# 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:** 50
**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, 5:09pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/981 "2018-02-28T17:09:21Z")
The court found her status as an artist excused her act of baking. It’s really that simple. The judge said so. Also, as cited, (Infra #965) SCOTUS has been very broad in it’s definition of freedom of expression cases. I didn’t ask the question about fry cooks, someone else did. So, your sneering comment was out of line. ETA, corrected post #. ---
**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, 5:12pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/982 "2018-02-28T17:12:31Z")
> [@Left\_Hand\_of\_Dorkness](#): > > From the “FACTS” section of the ruling: > 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. Do you have a link? like you say the statement is ambiguous. I don’t think a freedom of expression claim survives mere manufacturing. ---
**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, 5:15pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/983 "2018-02-28T17:15:08Z")
> [@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. That can’t be right. That would give every short order cook and craftsman the right o deny service to folks on a discriminatory basis. ---
**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, 5:15pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/984 "2018-02-28T17:15:51Z")
> [@CarnalK](#): > > 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. Perhaps you should look at SCOTUS and their “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**.” emph mine. That refers to SCOTUS rulings. ETA, cited in #965 ---
**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, 5:24pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/985 "2018-02-28T17:24:07Z")
> [@WillReadmore](#): > > 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? Woolworths just got tired of the sit in and started serving blacks. Noone passed a law or got a court order. Then the sit in evaporated. Does anyone else remember when the gay marriage debate was going on how the gay marriage proponents were saying how this wasn’t an imposition on anyone. Well, it turns out that gays want to impose on bigots who don’t want to rent out their churches to gay couples, don’t want to perform gay marriages, don’t want to make custom wedding cakes, don’t want to create floral arrangements, don’t want to have anything at all to do with a gay marriage. Should churches be forced to allow gay marriages to take place in their sanctuary the way they are forced to take black or biracial couples if they offer their sanctuary for hire for wedding ceremonies? Should a pastor that officiates weddings for people that are not in his congregation be forced to officiate a wedding for gay couples the same was he is forced to officiate weddings for biracial couples? So where does it end? ---
**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, 5:29pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/986 "2018-02-28T17:29:38Z")
> [@Damuri\_Ajashi](#): > > … That would give every short order cook and craftsman the right o deny … You’re not fully understanding the \*artistic expression \*argument. Go back and review that because that’s where the case begins. It’s defined and discussed many times in this thread. ---
**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, 5:36pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/987 "2018-02-28T17:36:07Z")
> [@Morgenstern](#): > > Perhaps you should look at SCOTUS and their > “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**.” > > emph mine. > > That refers to SCOTUS rulings. > > ETA, cited in #965 Soooo, your answer is “correct” or what? ---
**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, 5:55pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/988 "2018-02-28T17:55:27Z")
> [@CarnalK](#): > > Soooo, your answer is “correct” or what? As to your question about the chef vs. the hot dog vendor? Could well be for the former, but not the latter. Would you be equally outraged if this chef refused to prepare \*Bûche de noël et pigeon flambé au cognac \*for (political jab redacted, but you get the idea). ---
**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, 6:03pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/989 "2018-02-28T18:03:37Z")
> [@Morgenstern](#): > > As to your question about the chef vs. the hot dog vendor? > Could well be for the former, but not the latter. Would you be equally outraged if this chef refused to prepare \*Bûche de noël et pigeon flambé au cognac \*for (political jab redacted, but you get the idea). Did the chef prepare it before? Is the chef unwilling to prepare a functionally identical dish for someone who is a member of a class protected by state law, due to membership in said class? If “yes” to both questions, then of course I’d consider it illegal 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 28, 2018, 6:06pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/990 "2018-02-28T18:06:35Z")
> [@Damuri\_Ajashi](#): > > Do you have a link? Check the OP, dude. > [@](#): > > like you say the statement is ambiguous. What the fuck? > [@WHAT YOU QUOTED ME SAYING](#): > > Terms here are a little ambiguous, but put together it’s either poor writing or it’s unambiguous. People claiming that it’s not an issue of speech because she chose NOT to speak, people quoting me saying it’s unambiguous and saying, “Like you say the statement is ambiguous”…this is some bizarro-land level argumentation, people. ---
**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, 6:16pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/991 "2018-02-28T18:16:34Z")
We never doubted it was discrimination. It IS discrimination. But, in this case, it’s not actionable discrimination. ---
**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, 6:18pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/992 "2018-02-28T18:18:19Z")
> [@Morgenstern](#): > > What \*creative impulse \*is involved in frying French fries? Now, what creativity is involved in designing/creating and baking a wedding cake? The same creative impulse. In this case, both are simply _cooking_. But that doesn’t matter anyway, because the baker here has the same problem as the baker in Masterpiece: there was no identifiable message she was being asked to convey. ---
**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 28, 2018, 6:22pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/993 "2018-02-28T18:22:03Z")
> [@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. So if I create a design for a t-shirt, each and every t-shirt that gets made with that design is now “an artistic endeavor”, even tho it’s a machine cranking out the identical t-shirts, in your view? ---
**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, 6:24pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/994 "2018-02-28T18:24:53Z")
> [@Morgenstern](#): > > We never doubted it was discrimination. It IS discrimination. But, in this case, it’s not actionable discrimination. Again, again, again: if you may discriminate by invoking your right not to engage in speech, discrimination laws are gutted and useless. You’ve said you think the decision doesn’t extend this far, but you haven’t explained how that’s possibly true. If it’s not “actionable” because of some bizarre argument that recreating a cake design counts as expressive speech, then no discrimination is truly actionable, as long as the bigot decides to exercise their right to remain silent as the means of discrimination. ---
**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, 6:25pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/995 "2018-02-28T18:25:17Z")
Why is the message displayed important? It’s her status as an artist engaged in an artistic endeavor that excuses her discrimination, not a message or not. ---
**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, 6:25pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/996 "2018-02-28T18:25:58Z")
> [@Morgenstern](#): > > Why is the message displayed important? It’s her status as an artist engaged in an artistic endeavor that excuses her discrimination, not a message or not. Because the entire point of expression is to express an idea. If there is no idea, there is no expression. Unless you’re some sort of goddamned Lacanian poststructuralist or something. ---
**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, 6:29pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/997 "2018-02-28T18:29:48Z")
> [@Morgenstern](#): > > As to your question about the chef vs. the hot dog vendor? > Could well be for the former, but not the latter. Would you be equally outraged if this chef refused to prepare \*Bûche de noël et pigeon flambé au cognac \*for (political jab redacted, but you get the idea). Well your redaction seems to have made your post kind of indecipherable. My “outrage” is based on the fact that this judge’s interpretation leaves a barn door open as to what is an artist or what is expressive conduct. It also flies in the face of what other more weighty courts have decided. So it really has little to do with the fact that a gay couple were the injured party. But I’m not really outraged. This is a rather meaningless decision and if this is how he rules on the actual case I suspect it won’t hold up. ---
**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 28, 2018, 6:31pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/998 "2018-02-28T18:31:56Z")
> [@Morgenstern](#): > > Really, do you think recreating a professional (display) cake, taste, style, color, design, etc. is something a fry cook could do? The question isn’t, “Could a fry cook bake a wedding cake?” The question is, “Why does a wedding cake count as constitutionally protected speech, but a club sandwich does not?” It seems your answer is predicated on effort? It’s harder to make a wedding cake, therefore it’s more speechy? ---
**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 28, 2018, 6:34pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/999 "2018-02-28T18:34:58Z")
> [@Morgenstern](#): > > You’re not fully understanding the \*artistic expression \*argument. Go back and review that because that’s where the case begins. It’s defined and discussed many times in this thread. Oh, we understand it. We just understand that it’s bullshit, entirely due to the facts in the case. The judge in question really, really didn’t want to leave any loopholes for non-bigots to exploit. He didn’t want to leave the option for a claimant to say “The cake I’m asking for isn’t a work of art; it’s just a cake.” So there there are no lower limits on the artistic merit of the cakes in question. It’s not about creativity. It’s about wedding-cake-osity. That’s extremely explicit in the case: the cakes aren’t speech because they’re works of art, they’re speech because they’re wedding cakes and wedding cakes are magic. This fact means that all arguments about the artistic merits of the cake are ignorant. They’re nonsensical garbage simply because they aren’t talking about the same thing the judge is talking about. As it happens the judge would agree with you that fry cooks aren’t protected by his dumbass ruling - but he would disagree with you about _why_. The issue isn’t that french fries are insufficiently artistic - if that was the issue then the courts would have to come up with an _objective measure for artistic creativity_ and there’s no way in hell he was doing _that_. No, the single solitary reason the french fries aren’t protected speech is because they’re not a wedding cake. That’s it. That’s the only reason. If the fry cook stepped away from the cooker and whipped up a from-mix sheet cake, in a rectangular pan, and didn’t bother frosting it or decorating it in any way, that would be protected speech under the ruling - as long as he called it a wedding cake. (And didn’t put it in a display case, because those are magic too.) Hell, the dude could probably whip up a batch of ordinary french fries and simply _call_ them a wedding cake and they’d arguably be protected speech _too_. It ain’t like the judge put any limitations on the ingredients, preparation, or presentation required to qualify as a protected speech wedding cake in his ruling. All that matters is the role the ‘cake’ is in - or rather the one it’s slated to be in - which is to say, the name you call it by. ---
**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, 6:35pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1000 "2018-02-28T18:35:54Z")
> [@Snowboarder\_Bo](#): > > So if I create a design for a t-shirt, each and every t-shirt that gets made with that design is now “an artistic endeavor”, even tho it’s a machine cranking out the identical t-shirts, in your view? Reread the ruling where it differentiates between display cases items and items created for a specific customer’s needs. [Previous page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=49) [Next page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=51)