# 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:** 57
**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:** [March 3, 2018, 10:46pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1121 "2018-03-03T22:46:21Z")
> [@WillReadmore](#): > > But, I can’t find a case of going backwards due to having overreached in some way. The case in question in the OP is a case of going backwards presumably because the judge thinks the law overreached. ---
**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:** [March 3, 2018, 10:52pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1122 "2018-03-03T22:52:11Z")
> [@WillReadmore](#): > > No, Davis is not the state. There is always a difference between the piece of government and the person operating that piece of government. > > Please note that today, Davis STILL runs the county department that issues marriage licenses. > > AND, she does not issue marriage licenses to same sex couples. > > She was denied the exemption from the law that she wanted, so she has an underling do the marriage licenses, satisfying the constitution and the law of the county. Which is a bullshit dodge. Imagine someone deciding not to shoot someone in the head so they tell an underling to shoot someone in the head for them. Does that leave them in the clear? Nope. She is meeting the letter of the law by dodging responsibility but the fact remains that if the underling is sick and she is the only person at work that day then she is the one who has to issue the license. She has just made herself feel better about it because the fobbed it off on an underling. The point being is the law remains. Davis still has to issue those licenses today same as yesterday. That she gets someone else to do it merely reflects her cowardice. ---
**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 3, 2018, 11:18pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1123 "2018-03-03T23:18:13Z")
The [law requires reasonable accommodation](https://www.eeoc.gov/eeoc/newsroom/wysk/workplace_religious_accommodation.cfm) for religious practices. If Davis was the sole employee in that department then there is little doubt she would have to issue marriage licenses to same sex couples or be held liable for the refusal. But as there are multiple employees, at least some of whom do not profess such religious objection, Davis apparently made the decision to assign those employees to the issuance of marriage licenses. Such alternate assignment of work is a suggested accommodation by the EEOC. And so long as that does not place an undue burden on the employer it is a requirement of the law. So long as customers seeking a marriage license for a same sex marriage are treated the same as those seeking a marriage license for opposite sex marriage they do not have a valid claim of discrimination just because the task was assign to Jim and not Kim. As the EEOC notes, “Customer preference or co-worker disgruntlement does not justify denying a religious accommodation.” Which ties a bit back to the California baker case. They had an agreement worked out to refer business to a competitor for customers seeking a wedding cake for a same sex marriage. Had they simply taken the order and subcontracted out the work to the other bakery I wonder how the court would have viewed that. ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [March 3, 2018, 11:52pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1124 "2018-03-03T23:52:12Z")
> [@Iggy](#): > > The [law requires reasonable accommodation](https://www.eeoc.gov/eeoc/newsroom/wysk/workplace_religious_accommodation.cfm) for religious practices. If Davis was the sole employee in that department then there is little doubt she would have to issue marriage licenses to same sex couples or be held liable for the refusal. > > But as there are multiple employees, at least some of whom do not profess such religious objection, Davis apparently made the decision to assign those employees to the issuance of marriage licenses. Such alternate assignment of work is a suggested accommodation by the EEOC. And so long as that does not place an undue burden on the employer it is a requirement of the law. > > So long as customers seeking a marriage license for a same sex marriage are treated the same as those seeking a marriage license for opposite sex marriage they do not have a valid claim of discrimination just because the task was assign to Jim and not Kim. As the EEOC notes, “Customer preference or co-worker disgruntlement does not justify denying a religious accommodation.” > Which ties a bit back to the California baker case. They had an agreement worked out to refer business to a competitor for customers seeking a wedding cake for a same sex marriage. Had they simply taken the order and subcontracted out the work to the other bakery I wonder how the court would have viewed that. The court probably wouldn’t have had a view on that, because there most likely wouldn’t have been a case if the couple had dealt only with Tastries which then subcontracted out the actual baking of the cake. Just like Kim Davis most likely wouldn’t have ended up in court if she had allowed her deputies to issue the licenses to begin with. ( Originally, she would not allow the deputies to issue the licenses as her name appeared on them since she was the elected clerk) ---
**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:** [March 4, 2018, 12:56am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1125 "2018-03-04T00:56:09Z")
> [@Iggy](#): > > The [law requires reasonable accommodation](https://www.eeoc.gov/eeoc/newsroom/wysk/workplace_religious_accommodation.cfm) for religious practices. If Davis was the sole employee in that department then there is little doubt she would have to issue marriage licenses to same sex couples or be held liable for the refusal. > > But as there are multiple employees, at least some of whom do not profess such religious objection, Davis apparently made the decision to assign those employees to the issuance of marriage licenses. Such alternate assignment of work is a suggested accommodation by the EEOC. And so long as that does not place an undue burden on the employer it is a requirement of the law. > > So long as customers seeking a marriage license for a same sex marriage are treated the same as those seeking a marriage license for opposite sex marriage they do not have a valid claim of discrimination just because the task was assign to Jim and not Kim. As the EEOC notes, “Customer preference or co-worker disgruntlement does not justify denying a religious accommodation.” > Which ties a bit back to the California baker case. They had an agreement worked out to refer business to a competitor for customers seeking a wedding cake for a same sex marriage. Had they simply taken the order and subcontracted out the work to the other bakery I wonder how the court would have viewed that. But that’s a different matter. If Employee A says “my religion prohibits me from issuing SSM licenses”, that employee can be re-assigned to other duties. But the state can’t set up two counters, where: Counter A is for all couples seeking marriage licenses and Counter B is only for heterosexual Marriage Licenses. Or, even one counter where: If you are a heterosexual couple, you will be processed without delay. If you area a same sex couple, another clerk will be out to help you shortly. In the case of issuing marriage license, you not only have the EEOC to content with, but the 14th amendment. Citizens are not to be denied equal treatment by the state. You cannot simply extrapolate EEOC requirements onto state agents, who must also comply with the US Constitution, above and beyond any statute. (Personally, I was in favor of the court allowing localities a certain amount of flexibility in accommodating religious objections to issuing SSM licenses, but only temporarily as everyone adjusts to the new circumstances. And by temporarily, I was thinking months, not years. But, that was just my personally opinion. The court was not required to do that. ) So, yes, it’s incumbent on the state or local government to make reasonable accommodations for the religions of their employees, but not at the expense of the rights of the citizens, per the 14 amendment. Teachers can’t refuse to teach gay students, cops can’t refuse to provide protection to gay people, and county clerks can’t refuse to issue marriage licenses to gay couples, even if a baker can refuse to bake a cake for a gay couple. The baker is not subject to the 14th amendment. The county clerk is. ---
**Author:** ![WillReadmore](https://avatars.discourse-cdn.com/v4/letter/w/6f9a4e/32.png) [@WillReadmore](https://boards.straightdope.com/u/WillReadmore)\ **Post date:** [March 4, 2018, 1:05am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1126 "2018-03-04T01:05:03Z")
> [@Whack-a-Mole](#): > > The case in question in the OP is a case of going backwards presumably because the judge thinks the law overreached. True. I think the OP case is headed for the round file. My bet is that the essentially identical case that is before the SCOTUS will decide the issue. Of the three cases I know about, two have had the bakers lose every time up through appeals courts. This is the only one I know of where a judge ruled in favor of the baker. ---
**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 6, 2018, 6:10pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1127 "2018-03-06T18:10:17Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Or let’s not say that, because political affiliation becoming a protected class is fundamentally a different matter and changes things dramatically. How is political affiliation all that different from religion? People have killed for both. People have died for both. ---
**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 6, 2018, 6:11pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1128 "2018-03-06T18:11:54Z")
> [@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’m not sure that’s true. Once the creative element of the design has been completed, then how is manufacturing the same thing over and over again part of the creative process? After all at that point, how is the cake different than a Big Mac? ---
**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 6, 2018, 6:13pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1129 "2018-03-06T18:13:59Z")
> [@Damuri\_Ajashi](#): > > How is political affiliation all that different from religion? People have killed for both. People have died for both. Oh goody, thanks for bumping this thread! I’m not sure I have anything further to add. ---
**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 6, 2018, 6:14pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1130 "2018-03-06T18:14:12Z")
> [@Really\_Not\_All\_That\_Bright](#): > > I wouldn’t be saying anything by supplying the KKK with that cake. But more importantly, the Unruh Act does not require businesses to serve people without regard to membership in organizations. You see the part where I say “if the state forced you” I don’t know if I was being clear enough but I was proposing a hypothetical there. ---
**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 6, 2018, 6:15pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1131 "2018-03-06T18:15:53Z")
> [@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? What law would he be violating by refusing to make the cake? Is there a law that makes this illegal in your hypothetical? ---
**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 6, 2018, 6:17pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1132 "2018-03-06T18:17:57Z")
> [@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. Apparently, that’s just something you say to get my hopes up when you are losing an argument badly. ---
**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 6, 2018, 6:21pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1133 "2018-03-06T18:21:38Z")
> [@begbert2](#): > > 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_. OK, so to you context doesn’t matter in the application of these sort of laws. It doesn’t matter how offensive someone finds a thing to be, they must do it in offensive situations if they did it in inoffensive situations. I’m not sure I disagree. ---
**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 6, 2018, 6:25pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1134 "2018-03-06T18:25:13Z")
> [@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. It seems like the judge was saying that once the artistic creation was done, the artistic expression expired with it. Once you make it for one person, you must make it for all. ---
**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 6, 2018, 6:30pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1135 "2018-03-06T18:30:45Z")
> [@Buck\_Godot](#): > > Then yes. If we reach the point where being a Nazi is a protected class then you can’t discriminate against Nazis. Its really that simple. As it stands now we don’t live in such a world and are unlikely to because of exactly this sort of scenario. But we do live in such a world. Religion is not all that different than politics. Replace the Nazi cake for a Fred Phelps cake. ---
**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 6, 2018, 6:31pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1136 "2018-03-06T18:31:51Z")
> [@Snowboarder\_Bo](#): > > Dude, don’t you see how hard you’re making it for him to argue with you by standing behind the principles you espouse? It’s really unfair. 😛 Didn’t you tell us you were going away? ---
**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 6, 2018, 6:47pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1137 "2018-03-06T18:47:21Z")
> [@Damuri\_Ajashi](#): > > It seems like the judge was saying that once the artistic creation was done, the artistic expression expired with it. Once you make it for one person, you must make it for all. That’s the opposite of what the judge said. He said that they could buy pre-made cakes, but could not compel the baker to make a new one. > [@Damuri\_Ajashi](#): > > But we do live in such a world. Religion is not all that different than politics. Replace the Nazi cake for a Fred Phelps cake. A cake that says “Happy birthday, Fred Phelps?”, or a cake that says “Gays burn in hell!” Do you see that there is a difference? ---
**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 6, 2018, 7:38pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1138 "2018-03-06T19:38:35Z")
> [@k9bfriender](#): > > Not sure what you mean. I am talking about what we are talking about in this thread. > > Where there are people worried about “Where will it stop? First we are expected to stop prosecuting homosexuals for their behavior that we have made illegal, then we are expected to allow them to have jobs, then we have to allow them to get married? When will they stop trying to be treated as equals?” > > My point is is it has been an uphill battle to achieve every one of the many milestones involved in preventing discrimination, and there is far more of a risk of backsliding than of “going too far”. On the other hand, part of the argument for gay marriage was that it was not an imposition on anyone and any opposition to gay marriage was intefering withy the freedom of gays when it presented not threat to the freedom of bigots. Now we are told that it will in fact be an imposition on bigots who will be forced to bake cakes for gay weddings that they don’t approve of. ---
**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 6, 2018, 7:54pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1139 "2018-03-06T19:54:18Z")
> [@k9bfriender](#): > > That’s the opposite of what the judge said. He said that they could buy pre-made cakes, but could not compel the baker to make a new one. I thought the opinion said that you couldn’t force the baker to make a new CUSTOM cake. But an off the rack design does not seem to be covered by his reasoning. > [@](#): > > A cake that says “Happy birthday, Fred Phelps?”, or a cake that says “Gays burn in hell!” > > Do you see that there is a difference? Does the baker in this hypothetical have an objection to the celebration of birthdays (some weird sect of Jehovah’s witness perhaps). Lets say you are a Christian baker and you bake a beautiful Christian themed cake of a grave to celebrate the resurrection of Jesus Christ and Fred Phelps wants one to celebrate the funeral of another American soldier as the price of America’s permissiveness on gay stuff. Does context matter? ---
**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 6, 2018, 8:26pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/1140 "2018-03-06T20:26:28Z")
> [@Damuri\_Ajashi](#): > > On the other hand, part of the argument for gay marriage was that it was not an imposition on anyone and any opposition to gay marriage was intefering withy the freedom of gays when it presented not threat to the freedom of bigots. Now we are told that it will in fact be an imposition on bigots who will be forced to bake cakes for gay weddings that they don’t approve of. I think you have utterly misunderstood the “argument for gay marriage” on pretty much every possible fundamental level. > [@Damuri\_Ajashi](#): > > I thought the opinion said that you couldn’t force the baker to make a new CUSTOM cake. But an off the rack design does not seem to be covered by his reasoning. Well, I don’t know what to tell you, but that is not correct, as has been covered multiple times in this thread. > [@](#): > > Does the baker in this hypothetical have an objection to the celebration of birthdays (some weird sect of Jehovah’s witness perhaps). Ummm, I don’t know, it was your hypothetical. If he does, then he would not make a birthday cake for anyone at all. > [@](#): > > Lets say you are a Christian baker and you bake a beautiful Christian themed cake of a grave to celebrate the resurrection of Jesus Christ and Fred Phelps wants one to celebrate the funeral of another American soldier as the price of America’s permissiveness on gay stuff. Does context matter? I don’t see why it should. Now, keep in mind that being an asshole is not a protected class. If you come into the baker’s place, being an asshole to the baker’s gay customers, or being an asshole to the baker, then you can deny them service. So, if you, as a representative of Phelps’s clan, come into the baker, and see the resurrection cake, with its chorus of angels and rays of sunshine flooding into the empty tomb, and you decide that that would be the perfect way to commemorate the death of a soldier, then yeah, they should make it and sell it to you, assuming you have the money for it. If, OTOH, you come in, call the other customers that are browsing cake designs “fags”, then demand that you make a cake with a soldier’s grave on it to celebrate the death of a soldier who deserved his death because he was fighting for a country that doesn’t put homosexuals to death; then he can very rightly refuse you service. Think you are getting this yet? [Previous page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=56) [Next page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=58)