You realize why he posted that? It wasn’t to argue the relative value of wedding cakes.
Oh my god.
Okay, see that part where it says “It is an”? The “It” refers to the previous sentence. Specifically the part where it says “A wedding cake”. The rest of the first sentence is talking about what wedding cakes (all wedding cakes) aren’t, and the second sentence continues that line of thought by saying what they are. Specifically you could swap out the “it” to create the sentence “[A wedding cake] is an artistic expression by the person making it …”
Now, to avoid further nonsense, let’s focus on that clause again. “A wedding cake”. “A wedding cake.” This is not referring to the specific wedding cake in question. It’s talking about wedding cakes in general. So, for clarity, he was saying “[Wedding cakes in general are] an artistic expression by the person making it …”
So there you go. Basic English syntax explained.
Oh. My. God.
Which also brings up this question: is it only the fact that it’s a cake for a wedding that makes it art? If it’s a cake for no particular occasion, is it no longer art? And which other occasions, by their nature, impart “artness” to things?
I’m willing to bet that we never read anything close to your analysis in a law review.
And while we’re at it, let’s look at “A retail tire shop may not refuse to sell a tire because the owner does not want to sell tires to same sex couples. There is nothing sacred or expressive about a tire. No artist, having placed their work for public sale, may refuse to sell for an unlawful discriminatory purpose. No baker may place their wares in a public display case, open their shop, and then refuse to sell because of race, religion, gender, or gender identification.”
So he says “There is nothing sacred or expressive about a tire.” Presuming he’s not just babbling random words, this is intended to clarify why we can’t stop black people from buying tires. The two terms here are “sacred” and “expressive”.
Defenders of the judge are ignoring the “sacred” part and focusing on the “expressive” part, because the “sacred” part just exposes naked bigotry.
But then it promptly goes on to say “No baker may place their wares in a public display case, open their shop, and then refuse to sell because of race, religion, gender, or gender identification.” Note that it doesn’t matter one whit how creative, unique, or expressive (or sacred) the wares in question are - once they’re in a public display case they’re fair game. And that’s odd, because a given design of cake will be exactly as expressive whether it’s sitting in a case or freshly baked. The expression is a function of the design, and the design doesn’t change just because you put it under glass.
Which leaves only the “sacred” part. That’s literally all defenders of this joker have left (unless they start desperately moving goalposts…which we’ve seen). So, if we presume the judge isn’t insane or just making up bullshit to justify bigotry, we can conclude that the act of putting a cage behind glass drains it of its sacredness. Magically!
Or more likely the judge knows that people order cakes in advance and nobody wants a cake that’ll be two weeks old by the time the wedding happens. The bigoted shitbag.
The judge stated, quite clearly, that per the Unruh law that an already-made, sitting-on-the-shelf-cake must be sold upon request. However a baker cannot be forced to make another one because that would compel speech, and government cannot compel speech in such a manner as refusing to speak is protected by the First Amendment.
The judge did not say that a freshly baked cake is speech but a pre-made one is not.All that he said is the baker must sell a pre-made one to anyone without discrimination implicated by the Unruh Act.
However the ruling would seem to indicate that a baker who produces an already-made, sitting-on-the-shelf-cake, has already had his expression and should such a baker not wish to submit that such a cake must be sold to anyone then the baker is free not to produce such cakes to stock a shelf.
That may come up in a future case, and it will be resolved when it does. Remember, there is a big issue with religion in this case. How will you apply it to “any” cake as in your example. The baker claimed her religion prevented her from doing that project because the Bible says…
Look man, it’s the fucking language. The words the guy said. (Plus, as I just noted, he annihilates the “expressive” argument with his ‘display case’ exception anyway.)
If I honestly believed that your law review would somehow sidestep the judge’s own arguments, then it would lower my opinion of your profession even more than it already is.
It’s just some canvas, old wood, and a bit of paint. I’ll give you $50 for for that old Van Gogh. :rolleyes:
The argument was one of various examples of how the court may draw a line as the SCOTUS seemed want to do. When the markup is 20,000% at Joe’s bakery and 200% at the Kroger Bakery the justices might, just might, decide that a likely factor is the artistic design and expression involved at Joe’s.
Of course they might. And it would certainly be a better approach than the “ALL wedding cakes are sacred!” approach in the ruling in question. I just think that it’s a pretty dodgy method of determining ‘speechiness’. Among other problems, very cheap foods (and other products) could also involve a high degree of creativity - plus it could be quality or reliability rather than speech-related content that justifies the difference in prices.
(Also I’m utterly unimpressed by the idea that creativity matters anyway - if you write “Trump sucks” in string cheese on a cracker that’s pretty uncreative but still definitely protected speech (even if you sell them at cost), and you still aren’t allowed to block black people from buying those crackers. If they’re in a display case anyway.)
Even that only goes so far. As I’ve noted before tattoos are clearly art but tattoo parlors are also bound by anti-discrimination laws and couldn’t refuse to serve some clients due their religious beliefs.
They could certainly refuse certain types of tattoos and do so for a number of reasons, including ones they find offensive, but couldn’t refuse to do any tattoo for a customer.
Side note: I’ve never done a three-tiered wedding cake, but I did make the groom’s cakes for my wedding, and I spent a hella long time on them (two fancy cheesecakes using as a base the Cordon Rose recipe in The Cake Bible, a book used by lots of professional bakers, to which I added my own spin). There’s a decent chance I “get it” more than anyone else in this thread.
There’s an interesting line in the decision:
I find this highly dubious, and also indicative of a way out of this tangle. Of course Miller could disparage same-sex marriage on her wedding cakes if she wanted. If she did that for everyone–if that were her signature move–then who could possibly object, on legal grounds? There would be no discrimination whatsoever if customers gay and straight got cakes on which she’d emblazoned, “Marriage is between one man and one woman.”
But of course she doesn’t, and her likely reasons point to the most pernicious sort of bigotry. She wants to be a bigot against gay people, but quietly, so that straight customers don’t know about it and can’t decide to boycott her, so that her bigotry doesn’t inconvenience straight customers, so that the burden of it falls quietly and entirely on gay customers. She wants to remain a bigot while maintaining the custom of non-bigoted customers.
She wants to have her cake and eat it too.
And it’s her sort of bigotry that makes anti-discrimination laws so important. So I propose that she start writing bigoted anti-gay messages on all her cakes; now she can express what’s in her heart, and nobody can stop her, and her bakery can remain open, and everything’s in the clear. Win win, right?
When I was younger I liked food fights as much as the next man, but we didn’t do that cake thing at my wedding.
Probably not I bet. They’ll uphold the Colorado decision that said if making cakes to order is your business then you don’t get to discriminate who gets to order one.
What you propose is still the State forcing speech. In a free society, which the United States still purports to be, forcing speech would constitute an infringement of the right to free speech, one of the most fundamental of our Constitutional rights.
This would be analogous to the State requiring all students at State Universities to recite the Pledge of Allegiance in the classroom every morning, on pain of suspension or eventual expulsion. (Please note, we are speaking of young adults, people who are able to vote.)
Any customer of any race, color, creed, nationality, marital status, or sexual orientation should be able to walk into a bakery and purchase any readily-available product that they wish. The customer who requests that the baker exercise his or her artistic expression to decorate a customized product to the customer’s order, this represents a form of speech both on the part of the customer and on the part of the baker.
The baker doesn’t object to selling the homosexual couple a generic cake decorated with white icing and white flowers. Or an orange cake with yellow swirls. Or a chocolate cake with chocolate chips.
What the baker’s religious faith doesn’t permit him or her to do is to exercise speech and artistic expression in the form of decorating a cake that specifically alludes to the celebration of the union of two men or two women - an illicit union, according to traditional Biblical standards, which form the baker’s profoundly held religious views.
The progressive movement has a history of challenging conservatives with the slogan, “Don’t Force Your Morality on Others.” And yet the totalitarian impulse of progressives is in full view for all to see in the cake baking case, and in the suggestion that a baker should be required by the State to write this or that.
The State should establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to all in the land. Beyond those initiatives, the State should keep out of it.
An analogy to the cake baker case:
Many of the most elite, most elegant, most soignee, most uber-super women’s clothing stores do not carry items that are above a size 14. If I wore a size 16 dress size, and walked into one of these stores, I could find nothing that would fit me. (In Paris, a plus-sized friend walked into a women’s boutique, and from the rear of the store, the very chic proprietress called out to her, “you came into the wrong place! We have nothing here to fit you!” My friend was humiliated.) If I were to request that that particular store special order a particular model dress in my size 16, the store management might reply that they don’t accommodate special orders for plus-sized garments, and might counter-propose that I visit a plus-sized women’s clothing store, or the plus-sized section of a department store.
I understand that “fat-shaming” isn’t against the law. But if it were against the law, would I have a case to bring the management of such stores, accusing them of fat-shaming me . . . because they don’t carry plus-size clothes or arrange special order for plus size garments?
Doubtful. It’s a California case in the California courts. Colorado won’t play a part in the appeal.
by definition - every item ordered for any event ‘in the future’ (be it wedding cakes, birthday cakes, cupcakes, donuts, etc) will be ‘custom’ and ‘unique’ regardless of any design (or not) on them. Its ridiculous to think that any couple would come in the day of the event and order any amount of food. We’re generally not talking about picking up a couple dozen donuts on the way to the office party.
It could even be argued that ‘ready to serve’ items that are on the shelf are ‘custom’ and ‘unique’ since that particular bakery made them in their ‘unique’ way (every bakery wants to have something that sets it apart from the rest - its how they get a following, etc).
If the baker (or any shopkeeper) allows for ordering items in advance of an event, they can use this as an excuse for bigotry, plain and simple.
If you open a business and offer tto serve the public, then you serve all of the public.
If you offer your services for ‘private engagements’ (singers, caterers, painters, etc) - you are generally not running a public storefront and therefore have a bit more discretion in who you choose to serve.
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“If the baker (or any shopkeeper) allows for ordering items in advance of an event, they can use this as an excuse for bigotry, plain and simple.”
One man’s religious conviction is another man’s “bigotry.”
Because proponents of the redefinition of marriage define moral reservations about homosexual unions as “bigotry,” they seek to use the force of the State to coerce bakers of faith to violate their consciences, or else face fines, and often the loss of their livelihood.
In a free and democratic society, such overreaches by the State should be unthinkable.
That is not an analogy. I don’t think anyone in the thread is arguing retailers should have to order or carry products they normally wouldn’t.
The argument is a baker should not be able to refuse to bake a cake for a gay customer, if they would make that exact same cake for a straight customer. The lesbian customer did not ask for any level of customization that the baker hadn’t already performed for other customers.
For the dress shop to be an analogy. They regularly sell size 14 dresses. A customer comes in and asks for a size 14 dress, they don’t currently have in stock. The dress shop tells them ‘We’d have to order the dress you want, but my religious beliefs preclude me from ordering dresses for gay people, so you have to shop elsewhere’