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

[begbert2]

@Czarcasm

But if they picked the cake out of a book, where does the baker/decorator’s free expression come in? Does he look at their selection and ignore it?

In the court case the judge is hallucinating the free expression because he’s making bullshit up in order to legalize bigotry. Or at least that’s the best interpretation I have of a plain read of his words.

Plus I think a case can be made that no matter how creative the cake is, if the baker would make it for a straight person then no compelled speech is implied by the complexity or creativity of the cake.

[Damuri_Ajashi]

@k9bfriender

What artistic expression is involved in the store owner selling the flags to the two seperate groups?

The storeowner can refuse to sell flags to people who are going to burn them in protest. That’s basic freedom of expression, no art required.

And I don’t think scouts burn flags just because they touched the ground. We would be burning a flag almost every month if that were the case. You’re not supposed to let it touch the ground but some of these boys are as young as 6. And the flag patch on their shoulder touches the ground pretty much every time they put on the uniform.

[Damuri_Ajashi]

@CarnalK

What court is below it? Because I read somewhere that “The superior courts are the lowest level of state courts in California holding general jurisdiction on civil and criminal matters.”

They’re the equivalent of district courts in the federal system. They are the finders of fact.

[Damuri_Ajashi]

@Left_Hand_of_Dorkness

Is membership in the Klan a protected status?

In this hypothetical, yes. The state is forcing you to make the cake.

This issue has been discussed at exhaustive length earlier in the thread. Have you read the thread? If so, to what end do you keep bringing up stuff that’s been dissected earlier without acknowledging and incorporating that earlier discussion?

I don’t see where the issue was resolved. ISTM that its still an issue that has not been adequately addressed. There are over 1000 posts but:

I see post 251 referring to the KKK but its not really relevant to this situation.

I also see post 403 where you use this “You haven’t read the thread to my satisfaction so go and read it then come back to discuss” argument to imply that we are missing something critical to our ability to make an argument if we haven’t read the 20 pages of comments.

The question is whether a baker can object to the use of their cake at an event they disagree with. The closest we have gotten to addressing this before is the baker that made a gorgeous cake with a swastika for a Buddhist celebration but refused to make the exact same cake for a klancentennial celebration. But even that is at least partially a content based argument rather than a pure event (or use) based argument. Can I refuse to making a cake for an event I object to if I otherwise serve gay customers.

I keep reading posts that frame this as the baker not wanting to sell to gays but the baker does in fact sell to gays they don’t sell wedding cakes that celebrate gay marriage and sometimes these wedding cakes are not all that different from wedding cakes that celebrate straight marriage.

I don’t necessarily agree the baker ought to be able to do that any more than he can refuse to sell hand made (but otherwise reasonably identical) cake slicers that he makes at his silversmith forge on the weekends. I don’t know where art ends and artisanship begins.

[Damuri_Ajashi]

@doreen

First, although the opinion might say that Miller participated in every part of the design and creation process, she apparently doesn’t. Because the decision also says
[FONT=Courier New]
[/FONT] [FONT=Trebuchet MS] Clearly, Miller did not participate in that part of the process. Unless somehow selecting a design and recording details are not part of the design process.

Second, I described one way that the decision could have described a truly custom cake. No doubt there are others , but saying that they made their selection based on a display cake and an employee recorded the details does not necessarily describe a custom cake. It could just as easily describe my Fudgie the Whale shaped cake decorated like Santa Claus, or with all vanilla ice cream instead of one layer each of vanilla and chocolate.

Third, I said “or” . As in either it was not a truly custom cake OR the judge did not intend to limit his decision to truly custom cakes. I’m not sure which it is.

But , if in fact it was a truly custom cake, one where the customers did not simply select options from a set of choices ( I want design number 457 with yellow cake and raspberry filling. Whipped cream frosting and pink flowers) but where the baker designed a unique cake based on the customer’s request for a non-standard shape or based on what the baker thought would be the perfect design for this wedding and only this wedding, then I would be inclined to agree that designing and creating that cake is artistic expression. And I wouldn’t have an issue with a judge issuing a decision that the state cannot require a baker to create a unique cake for a same-sex wedding as long as it was limited to cakes with that level of artistic expression and did not apply to cake #457.

Let me know when you see a case where the design/creation process is described in sufficient detail to determine if the cake is truly custom or if it’s a " choose a design, flavor, filling, frosting" sort of deal. My guess is we won’t see such a case until after the SCOTUS decision. Because both sides have reason to obfuscate the issue. One side because they don’t want to bake any wedding cakes for same sex-marriages, and the other because they don’t want bakers to ever be able to refuse.

It doesn’t matter whether they describe the customization process to your satisfaction. They can have a finding of cat that its a custom cake and leave it at that. I am in fact entitled to take the court at its word despite whatever quibbles you might be able to make about the order taking process. The opinion says it was a custom cake and all the objection that this was not established to your satisfaction is irrelevant (unless a higher court remands for more explanation).

So for the sake of argument lets drop that point and just assume the court isn’t lying and the cake is in fact a custom cake.

[Czarcasm]

Because “Let us assume that I am right and you are wrong” has never won an argument in the history of arguing?

[Left_Hand_of_Dorkness]

@Damuri_Ajashi

In this hypothetical, yes. The state is forcing you to make the cake.

If so, you’re so far removed from current jurisprudence that I need to know other things. Has the first amendment been repealed? Are the lizard people in control? Is up still up? What color is the sky?

Once you answer all those questions, I’ll not entertain your hypothetical, because bizarro-world hypotheticals don’t entertain me.

As for your claim you’ve read the thread, I’m not gonna entertain that either, because I’d rather you show you’ve read it than claim you have. Unless you raise some interesting and new point, I think I’m done with your posts.

[Damuri_Ajashi]

@The_Other_Waldo_Pepper

I keep wondering: is it discrimination based on sexual orientation?

As I said before: imagine I ask a baker to make a wedding cake. “For me and my beloved Ashley,” I add. Say the baker looks me over and replies: “Is Ashley black? Because I’ll do it if Ashley is white, but not if Ashley is black.”

That’s race-based discrimination, right?

So say I ask a baker to make a wedding cake “for me and my beloved Ashley.” And say the baker replies: “Is Ashley a man? Because I’ll do it if Ashley is a woman, but not if Ashley is a man.” Wouldn’t that be sex-based discrimination?

Maybe. This argument has been raised before hasn’t it? It might be the path to making sexual orientation a protected class.

[Damuri_Ajashi]

@Snowboarder_Bo

This has to be this biggest time-wasting post in the entire thread. It’s like it was written with total ignorance of the previous 20+ pages of the thread.

The beating of the “but was it really not a custom cake?” drum is tiresome.

The fact that all the people who want to force the baker to make cakes for gay weddings agree that this wasn’t a custom cake is meaningless. Your post is meaningless.

[Damuri_Ajashi]

@begbert2

I’m going to ramble a bit here without worrying about what the judge’s specific bigoted bullshit logic might be thinking on the subject (which is a deviation from my norm because my usual argument here is 'the judge doesn’t care if the cake is custom - he wants his bigoted bullshit to apply to all wedding cakes.") I figure that this point is interesting enough to discuss it without worrying about the fact that, in this case, it’s utterly irrelevant.

The way I see the situation is that there are two separate instances of speech in question here - and by speech I mean “action”, because that’s what speech apparently means now.

Speech one: Creating a specific cake with a specific design and appearance.

Speech two: Lowering yourself to the point of interacting with a customer and allowing them to purchase your product/services.

In my opinion, these are two different instances of speech. And the latter type of speech has been deemed to be ‘not so protected’ - it falls solidly under the purview of anti-discrimination laws and hopefully, for the moment, we can all agree that the baker can’t legally chuck the people out of their business just for being gay.

So let’s talk about speech one - and specifically, talk about speech one in isolation. Which is to say, what’s the answer to this question: “Would the baker be willing to bake this specific cake if they had no idea who was buying it or why?”

There are some cake designs that, themselves, the baker might reasonably refuse to make regardless of who was buying them. Swastikas. Representations of gore. Designs in violation of copyrights or trademarks. Or (sorry Adam and Steve) cake toppers with two male characters holding hands.

I’m personally of the opinion that the baker is well within their rights to refuse to make any of these cakes, on two different grounds - firstly speech, and secondly (and more importantly!) because the design in question is not part of their product line. You can’t sue Burger King for refusing to sell you a car, and the reason for that is not because of the first amendment issues. It’s because Burger King doesn’t sell cars.

So, there are designs that a given baker simply doesn’t make. But, contrariwise, there are designs that that baker does make. Including custom ones! Some bakers may even claim all their cakes are custom cakes, and good on them. But these custom cakes? They’re still cakes they’re willing to make. The cake, itself, has no message that the baker is offended by. The cake, itself, is not speech that the baker objects to.

I think you can see where I’m going here. If a baker would sell a specific cake to a straight couple, then no matter how custom, creative, or complex it is, then I think that there is no first amendment argument for them being able to refuse it to a gay couple, at least not on the grounds of the speech implied by the cake itself. The cake has its message, and the sale has its message, and the two are distinct.

Which means that while Adam and Steve can’t reasonably expect a baker to provide them with a cake with a gay cake topper, they can reasonably the baker to make a wildly custom cake for them that does not have gay iconography on it. If the bake would sell that exact custom cake to a straight couple, the gay couple should expect the same service, as members of a protected class.

And Adam and Steve are even within their rights to buy a topperless custom cake and put their own gay topper on - that’s covered by fair use. As is taking the custom cake and displaying it and consuming it at their wedding - as long as they don’t express or imply that the original owner of the cake design endorsed their use of it in that bit of performance art.

OK, then I will repeat another post brought up earlier.

If I as a Buddhist convince you to make me a inspiringly gorgeous multi level swastika shaped vegetarian cake for a Buddhist celebration, must you then sell the local KKK the same swastika shape vegetarian cake to celebrate the birthday of Hitler even if the local KKK group doesn’t say that the cake was made by the Begbert2BuddhistBakery? Or does the context in which it is intended to be used give you the right to refuse to make them the cake? (for the sake of argument lets say political affiliation is a protected class in this state because some people were starting to refuse service based on political ideology and it was leading to horrible partisanship in the state).

[Left_Hand_of_Dorkness]

@Damuri_Ajashi

(for the sake of argument lets say political affiliation is a protected class in this state because some people were starting to refuse service based on political ideology and it was leading to horrible partisanship in the state).

Or let’s not say that, because political affiliation becoming a protected class is fundamentally a different matter and changes things dramatically.

[Morgenstern]

When will people understand that the “custom” cake is not the issue. Even if it’s the same cake she made yesterday, which was just like the other 4 she made last week, she (the diva baker) will not be compelled to use her creative talents to bake (even the same fucking cake she baked 10 minutes ago) when she disagrees with the customer’s use of the cake. Period. The judge rules on the Constitutional issue, and that issue is not at all dependent on how many times she’s baked a particular cake.

[WillReadmore]

@Morgenstern

When will people understand that the “custom” cake is not the issue. Even if it’s the same cake she made yesterday, which was just like the other 4 she made last week, she (the diva baker) will not be compelled to use her creative talents to bake (even the same fucking cake she baked 10 minutes ago) when she disagrees with the customer’s use of the cake. Period. The judge rules on the Constitutional issue, and that issue is not at all dependent on how many times she’s baked a particular cake.

One judge ruled that.

However, there are at least two other essentially identical “baker” cases and in those cases the judges, including those in appellate courts, did not agree with the baker on this.

As for me, if the cake is the same I would have to ask how someone at the wedding could detect whether the cake was made before or after the order was placed. That is, you seem to be saying that one of those cakes has different juju than the other. But, if those at the wedding can’t tell the difference, then I would submit that there IS no difference.

Besides, those at the wedding must (and rightly) consider ALL the aspects of the wedding as being at the discretion of those being married. The invitation design, the makeup, the hair, the clothing, the menu, the flowers, the punch, the bar - NO guest could reasonably claim that they heard the faint echoes of some “artist” coming through the fundamental fact that the event is the SPEECH of those being married.

I’d point out that his is something discussed in the January oral argument of the CO case that is before the SCOTUS and will be decided by this spring.

[Left_Hand_of_Dorkness]

@Morgenstern

When will people understand that the “custom” cake is not the issue. Even if it’s the same cake she made yesterday, which was just like the other 4 she made last week, she (the diva baker) will not be compelled to use her creative talents to bake (even the same fucking cake she baked 10 minutes ago) when she disagrees with the customer’s use of the cake. Period. The judge rules on the Constitutional issue, and that issue is not at all dependent on how many times she’s baked a particular cake.

If the cake uses only assembled design elements that were previously designed, then the work being asked is no more onerous nor violative of the first amendment than asking a cabinet maker to install cabinets she designed previously, or asking a sandwich artist to assemble a sandwich designed by someone else. The work of assembling the cake is “creative” in the sense that it is literally creating an object from other objects, but not “creative” in the sense that there are any meaningful decisions to make. Nor is it “expressive” in the sense that the artist chooses a message to express.

But even if it were otherwise–which, again, it’s not–allowing someone to refuse to engage in expressive conduct even when that refusal constitutes discrimination will eviscerate antidiscrimination statutes.

The only way you’ve ever addressed that is to say the decision doesn’t go that far, but that’s completely backward: the decision actually goes much further than that, in providing speech protection to something that is not speech.

[Really_Not_All_That_Bright]

@Damuri_Ajashi

Lets say there was a huge celebration by the KKK on the anniversary of the MLK assassination and they asked you to bake them a beautiful three tier cake that didn’t refer to MLK or the assassination in any way. What if anything would you be saying by supplying the KKK with that cake? Would it be a violation of your first amendment rights if the state forced you to bake that cake?

I wouldn’t be saying anything by supplying the KKK with that cake. But more importantly, the Unruh Act does not require businesses to serve people without regard to membership in organizations.

[Morgenstern]

Design is only one part of the creative process. I think too many people are offended by the results of this case, and I can agree with them in that regard.

Let’s change one thing and use the same underlying issue.

Bill is known as a creator of great cakes. Expensive, good cakes. Bill is an avid anti-death penalty advocate.
2 black gentlemen, prison guards in fact, walk into Bill’s shop and want a celebration cake made to celebrate the upcoming execution of a convicted murderer.
Bill tells them capital punishment is morally wrong and against his religious beliefs, and refuses to bake the cake.
Should that be the end of it?

[Left_Hand_of_Dorkness]

@Really_Not_All_That_Bright

I wouldn’t be saying anything by supplying the KKK with that cake. But more importantly, the Unruh Act does not require businesses to serve people without regard to membership in organizations.

But pretend that it does. Also pretend that the Klan is a collection of little old ladies who Knit Kids’ Kardigans, and that cake is a kind of vintage motorcycle, and that the baker is a hive mind comprising literally millions of soldier ants. How does that change your answer?

[Left_Hand_of_Dorkness]

@Morgenstern

Design is only one part of the creative process. I think too many people are offended by the results of this case, and I can agree with them in that regard.

Let’s change one thing and use the same underlying issue.

Bill is known as a creator of great cakes. Expensive, good cakes. Bill is an avid anti-death penalty advocate.
2 black gentlemen, prison guards in fact, walk into Bill’s shop and want a celebration cake made to celebrate the upcoming execution of a convicted murderer.
Bill tells them capital punishment is morally wrong and against his religious beliefs, and refuses to bake the cake.
Should that be the end of it?

Well gee, let me think. What law, if any, prohibits discrimination against death penalty advocates or prison guards? While I’m at it, are we still talking about the soldier ant hive mind?

[k9bfriender]

@Morgenstern

When will people understand that the “custom” cake is not the issue. Even if it’s the same cake she made yesterday, which was just like the other 4 she made last week, she (the diva baker) will not be compelled to use her creative talents to bake (even the same fucking cake she baked 10 minutes ago) when she disagrees with the customer’s use of the cake. Period. The judge rules on the Constitutional issue, and that issue is not at all dependent on how many times she’s baked a particular cake.

Let me go ahead and help you out for when the Subway sandwich artist refuses to make a sub based on a protected class.

When will people understand that the “custom” sandwich is not the issue? Even if it’s the same sandwich she made yesterday, which was just like the other 4 she made last week, she (the sandwich maker) will not be compelled to use her creative talents to assemble (even the same fucking sandwich she assembled 10 minutes ago) when she disagrees with the customer’s use of the sandwich. Period. The judge rules on the Constitutional issue, and that issue is not at all dependent on how many times she’s assembled a particular sandwich.

For any other discriminations that you would like to justify, just use cut and paste for whatever the particular item is that you want people to be able to deny.

[Morgenstern]

@Left_Hand_of_Dorkness

…
The only way you’ve ever addressed that is to say the decision doesn’t go that far, but that’s completely backward: the decision actually goes much further than that, in providing speech protection to something that is not speech.

unl mine.

Okay, I see where you’re headed. Give me a minute and I’ll be back.