# 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:** 55
**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:** [March 1, 2018, 9:42pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1081 "2018-03-01T21:42:35Z")
> [@Morgenstern](#): > > Design is only one part of the creative process. I think too many people are offended by the results of this case, and I can agree with them in that regard. > > Let’s change one thing and use the same underlying issue. > > Bill is known as a creator of great cakes. Expensive, good cakes. Bill is an avid anti-death penalty advocate. > 2 black gentlemen, prison guards in fact, walk into Bill’s shop and want a celebration cake made to celebrate the upcoming execution of a convicted murderer. > Bill tells them capital punishment is morally wrong and against his religious beliefs, and refuses to bake the cake. > Should that be the end of it? Neglecting the fact that you are not describing a protected class, which completely makes your hypothetical irrelevant to the question of whether you can discriminate against protected classes… to add to your hypothetical so that it has any relevance, we will assume that being pro-death penalty is a protected class. Does Bill make cakes celebrating upcoming executions for non-death penalty advocates? If not, then he wouldn’t have to make one that is specifically designed to celebrate such, however, if they are ordering a cake that is in the catalogue, with standard customizations, that he would make for anyone else then yes, he should be making their cake. Now, in the real world, where such political affiliations are not protected, he could refuse. The two “gotchas” you keep trying to use are “What if the person is being made to make something that they wouldn’t ever make”, and “What if the person is being made to make something for someone that is not a protected class.” Nearly every post you have made has been some variation on one of those two, and you will continue to get the same answers. ---
**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, 9:42pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1082 "2018-03-01T21:42:54Z")
> [@Damuri\_Ajashi](#): > > The fact that all the people who want to force the baker to make cakes for gay weddings agree that this wasn’t a custom cake is meaningless. Your post is meaningless. Not nearly as meaningless as all the uninformed blather you’ve crapped out all over this thread. Good luck with your ignorance; I’m done with you here. ---
**Author:** ![WillReadmore](https://avatars.discourse-cdn.com/v4/letter/w/6f9a4e/32.png) [@WillReadmore](https://boards.straightdope.com/u/WillReadmore)\ **Post date:** [March 1, 2018, 9:52pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1083 "2018-03-01T21:52:06Z")
> [@Morgenstern](#): > > Design is only one part of the creative process. I think too many people are offended by the results of this case, and I can agree with them in that regard. > > Let’s change one thing and use the same underlying issue. > > Bill is known as a creator of great cakes. Expensive, good cakes. Bill is an avid anti-death penalty advocate. > 2 black gentlemen, prison guards in fact, walk into Bill’s shop and want a celebration cake made to celebrate the upcoming execution of a convicted murderer. > Bill tells them capital punishment is morally wrong and against his religious beliefs, and refuses to bake the cake. > Should that be the end of it? Using religious belief to trump law isn’t something with a rational limitation. See Arizona’s bill that passed the legislature but was vetoed. It seems like it boils down to whether there is a “soup Nazi” law - “no cake for you”, with no explanation. And, I don’t see how that works, as it ends up being a cheap cover for all the other acts of discrimination that have been legislated to be illegal. The baker better start warming up that oven! ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [March 1, 2018, 10:00pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1084 "2018-03-01T22:00:46Z")
LHoD The free speech/expression of an artist includes the right _not_ to express. Substitute expression for speech and it all makes more sense. And yes, Freedom of Expression is inherent in the 1st. ( Freedom of the Press for example also = FoE) ---
**Author:** ![WillReadmore](https://avatars.discourse-cdn.com/v4/letter/w/6f9a4e/32.png) [@WillReadmore](https://boards.straightdope.com/u/WillReadmore)\ **Post date:** [March 1, 2018, 10:02pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1085 "2018-03-01T22:02:29Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Well gee, let me think. What law, if any, prohibits discrimination against death penalty advocates or prison guards? While I’m at it, are we still talking about the soldier ant hive mind? I think that’s just an example of a “soup Nazi” law - “no soup for you” So, on noticing the customer is same sex oriented the baker says, “Sorry, I don’t serve people who … uh … uh … wear scarves. It’s against my religion.” Frankly, I think the public accommodation laws we have are somewhat redundant. It’s like having a constitutional amendment for the case that your black or female, or whatever. It shouldn’t be necessary to enumerate each characteristic that some idiot might possibly think makes a person NOT equal. ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [March 1, 2018, 10:05pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1086 "2018-03-01T22:05:17Z")
> [@Snowboarder\_Bo](#): > > Not nearly as meaningless as all the uninformed blather you’ve crapped out all over this thread. Good luck with your ignorance; I’m done with you here. I’m pretty much done here too. These “Nazi soup, bigot judge, bullshit,” responses makes the pit look like Harvard. ---
**Author:** ![WillReadmore](https://avatars.discourse-cdn.com/v4/letter/w/6f9a4e/32.png) [@WillReadmore](https://boards.straightdope.com/u/WillReadmore)\ **Post date:** [March 1, 2018, 10:14pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1087 "2018-03-01T22:14:00Z")
> [@Morgenstern](#): > > LHoD > > The free speech/expression of an artist includes the right _not_ to express. Substitute expression for speech and it all makes more sense. And yes, Freedom of Expression is inherent in the 1st. ( Freedom of the Press for example also = FoE) I think that might apply if the artist is somehow seriously notable. For example, some couple might commission Picasso (were he alive) to make them a wedding cake. Obviously, those at the reception would know this is the expression of Picasso. It wouldn’t be assumed that the elements of the cake were the choice of the couple. The distinguishing characteristic is that the artist is present - if in name only. In the cases before the court today there is no indication at all that the elements of the cake were to be other than the choice of the couple whose speech is the dominant theme of the reception. ---
**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, 10:18pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1088 "2018-03-01T22:18:30Z")
> [@Morgenstern](#): > > LHoD > > The free speech/expression of an artist includes the right _not_ to express. Substitute expression for speech and it all makes more sense. And yes, Freedom of Expression is inherent in the 1st. ( Freedom of the Press for example also = FoE) That’s exactly what I’m saying: does it also include the right not to speak to customers you want to discriminate against? Is it your claim that I may refuse to speak to black customers if I want to discriminate against them–refusing to ask for their order, refusing to tell them the specials, refusing to ask any question? If not, how can you justify compelling my speech, but not my expression, based on the first amendment? Edit: note that the “artist” part is totally irrelevant. Artists don’t have any heightened speech protection. ---
**Author:** ![WillReadmore](https://avatars.discourse-cdn.com/v4/letter/w/6f9a4e/32.png) [@WillReadmore](https://boards.straightdope.com/u/WillReadmore)\ **Post date:** [March 1, 2018, 10:19pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1089 "2018-03-01T22:19:04Z")
> [@Morgenstern](#): > > I’m pretty much done here too. These “Nazi soup, bigot judge, bullshit,” responses makes the pit look like Harvard. I haven’t seen anyone suggest the judge is a bigot. Sorry if you’re offended by my social reference, but it is an iconic case of declining without claiming a justification. And, that is an important element of this case, I think, as the law in question is careful to identify particular classes of those who may not be discriminated against, which might appear to some as an opportunity to decline service by claiming OTHER grounds. ---
**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:** [March 1, 2018, 10:19pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1090 "2018-03-01T22:19:52Z")
> [@WillReadmore](#): > > I think that’s just an example of a “soup Nazi” law - “no soup for you” > > So, on noticing the customer is same sex oriented the baker says, “Sorry, I don’t serve people who … uh … uh … wear scarves. It’s against my religion.” > > Frankly, I think the public accommodation laws we have are somewhat redundant. It’s like having a constitutional amendment for the case that your black or female, or whatever. It shouldn’t be necessary to enumerate each characteristic that some idiot might possibly think makes a person NOT equal. Well, as a business, you do need to have the ability to discriminate based on some characteristics of your customers. If they are asshole, and the come in, yelling at you to make them a cake, then you can deny them service because they are being rude. If they don’t have the money to pay for the cake, or if they have stiffed you on invoices in the past, you can discriminate against them on that. You do need to have some limitations on the “customer is always right” theory. So, it is better, in some ways, to explicitly enumerate the things that you are not allowed to discriminate on, rather than the things you may. As far as your example, people do sting operations from time to time on such operations that give flimsy excuses. I go into that baker with my fiance wearing a scarf, and even bring to the baker’s attention how nice of a scarf it is, and then, when they don’t turn down my business, you see that the reason that they denied the previous couple was not because of the scarf. Really, were I a bigoted baker, I would just say that I am swamped and cannot take any new customers at this time. ---
**Author:** ![WillReadmore](https://avatars.discourse-cdn.com/v4/letter/w/6f9a4e/32.png) [@WillReadmore](https://boards.straightdope.com/u/WillReadmore)\ **Post date:** [March 1, 2018, 10:35pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1091 "2018-03-01T22:35:59Z")
> [@Left\_Hand\_of\_Dorkness](#): > > That’s exactly what I’m saying: does it also include the right not to speak to customers you want to discriminate against? Is it your claim that I may refuse to speak to black customers if I want to discriminate against them–refusing to ask for their order, refusing to tell them the specials, refusing to ask any question? > > If not, how can you justify compelling my speech, but not my expression, based on the first amendment? > > Edit: note that the “artist” part is totally irrelevant. Artists don’t have any heightened speech protection. I agree it isn’t just the “artist” thing. But, if someone has achieved a level of fame or notoriety that is identifiable or is featured, I do believe the contribution would be perceived by the guests to include the expression of that individual - not just the couple being married. The oral argument for the case before the SCOTUS includes this, but they pretty much dodge it as it has nothing to do with the case before them. ---
**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, 10:36pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1092 "2018-03-01T22:36:25Z")
> [@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. Read further, it clarifies: > [@](#): > > They plan a celebration to declare the validity of their marital union and their enduring love for one another. The State asks this court to **compel Miller against her will and religion to allow her artistic expression in celebration of marriage** … See that bolded part? That is what the judge had a problem with, forcing the baker (who is a jackass, btw) to\*\*\* celebrate a marriage\*\*\* that goes against her religious views. he says it twice (at least), though I do agree the judge could have been a little more clear on the point. > [@Left Hand of Dorkness](#): > > If that’s what the judge meant, then the exclusion of off-the-shelf cakes is nonsensical. Actually, it is not. With an off-the-shelf cake, _the bakers work is already done_. There is no need for further input from the baker. At that point the baker cannot discriminate on religious grounds. Slee ---
**Author:** ![WillReadmore](https://avatars.discourse-cdn.com/v4/letter/w/6f9a4e/32.png) [@WillReadmore](https://boards.straightdope.com/u/WillReadmore)\ **Post date:** [March 1, 2018, 10:46pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1093 "2018-03-01T22:46:00Z")
> [@k9bfriender](#): > > Well, as a business, you do need to have the ability to discriminate based on some characteristics of your customers. If they are asshole, and the come in, yelling at you to make them a cake, then you can deny them service because they are being rude. If they don’t have the money to pay for the cake, or if they have stiffed you on invoices in the past, you can discriminate against them on that. You do need to have some limitations on the “customer is always right” theory. > > So, it is better, in some ways, to explicitly enumerate the things that you are not allowed to discriminate on, rather than the things you may. > > As far as your example, people do sting operations from time to time on such operations that give flimsy excuses. I go into that baker with my fiance wearing a scarf, and even bring to the baker’s attention how nice of a scarf it is, and then, when they don’t turn down my business, you see that the reason that they denied the previous couple was not because of the scarf. > > Really, were I a bigoted baker, I would just say that I am swamped and cannot take any new customers at this time. Good points. My bet is that there is a significant amount of disgusting discrimination going on where it’s under cover as you mention or where the individuals on the receiving end just aren’t ready to start suing people. I have no idea what I would do. But, I’d sure hate it! ---
**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, 10:48pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1094 "2018-03-01T22:48:01Z")
> [@Damuri\_Ajashi](#): > > OK, then I will repeat another post brought up earlier. > > If I as a Buddhist convince you to make me a inspiringly gorgeous multi level swastika shaped vegetarian cake for a Buddhist celebration, must you then sell the local KKK the same swastika shape vegetarian cake to celebrate the birthday of Hitler even if the local KKK group doesn’t say that the cake was made by the Begbert2BuddhistBakery? Or does the context in which it is intended to be used give you the right to refuse to make them the cake? (for the sake of argument lets say political affiliation is a protected class in this state because some people were starting to refuse service based on political ideology and it was leading to horrible partisanship in the state). In your tortured hypothetical, yes. I am of the opinion you would be forced to make the cake, because it is a cake you are demonstrably willing to make (because you did) and because Nazis are a protected class (in the tortured hypothetical) and thus you can’t legally tell them to just piss off. And you know what? _This doesn’t bother me._ This attempt at reductio ad absurdum doesn’t work because in your hypothetical _Nazis aren’t bad people_. Or at least they’ve been determined by the state to be sufficiently not bad that their naziness has an extreme level of protection against predjudice from mean old bigots who have an irrational aversion to mass murder. When you torture a hypothetical you get tortured results, and those results are _reasonable_. ---
**Author:** ![WillReadmore](https://avatars.discourse-cdn.com/v4/letter/w/6f9a4e/32.png) [@WillReadmore](https://boards.straightdope.com/u/WillReadmore)\ **Post date:** [March 1, 2018, 10:50pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1095 "2018-03-01T22:50:17Z")
> [@sleestak](#): > > Read further, it clarifies: > > See that bolded part? That is what the judge had a problem with, forcing the baker (who is a jackass, btw) to\*\*\* celebrate a marriage\*\*\* that goes against her religious views. he says it twice (at least), though I do agree the judge could have been a little more clear on the point. > > Actually, it is not. With an off-the-shelf cake, _the bakers work is already done_. There is no need for further input from the baker. At that point the baker cannot discriminate on religious grounds. > > Slee Nobody at the wedding reception can tell when the cake was baked. Whee is this “speech” thing the baker is concerned about? How does the time the cake was baked impact the “celebration” part of the argument? ---
**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, 10:57pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1096 "2018-03-01T22:57:23Z")
> [@Morgenstern](#): > > When will people understand that the “custom” cake is not the issue. Even if it’s the same cake she made yesterday, which was just like the other 4 she made last week, she (the diva baker) will not be compelled to use her creative talents to bake (even the same fucking cake she baked 10 minutes ago) when she disagrees with the customer’s use of the cake. Period. The judge rules on the Constitutional issue, and that issue is not at all dependent on how many times she’s baked a particular cake. I assume that you realize that argument overrides literally all of anti-discrimination law regarding business interactions. **All of it.** Because, as you make very clear, it’s not about the product or creativity anymore. It’s about the sale itself being protected speech. So you can’t make me sell you so much as a Twinkie, because the words I would exchange with you during the sale and write on the receipt are protected speech. Now, in the case at hand, the judge was actually quite restrained in his ruling, arbitrarily limiting it to non-stale wedding cakes on the power of them being, quite literally, magic. There is no other aspect of his argument that limits it to wedding cakes other than magic. Because, as you say, it has jack-all to do with the creativity or speech imbued in the physical cake - it’s the speech involved in the _sale_. And if you presume the judge’s argument wasn’t stinky bullshit, then it could be applied to sales of other goods or services as well. _Any_ goods or services. The logic (or “logic”) applies equally to all. ---
**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, 11:00pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1097 "2018-03-01T23:00:42Z")
> [@WillReadmore](#): > > I haven’t seen anyone suggest the judge is a bigot. I have! Repeatedly. There’s no way he would have fronted this nonsense without a reason. And that reason certainly isn’t because the argument is compelling or a reasonable interpretation of law. The dude quite clearly thinks that anti-discrimination laws should not be a thing. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [March 1, 2018, 11:02pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1098 "2018-03-01T23:02:38Z")
Switch the Buddhist and KKK example to Buddhist and member of the [World Church of the Creator](https://en.wikipedia.org/wiki/Creativity_(religion)). Then it is religion #1 vs religion #2. Those asshole in the Creativy movement religion have been to court and been [recognized as a religion](https://en.wikipedia.org/wiki/Creativity_(religion)#Other_legal_cases). The whole theme of whether a creation must be unique to be protected expression keeps coming up. Placing that argument in other context… the foundation that manages MLK Jr’s estate must now license recordings of his speeches to any organization of members of a suspect class regardless of whether the foundation agrees with the overall message of that organization, right? After all those speeches were given 50-60 years ago and multiple copies of the recordings of those speeches have been made over the years. Nothing creative involved anymore. That’s nonsense. An artistic work need not be singularly unique to afford the artist First Amendment protection. Otherwise singers, authors, painters, sculptors, and actors would lose First Amendment protection as soon as they make a copy/repeat a performance of any of their works. Whether the process involved in producing a wedding cake qualifies as artistic expression is a matter the SCOTUS is weighing as a part of the Masterpiece Cakeshop case. Oral arguments seemed to make it clear that there are at least 5 members of the court that think this is artistic expression. But the members of the court do seem troubled about how to fashion a test that would protect the baker but not undo all of the Civil Rights case law that has developed over the years. And it is not a given that the court will rule for the baker. The court may decide that the baker is engaging in artistic expression, which courts have previously equated with speech, and yet rule against the baker. The government can, at times, compel action. If government is seen to be pursuing a legitimate government interest, does so neutrally without targeting a suspect class, and there is no less intrusive means to accomplish that goal then courts have at times ruled to restrict some sort of act that would normally be protected by the First Amendment. After all we can ban human sacrifice even if someone professes that it is a required tenet of their religion. ---
**Author:** ![WillReadmore](https://avatars.discourse-cdn.com/v4/letter/w/6f9a4e/32.png) [@WillReadmore](https://boards.straightdope.com/u/WillReadmore)\ **Post date:** [March 2, 2018, 12:05am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1099 "2018-03-02T00:05:04Z")
> [@Iggy](#): > > Switch the Buddhist and KKK example to Buddhist and member of the [World Church of the Creator](https://en.wikipedia.org/wiki/Creativity_(religion)). Then it is religion #1 vs religion #2. > > Those asshole in the Creativy movement religion have been to court and been [recognized as a religion](https://en.wikipedia.org/wiki/Creativity_(religion)#Other_legal_cases). > The whole theme of whether a creation must be unique to be protected expression keeps coming up. Placing that argument in other context… the foundation that manages MLK Jr’s estate must now license recordings of his speeches to any organization of members of a suspect class regardless of whether the foundation agrees with the overall message of that organization, right? After all those speeches were given 50-60 years ago and multiple copies of the recordings of those speeches have been made over the years. Nothing creative involved anymore. > > That’s nonsense. > > An artistic work need not be singularly unique to afford the artist First Amendment protection. Otherwise singers, authors, painters, sculptors, and actors would lose First Amendment protection as soon as they make a copy/repeat a performance of any of their works. > > Whether the process involved in producing a wedding cake qualifies as artistic expression is a matter the SCOTUS is weighing as a part of the Masterpiece Cakeshop case. Oral arguments seemed to make it clear that there are at least 5 members of the court that think this is artistic expression. But the members of the court do seem troubled about how to fashion a test that would protect the baker but not undo all of the Civil Rights case law that has developed over the years. > > And it is not a given that the court will rule for the baker. The court may decide that the baker is engaging in artistic expression, which courts have previously equated with speech, and yet rule against the baker. The government can, at times, compel action. If government is seen to be pursuing a legitimate government interest, does so neutrally without targeting a suspect class, and there is no less intrusive means to accomplish that goal then courts have at times ruled to restrict some sort of act that would normally be protected by the First Amendment. After all we can ban human sacrifice even if someone professes that it is a required tenet of their religion. My own take from the oral argument is that it may be artistic expression, but in the context of the wedding it doesn’t seem to be the expression of the baker. Again, those at the wedding surely see the flowers, the makeup, the cake, the invitation, etc., etc., as the choices of the couple being married - the ones who are at the root of the expression that is the reception, the ones who made each of the numerous choices contributing to that event. No guest could presume to know whether any of the numerous and unidentified artists was attempting to “say” something. And, I agree with you that if such an exception is made then it would seem to blow a large hole in civil rights law and perhaps going further than that, as the exemption the baker desires is fundamentally a religious exemption. ---
**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 2, 2018, 12:17am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1100 "2018-03-02T00:17:54Z")
> [@WillReadmore](#): > > And, I agree with you that if such an exception is made then it would seem to blow a large hole in civil rights law and perhaps going further than that, as the exemption the baker desires is fundamentally a religious exemption. This case was explicity a free speech argument and not a religious objection - a very generous move to people who wish to deny business to people but don’t have a plausible religion-based claim. For example I don’t think many religions are opposed to interracial marriages anymore. [Previous page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=54) [Next page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=56)