exists a compelling government interest in . . . " Study it. Learn it. ---
**Author:** ![begbert2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/begbert2/32/3357_2.png) [@begbert2](https://boards.straightdope.com/u/begbert2)\ **Post date:** [February 15, 2018, 7:38pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/850 "2018-02-15T19:38:42Z")
I feel it needs to be reiterated again, while the judge did speak of things like art and creativity, the details of the case being tried make it clear that he was NOT talking about art or creativity from the standpoint of art and creativity. He was talking about the mechanical process of baking a cake according to a recipe and applying frosting to it according to the plan from the standard pre-existent cake book. Creation, not creativity. The ruling was written to apply to all wedding cakes, regardless of design, presumably because the judge wanted to eliminate the possibility of christians having to sell things to gay people as much as he possibly could. He quite explicitly stated that wedding cakes are not speech because of their content or design, but rather simply because they are wedding cakes, because wedding cakes are inherently speech because wedding cakes are sacred. Or something like that. So the argument is a free speech one that explicitly doesn’t concern itself with either the content of the speech or the reasons for the speech - the _medium_ is the speech here, not the _message_. Wedding cakes can be denied to **anyone** , for any reason, because speech, because sacred. That’s the argument. Unless the cake is pre-made and in a display case, at which point it magically stops being speech, because the judge has a personal vendetta against his argument making logical sense. Or because he thinks a bigoted argument isn’t complete without “separate but equal”. ---
**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, 7:39pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/851 "2018-02-15T19:39:02Z")
> [@Morgenstern](#): > > The Constitution does not concern itself with your religious beliefs, it merely protects your right to those beliefs and practices. Claiming God made me do it, or God prevented me from doing it, is going to be really hard to prove. \* Miracle on 34th Street\* hard to prove. > > If it was up to God to decide, I’m pretty sure he’d be all for it provided it was red velvet cake with sour cherry frosting. Don’t fucking try sneaking devils food past him. Allright, nobody is making anyone do anything, Morgenstern. “Free exercise of religion” is your phrase of the day. Study it. Learn it. ---
**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, 7:41pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/852 "2018-02-15T19:41:54Z")
> [@ElvisL1ves](#): > > Does the Fourteenth Amendment have any meaning, **Euphrosyne**? Sure! And does the phrase “sexual orientation ain’t in there” have any meaning, "ElvisL1ves? ---
**Author:** ![Jonathan\_Chance](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jonathan_chance/32/701_2.png) [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)\ **Post date:** [February 15, 2018, 7:42pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/853 "2018-02-15T19:42:27Z")
> [@Euphrosyne](#): > > Morgenstern, > > I’m a little surprised at this from you. > > I had the impression, that you were . . . well, > > sort of a class act. Euphrosyne- You’re new here, relatively, so I’ll let this slide. Here at the SDMB we pride ourselves with being able to debate and discuss without resorting to ad hominems and insults. Please try not to do so in the future. If you feel you must insult another poster - or use strong language - please do so in our BBQ Pit forum. The rules are looser there - though there are still some - and you should be able to work it out of your system. ---
**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, 7:43pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/854 "2018-02-15T19:43:55Z")
> [@raventhief](#): > > My religion says I am not allowed to let witches live. Preventing me from striking them is a clear violation of my religious exercise. It also tells me that polygamy is AOK, and even commanded in many cases. So, thank goodness for that 1st Amendment that prevents the state from restricting my exercise! ". . . unless the government has a compelling interest in . . . " is your phrase of the week, raventhief. Study it. Learn it. ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [February 15, 2018, 7:46pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/855 "2018-02-15T19:46:00Z")
My take on this case is that the moral outrage against the baker is fully justified, but the legal outrage against her is not. Fact is, that at least for today, in Bakersfield, people who bake wedding cakes can be bigots. ---
**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, 7:49pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/856 "2018-02-15T19:49:38Z")
> [@Left\_Hand\_of\_Dorkness](#): > > You mentioned before not being a legal eagle, and boy howdy. > > That’s not how it works. That’s not how any of this works. > > The first amendment does have limits in its constraint on government. You seem to think that the limits are based on how explicit the sacred texts are, or how old the religious organization is, or how large or well-organized the religious organization is–factors that, entirely coincidentally, favor your religion over most others. > > But that’s not how any of this works. > > The nature or existence of sacred texts, the size or organization or age of the religious bureaucracy, are irrelevant. There are two relevant factors, one of which you sometimes acknowledge, and the other of which you repeatedly ignore. > > The one you sometimes acknowledge is that the sincerity of the believer is important. I can’t just say, “I have a religious objection to obeying the sped limit, hee hee hee” and get away with it. I gotta genuinely believe whatever folderol I offer. > > The one you repeatedly ignore is that the state can absolutely impinge on first amendment rights, **given a good reason for doing so**. You can’t engage in honor killings. You can’t conduct violent exorcisms. You can’t beat your children. In all these cases, the state is imposing on reliigous freedom, even matters of conscience. > > The relevant question here isn’t, what arcane theolegal doctrine can you devise that says icing a cake is sinful. The question is twofold: > > 1. Is cake-baking **in this particular fashion** expressing anything in a manner that would trigger first amendment protection; and > 2. If it is, is there a compelling state interest in circumscribing that expression that can’t be attained through a less restrictive manner? 1. No. Not baking. I’m a cake baker and a cake decorator (on the side, not in a shop). Decorating. Yes. I believe a case can be made that it does trigger first amendment protections. Please read what I wrote today at 11:33 AM. 1. First, let not First Amendment Protections be infringed. The rest is commentary. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [February 15, 2018, 7:50pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/857 "2018-02-15T19:50:17Z")
> [@Euphrosyne](#): > > ". . . unless the government has a compelling interest in . . . " is your phrase of the week, raventhief. > > Study it. Learn it. The compelling interest here is preventing discrimination against vulnerable minorities. ---
**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, 7:50pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/858 "2018-02-15T19:50:50Z")
> [@Euphrosyne](#): > > Your phrase of the day: "Unless there exists a compelling government interest in . . . " > > Study it. Learn it. This phrase is indeed key. There is a compelling government interest in being able to enforce antidiscrimination laws in a robust manner. The proposal–that a businessperson may not be compelled to engage in speech in a transaction if she wants to discriminate against the customer–strikes at the heart of this compelling government interest. Nobody thus far–not the judge, not you, not any other poster–has proposed a clear and well-founded legal standard by which the proposal may continue without gutting antidiscrimination laws. Failing such a principle, this proposal has got to fail. ---
**Author:** ![begbert2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/begbert2/32/3357_2.png) [@begbert2](https://boards.straightdope.com/u/begbert2)\ **Post date:** [February 15, 2018, 7:51pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/859 "2018-02-15T19:51:03Z")
> [@Euphrosyne](#): > > Allright, nobody is making anyone do anything, Morgenstern. > > “Free exercise of religion” is your phrase of the day. Study it. Learn it. This case is NOT about religion. It’s about free speech. Specifically, wedding cakes are inherently speech. A wedding cake that is an _undecorated sheet cake from a mix with no frosting or decoration at all_ and which is _sold by an **atheist** _ would be considered fully protected speech according to the judge’s argument. Religion has nothing to do with it. Decoration has nothing to do with it. Creativity has nothing to do with it. Per the judge: All wedding cakes\* are protected speech, because he says so, QED. That’s the whole argument, in all its majesty. \*Except ones in display cases, because tires. His logic really is something else. ---
**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, 7:52pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/860 "2018-02-15T19:52:10Z")
> [@Whack-a-Mole](#): > > You keep going back to this. > > Do you realize that the judge in this case decided the case on Free Speech grounds and NOT Free Exercise grounds right? > > Yes the baker has religious reasons but the argument was a free speech one. OK. I think we’ve moved into the areas of theory and going forward. I know I have. [Previous page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=42) [Next page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=44)