# 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:** 44
**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, 7:54pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/861 "2018-02-15T19:54:06Z")
> [@Euphrosyne](#): > > Your phrase of the day: "Unless there exists a compelling government interest in . . . " > > Study it. Learn it. I think that you learned that phrase from us here. It certainly seemed to take quite a while before you accepted that there were any limitations to the 1st, whatsoever, if it conflicted with what _your_ god said. Now that you realize that other people have gods that tell them different things, things that you don’t agree with, it’s now a phrase that you are comfortable with. But, I am glad that you finally understand that there is a compelling government interest in preventing discrimination. ---
**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, 7:59pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/862 "2018-02-15T19:59:08Z")
> [@Euphrosyne](#): > > 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. I seriously cannot believe you still think that your distinction between “baking” and “decorating” is one that anyone is confused by or that you need to keep harping on–and I say this as someone who’s worked as a baker and who does a modicum of cake decorating. Let it go! I read your case ([here](https://boards.straightdope.com/sdmb/showpost.php?p=20789740&postcount=826), for people who don’t want to have to go check all the time stamps). It absolutely doesn’t establish a case that first amendment protections should be triggered; on the contrary, it sets up this “everything for God” standard that would allow people to refuse any sort of good or service whatsoever for whatever bigoted religious reason they can come up with. > [@](#): > > 1. First, let not First Amendment Protections be infringed. The rest is commentary. Given that “first” is totally wrong–as I pointed out first amendment protections are legally infringed on all the time–the rest is a helluva lot more important. ---
**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 15, 2018, 8:01pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/863 "2018-02-15T20:01:51Z")
> [@Euphrosyne](#): > > ". . . unless the government has a compelling interest in . . . " is your phrase of the week, raventhief. > > Study it. Learn it. The government has as much compelling interest in preventing discrimination had it does telling me how many consenting spouses I can have. At least in my trilithon, everyone involved has agreed. In a case of discrimination, the wounded party most certainly has not consented. Besides, YOU were the one who said > [@](#): > > 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 don’t seem to make any exceptions in there for “compelling interest.” Eta: your phrase of the week is “don’t make blanket statements that even you contradict.” 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, 8:06pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/864 "2018-02-15T20:06:01Z")
> [@begbert2](#): > > 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”. This legal theory may or may not hold up for long. By the way did you know that the dictionary definition of bigot is 1. someone so attached to his own ideas that he can’t abide anyone differing from him. and 2. someone so attached to his own racial, religious, class, ethnic, sexual, etc. group that he can’t abide those who are not of his own. I don’t agree that people with unPC views are necessarily bigots. I realize that’s what über-PC-männer call all people with unPC views. And that, indiscriminately. Because über-PC-männer don’t know how to, . . . you know . . . _discriminate_. So for the record, if anyone hears anyone use the word “bigot,” the proper response is" _“Jawohl! Herr über-PC-mann”_. And make it snappy, Pappy. ---
**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, 8:06pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/865 "2018-02-15T20:06:04Z")
> [@Euphrosyne](#): > > Allright, nobody is making anyone do anything, Morgenstern. > > “Free exercise of religion” is your phrase of the day. Study it. Learn it. You know, your message would be better received if perhaps it wasn’t so sharp. Or perhaps not, but what do you have to lose? If it were me, I’d dial back the need to respond to everyone and respond only to those who you actually are discussing issues with. Let the snide comments pass you buy. I see that you can make a point, but you’re losing that ability in the harshness of your tone. Honestly, friendly advice, nothing more. ---
**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, 8:08pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/866 "2018-02-15T20:08:39Z")
> [@Miller](#): > > The compelling interest here is preventing discrimination against vulnerable minorities. Miller, we’ll always have Paris . . . er, the Straight Dope Board. But, darlin’, ain’t it time we said good-bye? ---
**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, 8:08pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/867 "2018-02-15T20:08:55Z")
> [@Euphrosyne](#): > > Sure! And does the phrase “sexual orientation ain’t in there” have any meaning, "ElvisL1ves? That comes under “nor deny to **any person** within its jurisdiction the equal protection of the laws”. ---
**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 15, 2018, 8:09pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/868 "2018-02-15T20:09:28Z")
> [@Euphrosyne](#): > > Miller, we’ll always have Paris . . . er, the Straight Dope Board. > > But, darlin’, ain’t it time we said good-bye? Well… He’s a moderator. I don’t think he’s gonna leave. ---
**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, 8:10pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/869 "2018-02-15T20:10:46Z")
> [@ElvisL1ves](#): > > That comes under “nor deny to **any person** within its jurisdiction the equal protection of the laws”. Yeah, that bit made me go back and reread the fourteenth amendment–was I forgetting something? The fact that “sexual orientation” doesn’t appear in there is barely significant, and only because it means that it’s not an exception carved out from the general rule of equal treatment. But I’m not entirely clear on how the fourteenth amendment applies to public accommodation cases, to be honest–this is probably something I should read up on, and would welcome salient links. ---
**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, 8:11pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/870 "2018-02-15T20:11:46Z")
The 14th is the basis of the Civil Rights Act of 1964 which ensures equal access to public accommodations. ---
**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, 8:11pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/871 "2018-02-15T20:11:58Z")
> [@Morgenstern](#): > > You know, your message would be better received if perhaps it wasn’t so sharp. Or perhaps not, but what do you have to lose? > > If it were me, I’d dial back the need to respond to everyone and respond only to those who you actually are discussing issues with. Let the snide comments pass you buy. I see that you can make a point, but you’re losing that ability in the harshness of your tone. > > Honestly, friendly advice, nothing more. Duly noted. Wasn’t trying to be harsh. Thought I was trying to be breezy. That’s not a good “look” for me is it. I’m really not a breezy gal. Thanks, Morgenstern. BTW, I have a terrible temper, and I do melt down when I get stressed, but I don’t hold grudges. I’ve actually tried. Can’t do it, for love or money. ---
**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, 8:12pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/872 "2018-02-15T20:12:59Z")
> [@ElvisL1ves](#): > > The 14th is the basis of the Civil Rights Act of 1964 which ensures equal access to public accommodations. Right you are. And CRA 1964 doesn’t mention SO, either. ---
**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, 8:14pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/873 "2018-02-15T20:14:30Z")
> [@Euphrosyne](#): > > Duly noted. > > Wasn’t trying to be harsh. > > Thought I was trying to be breezy. That’s not a good “look” for me is it. > > I’m really not a breezy gal. > > Thanks, Morgenstern. > > BTW, I have a terrible temper, and I do melt down when I get stressed, but I don’t hold grudges. I’ve actually tried. Can’t do it, for love or money. Trust me, more than one of us has had to take a walk around the block a time or two. It changes everything when you do. 🙂 ---
**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, 8:15pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/874 "2018-02-15T20:15:54Z")
> [@Euphrosyne](#): > > Miller, we’ll always have Paris . . . er, the Straight Dope Board. > > But, darlin’, ain’t it time we said good-bye? Considering that you’re actively working to make me a second class citizen in my own country… no, sorry, this isn’t a “agree to disagree” thing. As long as your pushing against my rights, I’m going to be pushing back. ---
**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, 8:17pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/875 "2018-02-15T20:17:02Z")
> [@raventhief](#): > > Well… He’s a moderator. I don’t think he’s gonna leave. No!!! I didn’t mean leave!!! That’s not what I meant. I would NEVER NEVER NEVER NEVER have the chutzpah to tell someone to leave. Even on boards where I’m an old-timer. YIKES. Miller, if you’re reading this, that’s 100% NOT what I meant. I just meant, I won’t argue with you anymore, Miller, and I’m almost afraid to answer you even. Because I’m afraid I’ll irritate you. Like I did before. You seemed to be just a tad frustrated with my posts the other day. And I thought, Eu, disengage. It’s kinder to both of you. All I meant was, I think I’ll probably give that thru the weekend or so. That’s all I meant. Egads. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 15, 2018, 8:19pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/876 "2018-02-15T20:19:18Z")
> [@Left\_Hand\_of\_Dorkness](#): > > But I’m not entirely clear on how the fourteenth amendment applies to public accommodation cases, to be honest–this is probably something I should read up on, and would welcome salient links. My understanding is that public accommodation rules from Title II of the Civil Rights Act are predicated on the commerce clause, not the 14th amendment. See [Katzenbach v. McClung](https://en.wikipedia.org/wiki/Katzenbach_v._McClung) Title II doesn’t mention sexual orientation, but it does start with “all persons”. ---
**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, 8:19pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/877 "2018-02-15T20:19:55Z")
> [@Euphrosyne](#): > > Right you are. And CRA 1964 doesn’t mention SO, either. “Any person”. _Any_. ---
**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, 8:23pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/878 "2018-02-15T20:23:09Z")
> [@Euphrosyne](#): > > OK. > > I think we’ve moved into the areas of theory and going forward. I know I have. We can theorize about the free exercise aspects of this case. Before we do though you might consider why the judge and the attorneys for the baker chose to make it about free speech and not free exercise (hint: they had a better case on free speech grounds). ---
**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, 8:31pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/879 "2018-02-15T20:31:19Z")
> [@ElvisL1ves](#): > > The 14th is the basis of the Civil Rights Act of 1964 which ensures equal access to public accommodations. > [@Euphrosyne](#): > > Right you are. And CRA 1964 doesn’t mention SO, either. > [@Bone](#): > > My understanding is that public accommodation rules from Title II of the Civil Rights Act are predicated on the commerce clause, not the 14th amendment. See [Katzenbach v. McClung](https://en.wikipedia.org/wiki/Katzenbach_v._McClung) > > Title II doesn’t mention sexual orientation, but it does start with “all persons”. **Bone** is correct; **Elvis** and **Euphronsyne** are wrong. [This article is excellent](https://www.americanbar.org/publications/insights_on_law_andsociety/14/winter-2014/civil-rights-act-of-1964--enduring-and-revolutionary.html). Briefly, Congress tried to ban private discrimination immediately after the Civil War, based on the authority of the fourteenth amendment, and were shot down by the Supreme Court. XIV only forbids state discrimination and has no leeway for laws banning private discrimination. It was nearly a century later that the “commerce” theory for banning public accommodation discrimination was put into legislation, and this time, the Supreme Court upheld the law. I don’t see any way that the fourteenth amendment would allow federal antidiscrimination law. In this case, though, it’s a state law that we’re talking about, so the distinction I earlier dismissed from someone (morgenstern?) as irrelevant suddenly becomes relevant: states don’t need constitutional authority for having antidiscrimination laws. The fourteenth amendment is still irrelevant to them. The first amendment circumscribes their legislation, of course, but only to the extent that they need to show a compelling state interest that cannot be met in a less restrictive fashion. This case triggers two first amendment concerns: 1. Is the cake DECORATING (happy, EU?) a first-amendment expression? I find this claim highly dubious, for previously stated reasons. A different cake–one that, say, included the phrase, “Happy wedding, white people–may we outbreed all the inferior races”–would make a much stronger case 2. Do people have religious objections to having to bake–oh shit, I did it again–DECORATE–a cake for people they want to discriminate against? Sure, in the sense that hoteliers had religious objections to renting rooms to interracial couples. As near as I can tell, the first amendment is implicated in the second way; but the judge minimizes this way. Even if it’s not minimized, the state’s interest in maintaining robust antidiscrimination laws is a compelling interest, and upholding this ruling would devastate those laws. ---
**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, 8:32pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/880 "2018-02-15T20:32:16Z")
So. Say I lived near Kiryas Joel, NY and went across the _eruv_, and walked into one of the bakeries owned and operated by Yiddish-speaking Hasidim. And I told the proprietor: “I want to order a cake to celebrate my friend’s ordination as a Catholic priest. Can you please put a rosary made of those little silver BBs, and also can you make a nice crucifix on the end of it, with the figure of Christ on the cross? I’ll pick it up next Thursday.” If the proprietor told me, "Christ on a cake? No. We don’t make such a cake here. You go back to some \*goyim \*bakery where you live; they’ll help you. So. Am I now a second-class citizen? [Previous page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=43) [Next page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=45)