No one has ever accused her of having a smart business plan. But, from her point of view, not only does God agree with her, but so does the judge and the law. Considering that, what attention do you think she’d give to anyone’s opinion here?
Is it clear that that matters? If the issue is free speech, which it allegedly is, then it doesn’t have to be clever speech. Or complicated speech. Or unique speech. It just has to be speech. And it’s my understanding that there were no downward limitations on the complexity of the cake or baking or preparation to qualify as speech under the judge’s ruling.
So making an elaborate cake is speech.
Making a simple cake is speech.
Making a completely plain cake is speech.
Making a donut is speech.
Making a loaf of bread is speech.
Making a hot dog is speech.
Making a salad is speech.
Carefully arranging pretzels on a plate is speech.
Carelessly pouring pretzels onto a plate is speech.
Pouring a shot is speech.
Though, for some reason, the words exchanged in making a sale of a premade product are apparently not speech. I’m not really sure why.
I believe you’re thinking of a producer, not a director. Nevertheless, your analogy is flawed. We’re talking about a business that makes baked goods. The making of those baked goods requires one laborers who use the same baking and decorating techniques for each cake. It does not require the highly specialized types of labor that a movie does. The business owner doesn’t say, “I’ve decided to create…a wedding cake! Now, whom shall I hire to carry out my artistic vision of this cake, which I see as a sort of homage to Cecil B. DeMille? Perhaps Victor M., who did such a marvelous job interpreting the top hat on the ‘Lullabye of Broadway’ cake done for the Rock Hudson wedding…”
If the owner’s claim is in artistic expression, and she is not, in fact, designing and creating each wedding cake herself, then she has no basis for her claim.
Oh, that’s an interesting question. If I hate Muslims, and someone wearing a hijab enters my shop, may I refuse to speak to them, on the grounds that my speech may not be compelled? If this is a bogus argument, but this judge’s decision is sound, why? It seems to me that cake-baking is not as much like speech as speech is.
She’s going a touch further than even the judge in this case.
The judge says that you may discriminate against someone in the specific and narrow case that you have not yet created the artistic expression in question, and that, I guess, it is for a gay wedding. (Though, looking over the judge’s statement, I don’t really see where he limits it to gay weddings, so I suppose the baker could refuse to sell cakes for black weddings as well, I think, IANAL.)
But she extends it further than the judge’s statement, in that no business should be required to serve (or employ, I assume) any person for any reason the business chooses.
Perhaps. The larger point for me is that, stipulating that baking is speech, the argument is still pernicious. See the example below, about not speaking to customers (which in most cases can prevent the customers’ access to the public accommodation): that’s undeniably speech, but allowing this sort of refusal would devastate all anti-discrimination laws.
This seems to evoke some libertarian sentiment that the market will fix all. If a person discriminates then the business goes elsewhere and their competitors succeed.
Thing is we already know the world does not work this way. We have seen it. It will not be a business here and there widely separated. It will be whole swaths of the country as it was in the past. It will not be walk 100 feet to the next baker. In some places it will be find a city somewhere within 50 miles that has a baker who will serve you.
We would go back to having to publish the The Negro Motorist Green Book so they could manage to get around (and perhaps a Hispanic version and gay motorist version and Muslim version and maybe Jewish version).
This is a world ZPG Zealot seems to think is the most desirable since you won’t be making someone do something for someone they do not like.
Not even close. Please read the ruling.
I’ve read several articles on it. Can you quote what distinguishes speech-food from non-speech-food in the ruling?
No. She, as an artist. As an artist she is free to refrain from using her talents to create something that run afoul of her religious beliefs.
The ruling defines and narrows the exception to the civil rights legislation in that regard.
The ruling may not be fair, but it’s not a license for doctors to refuse to treat black people.
As I’ve pointed out before, having a law that says that you many not discriminate also means that you have protection when you are pressured to discriminate.
If you have a restaurant, and some of your white customers, who outnumber your black customers significantly, complain about having to eat in the same dining room as black customers, or complain about being served by black employees, you are put in a hard position. You can try to do the right and noble thing, but if that means that you go out of business, then it doesn’t really do any good.
Currently, a person cannot complain about having to eat in the same dining room as a minority against which they are prejudiced. Well, they can, but it will be ineffectual, as losing that customer is not as costly as losing the lawsuit that would come from discrimination. No legitimate business owner is going to cater to customers demanding that he take illegal action.
If there are no discrimination laws, then I no longer have that protection, I don’t have something to fall back on, and say, “Well, it’s the law, I don’t have a choice as to whether or not to let them eat here.” Instead, those minorities are being granted access to my facilities by my choice, and there are those who may resent me making that choice.
If I see a “white’s only” sign go up in the restaurant across the street, and they are packed, while my business is slumping, it is not because I am a racist that I start seriously considering discriminating against customers.
Or, I go the other route, and I cater to black customers. Well, there are fewer of them, so I have to charge them more in order to make ends meet.
I hope that one day, anti-discrimination laws are unnecessary. At that point we can get rid of them. I do not believe we are even close yet.
Aren’t they? A protected class is simply a group of people with a common characteristic who are protected from discriminatory practices and policies. On the federal level, these are the groups protected by Title VII which included sex as one of those common characteristics. According to the EEOC:
(Bolding mine.)
Perhaps created vs. in the case. Start there. The judge was pretty clear about it.
Okay, I read the whole ruling. But I skimmed, and I’m missing what you’re talking about.
Maybe this?
etc. I hate quoting pdfs, given the arbitrary line-breaks a quote adds.
Okay, but then that’s nonresponsive. Here are the circumstances:
If you’re looking at that part, any time I place an order for something not in the case, it’s on the “speech” side of that line. Everything in that quote includes “made” or some other verb.
Ah, I thought you were talking about ZPG_Zealot, as that was what the post you responded to was responding to. You should have mentioned you were talking about the cake artist, to avoid creating confusion, especially as you seemed to be asking why she would care about our opinion, as if it were someone who actually would be seeing it, like someone in the thread.
Anyway, it is not that narrow or defined. It basically says that any time anyone engages in any form of creation, they may deny that creation to anyone they wish.
This effectively guts all civil rights legislation. Anyone can claim that their work is art, and that they cannot be compelled to use their art for something that they disagree with. BTW, the ruling was not based on religious grounds, so that claim that it runs afoul of religious beliefs is irrelevant, it just has to be something they don’t want to do, for any reason at all.
It can be an artistic event. But how much artistry is involved when Carlo’s Bakery ( http://bakeshop.carlosbakery.com/wedding-cakes ) creates the 497th copy of cake # W500? It’s already been designed and while it’s not the equivalent of opening a box of Betty Crocker, it is also not the equivalent of a custom-designed, unique cake.
Well, I read the article in the opening post ABOUT the ruling. Close enough?
The judge harps on about wedding cakes being “sacred”, which I can’t possibly believe is a clearly defined legal term. If the judge went on to say that wedding cakes that don’t have any sexuality-specific decoration on them are less sacred, then that didn’t make it into the article. And absent some clear legal definition of sacredness and the specific measure of sacredness that meets or fails to meet the criteria, I’d say it’s quite arguable that my pretzel platter is ‘sufficiently sacred’.
A direct quote from the article:
"‘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. Here, Rodriguez—Del Rios plan to engage in speech. 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 to be co-opted to promote the message desired by same-sex marital partners, and with which Miller disagrees.’ "
By this argument, ANY cake, or donut, or hors d’oeuvre, is speech, due sheerly to the fact that the wedding is speech, and the “artistic expression” of the baker is also speech, and the fact that cake and donuts and hors d’oeuvres and chairs are used in the wedding means that the married couple are “co-opting” the speech of the cake and donut and hors d’oeuvre and chair makers to endorse the message of the wedding overall.
It’s a pretty shitty argument, honestly.
Important note from the decision:
So the expression they requested was expression that the baker already agreed to make. It wasn’t the expression the baker objected to, it was the use of that expression; and she objected to it because a woman was marrying a woman, not a man. In other words, she discriminated based on the sex of the customer.
It’s not a particularly well-written opinion, but the answer is pretty clearly that the design process is key to the form of artistic expression. (“Miller is creative artist and participates in every part of the custom cake design and creation process.”); (“A wedding cake is not just cake in Free Speech analysis. It is an artistic expression by the person making it that is to be used traditionally as centerpiece in the celebration of marriage. There could not be greater form of expressive conduct.”); (“Miller’s desire to express through her wedding cakes that marriage is sacramental commitment between man and woman that should be celebrated”).
I would go so far as to say that the opinion may only apply to wedding cakes. (I would agree that it would have to apply to just about any belief about weddings, including race or religion). If you say that this opinion doesn’t draw a meaningful distinction between pre-made and custom made wedding cakes, I think you’re right. But I don’t see how you can think it extends to all food service.
I don’t have any idea whether this particular baker engages in “art.” And I think reasonable people can disagree on whether there is a constitutional protection for commercially sold art. But I’m not sure I buy the slippery slope argument.