# 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:** 5
**Author:** ![Airbeck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/airbeck/32/6574_2.png) [@Airbeck](https://boards.straightdope.com/u/Airbeck)\ **Post date:** [February 7, 2018, 7:31pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/81 "2018-02-07T19:31:06Z")
> [@elfkin477](#): > > Right, which is exactly why every cake looks like [this](https://muffinsareuglycupcakes.files.wordpress.com/2012/08/img_6019.jpeg), and none ever look like [this](http://static1.1.sqspcdn.com/static/f/920827/26611121/1445147910790/10710906-26611120-thumbnail.jpg?token=pkDilXFIAD2KH6Xe%2B09Zgi7I%2FwM%3D) or [this](http://big5kayakchallenge.com/wp-content/uploads/2018/01/fresh-happy-birthday-to-my-love-pics-cake-wrecks-home-sunday-sweets-tasty-tentacles-happy-birthday-to-my-love-pics.jpg). Wait… > > To my knowledge there aren’t design contests built around the artistic expression of burgers or pizzas (contests based on how they taste, yes, but how they look?), but there are multiple popular TV shows that feature artistic expression in the form of cake decorating. > > And there are cakes in museum displays, by the way. Though, like dinosaur bones, the ones on display are facsimiles of the real things. I was replying to the idea that there is no distinction between cakes and paintings. Are you saying that you feel that cakes and paintings are exactly the same and that there is no distinction? Also, “there is a TV show about…” is not a compelling argument. Are you of the opinion that duck calls are artistic expression too? Did you ever watch food paradise? Some of those burgers, pizzas etc are real works of art to me. I maintain that there are plenty of meaningful distinctions between cakes and paintings, your response here did not dissuade me of that opinion. ---
**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 7, 2018, 7:31pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/82 "2018-02-07T19:31:54Z")
> [@elfkin477](#): > > To my knowledge there aren’t design contests built around the artistic expression of burgers or pizzas (contests based on how they taste, yes, but how they look?), but there are multiple popular TV shows that feature artistic expression in the form of cake decorating. Maybe not on TV and as highly publicized, but yes, culinarians have contests on their abilities, and not just over flavor profiles and textures, but also aesthetic appearance. And it goes beyond burgers and pizzas, as well. ---
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [February 7, 2018, 7:33pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/83 "2018-02-07T19:33:51Z")
> [@octopus](#): > > It was an example. I’m sure you are capable of substituting some other form of custom content creation. You made the choice of using a songwriter as an example. Make better choices next time. A song is a unique creation that cannot be replicated. Micheal Jackson, at the beginning of the video for _Thriller_, [included a disclaimer](http://www.funtrivia.com/askft/Question124065.html)that that despite the content, he has no belief in the supernatural and that it goes against his beliefs. > [@](#): > > Due to my strong personal convictions, > I wish to stress that this film in no > way endorses a belief in the occult. ---
**Author:** ![billfish678](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@billfish678](https://boards.straightdope.com/u/billfish678)\ **Post date:** [February 7, 2018, 7:39pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/84 "2018-02-07T19:39:40Z")
I like this judgement and look forward to the supreme court ruling the same later. ---
**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 7, 2018, 7:40pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/85 "2018-02-07T19:40:51Z")
nm ---
**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 7, 2018, 7:45pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/86 "2018-02-07T19:45:42Z")
> [@running\_coach](#): > > You made the choice of using a songwriter as an example. Make better choices next time. > A song is a unique creation that cannot be replicated. > > Micheal Jackson, at the beginning of the video for _Thriller_, [included a disclaimer](http://www.funtrivia.com/askft/Question124065.html)that that despite the content, he has no belief in the supernatural and that it goes against his beliefs. Songs are replicated all the time. ---
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [February 7, 2018, 7:48pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/87 "2018-02-07T19:48:02Z")
> [@CarnalK](#): > > Songs are replicated all the time. Someone writes the same song over and over as a unique creation? ---
**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 7, 2018, 7:50pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/88 "2018-02-07T19:50:13Z")
So I’ll only do this once, because it’s generally bad form, but I’d really be interested in an answer to this question: > [@Left\_Hand\_of\_Dorkness](#): > > Consider these cases: > > -A baker may refuse to bake a cake for a gay wedding. > -A restaurant may refuse to host a wedding reception for a gay wedding. > -A restaurant may refuse to make a custom dessert for a gay couple celebrating their anniversary. > -A restaurant may refuse to plate a standard dessert (but e.g., arrange sauces on the cake) for a gay couple celebrating their anniversary. > -A restaurant may refuse to plate that standard dessert for any gay couple. > -A restaurant may refuse to plate that standard dessert for a mixed-race couple. > -A restaurant may refuse to make any food for a mixed-race couple. Either from your own perspective, or from the perspective of a hypothetical judge ruling on the case, on what basis could a reasonable line be drawn between allowing some of these behaviors but not others? ---
**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 7, 2018, 7:50pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/89 "2018-02-07T19:50:53Z")
> [@running\_coach](#): > > Someone writes the same song over and over as a unique creation? [![](https://i.ytimg.com/vi/5MJLi5_dyn0/hqdefault.jpg?sqp=-oaymwEmCOADEOgC8quKqQMa8AEB-AH-AoACoAKKAgwIABABGGUgZShlMA8=&rs=AOn4CLBCiRsUADNdo9oLX6prgoy8o11DAQ "shirley ellis - the name game") ](https://www.youtube.com/watch?v=5MJLi5_dyn0) ---
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [February 7, 2018, 7:53pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/90 "2018-02-07T19:53:40Z")
[quote=“CarnalK, post:89, topic:808372”] [/QUOTE] That’s the same song being performed with a few words changed. Changing a few words does not make it a different song. You could always test that in court under a copyright infringement suit. Or plagiarism. ---
**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 7, 2018, 8:00pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/91 "2018-02-07T20:00:55Z")
> [@running\_coach](#): > > That’s the same song being performed with a few words changed. Changing a few words does not make it a different song. > You could always test that in court under a copyright infringement suit. Or plagiarism. fee-fi-faux-marriage gee-gi-go-gay marriage gay marriage! ---
**Author:** ![Scumpup](https://avatars.discourse-cdn.com/v4/letter/s/ce73a5/32.png) [@Scumpup](https://boards.straightdope.com/u/Scumpup)\ **Post date:** [February 7, 2018, 8:07pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/92 "2018-02-07T20:07:35Z")
> [@Airbeck](#): > > People don’t eat paintings. Paintings are meant to be looked at, and to persist, even beyond the artists life. Cakes are food, that are consumed. Do people buy and sell cakes at high end auctions like they do paintings? Do museums display cakes like they do paintings? I don’t understand this argument that there is no distinction between paintings and cakes. I see all kinds of distinctions. > > There’s much more daylight between paintings and cakes then there is between cakes, burgers, pizza and anything else that is meant to be eaten. Since the cake is ephemeral, it is not art? What does that say about stage acting, live music, and such things as sand painting or sidewalk pieces done in colored chalk? ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [February 7, 2018, 8:14pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/93 "2018-02-07T20:14:08Z")
What I don’t understand is the apparent lack of a middle ground that appears around these cases. Anything that isn’t already baked and in a display case is the equivalent of a commissioned painting on the one side, and on the other side, nobody can refuse to create a piece of art because they have a religious objection to it regardless of any other factors involved. There is a lot of middle ground and that’s where most wedding cake bakers fall. They aren’t the equivalent of an artist who creates a truly unique work of art for each customer- they are the equivalent of the T shirt store that was in every mall when I was a kid , where you chose a shirt, and then you chose an iron-on transfer from the books of them and an employee ironed the transfer onto the shirt. Nobody would say that employee was creating art- he didn’t make or design either the shirt or the transfer. They were pre-designed and he merely combined them. And that’s what most wedding cake bakers do - the customer picks a design from a book or display ( shape, number of layers, etc) and chooses a filling/frosting from a predetermined selection. Going by this quote from the decision : [FONT=Courier New][SIZE=2] [/SIZE][/FONT] > [@](#): > > 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. that’s the sort of bakery we are talking about here. The couple chose an already existing design- the baker wasn’t being asked to create a new and unique design. ---
**Author:** ![Airbeck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/airbeck/32/6574_2.png) [@Airbeck](https://boards.straightdope.com/u/Airbeck)\ **Post date:** [February 7, 2018, 8:17pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/94 "2018-02-07T20:17:19Z")
> [@Scumpup](#): > > Since the cake is ephemeral, it is not art? What does that say about stage acting, live music, and such things as sand painting or sidewalk pieces done in colored chalk? I didn’t say that cakes are not art. Nor did I say that anything that isn’t lasting cannot be art. How did you get that from my post? I was replying to the idea that there is no distinction at all between cakes and paintings. There are in fact many distinctions between the two. To me this seems an uncontroversial thing to point out. ---
**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 7, 2018, 8:24pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/95 "2018-02-07T20:24:19Z")
> [@Airbeck](#): > > People don’t eat paintings. Paintings are meant to be looked at, and to persist, even beyond the artists life. Cakes are food, that are consumed. Do people buy and sell cakes at high end auctions like they do paintings? Do museums display cakes like they do paintings? I don’t understand this argument that there is no distinction between paintings and cakes. I see all kinds of distinctions. > > There’s much more daylight between paintings and cakes then there is between cakes, burgers, pizza and anything else that is meant to be eaten. Yeah, I don’t see this as a relevant difference. I do see an important difference between Da Vinci Wedding Portraits, and Van Gogh Wedding Still Lifes. Da Vinci Wedding Portraits paints pictures of the happy couple, side by side. Van Gogh Wedding Still Lifes paints pictures of flower vases, to be used at weddings. If both businesses refuse to bake cakes for a mixed-race marriage (I’m switching up the hypothetical because AIUI they’re functionally equivalent under California law), I’d probably want to rule against them both–but I’d have a lot more patience with Da Vinci’s objections than with Van Gogh’s. Both create paintings, but only one set of paintings includes expression about the race of the couple. The flower portraits contain no expression about the couple’s race, so they may not reasonably claim that their expression is compelled against their will. ---
**Author:** ![zimaane](https://avatars.discourse-cdn.com/v4/letter/z/a3d4f5/32.png) [@zimaane](https://boards.straightdope.com/u/zimaane)\ **Post date:** [February 7, 2018, 8:28pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/96 "2018-02-07T20:28:05Z")
> [@](#): > > Should the servers at Subway be able to refuse to make me a sandwich because the sandwich is their artistic expression and they are opposed to something or other about me? Unlike a cake, there is no way that a Subway sandwich could be customized to endorse a religious or political belief (or taste good, but that’s another matter.) ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [February 7, 2018, 8:30pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/97 "2018-02-07T20:30:15Z")
> [@k9bfriender](#): > > If you are, in your capacity as a lawyer, making a unique case, a unique statement, that is entirely your own original work, then no. I am not sure if other laws involving lawyers apply, but absent them, you cannot be required to write a unique speech in order to make that argument. > > OTOH, I would say that you should still have to take the case if there are boilerplate speeches and motions and such that just need to be filled in. Filling in a court document is not artistic expression. Filing motions, even reading a speech that is only slightly modified from the same speech that you would use for the same issue with a same sex couple, still not artistic expression, even if those slight modifications turns it into something that you do not believe. > > If you cannot handle treating a same sex couple the same as you would a heteorsexual couple, then you should not be in family law, IMHO. So, in that you would be asked to argue that rights be extended, “that would require I argue their marriage should be recognized to allow them to do X thing”, I would not think that you should have to come up with an original speech to extend those rights. That doesn’t mean that you can’t represent them, just that you inform them that your representation may not be as effective as they deserve, due to your personal prejudices. If, OTOH, it is a standard custody battle, then you should fully represent them with no stipulations. > > To relate to miscegenation laws, I wouldn’t expect you to argue in Loving v Virginia, but I would absolutely expect you to take on a mixed race couple, regardless of your personal feelings on the matter. So let’s postulate the following: The State of Wyoming, in its infinite wisdom, passes a law requiring that all commercial-related speech be conducted in English. Businesses are _ **required** _ to post a sign at their door warning that the customer will be required to speak in English only. You are required to re-iterate that warning to any customer who speaks to you in a different language, and you are required to speak only in English when conducting your business. Your speech has now been mandated by the government. Must you comply? If not, why not? In answering, keep in mind that the issue before the court in the wedding cake case does NOT involve a constitutional protection of gays. That is, there is no constitutional mandate that gay people be treated “equally” (whatever that means). The gay marriage case was resolved on the basis of the fundamental right of any two people to marry. So you can’t say, but this is a case where a constitutional protection is not involved. One could assert that, if you choose to do business in Wyoming, you must accept that your speech will be in English only. Otherwise, don’t go into business there. Differentiate this. ---
**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 7, 2018, 8:31pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/98 "2018-02-07T20:31:28Z")
> [@DSYoungEsq](#): > > Depends upon how the Supreme Court rules in the case before them, doesn’t it? Suppose, for example, that they determine the Colorado matter on the basis of Free Exercise, and never properly address Free Expression? I don’t think that likely, precisely because cases like this one are out there. But it is not a given that these two cases are entirely apposite, making the determination by the Supreme Court dispositive. > > Hell, if things were THAT easy, we wouldn’t need lawyers in the first place. 😛 So you think it’s reasonable that the SC will leave that unresolved when an almost identical case is coming down the pipe? Because it’s not a given that these two cases are entirely apposite. OK I think I got a handle on your positioning as regards how fully you are willing to express your thoughts on matters that require blah blah blah. ---
**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 7, 2018, 8:44pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/99 "2018-02-07T20:44:53Z")
> [@zimaane](#): > > Unlike a cake, there is no way that a Subway sandwich could be customized to endorse a religious or political belief (or taste good, but that’s another matter.) The cake the couple wanted to buy was unadorned. There was no endorsement of any sort on the cake in question. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 7, 2018, 8:45pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/100 "2018-02-07T20:45:27Z")
> [@CarnalK](#): > > This feels like deja vu all over again. Heh. Maybe we can ask a mod to just cut and paste everyone’s post from the last thread we had on the subject. Sure would save us all a lot of time! 😃 [Previous page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=4) [Next page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=6)