::sigh::
I am pretty sure that state law can never trump the first amendment.
We are pretty close to the day when we might conflate sexual orientation with sex. You sure sexual orientation is an immutable characteristic? There is no fluidity to sexual orientation?
May I hazard a guess that you’ve never been intimately involved in the planning of a wedding, either because you’re not married or because you let your spouse handle the lion’s share of the planning? May I further hazard a guess that you’ve eaten cake but are otherwise not very familiar with the logistics of cake?
Because if you’d planned a wedding, or if you’d spent much time working with cake, you’d know that cakes, unlike spatulas or Precious Moments figurines or American flags or doorknobs, are both biodegradable and ephemeral. If you’d been involved with wedding planning, you’d know that most weddings are planned months in advance. And you’d know that buying a wedding cake out of a case is a terrible idea for almost all weddings, because the time between planning the cake’s acquisition and the consumption of the cake is far too long for a cake to last.
That sets aside things like folks who have color themes for their wedding, and who want the cake to be a nice lemon yellow to match their linens, or whatever.
The idea that they should have just bought the one in the case is a ludicrous idea.
Are you under the understanding that federal law, unlike state law, can trump the first amendment? Are you under the understanding that federal law has an easier time trumping the first amendment?
If so, you need to explain yourself, because I think you’re wrong on that.
If not, it’s completely goddamned irrelevant whether it’s a state protection or a federal protection, except that it determines where the suit is happening.
I do not know why people keep going here. Cake is not the same thing as an original manuscript.
To be apples to apples it would be like going in to a store which had twenty paragraphs on display in a display case and then you ask the merchant to give you paragraphs 2, 3, 12 and 17. They then run to the back and print them out for you.
The cake maker is doing much the same. The case says the couple looked at options available in the display case and made their choice from that. The baker was not being asked to invent a whole new cake recipe and design from scratch. The baker is closer to a cake assembler than a cake artist.
Maybe the right size cake for the wedding was not on display.
Maybe they want a fresh cake for their wedding and not one sitting around a few days.
Maybe the exact cake was not on display. So they choose vanilla cake from one option and chocolate frosting from another option.
Maybe on their wedding day they do not want to be arsed running around collecting cakes and transporting them.
There are many possible reasons. They have other things on their mind that day.
The weird thing here is the judge says she would have to sell a display cake so the only difference is whether the baker knows ahead of time who will buy the cake. If she does she can refuse but if she only learns of it at the point of sale then she cannot. How does that make sense?
The couple did not ask for any message or anything that was not on offer from the baker on their cake.
Why not buy a display cake that is probably already stale from sitting in the case for weeks for a wedding that takes place in several more weeks? Is that really your question?
My understanding is that is exactly what happened. They asked for a cake that was identical to the one that was already made.
Yeah that’s what the judge said, and that was one of the main arguments of this thread is whether making something from a catalogue counts as artistic expression.
I don’t think that’s the case.
So, you are saying that the baker would have been happy to make them a cake if they had changed their orientation to something more acceptable?
Yeah…we know. We have discussed this earlier in this thread.
Yes the judge made it a free speech issue. Many here disagree with the judge and feel if this counts as speech then there is no meaningful limit. The guy making your sandwich at Subway is engaging in speech and can deny you service for whatever reason pops into his/her head.
It is possible a given person’s sexuality may change over time but it is never a “choice”. Assuming you are heterosexual do you think it is trivial for you to choose, right now, to be homosexual? Not that you could go engage in homosexual sex but that you could change your personal sexuality to be a homosexual on a whim?
Just to make sure I wasn’t high, I looked for a proposed schedule for planning a wedding. Given the difficulty in scheduling a wedding cake, this website suggests starting your taste-tests four to five MONTHS before the wedding.
Choosing the display case cake ain’t a real option :).
Not if it’s a Havisham cake.
Which is totally immaterial. The court held that the baker was within her rights to refuse to serve the couple as her trade was one of applying her artistic talents to all her creations, and as such, she can’t be compelled to perform herein. Good luck if you think this applies to a Subway sandwich or pickles on a hamburger. The fact that the couple choose to order a wedding cake is where it ends. No one had to actually design the cake before the 1st Amendment applies.
Which means the baker could refuse any order from the couple for something ‘in advance’ - be it cupcakes, donuts, pastries, birthday cakes, etc and so on.
No, it means the baker was within her rights to refuse to bake a wedding cake for this couple. That’s all.
There are more forms of food than subways and hamburgers. There are chefs who have spent their entire lives creating artistic dishes, and anything you have seen on Cake Boss happens in many kitchens as well. I don’t think that they would agree with you that only cakes can be art.
But, even still, outside of the fact that you are wrong on the point that only cakes can be art, can you tell me why it would not apply to someone who is asked to apply their artistic talents to create a subway sandwich for your enjoyment? This was no cake boss cake, this place was more the subway of wedding cake bakers. They didn’t have any real original designs, and they didn’t even take commissions for unique designs. The only “art” that they could demonstrate is the “art” of following a recipe and following instructions for decoration, no different than someone making your sandwich.
I think it’s ridiculous to apply it to a wedding cake, for the reasons stated ad nauseum. We know what the court held; nobody is disputing that the court made this decision. What’s being disputed is that it’s a reasonable decision, or that there’s a reasonable bright line which puts cake-baking on one side and sauce-garnishing on the other–and especially no bright line that puts cake-baking on the side of speech, and speaking to the customer on the other side.
If this ruling holds, it eviscerates anti-discrimination law, because of course I may not be compelled to speak to customers, and by this simple expedient may discriminate to my heart’s content.
k9bfriender, I don’t know what the hell that cake’s supposed to be, but I dare you to take that picture to Ms. Miller and ask her to bake it.
You just stated -
Now - tell me that the cupcakes, birthday cakes, donuts, etc are not applying the bakers ‘artistic talents’? Especially if the order is something ‘in advance’ (vs picking up a dozen glazed on the way to the office).
as stated - that ruling can be applied to anything someone does - and that is the issue with it - ‘Wedding Cakes’ may be unique in the sense that they define the event they are headed for - but they are not neccisarily any more ‘artistic’ than a birthday cake.
So, she can be compelled to make a cupcake for them, but not a wedding cake?
No one said only cakes can be art. If you read it carefully you’ll see that I said; this cake, this baker, this couple, this result = art. Would wedding cookies, cupcakes be covered? Are they artistic or is that minimum wage hire just following the directions on the box? I don’t know. I’m sure everyone here has an opinion, but I don’t know.
Great Expectations, Miss Havisham gets left at the alter, and leaves the wedding banquet, along with the cake to rot. For decades.
I’m sure you’ve heard of this, I suppose I was too subtle. I think that was a still from one of the film adaptations.
And that, my friend, is why lawyers love courts so much. All they have is one court order with respect to a wedding cake (etc.) that says she can’t be compelled to bake that cake. They would need another order to expand that to wedding cupcakes and wedding cookies. It may be that they are deemed to be an artistic expression too and if they were, then you might expect the same result.
(Of course, someone with such a shitty business model probably won’t be in business long enough to ever find out.)
So this case will not establish a precedent and each item of food that someone refuses to make will need to be taken to court individually?
My suspicion is the courts will say (if this stands) that making a doughnut or sandwich amounts to the same thing as making a cake. To not have the case dismissed someone would need to show why baking a cake amounts to a substantially different thing than making a doughnut for the purposes of free speech.
So far those defending the baker have not been able to make that distinction and is why I suspect you are dancing around it too.
Yes, we’re clear on what you, and the judge, said. That’s not what’s in question.
The question is, what non-arbitrary criteria, if any, do you offer to distinguish this from other efforts, such that we may establish a consistent legal principle? And can we establish a consistent legal principle by which anti-discrimination laws fail to meet the strict scrutiny test for overcoming first amendment protections?
Because I’ve let folks slide on claiming that federal or state law can’t trump the first amendment, but depending on how you establish the principle, that becomes a significant instead of a technical error. Of course law can trump the first amendment, if there’s a compelling state interest in doing so.
If you can establish such a narrow legal principle that baking custom wedding cakes is the only public accommodation covered, then you might be able to say that there’s no compelling state interest in overcoming the first amendment. But I don’t think there’s a rational principle you can establish that makes that nice a distinction.
Instead, any legal principle that treats customized cake-baking for hire as free speech is, if reasonably applied, going to include such a wide swath of mercantile activity that anti-discrimination laws will be rendered obsolete. And the state can make a very powerful case that it has a compelling interest in keeping the teeth in anti-discrimination laws.
So it’s not enough to refer to the judge’s vacuous reasoning about why wedding cakes are speech, but other speech (“May I take your order?”) isn’t speech. If you want to defend this decision, you need to set out a legal principle far clearer than what this fool of a judge has set out.
Thanks–I did wonder what the Dickens you were talking about.
