# 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:** 8
**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, 11:43pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/141 "2018-02-07T23:43:13Z")
I have been to many weddings. I have offered the couple my best wishes at most of them, and at one of them, I even walked the bride down the aisle. I have never once participated in a wedding, and I expect and hope to eventually do so only once in my life. Nobody has ever argued or even suggested that I should be compelled to participate in a wedding, certainly not that I should be compelled to participate in a same-sex wedding. Nor have any of these bakers ever been compelled, asked, or suggested to participate in a same-sex wedding. ---
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [February 7, 2018, 11:45pm UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/142 "2018-02-07T23:45:42Z")
> [@Iggy](#): > > This touches on the baker’s agreement to refer business to her competitor. > > Hypothetical: **Suppose baker A took the order from the same sex couple, accepted payment, gave the order and payment off to his competitor, baker B, to make the cake and complete delivery to the reception.** Should the couple have a cause of action for discrimination because baker A did not actually make the cake? What legitimate state interest is the state promoting if they bring a discrimination complaint against baker A? > ISTM that a member of a protected class does not have a right to demand a particular individual perform a service, only that they receive service on par with other customers. And ISTM that in the California baker case the couple is bringing a case because one individual refused service (“No, YOU have to do it.”) yet the business arranged that the customer be serviced. That should be disclosed to the customer beforehand. You go to a service provider because you want _them_ to do the work. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [February 8, 2018, 12:02am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/143 "2018-02-08T00:02:27Z")
> [@CarnalK](#): > > So you think it’s reasonable that the SC will leave that unresolved when an almost identical case is coming down the pipe? Because it’s not a given that these two cases are entirely apposite. OK I think I got a handle on your positioning as regards how fully you are willing to express your thoughts on matters that require blah blah blah. I don’t think you have a handle on anything about me, sadly. \ You came into the thread. Instead of simply commenting that, “Wow, this looks like the case the Supreme Court is deciding soon; I think I’ll wait for that as this might be a pointless exercise” (which would certainly be a valid approach), you offered opinions on the case. **Without reading anything about it beyond what was written here.** When it was suggested you educate yourself on the facts and law involved, you indicated you saw no point. But you still offered opinions on the case here, opinions which are uninformed because they aren’t based upon actually knowing what’s going on. I object to that. I object to it all the time in GD (and especially in GQ) because that’s the complete antithesis of what The Straight Dope® is about. That’s why I’ve been calling you out on it. I suspect you don’t know what my underlying views are (though I have given a couple hints). Probably you aren’t bothered to worry about that. ---
**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 8, 2018, 12:12am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/144 "2018-02-08T00:12:03Z")
> [@Iggy](#): > > ISTM that a member of a protected class does not have a right to demand a particular individual perform a service, only that they receive service on par with other customers. This smacks of “separate but equal” to me and that did not turn out well. ---
**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 8, 2018, 12:21am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/145 "2018-02-08T00:21:19Z")
> [@DSYoungEsq](#): > > I don’t think you have a handle on anything about me, sadly. \ > > You came into the thread. Instead of simply commenting that, “Wow, this looks like the case the Supreme Court is deciding soon; I think I’ll wait for that as this might be a pointless exercise” (which would certainly be a valid approach), you offered opinions on the case. **Without reading anything about it beyond what was written here.** > > When it was suggested you educate yourself on the facts and law involved, you indicated you saw no point. But you still offered opinions on the case here, opinions which are uninformed because they aren’t based upon actually knowing what’s going on. > > I object to that. I object to it all the time in GD (and especially in GQ) because that’s the complete antithesis of what The Straight Dope® is about. That’s why I’ve been calling you out on it. > > I suspect you don’t know what my underlying views are (though I have given a couple hints). Probably you aren’t bothered to worry about that. Yeah, you’re right. I have not been in agreement all the time with many of the lawyers here but you are on the the list of ones I basically discount as meaningless, law wise. Everyone’s thoughts I certainly consider if you make an attempt at defending hem. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [February 8, 2018, 12:29am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/146 "2018-02-08T00:29:39Z")
> [@Left\_Hand\_of\_Dorkness](#): > > This baker quite clearly offered a service–baking a cake with frills–to one person but denied an identical service to another, based solely on the sexual orientation of the customer. Clearly discrimination. So what? This point you are making has begged the question. Here’s a hint: Not all discrimination is prohibited. California has a law which ostensibly prohibits discrimination on the basis of sexual orientation. An argument is made here that that is what the baker did. The baker hasn’t really said, “No, I wasn’t discriminating on the basis of your homosexuality”; thus we are left with the determination that the Unruh Act would prohibit this refusal of business. BUT, the baker claims that requiring her to **make** a cake, with individualized decorations and all, is a form of art. Thus, it is covered under the First Amendment. In general, government cannot “put words in your mouth.” That is, you cannot be compelled to engage in a specific kind of “speech”. So, just as you cannot be prohibited from pole dancing, you can’t be **forced** to pole-dance. The baker claims, and the judge agreed, that this general rule about the First Amendment applies to this baker being forced to bake a specific cake for this customer. Now let’s weed out the irrelevancies. It’s irrelevant that there is religion involved in her thoughts. Her argument is entirely based upon freedom of speech. She could object on the basis that they wanted curly flowers and she doesn’t like doing that. It’s irrelevant that it’s gays involved. As many have pointed out, the reason this argument is so important is that it applies to ANY situation where the government has prohibited some activity. Thus, it would apply to anti-discrimination laws of any type. That’s a hole that a lot of people might try to drive their Mack trucks through. It’s irrelevant if, in THIS case, the cake wasn’t going to be substantially different. That’s just leaving the question of a cake that IS different to another day. So if you want to disrupt this process, you can’t just say, “It’s discrimination.” You have to establish that it is NOT protected free speech. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [February 8, 2018, 12:30am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/147 "2018-02-08T00:30:50Z")
> [@CarnalK](#): > > Yeah, you’re right. I have not been in agreement all the time with many of the lawyers here but you are on the the list of ones I basically discount as meaningless, law wise. Everyone’s thoughts I certainly consider if you make an attempt at defending hem. And again you simply avoid the point I was making. I’m done with you. :rolleyes: ---
**Author:** ![begbert2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/begbert2/32/3357_2.png) [@begbert2](https://boards.straightdope.com/u/begbert2)\ **Post date:** [February 8, 2018, 12:35am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/148 "2018-02-08T00:35:26Z")
> [@DSYoungEsq](#): > > It’s irrelevant if, in THIS case, the cake wasn’t going to be substantially different. That’s just leaving the question of a cake that IS different to another day. If it has been determined that making a completely standard cake with no artistic expression whatsoever is protected speech, is that not setting a precedent that anyone who makes anything can be openly bigoted about whose business they accept? ---
**Author:** ![OldGuy](https://avatars.discourse-cdn.com/v4/letter/o/3bc359/32.png) [@OldGuy](https://boards.straightdope.com/u/OldGuy)\ **Post date:** [February 8, 2018, 12:41am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/149 "2018-02-08T00:41:26Z")
> [@Shodan](#): > > “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 This is actually completely different. This original server is not discriminating as s/he would not make the sandwich for any customer. ---
**Author:** ![billfish678](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@billfish678](https://boards.straightdope.com/u/billfish678)\ **Post date:** [February 8, 2018, 12:45am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/150 "2018-02-08T00:45:01Z")
> [@OldGuy](#): > > This is actually completely different. This original server is not discriminating as s/he would not make the sandwich for any customer. And this baker would not make a cake intended for any gay marriage…even if Adam and Steve’s straight friend picked it up. It’s not the gay customers the baker objects to…it is the ceremony and cake made specifically for that ceremony. ---
**Author:** ![begbert2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/begbert2/32/3357_2.png) [@begbert2](https://boards.straightdope.com/u/begbert2)\ **Post date:** [February 8, 2018, 12:49am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/151 "2018-02-08T00:49:59Z")
> [@billfish678](#): > > And this baker would not make a cake intended for any gay marriage…even if Adam and Steve’s straight friend picked it up. > > It’s not the gay customers the baker objects to…it is the ceremony and cake made specifically for that ceremony. That’s still completely different, of course. For it to have been a comparable example the baker would have to refuse to make cakes for anyone _at all_. ---
**Author:** ![billfish678](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@billfish678](https://boards.straightdope.com/u/billfish678)\ **Post date:** [February 8, 2018, 12:52am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/152 "2018-02-08T00:52:01Z")
That makes no sense at 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:** [February 8, 2018, 12:59am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/153 "2018-02-08T00:59:59Z")
> [@billfish678](#): > > That makes no sense at all. The silly hypothetical doesn’t make a lot of sense either, largely because “bacon eater” isn’t a protected class. Plus it’s a poor analogy because there’s rather a large difference between saying “Joe here handles the bacon” and “Take your business elsewhere, you deviant.” ---
**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 8, 2018, 1:07am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/154 "2018-02-08T01:07:16Z")
> [@DSYoungEsq](#): > > So what? This point you are making has begged the question. > > Here’s a hint: Not all discrimination is prohibited. :rolleyes: Gee, thanks! This is a super-relevant “hint.” Except, as someone noted: > [@](#): > > California has a law which ostensibly prohibits discrimination on the basis of sexual orientation. Ouch, man. Turns out that you’re telling me something irrelevant here. > [@](#): > > An argument is made here that that is what the baker did. The baker hasn’t really said, “No, I wasn’t discriminating on the basis of your homosexuality”; thus we are left with the determination that the Unruh Act would prohibit this refusal of business. > > BUT, the baker claims that requiring her to **make** a cake, with individualized decorations and all, is a form of art. Thus, it is covered under the First Amendment. In general, government cannot “put words in your mouth.” That is, you cannot be compelled to engage in a specific kind of “speech”. So, just as you cannot be prohibited from pole dancing, you can’t be **forced** to pole-dance. The baker claims, and the judge agreed, that this general rule about the First Amendment applies to this baker being forced to bake a specific cake for this customer. DSYoungEsq, I addressed all this above. Would it be helpful for me to repeat posts, or to link back to them? You’re adopting this sneering, dismissive tone. I recommend that you double-check what you’re responding to before you adopt such a tone in the future; when you sneer at someone while missing what they’ve written, it’s a bad look. ---
**Author:** ![Ludovic](https://avatars.discourse-cdn.com/v4/letter/l/7ab992/32.png) [@Ludovic](https://boards.straightdope.com/u/Ludovic)\ **Post date:** [February 8, 2018, 1:07am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/155 "2018-02-08T01:07:34Z")
> [@billfish678](#): > > And this baker would not make a cake intended for any gay marriage…even if Adam and Steve’s straight friend picked it up. > > It’s not the gay customers the baker objects to…it is the ceremony and cake made specifically for that ceremony. Echoes of “black people are also prohibited from marrying another race just like white people!” ---
**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 8, 2018, 1:49am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/156 "2018-02-08T01:49:42Z")
> [@DSYoungEsq](#): > > BUT, the baker claims that requiring her to **make** a cake, with individualized decorations and all, is a form of art. Thus, it is covered under the First Amendment. In general, government cannot “put words in your mouth.” That is, you cannot be compelled to engage in a specific kind of “speech”. So, just as you cannot be prohibited from pole dancing, you can’t be **forced** to pole-dance. The baker claims, and the judge agreed, that this general rule about the First Amendment applies to this baker being forced to bake a specific cake for this customer. > > Now let’s weed out the irrelevancies. > > It’s irrelevant that there is religion involved in her thoughts. Her argument is entirely based upon freedom of speech. She could object on the basis that they wanted curly flowers and she doesn’t like doing that. > > It’s irrelevant that it’s gays involved. As many have pointed out, the reason this argument is so important is that it applies to ANY situation where the government has prohibited some activity. Thus, it would apply to anti-discrimination laws of any type. That’s a hole that a lot of people might try to drive their Mack trucks through. > > It’s irrelevant if, in THIS case, the cake wasn’t going to be substantially different. That’s just leaving the question of a cake that IS different to another day. > > So if you want to disrupt this process, you can’t just say, “It’s discrimination.” You have to establish that it is NOT protected free speech. - We have not established that this constitutes “art” on her part. It has been noted that if it does then the definition of “art” is so broad as to be nearly meaningless. The guy making my Subway sandwich is a sandwich artist then. This judge seems to think this broad definition is ok. - This case may have been decided on first amendment grounds but the baker has explicitly stated she does not want to make the cake because of religious reasons. - I do not see how this violates her free speech protections. Nothing about making the cake is “speech” anymore than the sandwich guy making my sub is engaged in speech. No words were to be put on this cake. It is just a cake. The judge said if she had cakes in the display she could not refuse to sell them. How does that make sense? Her rights are only violated if she knows ahead of time someone she doesn’t like will buy the cake but if they buy it once it is done then that is ok? That’s just weird. ---
**Author:** ![billfish678](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@billfish678](https://boards.straightdope.com/u/billfish678)\ **Post date:** [February 8, 2018, 1:54am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/157 "2018-02-08T01:54:21Z")
> [@Whack-a-Mole](#): > > - > > The judge said if she had cakes in the display she could not refuse to sell them. How does that make sense? Her rights are only violated if she knows ahead of time someone she doesn’t like will buy the cake but if they buy it once it is done then that is ok? That’s just weird. No its not. Imagine a scenario where you are out in your front yard. I ask you do odd thing X…like lay lifeless on the lawn. A. I ask you to do this because…well…I am playing an elaborate prank on my brother who will be along shortly. B. I ask you do this because the cops are chasing me and I need you to delay them. The task is EXACTLY the same. Do you, with your personal set of ethics…possibly see yourself reacting differently to request A vs B? ---
**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 8, 2018, 2:03am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/158 "2018-02-08T02:03:21Z")
> [@billfish678](#): > > No its not. > > Imagine a scenario where you are out in your front yard. I ask you do odd thing X…like lay lifeless on the lawn. > > A. I ask you to do this because…well…I am playing an elaborate prank on my brother who will be along shortly. > > B. I ask you do this because the cops are chasing me and I need you to delay them. > > The task is EXACTLY the same. > > Do you, with your personal set of ethics…possibly see yourself reacting differently to request A vs B? None of that is my job. Baking cakes is her job. Big difference. ---
**Author:** ![billfish678](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@billfish678](https://boards.straightdope.com/u/billfish678)\ **Post date:** [February 8, 2018, 2:09am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/159 "2018-02-08T02:09:45Z")
IIRC the baker had no problem selling them a bog standard cake. ---
**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 8, 2018, 2:11am UTC](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372/160 "2018-02-08T02:11:47Z")
> [@billfish678](#): > > IIRC the baker had no problem selling them a bog standard cake. Yes she did. They only wanted a bog standard cake. Nothing written on it. Nothing unique. Something chosen based on what the store advertised as available. The baker refused to sell it to them. [Previous page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=7) [Next page](https://boards.straightdope.com/t/california-judge-rules-making-a-cake-is-artistic-expression-denies-lgbt-discrimination-claim/808372.md?page=9)