# 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:** 6
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [February 7, 2018, 8:48pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/101 "2018-02-07T20:48:17Z")
> [@DSYoungEsq](#): > > So let’s postulate the following: > > The State of Wyoming, in its infinite wisdom, passes a law requiring that all commercial-related speech be conducted in English. Businesses are _ **required** _ to post a sign at their door warning that the customer will be required to speak in English only. You are required to re-iterate that warning to any customer who speaks to you in a different language, and you are required to speak only in English when conducting your business. > > Your speech has now been mandated by the government. Must you comply? If not, why not? > > In answering, keep in mind that the issue before the court in the wedding cake case does NOT involve a constitutional protection of gays. That is, there is no constitutional mandate that gay people be treated “equally” (whatever that means). The gay marriage case was resolved on the basis of the fundamental right of any two people to marry. So you can’t say, but this is a case where a constitutional protection is not involved. > > One could assert that, if you choose to do business in Wyoming, you must accept that your speech will be in English only. Otherwise, don’t go into business there. Differentiate this. That’s an odd hypothetical, and I do not in any way see how it relates. But sure, if your state passes that law, and it is _somehow_ held as constitutional, then that is the law you have to follow. This is more than just compelling speech, this is limiting speech. I could get around the prohibition by having menus with pictures on them. No one need speak english at all. Speech is not compelled. That all other languages are prohibited is a limitation on speech. I do not think it would be held as constitutional for that reason. So, I really don’t see how your hypothetical, which involves limiting speech, relates to the case we are talking about, which is ostensibly “compelling speech”. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [February 7, 2018, 8:50pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/102 "2018-02-07T20:50:22Z")
> [@Whack-a-Mole](#): > > The cake the couple wanted to buy was unadorned. There was no endorsement of any sort on the cake in question. Indeed. This isn’t my going to Subway in a hijab and the sandwich artist saying, “I’m sorry, my religion forbids me to serve Muslims, so I must put bacon on your sandwich, its artistry is an expression of my religion.” This is my going to Subway in a hijab and the sandwich artist saying, “I’m sorry, my religion disapproves of Islam, so I can’t use my god-given sandwich artistry to make you a sandwich to order–either grab something from the to-go case or else I’ve told Jersey Mikes to expect you.” ---
**Author:** ![billfish678](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@billfish678](https://boards.straightdope.com/u/billfish678)\ **Post date:** [February 7, 2018, 8:52pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/103 "2018-02-07T20:52:34Z")
> [@zimaane](#): > > Unlike a cake, there is no way that a Subway sandwich could be customized to endorse a religious or political belief (or taste good, but that’s another matter.) There is a “5 dollar foot long” joke in here somewhere… ---
**Author:** ![Corner\_Case](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/corner_case/32/234_2.png) [@Corner\_Case](https://boards.straightdope.com/u/Corner_Case)\ **Post date:** [February 7, 2018, 8:55pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/104 "2018-02-07T20:55:48Z")
> [@Whack-a-Mole](#): > > Finally, the judge noted there is nothing “sacred or expressive” about a tire so presumably there is something sacred about a cake? Can judges decide cakes are sacred? If the cake is made with buttercream, then, yes, it is sacred. Later, a Buddhist sect finally convinces a Jewish Family Bakery to make a cake for their religious ceremony. The cake has a swastika representing good fortune. Later than that, a neo-Nazi enters the same bakery and asks for the same cake for their convention… And then asks, “Do you deliver?” To not make this a drive-by/trolling: That would be So difficult! Personal beliefs getting in the way just doesn’t quite express that situation. I feel that, if you find the establishment doesn’t want to serve you then you should go elsewhere. You would get better service from a place that Wanted your business and everyone would be more satisfied. But, that’s easy when there are 'elsewhere’s to which to go. In this case I think you would just have to grit your teeth and make the cake (without spit), and hold your head high as you delivered it, in tallit and kippah. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [February 7, 2018, 8:56pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/105 "2018-02-07T20:56:50Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Indeed. This isn’t my going to Subway in a hijab and the sandwich artist saying, “I’m sorry, my religion forbids me to serve Muslims, so I must put bacon on your sandwich, its artistry is an expression of my religion.” This is my going to Subway in a hijab and the sandwich artist saying, “I’m sorry, my religion disapproves of Islam, so I can’t use my god-given sandwich artistry to make you a sandwich to order–either grab something from the to-go case or else I’ve told Jersey Mikes to expect you.” Your Subways have a “to go” case? My goodness the big city holds so many wonders. ---
**Author:** ![Airbeck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/airbeck/32/6574_2.png) [@Airbeck](https://boards.straightdope.com/u/Airbeck)\ **Post date:** [February 7, 2018, 8:57pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/106 "2018-02-07T20:57:39Z")
Black people used to have a book that let them know what places they weren’t welcome and what other places they could get gas, hotel lodgings, food etc. I say we shouldn’t go back to that kind of thing. ---
**Author:** ![Scumpup](https://avatars.discourse-cdn.com/v4/letter/s/ce73a5/32.png) [@Scumpup](https://boards.straightdope.com/u/Scumpup)\ **Post date:** [February 7, 2018, 9:00pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/107 "2018-02-07T21:00:41Z")
> [@Airbeck](#): > > I didn’t say that cakes are not art. Nor did I say that anything that isn’t lasting cannot be art. How did you get that from my post? I was replying to the idea that there is no distinction at all between cakes and paintings. There are in fact many distinctions between the two. To me this seems an uncontroversial thing to point out. You were the one who thought it important enough to emphasize the lasting nature of paintings as compared to cakes. ---
**Author:** ![Airbeck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/airbeck/32/6574_2.png) [@Airbeck](https://boards.straightdope.com/u/Airbeck)\ **Post date:** [February 7, 2018, 9:02pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/108 "2018-02-07T21:02:48Z")
> [@Scumpup](#): > > You were the one who thought it important enough to emphasize the lasting nature of paintings as compared to cakes. Someone brought up the idea that there is no distinction between cakes and paintings. I presented some obvious distinctions between the two because that idea seemed silly to me. You appear to be inferring far more than that from my post though, and I’m not sure why. ---
**Author:** ![zimaane](https://avatars.discourse-cdn.com/v4/letter/z/a3d4f5/32.png) [@zimaane](https://boards.straightdope.com/u/zimaane)\ **Post date:** [February 7, 2018, 9:22pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/109 "2018-02-07T21:22:47Z")
> [@](#): > > The cake the couple wanted to buy was unadorned. There was no endorsement of any sort on the cake in question. Yes, in this particular case, that is true, and so the baker is certainly in the wrong. But it is possible to imagine a situation in which the cake making implies some sort of endorsement. It is not obvious to me if a Christian baker should be able to refuse to produce a same sex design, or a Muslim baker refuse a “Jesus is Lord” request. ---
**Author:** ![Scumpup](https://avatars.discourse-cdn.com/v4/letter/s/ce73a5/32.png) [@Scumpup](https://boards.straightdope.com/u/Scumpup)\ **Post date:** [February 7, 2018, 9:24pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/110 "2018-02-07T21:24:20Z")
> [@Airbeck](#): > > Someone brought up the idea that there is no distinction between cakes and paintings. > > I presented some obvious distinctions between the two because that idea seemed silly to me. > > You appear to be inferring far more than that from my post though, and I’m not sure why. It is a distinction without importance. The comparatively temporary nature of wedding cakes compared to paintings or other forms of art has no place in the discussion. If, instead of a baker, the lawsuit centered around a singer who refused on religious grounds to perform at a gay wedding, would the ephemeral nature of live music matter one tiny bit? ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [February 7, 2018, 9:26pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/111 "2018-02-07T21:26:17Z")
> [@Airbeck](#): > > Someone brought up the idea that there is no distinction between cakes and paintings. > > I presented some obvious distinctions between the two because that idea seemed silly to me. > > You appear to be inferring far more than that from my post though, and I’m not sure why. but your answer was kinda obtuse. Here’s another difference: ones made with paint and the other with flour. One starts with the letter “p”. One sits comfortably in frame. Bam, I just totally schooled that guy who thought cakes were the same as paintings. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 7, 2018, 9:27pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/112 "2018-02-07T21:27:48Z")
> [@Airbeck](#): > > Black people used to have a book that let them know what places they weren’t welcome and what other places they could get gas, hotel lodgings, food etc. I say we shouldn’t go back to that kind of thing. When was the last time a gay person got beat up by a wedding cake baker for going to the wrong bakery? Merchants are allowed to discriminate for many reasons, not just “I don’t want to bake a gay wedding cake”. So this isn’t really breaking any new ground. In fact, forcing bakers to bake gay wedding cakes is breaking new ground, so keeping the status quo is not “going back” to anything. This is not Jim Crow, and gays aren’t going to need a “Sundown Book” if this ruling stands. There are rational arguments to be made against this type of ruling, but that isn’t one of them since it just does not follow. ---
**Author:** ![Airbeck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/airbeck/32/6574_2.png) [@Airbeck](https://boards.straightdope.com/u/Airbeck)\ **Post date:** [February 7, 2018, 9:28pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/113 "2018-02-07T21:28:32Z")
> [@Scumpup](#): > > It is a distinction without importance. The comparatively temporary nature of wedding cakes compared to paintings or other forms of art has no place in the discussion. > If, instead of a baker, the lawsuit centered around a singer who refused on religious grounds to perform at a gay wedding, would the ephemeral nature of live music matter one tiny bit? You keep trying to pick this argument with me. I offered several other distinctions in that post yet you are laser focused on this one. Do you, in fact, believe that cakes are exactly the same as paintings. If not, then we do not disagree. I am making no other point here. I am not the argument you are looking for… ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [February 7, 2018, 9:30pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/114 "2018-02-07T21:30:23Z")
> [@zimaane](#): > > But it is possible to imagine a situation in which the cake making implies some sort of endorsement. It is not obvious to me if a Christian baker should be able to refuse to produce a same sex design, or a Muslim baker refuse a “Jesus is Lord” request. I submit that the cake maker is not making an endorsement regardless of what is put on the cake. If she makes a cake that says, “Congrats to Joe…the best pipe fitter in Bakersfield!” is she making an endorsement that Joe is, in fact, the best pipe fitter in Bakersfield? Would you expect other pipe fitters who think they are better than Joe to hold the baker accountable for making that cake? Or is it that she is just baking a cake and putting a message on there for someone else and she in no way is endorsing the statement on the cake? ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [February 7, 2018, 9:31pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/115 "2018-02-07T21:31:05Z")
ISTM that the people trying to force their opinions on others is not the baker, who offered to refer the gay couple to someone else for a generic cake, but the gay couple who filed the complaint because they wanted that particular baker to bake the cake. “I want bacon on my sub.” “I am Muslim, so I can’t handle pork, but Joe here will be happy to assist you.” “No, YOU have to do it.” Regards, Shodan ---
**Author:** ![Airbeck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/airbeck/32/6574_2.png) [@Airbeck](https://boards.straightdope.com/u/Airbeck)\ **Post date:** [February 7, 2018, 9:31pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/116 "2018-02-07T21:31:13Z")
> [@CarnalK](#): > > but your answer was kinda obtuse. Here’s another difference: ones made with paint and the other with flour. One is edible. One starts with the letter “p”. One sits comfortably in frame. Bam, I just totally schooled that guy who thought cakes were the same as paintings. Do you want me to agree that cakes are exactly the same as paintings or something? I can’t do that, they are clearly distinct things. Words mean things. I’m not really arguing with anyone. Consider me dropping the hijack then, but I won’t admit that cakes and paintings are indistinct from each other. I cannot fathom how anything I’ve said is the least bit controversial here. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [February 7, 2018, 9:32pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/117 "2018-02-07T21:32:45Z")
> [@John\_Mace](#): > > In fact, forcing bakers to bake gay wedding cakes is breaking new ground, so keeping the status quo is not “going back” to anything. I’d say making an exception for legal discrimination based on religious belief is breaking new ground. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [February 7, 2018, 9:34pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/118 "2018-02-07T21:34:25Z")
So what happens if the Supreme Court rules that cakes are not artistic expressions? Is this decision then automatically voided, or does it get automatically appealed, or do the litigants need to appeal it themselves? ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [February 7, 2018, 9:35pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/119 "2018-02-07T21:35:03Z")
> [@Shodan](#): > > ISTM that the people trying to force their opinions on others is not the baker, who offered to refer the gay couple to someone else for a generic cake, but the gay couple who filed the complaint because they wanted that particular baker to bake the cake. > > “I want bacon on my sub.” > > “I am Muslim, so I can’t handle pork, but Joe here will be happy to assist you.” > > “No, YOU have to do it.” I cannot say for certain but my guess is the couple brought the case because they were pissed at the discrimination and not because they just had to have Cathy, and ONLY Cathy, make a cake for them. I dunno though…maybe Cathy’s cakes are the best cakes in the whole world and nothing else would suffice. ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [February 7, 2018, 9:38pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/120 "2018-02-07T21:38:18Z")
> [@zimaane](#): > > Unlike a cake, there is no way that a Subway sandwich could be customized to endorse a religious or political belief (or taste good, but that’s another matter.) No sandwich can be made with or without bacon? Or pork in general? [Previous page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=5) [Next page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=7)