“Reasonable person” arguments usually have serious limitations.
This case is about speech.
Does a reasonable person at a wedding reception consider the cake as the speech of some retail baker they don’t know?
Or, does a reasonable person see the cake at a wedding reception as being a statement of the couple being married who chose that cake?
Exactly. The judge seems to be suggesting, with a straight face, that the “I Have a Dream” speech is not more clearly expressive conduct than piping rosettes onto a fondant surface. That’s bugshit crazy.
Baking a wedding cake is plausibly expressive conduct. But it is blatantly goddamned obvious that saying something as simple as, “Nice weather, isn’t it?” is much more clearly “expressive conduct” than stacking cake layers on plastic pillars.
Or alternatively you could pretend that this thread is in Great Debates and actually rebut all the other words in my post that utterly destroy your entire argument.
Here, let me help you:
Arguments about artisticness here are utter and complete garbage that deserve no seriuos consideration whatsoever because they’re not what the case was about. It was about speech, and how wedding cakes are speech because they’re wedding cakes. A completely unartisitic, uncreative, and undecorated wedding cake is still protected speech under this ruling because absolutely no lower levels whatsoever were set on the creativity, quality, and dissimilarity-from-a-club-sandwhichness of the cakes in question.
Now please respond to the damn argument. If you don’t I’ll be forced to conclude that I already suspect: that you know your argument is garbage and simply don’t want to admit it because doing so would leave you without a leg to stand on.
Thank you for quoting and bolding the part of the case that demonstrates that this case has fuck-all to do with creativity, complexity, or uniqueness. It has to do with magical wedding cake expression, only. It doesn’t matter how creative, non-creative, or made out of french fries it is: “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”, full stop.
Creativity has nothing to do with it. The magical magic that magics up some “expressive conduct” is derived entirely from the fact that it’s a going to be used as a centerpiece in the celebration of a marriage. That’s it. That’s the whole goddamn retarded argument.
Well, that and declaring that the magical magicalness of wedding cakes vanishes if they’re already sitting in a display case at the time they’re ordered. Even if they were subsequently used as a centerpiece in the celebration of a marriage! Does that destroy the judge’s argument? Of course it does! Because logic and the first amendment aren’t really the source of his argument. Bigotry is, full stop.
For whatever it’s worth, I agree about 90% with what you’re saying and am finding you pretty abrasive here–and given my own snark levels, that’s pretty damned abrasive :).
My tolerance for petty bullshit is pretty low. And when I post an argument and it is ignored because of one word my immediate conclusion is that the person is both arguing dishonestly and knows it. Particularly if they’ve been ignoring the argument repeatedly for dozens of posts prior to that.
When I see a stubborn nail, I hammer harder. If he’d answered the argument I’d worry that he’d been legitimately offended. He didn’t - so yeah, he’s just grasping at any flimsy pretense he can to pretend he hasn’t been rebutted into smoldering wreckage.
Well, that’s a good way to build an ugly porch
Porch gets built, though.
(Feel free to assume that’s an analogy for something. Wouldn’t be the first specious analogy in this thread.)
That’s a bad conclusion, IME: some people just don’t want to engage in conversation with people who are insulting them, whether or not they’re facing strong arguments. If your own argument is strong enough, consider making it without the insults, to remove their excuse for not responding.
Well, I did repost it without the scary four letter word. There’s that.
In any case we’ll see what response, if any, is made to the clear and obvious fact that creativity and novelty are not part of the judge’s argument.
But I understand the frustration though. Morgenstern is trying to explain to all us dummies how this meaningless low court decision is so obviously right despite more meaningful decisions and common sense. It’s kind of annoying.
Hmm. That may be the 10% I disagree with you on. When the judge says that there’s no higher expressive conduct than baking a wedding cake, it’s such a garbled mess of a claim that I can’t tell whether he thinks it involves creativity. Certainly “novelty” is not part of it, since the cake was based on a design on the shelf (although even that finding of fact is kind of garbled–how strongly based on that design was it?). But he may be leaving the door open for “creativity” being part of “expressive conduct.”
I see two major flaws with this ruling:
If even one of these flaws is real, the decision falls apart. Both of them seem liek fatal flaws to me.
Whence comes creativity? If not from novelty, I mean. The only other avenue is that the mechanical act of baking a cake is itself creativity - which is a basis that would apply to literally anybody making anything. (Which is why we’re all talking about club sandwiches and fry cooks.)
Thing is, though, the case makes it pretty clear that the judge isn’t restricting this to apply only to cakes that are hard to make. He cites the function, not the form, as the source of the “expressive conduct” - and this function doesn’t imply much of anything about the cake itself. I was raised mormon - I’ve seen wedding cakes that were literally rectangular sheet cakes with minimal decoration. (Served with red punch on folding tables - yes, the stereotypes are true.) And despite the simplicity of these cakes, I’m quite confident that the judge would consider them wedding cakes for the purpose of his argument. It’s an awfully broad and unspecific argument - with regard to things identifiable as wedding cakes that is.
As for eviscerating anti-discrimination law, I’m pretty sure that’s a feature, not a bug. However I don’t think the judge considered the idea that people might extend his ruling to justify denying service by refusing to interact. He didn’t consider the fact that his ‘display case’ ruling punctured his ‘wedding cakes are magic’ premise, after all.
Well, there’s the act of creating something. He may consider that act to be inherently creative–which gets us back to club sandwiches.
Discussing his ruling eventually gets you into Time Cube territory: it’s Talmudic ruminations on gibberish. The further in you get, the more you realize that his superficially reasonable ruling is laughably nonsensical.
The argument here is that speech is being compelled, claiming that artistry is speech.
However, there is NO element of this cake that could possibly be attributed to the “speech” of the baker.
When I see a bride I don’t wonder what the hairdresser was trying to convey with that particular style. I don’t wonder what the makeup artist was communicating. I don’t try to decipher what the invitation artist was trying to convey with the curlicues down the sides of the invitation and the oversized envelope.
All of these choices are seen as being those of the ONE couple who IS communicating - the two being married. Any other “speech” just doesn’t even exist.
EVERY design element of the event is attributed to the choices made by that couple. And, those who carried out those choices are not present or identified.
To claim the cake comes through the event as the speech of some baker is preposterous.
The problem is that most wedding cakes are about as custom as a Carvel cake. They involve more technical skills than a Carvel cake, but that’s got nothing to do with being custom. And I’m pretty sure no one would every say that the person who makes my Carvel cake has somehow become an artist because I told him to decorate this cake as the “Fudgie the Whale” cake rather than the “Whale of a Dad” cake or the “Santa cake” ( all of which are prepared in the same pan and are decorated differently)
A truly custom cake might qualify as art - but if it was a truly custom cake, this judge could have written the decision in a way that limited it to truly custom cakes.( For example, by describing the initial visit as the couple describing their vision of the cake to an employee who then produced a sketch for the couple’s approval , rather than the couple choosing a design based on the display cake and the employee recording the details) So either the cake wasn’t truly custom or the judge simply did not intend to limit his decision to truly custom cakes. I’m not sure which it was, but I’m guessing the first one. But as it stands, when I tell the Carvel employee in California that I plan to serve my Fudgie the Whale cake at my same sex wedding, this decision allows him to refuse to create it. Because it has now become a wedding cake.
It looks like we’re headed for “don’t ask, don’t tell” …
… for CAKE!!
“We’d like to order this cake, the one with three tiers, in white with pail blue trim and flowers, with plastic figures of two men holding hands on top.”
(suspiciously) “What for?”
“Not a wedding! Definitely not a wedding.”
“Okay, all right then.”
“…It’s for a bar mitzvah.”
“Out!!”
Thanks. The snark and derision was not necessary. I was not the only one who did not see that link in the sea of spam populating the page. This may have been the 4th time I asked for a cite and until now no one pointed out the link that was not in the article itself but off to the side buried in the clickbait. But thanks again for pointing it out.
Her “status” is irrelevant. The argument is that the baker is being compelled to speak by baking a cake. Speech involves an identifiable message. What message is the state forcing the baker to convey?