I think DSYoungEsq’s explanation in post #146 hit the decision on the head (or maybe it’s all us lawyers agreeing with each other). This idea of artistic impression has been around since people have been paying for the arts. For all that disagree with this position, I have to ask: have any of you actually created something? I don’t mean putting together Ikea furniture or paint-by-numbers. I mean, from scratch, create something with your own two hands. I find baking to be a perfect example of the point I’m trying to make. However, given the amount of argumentation, I think woodworking is a better example. My father-in-law is an amateur furniture maker. We made an armoire together. It was pains-taking, highly customizable, precision-laden, but entirely up to me to fulfill the design elements. Or put another way, all those episodes of watching Ron Swanson on Parks and Recs hit me on whole different level.
That’s how I see the baker providing an artistic service. One that the baker can refuse to perform at his detriment, but entirely upon his own volition. Even at the corporate level, where I work, we refuse customization work with established clients all the time (in this case, it has to meet certain levels of profitability, not merely be profitable). Artist have boycotted or refused to accept awards. Or thought another way, would we require all those bands that refused to play at Donald Trump’s inauguration?
At the case at hand, the couple refused to buy a cake already made, i.e. a cake made from ordinary services. They specifically wanted the baker to make a cake. Why? At some level, they were acknowledging his artistic talent and wanted to patronize it. It’s at this instance that the baker may choose to work or not work. Without other reasoning, we should always defer to our natural freedoms.
But I’m not seeing how this standard cannot apply to these. Or these. Or–and this is the redneck in me showing out–this.
I don’t see the difference in artistic merit between a restaurant dish and a wedding cake. ( I mean, one is intended to eat on-site, the other to be taken elsewhere…but I struggle to see that as relevant.) Little help?
Every single thing a baker makes is then ‘art’ - since EVERYTHING they make is from scratch and by hand- they don’t (atleast the good ones don’t) go to Costco and buy cakes for re-sale.,
Therefore, what is to stop them from saying that the ‘dozen donuts you want for the gay breakfast’ are works of art and I wont let you have them either? what about 2 dozen cupcakes for the party?
Seriously - I get that cakes can be works of art - but the average corner bakery does not fall into that.,
Maybe the idea you don’t grasp is that all food more complicated than pull it out of the ground and shove it in your mouth is art. Not all art is to everybody’s taste and not all artists are equally talented. Before somebody comes up with what s/heit believes to be a gotcha, things like frozen dinners abd such are analogous to prints of paintings. Is the kid behind the counter at Subway an artist? No, but the R&D chef at corporate level who devised the recipe for your sandwich is. Whether you,personally, like their sandwiches or not doesn’t matter. There are people wh didn’t like Warhol’s work, you know.
Why isn’t the kid at Subway an artist? How is what he/she does different from the “chef at corporate level” such that one is an artist and the other is not, in your opinion?
It’s the act of commissioning the artist to make a product specifically for a particular customer is where the line should and hopefully will be drawn. The ‘dozen donuts’ are standard production at the bakery and would have been made regardless of who was coming into buy them. No bakery that I am aware of regularly makes wedding cakes on the off chance that someone will wander in wanting to buy one.
Of course the couple didn’t want a cake that was already made. They were planning their wedding in advance, and they didn’t want the cake to be stale or moldy. Obviously they want the cake to be baked immediately before the wedding, and obviously they have to place the order before the cake is baked in order to make that happen. That’s entirely different from the question of whether they wanted the cake customized, and I’m not seeing anything here that says that they did.
And yet you never heard of it applied to commercial cake-baking until something was needed to rationalize this guy’s bigotry and defend his violation of public accommodation laws, did you?
The guy did *not *turn away gay customers because of his artistic integrity, and it shows a complete loss of perspective to claim that’s what the legal debate is based on.
The kid, generally, brings nothing original or innovative to the work. Sklee follows a set of clearly laid out instructions from which sklee is not to deviate, indeed sklee can lose skler job by deviating too much or too often. To continue with the Warhol analogy, they are like the workers at Styria Studios Inc. who produced his screen prints.
The difference is is that your FIL, as you said, is an amateur. If he were open to the public, taking commision orders, he would be in a different position. Lets say that he is actually in business to the public, in order for him to be in any way relevant to a baker who is in buess to the public.
So, in his business of selling furniture to the public, I come by, and tell him that I want to have a bedroom set made a s a wedding gift for a friend. He says great, and gets all the details needed to start work. When I am getting ready to leave, I mention that Adam and Steve will be thrilled with their gift.
At this point, he declines the sale, as making that furniture as a SSM wedding gift would violate his religious principles. He tells me that I can go over to IKEA, and buy something there.
Not really; however, I think a business owner should have the right to refuse service to anyone for whatever reason they choose and if using the term artistic expression is necessary to protect this right, I am okay with it. So if a particular Subway sandwich maker is the owner of that particular franchise (and there is no clause in the franchise contract limiting how service can be refused), then yes the Subway sandwich maker should be able to refuse to make a sandwich (or even refuse to a sell a pre-made sandwich) for any want-to-be customer under any circumstance whatsoever.
