California Judge Rules Making a Cake is "Artistic Expression" - Denies LGBT Discrimination Claim

[IvoryTowerDenizen]

@Euphrosyne

So. Say I lived near Kiryas Joel, NY and went across the eruv, and walked into one of the bakeries owned and operated by Yiddish-speaking Hasidim. And I told the proprietor: “I want to order a cake to celebrate my friend’s ordination as a Catholic priest. Can you please put a rosary made of those little silver BBs, and also can you make a nice crucifix on the end of it, with the figure of Christ on the cross? I’ll pick it up next Thursday.”

If the proprietor told me, "Christ on a cake? No. We don’t make such a cake here. You go back to some *goyim *bakery where you live; they’ll help you.

So. Am I now a second-class citizen?

I’m confused why you think that’s how. Jewish baker would behave. You don’t think Jewish diamond sellers ask if the engagement ring they’re making is for a Christian wedding? I seriously doubt any Jewish baker (that has a store as a public business) really believes that if they put a rosary on a cake they’re now participating in a Catholic service.

My nephew’s bar mitzvah last summer was held in a church function room with a big crucifix on the wall. Didn’t make our service a Christian one. My mother was a hairdresser and had clientele of all types- she did artistic hair styles for confirmations or weddings and never thought to deny a Christian her artistic services, because reasons?

[Morgenstern]

@kaylasdad99

But if they HAD already designed it, the issue of compulsory acts of artistic expression ought to be rendered irrelevant. As a non-law-talking guy, my sense is that the judge should explain why he believes it hasn’t been.

Any law-talking guys care to do me a solid and educate me on whether I’m mistaken, and if so, why?

I really don’t like what if questions because they inevitably lead to a slew of more what if questions. But, as to your question…

The artistic endeavor appears to be a pretty wide concept.

Suppose a guy walks into the bakery and orders a cake for his sister’s wedding. He and the baker design it, and they agree it’s perfect. Now… the brother says “Oh, by the way, my sister is marrying her long time girlfriend.” The baker says, “Sorry, I do not do LGBT because I am a artist and a diva and being a diva I can’t do art when I don’t approve of the wedding.”

Any difference here?

[Really_Not_All_That_Bright]

ahem Euphrosyne, this one was for you:

@Really_Not_All_That_Bright

May the state prohibit a baker from refusing to make a cake for an interracial wedding if her religious beliefs are incompatible with interracial marriage? If so, how is that distinguishable from a same-sex wedding with regard to the First Amendment?

[k9bfriender]

@Morgenstern

I really don’t like what if questions because they inevitably lead to a slew of more what if questions. But, as to your question…

It’s not really a “what if” question, as it is what actually happened.

The artistic endeavor appears to be a pretty wide concept.

Suppose a guy walks into the bakery and orders a cake for his sister’s wedding. He and the baker design it, and they agree it’s perfect. Now… the brother says “Oh, by the way, my sister is marrying her long time girlfriend.” The baker says, “Sorry, I do not do LGBT because I am a artist and a diva and being a diva I can’t do art when I don’t approve of the wedding.”

Any difference here?

That’s not really an answer, more of a “what if”.

[kaylasdad99]

@kaylasdad99

But if they HAD already designed it, the issue of compulsory acts of artistic expression ought to be rendered irrelevant. As a non-law-talking guy, my sense is that the judge should explain why he believes it hasn’t been.

Any law-talking guys care to do me a solid and educate me on whether I’m mistaken, and if so, why?

@Morgenstern

I really don’t like what if questions because they inevitably lead to a slew of more what if questions. But, as to your question…

The artistic endeavor appears to be a pretty wide concept.

Suppose a guy walks into the bakery and orders a cake for his sister’s wedding. He and the baker design it, and they agree it’s perfect. Now… the brother says “Oh, by the way, my sister is marrying her long time girlfriend.” The baker says, “Sorry, I do not do LGBT because I am a artist and a diva and being a diva I can’t do art when I don’t approve of the wedding.”

Any difference here?

@k9bfriender

It’s not really a “what if” question, as it is what actually happened.
That’s not really an answer, more of a “what if”.

Oh, are you a law-talking guy, Morgenstern? Cool, I didn’t know that.

Anyway, in light of k9bfriender’s input, do you suppose you could take a stab at answering my “what actually happened” question with something that ISN’T a “what if?”

TIA.

[Snowboarder_Bo]

Hawaii appeals court sides with lesbian couple denied B&B:

A Hawaii bed and breakfast discriminated against a couple by denying a room to two women because they’re gay, a state appeals court affirmed.

Aloha Bed & Breakfast owner Phyllis Young had argued she should be allowed to turn away gay couples because of her religious beliefs. She appealed a 2013 lower court ruling that ordered her to stop discriminating against same-sex couples.

Last week’s ruling supported the 2013 decision.

The story:

Diane Cervelli and Taeko Bufford of Long Beach, California tried to book a room there in 2007 because it’s in Hawaii Kai, the same east Honolulu neighborhood where the friend they were visiting lived. When they specified they would need just one bed, Young told them she was uncomfortable reserving a room for lesbians and canceled the reservation.

Cervelli and Bufford filed complaints with the Hawaii Civil Rights Commission.

Young told the commission she is Catholic and believes that homosexuality is wrong, according to the appeals court ruling. The commission found that the business illegally discriminated against the couple and issued Cervelli and Bufford “right to sue” notices.

Cervelli and Bufford filed their lawsuit in 2011.

Will this impact or be impacted by the California cake case at all?

[boytyperanma]

@Snowboarder_Bo

Will this impact or be impacted by the California cake case at all?

Eventually the Supreme Court will need to weigh in. They could keep ignoring the issue but it leaves the country fractured with laws impacting people differently depending on what district they reside in.

Also in the news today the Second Circuit ruled discrimination based on sexual orientation is discrimination based on sex.

@Judge Katzmann

Sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.

NY Times article

So if you are in the 2nd or 7th district sexual orientation is protected under the Civil Rights Act. If you are in the 3rd or 11th it isn’t

[Damuri_Ajashi]

@k9bfriender

Not sure you follow. The judge said that the baker did not need to make a new cake, even if it was exactly the same as the one on display.

Do you have a cite for that?

The article seem to imply the opposite. That it is the creative process and not the manufacture process that I protected.

[Damuri_Ajashi]

@k9bfriender

That’s a good question, and one that has been bandied about quite a bit in this thread.

The facts of the matter is that they were not asking her to make a unique cake, but one directly from their “catalogue” of cakes.

You’ll need to ask the judge who made the ruling why he called following directions “designing and creating”

And the design is already done. The couple was not asking for a new design. The manufacture was specifically the part that was being denied.

Do you have a cite readily available? I can try to search for it but all I see is the cite in the OP.

No, it seems you are missing the entire point of this thread.

Take it you are a fan of gay conversion thearapy, then?

I take it you don’t believe in gender fluidity.

People find their religions to be fairly important and immutable, and I have no idea how you think that national origin is something that you can change. You are born where you are born, you can’t change that without a time machine.

Its called religious conversion for religion.

I should have said citizenship to avoid confusion with national origin. Citizenship is mutable.

[k9bfriender]

@Damuri_Ajashi

Do you have a cite for that?

The article seem to imply the opposite. That it is the creative process and not the manufacture process that I protected.

His distinction, he said, is between the act of selling a product to a same-sex couple and creating a product for the same couple.

“The difference here is that the cake in question is not yet baked,” Lampe wrote. “The State is not petitioning the court to order defendants to sell a cake.

@Damuri_Ajashi

Do you have a cite readily available? I can try to search for it but all I see is the cite in the OP.

It’s in the OP.

Here’s another cite for them, and another couple, who were turned away before or during the tasting.

Ted G. Freitas said Miller suggested he and fiancé Adam Ramos visit a different area bakery during a recent cake tasting. “So the fiancé and I are out cake tasting in Bakersfield for our big day,” Freitas wrote Aug. 26, according to The Bakersfield Californian. “And the lady helping us — I have another name for her — asks, ‘So this is for the bride and groom?’ ‘Uh, no it says Adam and Ted on your form!’ When we let her know, that it’s for us, she quickly, without hesitation, replies, ‘Well I’m going to transfer your order to Stephanie at Gimme Some Sugar Cakes.’”

Meanwhile, KGET-17 cited a second Facebook post by Eileen Del Rio, who also said that she and her fiancée were similarly denied service at Tastries Aug. 26. “So we go to this bakery a week ago to sign up for tasting and choose our wedding cake. The owner met with us today to set up the process,” Del Rio wrote. She went on to note the owner “refused to make our wedding cake and set up our order. She wanted all our information to send to another bakery so they could make it.”

I take it you don’t believe in gender fluidity.

That would be a very incorrect statement on your part, and only would make sense that you would think that if you are a fan of gay conversion therapy.

Its called religious conversion for religion.

Yes, some people do change their religion for personal reasons. You are expecting them to change their religion to not be discriminated against.

I should have said citizenship to avoid confusion with national origin. Citizenship is mutable.

Yes, you should have, but then you wouldn’t have been able to try to make the point that you failed to make, as one is protected, and the other is not.

[Morgenstern]

@Snowboarder_Bo

Hawaii appeals court sides with lesbian couple denied B&B:The story:Will this impact or be impacted by the California cake case at all?

Bo, the CA case is not a “Freedom of religion” case, it’s an “Artistic expression” (free speech) case. Big difference.

[CarnalK]

@Morgenstern

Bo, the CA case is not a “Freedom of religion” case, it’s an “Artistic expression” (free speech) case. Big difference.

Doesn’t the case have to be actually argued in court and decided on before we know that?

[Morgenstern]

@CarnalK

Doesn’t the case have to be actually argued in court and decided on before we know that?

Nope. The judge already ruled. (in the restraining order ruling) Now their burden (for the appeal if one comes) has increased to one of defeating the *artistic expression *part of the First Amendment as it applies to a cake designer/creator/baker.

[kaylasdad99]

@CarnalK

Doesn’t the case have to be actually argued in court and decided on before we know that?

You have a point, but the judge, in denying the preliminary injunction, invoked his opinion that artistic expression was at the bottom of his reasoning, and he declined to address a free exercise basis.

[Morgenstern]

Interesting that the underlying case was not dismissed by the Plaintiff (unless it subsequently has been) given the strongly worded judicial opinion . The pro-bono attorneys probably have no desire to take on a freedom of expression case, that would be beyond steep for them. They came in looking for an easy win under civil rights legislation, and got a 1st Amendment case handed to them by the judge. Any way they look at it, they have a Constitutional issue to dance around now, as far as wedding cake bakers go.

[Really_Not_All_That_Bright]

@Morgenstern

Interesting that the underlying case was not dismissed by the Plaintiff (unless it subsequently has been) given the strongly worded judicial opinion . The pro-bono attorneys probably have no desire to take on a freedom of expression case, that would be beyond steep for them. They came in looking for an easy win under civil rights legislation, and got a 1st Amendment case handed to them by the judge. Any way they look at it, they have a Constitutional issue to dance around now, as far as wedding cake bakers go.

What makes you think this will stand up on appeal (assuming the order on the merits mirrors the injunction ruling)?

[CarnalK]

@Morgenstern

Interesting that the underlying case was not dismissed by the Plaintiff (unless it subsequently has been) given the strongly worded judicial opinion . The pro-bono attorneys probably have no desire to take on a freedom of expression case, that would be beyond steep for them. They came in looking for an easy win under civil rights legislation, and got a 1st Amendment case handed to them by the judge. Any way they look at it, they have a Constitutional issue to dance around now, as far as wedding cake bakers go.

I don’t know, the whole raison d’etre of the pro bono lawyers is “provide pro bono legal services and spearheads educational initiatives on issues related to religious freedom, bioethics, and family values. Specifically, we defend the conscience rights and constitutional liberties of people of all or no faith — free of charge.” The OP’s article says

In court her attorney, Charles LiMandri, made the argument that Miller’s free speech rights and her right to free expression of religion trump the state’s arguments that she violated a law against discrimination.

“It’s a work of art as far as my client is concerned,” LiMandri said. “In my client’s mind this is a free exercise case."

[Morgenstern]

@Really_Not_All_That_Bright

What makes you think this will stand up on appeal (assuming the order on the merits mirrors the injunction ruling)?

California is pretty protective of 1st. Amendment rights.

*Whitney v. California, 274 U. S. 357 (1927): Anita Whitney did not base her defense on the First Amendment, the Supreme Court (SCOTUS) upheld her conviction of being found guilty under the California’s 1919 Criminal Syndicalism Act for allegedly helping to establish the Communist Labor Party, a group the state argued taught the violent overthrow of government *

She failed to mutter the magic words, Free speech/expression. Interesting that the issue of free speech was never raised for her.

Anyone interested, Notable First Amendment Court Cases.

Notable First Amendment Court Cases

[Damuri_Ajashi]

@kaylasdad99

There have been posts in this thread that have led me to believe that this was the case. I’d be very grateful for a citation as to whether or not this is so.

Because if it IS so, then THIS

strikes me as disingenuous in the extreme.

I agree but otherwise the statement above about artistic expression seems reasonable to me.

[Damuri_Ajashi]

@k9bfriender

It’s in the OP.

Here’s another cite for them, and another couple, who were turned away before or during the tasting.

Neither of these tell us anything about what facts the judge was presented with.

That would be a very incorrect statement on your part, and only would make sense that you would think that if you are a fan of gay conversion therapy.

Fine then sexual fluidity.

I’m not a fan of gay conversion therapy, I’m not even sure what it is. Why would you think I am a fan?

Yes, some people do change their religion for personal reasons. You are expecting them to change their religion to not be discriminated against.

Bullshit.

You said that if something is immutable it might be something we should turn into a protected class and I said immutability is not a necessary criteria and questioned whether sexual preference were really immutable (like sex/race/national origin).

Yes, you should have, but then you wouldn’t have been able to try to make the point that you failed to make, as one is protected, and the other is not.

Citizenship is a protected class for several federal purposes. The only citizen the federal government can favor are American citizens.