# 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:** 48
**Author:** ![Hiero](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Hiero](https://boards.straightdope.com/u/Hiero)\ **Post date:** [February 27, 2018, 6:30pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/941 "2018-02-27T18:30:03Z")
It was his right of free speech. It’s in our rights that we are allowed to declare our beliefs. I do not hold anything against the baker. ---
**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 27, 2018, 6:55pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/942 "2018-02-27T18:55:43Z")
> [@Hiero](#): > > It was his right of free speech. It’s in our rights that we are allowed to declare our beliefs. I do not hold anything against the baker. Say a baker declares his belief about refusing to make a cake for people because they’re black: would you hold anything against him? Say a baker declares his belief about refusing to serve a woman — and declares, too, his belief that he’d serve her if only she were a man — would you hold that against him? How far do you think this declare-a-belief bit goes? Where does it stop? ---
**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 27, 2018, 7:10pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/943 "2018-02-27T19:10:14Z")
> [@Damuri\_Ajashi](#): > > Neither of these tell us anything about what facts the judge was presented with. They are facts of the case. Tell you what, you show me where the couple was requesting a unique creation, rather than one that was already “on the menu” as it were. > [@](#): > > Fine then sexual fluidity. > > I’m not a fan of gay conversion therapy, I’m not even sure what it is. Why would you think I am a fan? Because you are insisting that people should be able to change their sexual orientation to better fit in. That you claim to not have heard of gay conversion therapy and the damage it has done to people may be why you think that people can just change their sexual orientation whenever they see fit. If you don’t even know what conversion therapy is, then you are extremely unqualified to talk about anything remotely related to gender or orientation “fluidity”. > [@](#): > > Bullshit. > > You said that if something is immutable it might be something we should turn into a protected class and I said immutability is not a necessary criteria and questioned whether sexual preference were really immutable (like sex/race/national origin). Not so bullshit. One, it was not I that made that claim, of course, your habit of picking up a conversation from 2 weeks ago does mean that you may have missed that. And two, the only way that your statement can be parsed is that you expect people to to be able to change to whatever sexual orientation is most convenient to themselves and to society. > [@](#): > > Citizenship is a protected class for several federal purposes. The only citizen the federal government can favor are American citizens. No, citizenship is not a protected class in the same way as origin, they are very distinct and different, and a big one of those is that citizenship is mutable. If someone becomes eligible for citizenship, but does not apply to do so for 6 months, they are no longer protected, and obviously, if someone is not authorized to work in the US, it’s not discrimination to not hire them either. So, basically, as long as citizenship is something that you cannot change, it is protected, but, as soon as you do have the ability to change it, it no longer is. In any case, what it boils down to is that people do not pick their orientation for convenience’s sake, it is not as mutable as you would like it to be. ---
**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 27, 2018, 7:12pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/944 "2018-02-27T19:12:18Z")
> [@Hiero](#): > > It was his right of free speech. It’s in our rights that we are allowed to declare our beliefs. I do not hold anything against the baker. I assume you approve of this [B&B owner too](http://www.hawaiinewsnow.com/story/37581493/lesbian-couple-wins-discrimination-lawsuit-against-hawaii-kai-bed-and-breakfast-owner). ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [February 27, 2018, 7:19pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/945 "2018-02-27T19:19:48Z")
> [@k9bfriender](#): > > I assume you approve of this [B&B owner too](http://www.hawaiinewsnow.com/story/37581493/lesbian-couple-wins-discrimination-lawsuit-against-hawaii-kai-bed-and-breakfast-owner). Define approve. One may approve of a specific application of a free exercise protection, yet find the results of that application distasteful and discriminatory. ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [February 27, 2018, 7:35pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/946 "2018-02-27T19:35:58Z")
That should be _free expression_, not free exercise. Sry. ---
**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 27, 2018, 8:05pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/947 "2018-02-27T20:05:30Z")
> [@Morgenstern](#): > > Define approve. One may approve of a specific application of a free exercise protection, yet find the results of that application distasteful and discriminatory. You’d have to ask the person I was replying to, as he says he holds nothing against the baker that refused to bake a cake because the clients were gay, that’s approval. Does he hold nothing against the B&B owner, who refused to let people stay at their public accommodation because they were gay? ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [February 27, 2018, 8:12pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/948 "2018-02-27T20:12:54Z")
> [@Morgenstern](#): > > Bo, the CA case is not a “Freedom of religion” case, it’s an “Artistic expression” (free speech) case. Big difference. :smack: I knew that. A lot of this thread is centered on that. Mea culpa. Thanks for the gentle reminder. ---
**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 27, 2018, 8:27pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/949 "2018-02-27T20:27:20Z")
> [@Damuri\_Ajashi](#): > > Neither of these tell us anything about what facts the judge was presented with. From the “FACTS” section of the ruling: > [@](#): > > A Tastries employee named Rosemary met with the couple, showed them wedding cakes on display in the bakery, and recorded the details of the cake they wanted. Eileen and Mireya selected a design based on a display cake. The couple did not want or request any written words or messages on the cake. Terms here are a little ambiguous, but put together it’s either poor writing or it’s unambiguous. When you “select” something, you’re choosing among several options. When something is “based on” something else, it uses the something else as a jumping-off point and hews to that something else with more or less fidelity. But “a display cake” indicates taht they weren’t mixing and matching design elements from several cakes; rather, they looked at a single cake and used that to select a design. If they’d veered too far afield in any measure, this finding of fact is incorrect. If there was any design that they asked the baker to do that would build on what was already done, this finding of fact is incorrect. It only is a correct statement if they were selecting a design based on the choices inhered to a single cake. Now, I suspect there may be some inaccuracy there–maybe they said, “Like that cake, only we’ll be inviting 100 people, not 200, so can you take out two layers?” or “Like that cake, only can the icing be a little more ivory in color?” But if there were any design choices they were asking the baker to make that were more expressive than what yer average linoleum installer would be making, that should have been mentioned in the finding of fact. ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [February 27, 2018, 8:36pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/950 "2018-02-27T20:36:35Z")
The baker refused to “bake” them a cake. Baking begins her artistic expression. I don’t think it makes a difference if she had been asked to bake a cake that is exactly like the one in the display case. ---
**Author:** ![andros](https://avatars.discourse-cdn.com/v4/letter/a/e480ec/32.png) [@andros](https://boards.straightdope.com/u/andros)\ **Post date:** [February 27, 2018, 8:54pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/951 "2018-02-27T20:54:43Z")
> [@Morgenstern](#): > > The baker refused to “bake” them a cake. Baking begins her artistic expression. I don’t think it makes a difference if she had been asked to bake a cake that is exactly like the one in the display case. And we’re back to opening the door to any food preparation. ---
**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 27, 2018, 9:15pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/952 "2018-02-27T21:15:31Z")
> [@andros](#): > > And we’re back to opening the door to any food preparation. > [@Left\_Hand\_of\_Dorkness](#): > > But if there were any design choices they were asking the baker to make that were more expressive than what yer average linoleum installer would be making, that should have been mentioned in the finding of fact. And flooring. If baking a cake on spec is an artistic expression, then flooring definitely is. Every job is custom, you have to work with the house as is, all the measurements and any imperfections in the floor. It requires far more creativity to make flooring look good than it does to make another cake like the last one. So, for those that feel that the cake is an artistic expression upon which one is allowed to discriminate, why not flooring? Could I, as a floor installer, refuse to install the floor of a house that is going to be used by a gay couple, as that would be far more contribution to them “living in sin” than baking a cake. ---
**Author:** ![WillReadmore](https://avatars.discourse-cdn.com/v4/letter/w/6f9a4e/32.png) [@WillReadmore](https://boards.straightdope.com/u/WillReadmore)\ **Post date:** [February 27, 2018, 9:19pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/953 "2018-02-27T21:19:24Z")
> [@Morgenstern](#): > > The baker refused to “bake” them a cake. Baking begins her artistic expression. I don’t think it makes a difference if she had been asked to bake a cake that is exactly like the one in the display case. The oral argument in the case from CO before the US SCOTUS discusses speech rather extensively in this case that is essentially identical. For the baker’s “artistic expression” to be seen as speech one has to consider that almost everybody facilitating the wedding is exercising speech rights at that event - the flowers, the makeup, the menu, the invitations, the rings, the hair, etc., etc. - all by those who won’t be identified, let alone being present. Are all these people making statements at this wedding? How would one ever even find out who all was turning the wedding into a platform for the personal beliefs of all these people? Isn’t it really the persons being married who are doing the speaking, with their declaration of everything that marriage stands for? And, where is the edge to all this? How come Woolworth’s had to serve those at the lunch counter, given the artistic expression of the chef? ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [February 27, 2018, 9:32pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/954 "2018-02-27T21:32:06Z")
Remember, Oral arguments, - one side always loses thereafter. They really are much of a source. You really don’t see the difference between a minimum wage fry cook and a wedding cake designer/baker? ---
**Author:** ![andros](https://avatars.discourse-cdn.com/v4/letter/a/e480ec/32.png) [@andros](https://boards.straightdope.com/u/andros)\ **Post date:** [February 27, 2018, 9:39pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/955 "2018-02-27T21:39:07Z")
> [@Morgenstern](#): > > You really don’t see the difference between a minimum wage fry cook and a wedding cake designer/baker? The substantive difference? Based on the “artistry” argument? Not really. What is the line of distinction between them? ---
**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 27, 2018, 9:40pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/956 "2018-02-27T21:40:16Z")
> [@Morgenstern](#): > > Remember, Oral arguments, - one side always loses thereafter. They really are much of a source. Did you mean “aren’t?” > [@](#): > > You really don’t see the difference between a minimum wage fry cook and a wedding cake designer/baker? Not in any way that makes a difference to this case. ---
**Author:** ![WillReadmore](https://avatars.discourse-cdn.com/v4/letter/w/6f9a4e/32.png) [@WillReadmore](https://boards.straightdope.com/u/WillReadmore)\ **Post date:** [February 27, 2018, 9:41pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/957 "2018-02-27T21:41:37Z")
> [@Morgenstern](#): > > Remember, Oral arguments, - one side always loses thereafter. They really are much of a source. > > You really don’t see the difference between a minimum wage fry cook and a wedding cake designer/baker? I’m sure you recognize that what one is paid is not the determining factor in being an artist. Leaving for the moment the numerous “artists” “speaking” at the wedding (without being identified, without being present, without their message being transmitted), you didn’t answer my question: Where does this end? To me, these cake cases are merely the latest attempt to create a speech/religion loophole that allows anyone regardless of religious belief to ignore substantial sections of federal, state and local law. It’s like the Arizona bill that was vetoed. ---
**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 27, 2018, 9:59pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/958 "2018-02-27T21:59:24Z")
> [@Morgenstern](#): > > The baker refused to “bake” them a cake. Baking begins her artistic expression. I don’t think it makes a difference if she had been asked to bake a cake that is exactly like the one in the display case. Around the merry-go-round we go…expression involves expressing an idea. If you bake two identical cakes, whatever concept you’re expressing is identical. There’s no mystical element to expression that actually gets expressed. If you were willing to express the identical idea before, but you’re not willing to express it now, that’s not a difference of expression, that’s 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 27, 2018, 10:08pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/959 "2018-02-27T22:08:53Z")
> [@Morgenstern](#): > > Remember, Oral arguments, - one side always loses thereafter. They really are much of a source. > > You really don’t see the difference between a minimum wage fry cook and a wedding cake designer/baker? Are they both American citizens? Then fuck no I don’t, they both have the same rights to free speech. Maybe you’re asking about their activities, not their job titles. In which case, you’re probably asking whether I see a difference between a minimum wage fry cook making a product according to a set procedure that someone else created, and a wedding cake baker making a product according to a set procedure that she created. No, there’s no relevant speech difference there. In both cases, whatever expression is gonna happen, happened when the product was designed. Creating the product according to the design is not meaningful expression. The fry cook and the baker can both refuse to make a particular product, and that refusal might be meaningful expression. But making it for one person and not for another is discrimination, not free expression. ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [February 27, 2018, 10:10pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/960 "2018-02-27T22:10:26Z")
> [@Miller](#): > > Did you mean “aren’t?” > Not in any way that makes a difference to this case. Yes, thanks for catching that. @LHoD No one is arguing that it’s not discrimination. It clearly is, but in this case, it’s legal discrimination. The question is whether, under certain circumstances, you are excused from participation in the statute. Such is the case here, the court has found, in denying the injunction, that a cake decorator/baker/creator is an artist who can bake, or not bake, at their whim. [Previous page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=47) [Next page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=49)