# 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:** 46
**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, 10:30pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/901 "2018-02-15T22:30:49Z")
> [@begbert2](#): > > What’s your point? Maybe she thought she was being edgy, or something? ---
**Author:** ![boytyperanma](https://avatars.discourse-cdn.com/v4/letter/b/4491bb/32.png) [@boytyperanma](https://boards.straightdope.com/u/boytyperanma)\ **Post date:** [February 15, 2018, 10:31pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/902 "2018-02-15T22:31:50Z")
> [@begbert2](#): > > 1. You don’t understand either the situation or the case under discussion and quite literally have no idea what the hell anyone in this thread is talking about. She has made multiple posts in this thread that have led me to believe she hasn’t read the court decision this thread is about. So option 1 seems likely. ---
**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, 10:32pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/903 "2018-02-15T22:32:34Z")
> [@Euphrosyne](#): > > I think a few posters are sticking strictly to the facts of this particular case; a number of others are speaking of hypothetical cases; others have been attempting to indoctrinate all of us what horse-hockey religious beliefs are, and especially religious beliefs that restrict us and others. In general we try to stick to the topic the thread is based on. In this case it is, " California Judge Rules Making a Cake is “Artistic Expression” - Denies LGBT Discrimination Claim". So we discuss that case and note that it is a free speech case. Of course the discussions can drift and we could talk about whether this is better done as a free exercise case but mostly it’ll drift back to the case at hand because we can point to the ruling. If you want to talk about this in the context of religious freedom how it touches on the “free exercise” portion of the constitution and if these cases are better argued on that standard you may get better results in a new thread dedicated to that discussion. Most of the hypotheticals thrown out so far are merely meant to illustrate how bizarre things can get if this judge’s ruling stands. ---
**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, 10:32pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/904 "2018-02-15T22:32:46Z")
> [@begbert2](#): > > What’s your point? Two points, above the u. ---
**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, 10:38pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/905 "2018-02-15T22:38:58Z")
> [@MaxTheVool](#): > > Sure, which is why, on the whole, I disagree with this decision. But I see it more as a “there’s a difficult line to draw and the world is complex and, from the information I have, I think the judge got this one wrong, but I’m not an expert” than “OMG this is the first step to a theocracy” or “as soon as Alabama hears about this it will be legal to ban gay people from restaurants”, if you see the distinction I’m making. > > (Edited to add: granted, that’s easy for me to say as a married straight guy…) I do think that as soon as some restaurant owner in alabama hears about this, he will take it as a right to start holding out his strongly held religious convictions that white people shouldn’t eat in the same room as black people. Not Alabama the state, but individuals who will take any excuse they can take to discriminate against those they hate. If this decision is held up, then the next step is to push one step further and further. I do think the entire point of these cases is to try to pick holes in the Civil Rights Act. ---
**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 15, 2018, 11:03pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/906 "2018-02-15T23:03:31Z")
> [@k9bfriender](#): > > Two points, above the u. that’s, umm, alot! ---
**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, 11:05pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/907 "2018-02-15T23:05:37Z")
> [@simster](#): > > that’s, umm, alot! Now someone has to feed it and care for it. Thanks for bringing another Alot to the world. ---
**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, 11:13pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/908 "2018-02-15T23:13:41Z")
> [@Morgenstern](#): > > Now someone has to feed it and care for it. Thanks for bringing another Alot to the world. But they are so [cute](http://4.bp.blogspot.com/_D_Z-D2tzi14/S8TRIo4br3I/AAAAAAAACv4/Zh7_GcMlRKo/s400/ALOT.png)! ---
**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, 11:54pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/909 "2018-02-15T23:54:27Z")
Be alert. The world needs more lerts. ---
**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 16, 2018, 1:46am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/910 "2018-02-16T01:46:05Z")
> [@k9bfriender](#): > > If this decision is held up, then the next step is to push one step further and further. I do think the entire point of these cases is to try to pick holes in the Civil Rights Act. This wasn’t a final decision. The judge just denied a preliminary injunction. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [February 16, 2018, 2:28am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/911 "2018-02-16T02:28:47Z")
> [@Damuri\_Ajashi](#): > > **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. There have been posts in this thread that have led me to believe that this was the case. I’d be very grateful for a citation as to whether or not this is so. Because if it IS so, then THIS > [@](#): > > "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.” strikes me as disingenuous in the extreme. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [February 16, 2018, 2:38am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/912 "2018-02-16T02:38:13Z")
> [@Damuri\_Ajashi](#): > > We are pretty close to the day when we might conflate sexual orientation with sex. You sure sexual orientation is an immutable characteristic? There is no fluidity to sexual orientation? > [@k9bfriender](#): > > 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? Hmm. Maybe they should have told her that one of them is really a transgendered MAN, so it’s not a SSM. :dubious: ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [February 16, 2018, 3:05am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/913 "2018-02-16T03:05:26Z")
> [@Damuri\_Ajashi](#): > > We are pretty close to the day when we might conflate sexual orientation with sex. You sure sexual orientation is an immutable characteristic? There is no fluidity to sexual orientation? You are mixing up multiple different disconnected concepts. There is fluidity in sexual orientation, yes. But that basically\* refers to individuals who are not usually attracted to one gender finding exceptions. For example, a girl who is usually straight may find this one girl they think is so hot that they’d have sex with her. That’s fluid sexuality. What it is not is the ability to willfully change one’s sexual orientation. All current attempts at such have failed, and instead seem to actually harm the participants’ mental wellbeing. It is conceivably possible this could change, but all signs point that this sexual orientation is immutable. But, even if it isn’t entirely immutable, it’s still an inherent characteristic. People do not choose their orientation. It’s conceivable that a black person could paint their skin to look like a white person and pretend to be white, and thus not face anti-black racism. But that doesn’t make it okay to discriminate based on race. You can’t tell black people that they have to change into white people to get civil rights. Nor can you tell a gay person they have to become straight to get civil rights. Sex and sexuality are not being conflated. It is just that a lot of the rules about not discriminating based on sex can be applied in such a way that discriminating against someone for their sexual orientation is actually discriminating against them because of their sex. With gay marriage, it’s easy: if the sex of the participants were different, the marriage would be acceptable. Finally, sex, as it is usually defined, is basically immutable. Sex is defined by genetics: whether one is XX, XY, or something else. Barring some alteration in the future that can change genetics, sex is immutable. It is gender, both in the form of gender roles and gender identity, that is not immutable. So, while sexuality can be fluid, it is still immutable for all intents and purposes. [sub]\*Yes, I know it’s more complicated than that, but I’m keeping things simple here. The following paragraph is strictly correct.[/sub] ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [February 16, 2018, 3:12am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/914 "2018-02-16T03:12:42Z")
> [@Morgenstern](#): > > Which is totally immaterial. The court held that the baker was within her rights to refuse to serve the couple as her trade was one of applying her artistic talents to all her creations, and as such, she can’t be compelled to perform herein. Good luck if you think this applies to a Subway sandwich or pickles on a hamburger. The fact that the couple choose to order a wedding cake is where it ends. No one had to actually design the cake before the 1st Amendment applies. But if they HAD already designed it, the issue of compulsory acts of artistic expression ought to be rendered irrelevant. As a non-law-talking guy, my sense is that the judge should explain why he believes it hasn’t been. Any law-talking guys care to do me a solid and educate me on whether I’m mistaken, and if so, why? ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [February 16, 2018, 3:35am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/915 "2018-02-16T03:35:18Z")
> [@Morgenstern](#): > > If the cookies are nothing more than a standard recipe, round, undecorated peanut butter cookies, baked per the instructions on the box, then maybe not. Point of Order: There’s no such thing as an undecorated peanut butter cookie. Flattening them with the back of a dinner fork is, _per se_, decoration. ---
**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 16, 2018, 1:30pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/916 "2018-02-16T13:30:08Z")
> [@Euphrosyne](#): > > A new low for Left. Waitaminute–did you think I was comparing you to Nazis? You really really misunderstood the analogy, then: I was helping you out by putting your position (i.e., the baker) in the position of **resisting** Nazis. My analogy is problematic in huge part because it analogizes happy gay couple to a Neonazi, which is a shitty comparison. Seriously, is this what you thought was going on, that I was comparing you to a Nazi? If not, why on earth do you think this was a mean thing for me to do? ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [February 16, 2018, 1:44pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/917 "2018-02-16T13:44:51Z")
> [@Euphrosyne](#): > > That’s what this case is about. > > Many persons of faith do seek to offer all that they say and do as an offering to God. This precept may be found in the Bible, in Colossaians 3. And persons who do this cannot offer to God that which God has forbidden. And God has forbidden same-sex sexual acts, and by extension, same-sex marriages. (Multiple texts may be found in the Bible. Check Google.) Therefore persons of faith, in using their artistic expression to decorate a wedding cake for the union of two men or of two women, are being coerced by the State to undertake an act which may not legitimately be offered to the Name of God - thus, a clear coercion of conscience. > > I would support a law that provides for the requirement of legal tests for the basis of conscientious objections to the provision of some - not all - services. (Please see my post #793, in which I discussed this at some length.) > > If business owners who assert their conscientious objections to the provision of some - not all - services based on the fact that one member of the couple is of race A, and the other member of the couple is of race B, can meet the tests decided upon by the Congress, then I would (very reluctantly) support them in doing so. > > I doubt that Congress could come up with such a law. For which I am very glad. So you admit here that you’d trade away the right of interracial couples to be served without regard to their race in order to protect bakers from the horrors of selling a cake to gay people. I’m not willing to risk a return of sundown towns, even for “non-vital” services, for this indecipherable (to me, at least) concern by bakers that selling cakes to certain couples violates their conscience. It’s not even a hard decision for me. Maybe it’s because my wife and I aren’t the same race, and had we married a handful of decades before, we could have been jailed. On a moral and philosophical note, any deity who would punish you or anyone for selling a cake to a gay couple is not a deity worth respecting, much less obeying and worshiping. ---
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [February 16, 2018, 2:14pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/918 "2018-02-16T14:14:09Z")
> [@Euphrosyne](#): > > 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? Try this: say I enter a bakery and tell the proprietor I want a wedding cake — you know, the sort of cake that’s actually a tall stack of cakes, and I want each of those cakes festooned with little red frosting roses hinting at the strawberry filling inside, with icing used to write on top: WALDO AND ASHLEY. Is it your assertion that the baker gets to reply _“I’ll make that exact cake for you if Ashley is a woman, but not if Ashley is a man; is Ashley a woman?”_ Is it your assertion that the baker gets to reply _“I’ll make that exact cake for you if Ashley is white, but not if Ashley is black; is Ashley white?”_ ---
**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 16, 2018, 2:22pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/919 "2018-02-16T14:22:57Z")
> [@CarnalK](#): > > This wasn’t a final decision. The judge just denied a preliminary injunction. > [@k9bfriender](#): > > If this decision is held up, then the next step is to push one step further and further. I do think the entire point of these cases is to try to pick holes in the Civil Rights Act. If your point is that a preliminary injunction isn’t a “decision”, then that’s a semantic quibble about terms of art. The judge made a decision in denying an injunction in this case. He also expressed an opinion and reasonings in his “decision” to deny a preliminary junction. ---
**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 16, 2018, 2:24pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/920 "2018-02-16T14:24:22Z")
> [@simster](#): > > that’s, umm, alot! At least it’s not umlaut. [Previous page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=45) [Next page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=47)