# 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:** 53
**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:** [March 1, 2018, 3:28pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1041 "2018-03-01T15:28:49Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Well, there’s the act of creating something. He may consider that act to be inherently creative–which gets us back to club sandwiches. > > Discussing his ruling eventually gets you into Time Cube territory: it’s Talmudic ruminations on gibberish. The further in you get, the more you realize that his superficially reasonable ruling is laughably nonsensical. AFAICT, the court identifies the case as a free speech case by noting not only free speech but also artistic expression. I think we can all agree [?] that the baker could not be compelled to create a cake that said it was dedicated to the weeding of Adam and Steve and had a same sex topper. I think we all agree that the baker could be compelled to sell any cake they already had for sale to gay couples. The question here seems to be whether a baker can be compelled to create a cake that includes an element of artistic expression to celebrate an event that the baker objects to. How much artistic expression is enough to trigger the protections of the first amendment. Where is the dividing line between manufacture and art. These cakes are custom made but in theory so is every whopper. I suspect that we will soon see sexual orientation become a protected class but we have had some pretty monumental advances in gay rights over the last decade and much of it was premised on the notion that what was being asked for was not an imposition on anyone, not even the bigots who were trying to stop things like gay marriage. Now we are saying that the bigots have to do things they don’t want to do and that is a different argument. It may take a while before people see homosexuality the same way they see race. ---
**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:** [March 1, 2018, 3:37pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1042 "2018-03-01T15:37:19Z")
> [@Damuri\_Ajashi](#): > > AFAICT, the court identifies the case as a free speech case by noting not only free speech but also artistic expression. I think we can all agree [?] that the baker could not be compelled to create a cake that said it was dedicated to the weeding of Adam and Steve and had a same sex topper. I’m not sure I’d agree to that: if the baker is willing to make a cake for Adam and Carol with a dude on top, and for Lisa and Steve with a dude on top, and if sexual preference is a protected status (as it was in this case), I’m not sure why the baker’s interest in being able to discriminate should outweigh the state’s interest in preventing discrimination in the marketplace. But you’re right in implying that this case doesn’t rise to that level of difficult decision. > [@](#): > > The question here seems to be whether a baker can be compelled to create a cake that includes an element of artistic expression to celebrate an event that the baker objects to. How much artistic expression is enough to trigger the protections of the first amendment. Where is the dividing line between manufacture and art. These cakes are custom made but in theory so is every whopper. The question is whether there’s any coherent idea being expressed. Nobody has, so far, identified a coherent idea being expressed by making a lemon cake with rosettes piped onto fondant layered over cakes supported by pillars, **to the extent that the cake sold to a gay couple expresses a different idea than the cake sold to a straight couple**. > [@](#): > > I suspect that we will soon see sexual orientation become a protected class but we have had some pretty monumental advances in gay rights over the last decade and much of it was premised on the notion that what was being asked for was not an imposition on anyone, not even the bigots who were trying to stop things like gay marriage. Now we are saying that the bigots have to do things they don’t want to do and that is a different argument. It may take a while before people see homosexuality the same way they see race. First, AIUI, it’s already a protected class in this case; it’s just not a protected class on a federal level yet. But that distinction doesn’t matter here, since federal law is no more or less capable of overruling the first amendment than state law. Second, SSM advocates often mentioned what idiots its opponents were because the marriages wouldn’t inconvenience anyone else. But gay folks and their allies have for decades advocated for antidiscrimination laws that would, for example, prevent bigots from firing gay employees or refusing them equal time off–things that absolutely “impose” on bigots. It’s different from one aspect of the SSM argument, but it’s not at all a new argument when it comes to nondiscrimination. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [March 1, 2018, 3:38pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1043 "2018-03-01T15:38:32Z")
[If a pediatrician refuses to treat a baby because her parents are lesbians, is that also “artistic expression”?](http://www.fox2detroit.com/news/doctor-refuses-treatment-of-samesex-couples-baby) Apparently this Christian doctor was so repulsed by the idea of dealing with lesbians that she not only reassigned the case to a coworker without informing the parents, she actually stayed away from the clinic itself that day. ---
**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:** [March 1, 2018, 3:38pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1044 "2018-03-01T15:38:43Z")
> [@doreen](#): > > So either the cake wasn’t truly custom _or_ the judge simply did not intend to limit his decision to truly custom cakes. Or it was a custom cake and everyone (on this board at least) is reading the facts in the light most likely to make the judge’s opinion seem stupid. It is not difficult to read the opinion to mean that the cake was a custom cake (in fact the opinion says they make specially designed custom cakes, that Miller participates in every part of the custom cake’s design and creation process, she does not deny that she refused to design and create a custom cake for the wedding). Aside from using the word “custom” several times to describe the cake, what else can they do to let you know that it was a custom cake? Should they have said “this was really truly a custom cake, we mean it. a real actual custom cake and not a cookie cutter generic wedding cake.” It seems like no one is willing to believe it was in fact a custom cake. Lets all just assume for the sake of argument that this was a custom cake. What then? ---
**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:** [March 1, 2018, 3:46pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1045 "2018-03-01T15:46:29Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Her “status” is irrelevant. The argument is that the baker is being compelled to speak by baking a cake. Speech involves an identifiable message. What message is the state forcing the baker to convey? That gay marriages are not necessarily an abomination against God that must be opposed with every fiber of her being. Lets say there was a huge celebration by the KKK on the anniversary of the MLK assassination and they asked you to bake them a beautiful three tier cake that didn’t refer to MLK or the assassination in any way. What if anything would you be saying by supplying the KKK with that cake? Would it be a violation of your first amendment rights if the state forced you to bake that cake? ---
**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:** [March 1, 2018, 3:49pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1046 "2018-03-01T15:49:13Z")
> [@Damuri\_Ajashi](#): > > Lets all just assume for the sake of argument that this was a custom cake. What then? This issue has been discussed in literally dozens of posts. Have you read the entire thread? ---
**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:** [March 1, 2018, 3:50pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1047 "2018-03-01T15:50:38Z")
> [@Damuri\_Ajashi](#): > > That gay marriages are not necessarily an abomination against God that must be opposed with every fiber of her being. > > Lets say there was a huge celebration by the KKK on the anniversary of the MLK assassination and they asked you to bake them a beautiful three tier cake that didn’t refer to MLK or the assassination in any way. What if anything would you be saying by supplying the KKK with that cake? Would it be a violation of your first amendment rights if the state forced you to bake that cake? Is membership in the Klan a protected status? This issue has been discussed at exhaustive length earlier in the thread. Have you read the thread? If so, to what end do you keep bringing up stuff that’s been dissected earlier without acknowledging and incorporating that earlier discussion? ---
**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:** [March 1, 2018, 3:57pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1048 "2018-03-01T15:57:47Z")
> [@Left\_Hand\_of\_Dorkness](#): > > I’m not sure I’d agree to that: if the baker is willing to make a cake for Adam and Carol with a dude on top, and for Lisa and Steve with a dude on top, and if sexual preference is a protected status (as it was in this case), I’m not sure why the baker’s interest in being able to discriminate should outweigh the state’s interest in preventing discrimination in the marketplace. But you’re right in implying that this case doesn’t rise to that level of difficult decision. > > The question is whether there’s any coherent idea being expressed. Nobody has, so far, identified a coherent idea being expressed by making a lemon cake with rosettes piped onto fondant layered over cakes supported by pillars, **to the extent that the cake sold to a gay couple expresses a different idea than the cake sold to a straight couple**. > > First, AIUI, it’s already a protected class in this case; it’s just not a protected class on a federal level yet. But that distinction doesn’t matter here, since federal law is no more or less capable of overruling the first amendment than state law. > > Second, SSM advocates often mentioned what idiots its opponents were because the marriages wouldn’t inconvenience anyone else. But gay folks and their allies have for decades advocated for antidiscrimination laws that would, for example, prevent bigots from firing gay employees or refusing them equal time off–things that absolutely “impose” on bigots. It’s different from one aspect of the SSM argument, but it’s not at all a new argument when it comes to nondiscrimination. True but it was the argument that helped get SSM across the finish line. It made the bigotry seem like senseless spiteful bigotry. I tend to agree that you should be required to sell an identical cake to a gay couple that you have already sold to a straight couple but that’s just my opinion (that means same topper, etc.). I don’t really but the argument that providing any material support to gay marriages is an act of expression any more than the caterer is expressing something by catering the wedding with 100 meals out of the back of a van. ---
**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:** [March 1, 2018, 3:59pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1049 "2018-03-01T15:59:30Z")
> [@Damuri\_Ajashi](#): > > True but it was the argument that helped get SSM across the finish line. It made the bigotry seem like senseless spiteful bigotry. It turns out that different issues are different. If someone mistakenly thought all issues surrounding civil rights for LGBTQ folks were identical and supported by a single set of identical arguments, that’s their error; if they’re whining about their error, I have very little patience with them. ---
**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:** [March 1, 2018, 3:59pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1050 "2018-03-01T15:59:57Z")
> [@Left\_Hand\_of\_Dorkness](#): > > This issue has been discussed in literally dozens of posts. Have you read the entire thread? You should be asking RNATB that question. The issue has been addressed mostly with the following argument: It was a custom cake and therefore artistic expression. Nuh uh. Its just a cake. ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [March 1, 2018, 4:32pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1051 "2018-03-01T16:32:19Z")
> [@Damuri\_Ajashi](#): > > Or it was a custom cake and everyone (on this board at least) is reading the facts in the light most likely to make the judge’s opinion seem stupid. It is not difficult to read the opinion to mean that the cake was a custom cake (in fact the opinion says they make specially designed custom cakes, that Miller participates in every part of the custom cake’s design and creation process, she does not deny that she refused to design and create a custom cake for the wedding). > > Aside from using the word “custom” several times to describe the cake, what else can they do to let you know that it was a custom cake? Should they have said “this was really truly a custom cake, we mean it. a real actual custom cake and not a cookie cutter generic wedding cake.” > > It seems like no one is willing to believe it was in fact a custom cake. > > Lets all just assume for the sake of argument that this was a custom cake. What then? First, although the opinion might say that Miller participated in every part of the design and creation process, she apparently doesn’t. Because the decision also says [FONT=Courier New] [/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. [FONT=Courier New] > [/FONT][FONT=Courier New][SIZE=1][FONT=Trebuchet MS][SIZE=2] Eileen > [/SIZE][/FONT][/SIZE][/FONT] and Mireya selected a design based on [FONT=Courier New][SIZE=1][FONT=Trebuchet MS][SIZE=2]a display cake.[/SIZE][/FONT][/SIZE][/FONT] > [FONT=Courier New][SIZE=1] > [/SIZE][/FONT] Clearly, Miller did not participate in that part of the process. Unless somehow selecting a design and recording details are not part of the design process. Second, I described one way that the decision could have described a truly custom cake. No doubt there are others , but saying that they made their selection based on a display cake and an employee recorded the details does not necessarily describe a custom cake. It could just as easily describe my Fudgie the Whale shaped cake decorated like Santa Claus, or with all vanilla ice cream instead of one layer each of vanilla and chocolate. Third, I said “or” . As in either it was not a truly custom cake OR the judge did not intend to limit his decision to truly custom cakes. I’m not sure which it is. But , if in fact it was a truly custom cake, one where the customers did not simply select options from a set of choices ( I want design number 457 with yellow cake and raspberry filling. Whipped cream frosting and pink flowers) but where the baker designed a unique cake based on the customer’s request for a non-standard shape or based on what the baker thought would be the perfect design for this wedding and _only_ this wedding, then I would be inclined to agree that designing and creating _that_ cake is artistic expression. And I wouldn’t have an issue with a judge issuing a decision that the state cannot require a baker to create a unique cake for a same-sex wedding as long as it was limited to cakes with that level of artistic expression and did not apply to cake #457. Let me know when you see a case where the design/creation process is described in sufficient detail to determine if the cake is truly custom or if it’s a " choose a design, flavor, filling, frosting" sort of deal. My guess is we won’t see such a case until after the SCOTUS decision. Because both sides have reason to obfuscate the issue. One side because they don’t want to bake any wedding cakes for same sex-marriages, and the other because they don’t want bakers to ever be able to refuse. ---
**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:** [March 1, 2018, 4:34pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1052 "2018-03-01T16:34:46Z")
> [@Damuri\_Ajashi](#): > > AFAICT, the court identifies the case as a free speech case by noting not only free speech but also artistic expression. I think we can all agree [?] that the baker could not be compelled to create a cake that said it was dedicated to the weeding of Adam and Steve and had a same sex topper. > > I think we all agree that the baker could be compelled to sell any cake they already had for sale to gay couples. > > The question here seems to be whether a baker can be compelled to create a cake that includes an element of artistic expression to celebrate an event that the baker objects to. How much artistic expression is enough to trigger the protections of the first amendment. Where is the dividing line between manufacture and art. These cakes are custom made but in theory so is every whopper. > > I suspect that we will soon see sexual orientation become a protected class but we have had some pretty monumental advances in gay rights over the last decade and much of it was premised on the notion that what was being asked for was not an imposition on anyone, not even the bigots who were trying to stop things like gay marriage. Now we are saying that the bigots have to do things they don’t want to do and that is a different argument. It may take a while before people see homosexuality the same way they see race. I keep wondering: _is_ it discrimination based on sexual orientation? As I said before: imagine I ask a baker to make a wedding cake. “For me and my beloved Ashley,” I add. Say the baker looks me over and replies: “Is Ashley black? Because I’ll do it if Ashley is white, but not if Ashley is black.” That’s race-based discrimination, right? So say I ask a baker to make a wedding cake “for me and my beloved Ashley.” And say the baker replies: “Is Ashley a man? Because I’ll do it if Ashley is a woman, but not if Ashley is a man.” Wouldn’t that be sex-based discrimination? ---
**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:** [March 1, 2018, 4:42pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1053 "2018-03-01T16:42:12Z")
> [@The\_Other\_Waldo\_Pepper](#): > > I keep wondering: _is_ it discrimination based on sexual orientation? > > As I said before: imagine I ask a baker to make a wedding cake. “For me and my beloved Ashley,” I add. Say the baker looks me over and replies: “Is Ashley black? Because I’ll do it if Ashley is white, but not if Ashley is black.” > > That’s race-based discrimination, right? > > So say I ask a baker to make a wedding cake “for me and my beloved Ashley.” And say the baker replies: “Is Ashley a man? Because I’ll do it if Ashley is a woman, but not if Ashley is a man.” Wouldn’t that be sex-based discrimination? Other cases involving discrimination against gay people have used that line of reasoning but California includes sexual orientation as a suspect class so they don’t need to do that in this case. ---
**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:** [March 1, 2018, 5:06pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1054 "2018-03-01T17:06:45Z")
> [@Damuri\_Ajashi](#): > > Or it was a custom cake and everyone (on this board at least) is reading the facts in the light most likely to make the judge’s opinion seem stupid. It is not difficult to read the opinion to mean that the cake was a custom cake (in fact the opinion says they make specially designed custom cakes, that Miller participates in every part of the custom cake’s design and creation process, she does not deny that she refused to design and create a custom cake for the wedding). > > Aside from using the word “custom” several times to describe the cake, what else can they do to let you know that it was a custom cake? Should they have said “this was really truly a custom cake, we mean it. a real actual custom cake and not a cookie cutter generic wedding cake.” > > It seems like no one is willing to believe it was in fact a custom cake. > > Lets all just assume for the sake of argument that this was a custom cake. What then? This has to be this biggest time-wasting post in the entire thread. It’s like it was written with total ignorance of the previous 20+ pages of the thread. The beating of the “but was it _really_ not a custom cake?” drum is tiresome. ---
**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:** [March 1, 2018, 6:32pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1055 "2018-03-01T18:32:56Z")
> [@Damuri\_Ajashi](#): > > You should be asking RNATB that question. > > The issue has been addressed mostly with the following argument: > > It was a custom cake and therefore artistic expression. > > Nuh uh. Its just a cake. I’m going to ramble a bit here without worrying about what the judge’s specific bigoted bullshit logic might be thinking on the subject (which is a deviation from my norm because my usual argument here is 'the judge doesn’t care if the cake is custom - he wants his bigoted bullshit to apply to _all_ wedding cakes.") I figure that this point is interesting enough to discuss it without worrying about the fact that, in this case, it’s utterly irrelevant. The way I see the situation is that there are two separate instances of speech in question here - and by speech I mean “action”, because that’s what speech apparently means now. Speech one: Creating a specific cake with a specific design and appearance. Speech two: Lowering yourself to the point of interacting with a customer and allowing them to purchase your product/services. In my opinion, these are two different instances of speech. And the latter type of speech has been deemed to be ‘not so protected’ - it falls solidly under the purview of anti-discrimination laws and hopefully, for the moment, we can all agree that the baker can’t legally chuck the people out of their business just for being gay. So let’s talk about speech one - and specifically, talk about speech one _in isolation_. Which is to say, what’s the answer to this question: “Would the baker be willing to bake this specific cake if they had no idea who was buying it or why?” There are some cake designs that, themselves, the baker might reasonably refuse to make regardless of who was buying them. Swastikas. Representations of gore. Designs in violation of copyrights or trademarks. Or (sorry Adam and Steve) cake toppers with two male characters holding hands. I’m personally of the opinion that the baker is well within their rights to refuse to make any of these cakes, on two different grounds - firstly speech, and secondly (and more importantly!) because the design in question is not part of their product line. You can’t sue Burger King for refusing to sell you a car, and the reason for that is not because of the first amendment issues. It’s because Burger King doesn’t sell cars. So, there are designs that a given baker simply doesn’t make. But, contrariwise, there are designs that that baker _does_ make. Including custom ones! Some bakers may even claim all their cakes are custom cakes, and good on them. But these custom cakes? They’re still cakes they’re willing to make. The cake, itself, has no message that the baker is offended by. The cake, itself, is not speech that the baker objects to. I think you can see where I’m going here. If a baker would sell a specific cake to a straight couple, then _no matter how custom, creative, or complex it is_, then I think that there is no first amendment argument for them being able to refuse it to a gay couple, at least not on the grounds of the speech implied by the cake itself. The cake has its message, and the sale has its message, and the two are _distinct_. Which means that while Adam and Steve can’t reasonably expect a baker to provide them with a cake with a gay cake topper, they _can_ reasonably the baker to make a wildly custom cake for them that does not have gay iconography on it. If the bake would sell that exact custom cake to a straight couple, the gay couple should expect the same service, as members of a protected class. And Adam and Steve are even within their rights to buy a topperless custom cake and _put their own gay topper_ on - that’s covered by fair use. As is taking the custom cake and displaying it and consuming it at their wedding - as long as they don’t express or imply that the original owner of the cake design endorsed their use of it in that bit of performance art. ---
**Author:** ![sleestak](https://avatars.discourse-cdn.com/v4/letter/s/919ad9/32.png) [@sleestak](https://boards.straightdope.com/u/sleestak)\ **Post date:** [March 1, 2018, 7:13pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1056 "2018-03-01T19:13:37Z")
> [@CarnalK](#): > > Right. I known thats how he addressed it. It’s goddamn laughable, as I said early in the thread. In fact, pretty sure I asked your opinion on whether there was truly “no greater form of expressive conduct” than baking a wedding cake and your answers were all redirection. You are misreading the judge. The ‘no greater form of expressive conduct’ isn’t the cake baking piece, it is the ‘declare the validity of their marital union and their enduring love for one another’ piece. I suspect that you are reading it as ‘baking a cake’ because it fits your preferred narrative. > [@](#): > > The State asks this court to compel Miller against her will and religion to allow her artistic expression in **celebration of marriage** to be co-opted to promote the message desired by same-sex marital partners, and with which Miller disagrees. So, the cake baking is trivial, it is the being forced to ‘use her artistic expression in celebration of marriage’ which is against her religon that is the problem. See the difference? Slee ---
**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:** [March 1, 2018, 7:24pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1057 "2018-03-01T19:24:25Z")
> [@sleestak](#): > > You are misreading the judge. The ‘no greater form of expressive conduct’ isn’t the cake baking piece, it is the ‘declare the validity of their marital union and their enduring love for one another’ piece. > > I suspect that you are reading it as ‘baking a cake’ because it fits your preferred narrative. > > So, the cake baking is trivial, it is the being forced to ‘use her artistic expression in celebration of marriage’ which is against her religon that is the problem. > > See the difference? > > Slee Let’s be precise - it says she’s being forced to _allow others_ to “co-opt” her cake. The baker is not being forced to express anything they don’t want to; it says _right there_ that the expression is being “co-opted”, which means that the baker is no longer responsible for the message anymore. ---
**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:** [March 1, 2018, 7:48pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1058 "2018-03-01T19:48:53Z")
> [@sleestak](#): > > You are misreading the judge. The ‘no greater form of expressive conduct’ isn’t the cake baking piece, it is the ‘declare the validity of their marital union and their enduring love for one another’ piece. > > I suspect that you are reading it as ‘baking a cake’ because it fits your preferred narrative. > > So, the cake baking is trivial, it is the being forced to ‘use her artistic expression in celebration of marriage’ which is against her religon that is the problem. > > See the difference? > > Slee That may be what he meant, but I am not misreading. "A wedding cake is not just a cake in a Free Speech analysis. It is an artistic expression by the person making it that is to be used traditionally as a centerpiece in the celebration of a marriage,” Lampe wrote. “There could not be a greater form of expressive conduct. " So wedding cake is the subject of the first sentence. It’s the subject in the second sentence. It’s normal English to assume it’s the implied subject of the third but you want to charitably believe “marriage” is. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [March 1, 2018, 7:52pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1059 "2018-03-01T19:52:03Z")
> [@CarnalK](#): > > That may be what he meant, but I am not misreading. > > "A wedding cake is not just a cake in a Free Speech analysis. It is an artistic expression by the person making it that is to be used traditionally as a centerpiece in the celebration of a marriage,” Lampe wrote. “There could not be a greater form of expressive conduct. " > > So wedding cake is the subject of the first sentence. It’s the subject in the second sentence. It’s normal English to assume it’s the implied subject of the third but you want to charitably believe “marriage” is. But if they picked the cake out of a book, where does the baker/decorator’s free expression come in? Does he look at their selection and ignore 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:** [March 1, 2018, 7:55pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1060 "2018-03-01T19:55:08Z")
> [@sleestak](#): > > You are misreading the judge. The ‘no greater form of expressive conduct’ isn’t the cake baking piece, it is the ‘declare the validity of their marital union and their enduring love for one another’ piece. > > I suspect that you are reading it as ‘baking a cake’ because it fits your preferred narrative. > > So, the cake baking is trivial, it is the being forced to ‘use her artistic expression in celebration of marriage’ which is against her religon that is the problem. > > See the difference? > > Slee If that’s what the judge meant, then the exclusion of off-the-shelf cakes is nonsensical. It’s a truly bad decision, and trying o make sense of it is like trying to build a castle out of wet spaghetti: just when you shore up one side, the noodles are gonna slump away where you’re not propping it up. [Previous page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=52) [Next page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=54)