# 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:** 49
**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, 10:39pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/961 "2018-02-27T22:39:55Z")
> [@Morgenstern](#): > > 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. I’m sure you meant “one court has found”. There are at least three of these cases active, and so far the Kern County case is the first case where a judge has ruled in favor of one of these bakers at any level up to and including the SCOTUS. ---
**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 27, 2018, 11:15pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/962 "2018-02-27T23:15:05Z")
> [@Morgenstern](#): > > 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. It is indeed the case that based on\* utterly absurd and illogical reasoning a single judge has (temporarily) authorized open bigotry. - And by “based on” we mean “this is some random garbage he spouted that doesn’t represent his actual reasoning, which is that bigotry should be legal because gay people are sinners”. Seriously, the dude said the wedding cakes are the most powerful form of speech _ever_ - until the magical powers of a display case (which has no effect whatsoever on the message of the cake) take that away. ---
**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 28, 2018, 12:00am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/963 "2018-02-28T00:00:55Z")
> [@Morgenstern](#): > > 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. Whether or not they’re an artist should be irrelevant. The question is whether they’re engaging in “speech.” And as I said before, if you can make the argument that speech may not be compelled even in the interest of preventing discrimination, it’s trivially easy to discriminate: just refuse to speak to customers you want to discriminate against. Surely baking a cake isn’t as much speech as speech is. Have you addressed that point ever? Has anyone? ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [February 28, 2018, 12:53am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/964 "2018-02-28T00:53:10Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Whether or not they’re an artist should be irrelevant. The question is whether they’re engaging in “speech.” That’s the problem, they did not engage in speech. Instead she engaged in “not” doing so. The court found such an issue in refusing to compel her to bake. > [@Left\_Hand\_of\_Dorkness](#): > > And as I said before, if you can make the argument that speech may not be compelled even in the interest of preventing discrimination, it’s trivially easy to discriminate: just refuse to speak to customers you want to discriminate against. Surely baking a cake isn’t as much speech as speech is. > > Have you addressed that point ever? Has anyone? I don’t think so. I don’t think the logic of this case reaches anywhere near that far. ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [February 28, 2018, 1:02am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/965 "2018-02-28T01:02:44Z")
> [@WillReadmore](#): > > I’m sure you meant “one court has found”. > > There are at least three of these cases active, and so far the Kern County case is the first case where a judge has ruled in favor of one of these bakers at any level up to and including the SCOTUS. Here. A little insight. From the ACLU website. \*WHAT DOES ARTISTIC FREEDOM INCLUDE? The Supreme Court has interpreted the First Amendment’s protection of artistic expression very broadly. It extends not only to books, theatrical works and paintings, but also to posters, television, music videos and comic books – whatever the human creative impulse produces. \* Sort of the same as this case. By Supreme Court, they are referring to SCOTUS, not the CA courts. ---
**Author:** ![WillReadmore](https://avatars.discourse-cdn.com/v4/letter/w/6f9a4e/32.png) [@WillReadmore](https://boards.straightdope.com/u/WillReadmore)\ **Post date:** [February 28, 2018, 1:14am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/966 "2018-02-28T01:14:38Z")
> [@Morgenstern](#): > > Here. A little insight. > > From the ACLU website. > \*WHAT DOES ARTISTIC FREEDOM INCLUDE? > > The Supreme Court has interpreted the First Amendment’s protection of artistic expression very broadly. It extends not only to books, theatrical works and paintings, but also to posters, television, music videos and comic books – whatever the human creative impulse produces. \* > > Sort of the same as this case. By Supreme Court, they are referring to SCOTUS, not the CA courts. I don’t believe that saves this baker. I wonder whose speech it actually is when a bride and groom have a wedding reception wherein there is a cake, among numerous other items that look cool. And again, as a practical matter your interpretation invalidates pretty much all law on discrimination. AGAIN, you failed to answer my question: Where do you think the edge is? ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [February 28, 2018, 1:45am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/967 "2018-02-28T01:45:37Z")
My not answering your question was not a failure on my part. It was me expressing myself by _not_ expressing myself. Think about that. ---
**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 28, 2018, 3:16pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/968 "2018-02-28T15:16:13Z")
> [@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. How is that different from a fry cook refusing to make them french fries, exactly? ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [February 28, 2018, 4:00pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/969 "2018-02-28T16:00:58Z")
What \*creative impulse \*is involved in frying French fries? Now, what creativity is involved in designing/creating and baking a wedding cake? ---
**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 28, 2018, 4:06pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/970 "2018-02-28T16:06:23Z")
> [@Morgenstern](#): > > What \*creative impulse \*is involved in frying French fries? Now, what creativity is involved in designing/creating and baking a wedding cake? I don’t know that any creativity beyond “fry cook” is involved if it’s a transaction where a guy says _”one just like that cake in the display case.”_ I believe creativity can come into it for some wedding cakes, surely; but not in all of them. ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [February 28, 2018, 4:16pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/971 "2018-02-28T16:16:39Z")
Really, do you think recreating a professional (display) cake, taste, style, color, design, etc. is something a fry cook could do? ---
**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 28, 2018, 4:22pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/972 "2018-02-28T16:22:45Z")
> [@Morgenstern](#): > > Really, do you think recreating a professional (display) cake, taste, style, color, design, etc. is something a fry cook could do? Not quite my point: I think that a baker who’d already put together the display cake in question — taste, style, color, design, et cetera — could, presumably, _recreate_ it with as little creativity as that exercised by the proverbial fry cook. Coming up with the original is, I’ll grant, an exercise in beyond-fry-cook creativity; but merely duplicating it, on request, a seventh or eighth time or whatever? I don’t see it. ---
**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 28, 2018, 4:32pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/973 "2018-02-28T16:32:49Z")
> [@Morgenstern](#): > > That’s the problem, they did not engage in speech. Instead she engaged in “not” doing so. The court found such an issue in refusing to compel her to bake. Before I respond, help me out: are you fucking with me? > [@](#): > > I don’t think so. I don’t think the logic of this case reaches anywhere near that far. Seriously? It reaches way, way, WAYYYY further than that. It’s trivial to say that speech is speech. This case somehow defines baking the same cake you’ve baked before as speech. If this counts as speech that can’t be compelled, then things that are obviously speech may similarly not be compelled. It makes no sense to say, “We can’t compel someone to bake a cake, because that’s speech, but we can compel someone to speak, because that’s not speech.” ---
**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 28, 2018, 4:40pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/974 "2018-02-28T16:40:00Z")
> [@Morgenstern](#): > > Really, do you think recreating a professional (display) cake, taste, style, color, design, etc. is something a fry cook could do? You keep focusing on the person’s **identity** , as though that’s significant. It’s utterly insignificant: it’s the **act** , not the **identity** , that’s being discussed. Could someone who has worked as a fry cook create a cake that most people would like? Maybe, depending on what skills they have. But the **quality** of the work is also insignificant. Only the act is significant. If a dude who’s smoked too much reefer to remember his name wants to slop some icing on a Twinkie and call it art, it deserves precisely the same constitutional protection as Rose Levy Beranbaum’s latest masterpiece. ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [February 28, 2018, 4:45pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/975 "2018-02-28T16:45:22Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Before I respond, help me out: are you fucking with me? > > Seriously? It reaches way, way, WAYYYY further than that. It’s trivial to say that speech is speech. This case somehow defines baking the same cake you’ve baked before as speech. If this counts as speech that can’t be compelled, then things that are obviously speech may similarly not be compelled. It makes no sense to say, “We can’t compel someone to bake a cake, because that’s speech, but we can compel someone to speak, because that’s not speech.” I’m not trying to fuck with you, I’m sorry if it seems that way. Do you think asking Michelangelo to recreate David, in exact detail, would be any less of an artistic endeavor? Possibly a little easier the second time, but clearly still an artistic endeavor. ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [February 28, 2018, 4:47pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/976 "2018-02-28T16:47:36Z")
> [@Left\_Hand\_of\_Dorkness](#): > > You keep focusing on the person’s **identity** , as though that’s significant. It’s utterly insignificant: it’s the **act** , not the **identity** , that’s being discussed. > > … No, it’s her status as an artist (cake designer/creator) that allows her to be the bigot she chose to be. In that regard, her identity (as an artist) is clearly significant. ---
**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 28, 2018, 4:49pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/977 "2018-02-28T16:49:48Z")
> [@Morgenstern](#): > > I’m not trying to fuck with you, I’m sorry if it seems that way. > > Do you think asking Michelangelo to recreate David, in exact detail, would be any less of an artistic endeavor? Possibly a little easier the second time, but clearly still an artistic endeavor. I don’t–or at least not in the sense that creating it the first time was. Asking _anyone_ to reproduce it is asking them to demonstrate technical skills and craftsmanship, but it’s not asking them to express an idea. (Again, it doesn’t matter whether it’s Michaelangelo or Michael Bolton or Killer Mike you’re asking to recreate the David: it’s the act, not the actor, that should be examined) As for the not fucking with me thing, if that’s true, then you’re engaged in the most outrageously pedantic quibble imaginable. Okay, sure, she chose NOT to engage in speech. Since the question is whether the baking is “speech,” that’s a ridiculous attempt at rebuttal: of course if baking a cake isn’t speech, then she wasn’t making a choice not to engage in speech. C’mon, man. ---
**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 28, 2018, 4:50pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/978 "2018-02-28T16:50:57Z")
> [@Morgenstern](#): > > No, it’s her status as an artist (cake designer/creator) that allows her to be the bigot she chose to be. In that regard, her identity (as an artist) is clearly significant. So a fancy restaurant with a Michelin star chef can be bigoted but a hotdog stand can’t. Correct? Unless the gay customers ask for the soup of the day, cuz that’s already made. ---
**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 28, 2018, 4:52pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/979 "2018-02-28T16:52:33Z")
> [@Morgenstern](#): > > No, it’s her status as an artist (cake designer/creator) that allows her to be the bigot she chose to be. In that regard, her identity (as an artist) is clearly significant. What? No! It’s not her status as an artist, it’s the fact that someone tried to hire her to perform a service, and she claimed the service was art. The act, not the identity, is what’s important, so asking sneering questions about fry cooks is irrelevant. ---
**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 28, 2018, 5:07pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/980 "2018-02-28T17:07:50Z")
> [@k9bfriender](#): > > 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. I ask you for a cite and your answer is “no you provide a cite that says the opposite”? The quote in the article implies that the judge was presented with facts that indicate that the couple was asking the baker to exercise their creativity. > [@](#): > > 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. Nope. You’re wrong. Once again YOU said that homosexuality should be a protected class because it was "among other things) immutable. I said no, there are protected classes that are not immutable like religion and citizenship and besides homosexuality is not immutable, like for example race. > [@](#): > > 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”. It seems that I am not sure what gay conversion therapy is (I mean seriously, how do they make you stop being gay?) and you are not sure what sexual orientation fluidity is. Because I can show you several examples of people that have gone from straight to gay and vice versa. I’m not saying everyone has this fluidity but it is not an immutable trait like race. > [@](#): > > 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. Of course its bullshit and you’re right it wasn’t that made the claim, you just defended it. > [@](#): > > 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. If you are saying that I said that you can change your sexual orientation at will ad ought to do so to please other people, then I really need you to give me a cite to where I said that because I can’t recall ever saying that. Or are you putting words in my mouth because it would be easier to argue against the argument you wish I made? There ought to be a term for that, you know when you recharacterize my statements so that they will be easier to rebut. If only someone could come up with a term for that. If only. > [@](#): > > 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. Why would you think I WANT it to be mutable? My argument is that mutability is not really the lynchpin of protected class. My righthandedness is not particularly mutable and that’s not a protected class. religion is in fact mutable and that IS ap protected class. In other words stop saying "Hey homosexuality is like these other protected classes (even though its not) so it also ought to be a protected class. I think perhaps homosexuality ought to be a protected class but not because its immutable. Anyways back to the OP. It appears that until we get some clarity on what facts were presented to the judge we can’t put the judge’s statements (which apparent protect the creative process and not the manufacturing process) into context. [Previous page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=48) [Next page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=50)