Is “custom” to be distinguished from “made-to-order from selections in a catalog of available designs?” If it is, I’m not prepared to agree that it was to be a custom cake.
Then there is still the issue of what the objectionable message the baker was being “forced” to convey was.
I think that there is a difference between “compelled speech” in the sense of being forced to transmit an idea that the speaker objects to and the idea of compelled artistic expression, where we believe that “art” is a form of “speech” that is protected and, as an extension, includes the freedom not to engage in “art” that offends the artist’s religious belief.
Define “art”.
It’s my understanding that, according the ruling, the following scenario could occur:
A person walks into the bakery, points at a cake in the display case and say, “I want to buy that exact cake.”
The baker sighs and says, “I hate black people, but I do indeed have to sell that cake to you because of laws. Let me just get it out for you.”
“No, you don’t understand,” the person says, shaking their head. “I don’t want the cake now, I want it in two weeks, for my son’s wedding. That exact cake, as close a copy as you can make it.”
The baker brightens. “In that case, shove off! I don’t have to make jack for you! Because speech! Ha ha!”
In that scenario, where is the art?
I don’t accept this division at all.
These public accommodations sell cakes that are baked to the specification of the customer. Plus, the baker is neither present nor identified at the event. And, in none of the three cases (OR, CA and CO) has there been anything claimed to be inherently objectionable about the cake as specified by the customers. That is, the cakes were not known to include any element that would cause the baker not to want to display them.
At the event, the “speaker” is the couple, NOT the baker. The cake is of the couple’s specification and is presented as the speech of the couple. THEY are the ones who speak both by word and deed.
Plus, the cake is only one of numerous objects created for the event - the invitations, the makeup, the hairdo, the catered menu, the flowers, etc. All these providers could claim to be artists at least as easily as could this cake baker. And, none of these people are identified or necessarily present nor do they have their work presented as the speech of anyone BUT the couple. Suggesting all these anonymous contributors are “speaking” for themselves is ridiculous.
Again, the components of the wedding and the reception were specified by the couple and were to be presented as the speech of the couple.
It might be different if the cake were made by Picasso (were he alive), or some other noted and identified artist. In that case, those in attendance would be aware of the artist and interested in what the cake “means” in its wondrous design. But, that is because it is an object specified by Picasso, not the couple.
The judge’s ruling in the California case hinged on made-to-order. It did not inherently require “custom” as the term is being used in this thread, which is being equated with singularly unique.
The US Supreme Court grappled with the issue of art as protected First Amendment speech in the 1952 case Joseph Burstyn, Inc. v. Wilson in which the New York state government attempted to prohibit the showing of a motion picture it deemed sacrilegious. The court overruled a prior decision from 1915 that movies were merely a business and not protected speech. Since the decision in Joseph Burstyn, Inc. v. Wilson there has been little doubt that many forms of art are protected speech.
And further, the First Amendment protection does not end as soon as the work of art has been displayed (play has been performed, song has been sung, etc…) once. It need not be a unique event to have protection. Showing the movie in question in Joseph Burstyn, Inc. v. Wilson was protected from government censorship each and every time it was shown.
Now, SCOTUS faces Masterpiece Cakeshop and will have to decide several questions, including whether such cakes are works of art worthy of First Amendment protection. There was a Amici brief which chose not to state a preference for whether the baker or the state should prevail, but simply argued the point that such cakes are works of art. And the justices seemed to take note of that during oral arguments. Realistically it seems unlikely that the court will uphold the lower court (decide for the state) on the basis that such cakes are not works of art. They may still rule for the state after further examination of the interests of anti-discrimination laws balanced against First Amendment protections of the baker.
Yes, I’m guessing there will be separate opinions on both sides of the final decision in the CO case before the SCOTUS at present. There seems to be room for separate lines of logic on both sides.
And, I agree that the harm to civil rights law of a decision in favor of these bakers seems serious enough to play a central role in the final decision.
There are a number of steps here. (1) Is “artistic expression” a form of protected speech? (2) Can a person be compelled, under an anti-discrimination law, to engage in “artistic expression”? (3) Is recreating (or reproducing) a piece of art itself an exercise in artistic expression? (4) Is this particular thing we’re talking about an example of “artistic expression”?
There are probably more. It seems to me that your scenario presents question 3. If we assume that the creation of the cake in the display was “artistic expression”, is making a replica of it also artistic expression? (If we assume it isn’t artistic expression in the first instance, then the analysis ends, I think). I don’t know the answer to that. I’m not sure what the answer should be.
Now, I think that you’re right that a logical extension of the California ruling would protect the baker in your hypothetical. I think that the ruling contemplates a custom design that is made to order, but there’s nothing that suggests that those things need to happen simultaneously. (i.e., I can make a bunch of custom designs, and then you can pick one, and I make it to order). Should that be protected? I don’t know. I have trouble thinking it through without veering off into the question of whether the creation of a wedding cake should ever be protected.
I don’t see anything in the rest of your response that seems to support this statement. It seems to me that your point is that you don’t think that a wedding cake (or perhaps just these wedding cakes) fall into either category.
#1 is clearly a “yes” but I do not think that applies to the baker in this case.
If an artist, in whatever medium, creates something that is speech.
In this case the baker is being paid by someone else to create a specific thing. It is no longer the speech of the baker/artist.
Besides, the cake is closer to a manufacturing line than artistic speech. The cake was chosen from a book of available cakes. There was nothing unique about this cake. There was no message to be written on the cake. It was just a cake.
Further, there is NO WAY the cake would be considered an endorsement by the baker of whatever use it was put to. Is a sign maker personally endorsing that Bob’s Burgers are indeed the “Best Burgers in the World” when they make that sign? Of course not. So too with the baker. Making a cake is in no way the baker endorsing the message it sends (whatever that is).
If we assume #1 is put to rest I think the follow-on questions are more easily answered.
I see what you did there. I think.
SCOTUS has ruled on a somewhat analogous issue.
Many (all?) states have customized license plates including specialty designs for affinity groups. So you might see a car with a University of MyState license plate design. Texas, for example, has designs showing presumed affiliation with private groups such as the 4-H, the American Legion, the Houston Astros, and so on.
Eventually this led to an application for a specialty plate design from a group that the state did not want to approve - the Sons of Confederate Veterans. Texas refused to issue such plates. The group sued. And it ended up at the high court.
The Supreme Court ruled* in Texas v. Texas Division, Sons of Confederate Veterans, that the speech was that of government, not the person buying and displaying the plate. As the issuer of the plate the government was considered the speaker and acted properly in declining to issue the requested design.
If the court holds to the same logic then the baker would be the speaker, not the person buying the cake.
- Coincidentally this decision was handed down on June 18, 2015, the day after the June 17, 2015 mass shooting at a Charleston, SC area church. Background investigation of the shooter in that incident showed he had a specialty license plate with a Confederate flag design. Governors of Maryland, Virginia, and North Carolina all moved to cease their state’s Confederate flag license plate design citing the SCOTUS decision as the legal authority to do so.
Not necessarily, because it’s well known that licence plates belong to the government, and they usually have government logos or symbols on them.
Quick, without asking anyone: Last three weddings you attended that you weren’t involved in paying for and weren’t your own wedding, exactly who made the cakes?
The Texas case ruling was in line with earlier court precedent in Wooley v. Maynard which also held that messages on license plates were government speech AND that citizens could not be compelled to display design elements (a New Hampshire plate with the slogan “Live Free or Die”) with which the citizen had a religious objection.
You disagree that this series of rulings on license plate designs is analogous to the baker situation. And indeed a lawyer would need to differentiate the cases and provide a convincing argument as to why enough difference exists to warrant a different ruling. But based on court precedent it seems that an argument that it is not really the baker’s speech would be an uphill argument to make.
Easy.
To be the same it would be like the government telling the baker they have to write, “I like dick” on all their cakes and that the baker must display “I like dick” cakes in their window.
That is not happening here. Someone is asking for a cake and then taking the cake away for their own use. No one else is having a given message foisted on them which is what the government does when it says you have to display a given license plate design.
That is an issue in Wooley, but not in Texas v Sons of Confederate Veterans.
In the Texas case it was the citizen customers who demanded the production of a specialized product. And the producer refused. And the Supreme Court upheld that refusal on First Amendment grounds.
And it still remains that at its core the high court has case precedent that the producer of goods is the speaker when it comes to First Amendment protection claims.
There may be other ways to attack the *Masterpiece *decision in future cases, but ISTM claiming the cake is not the baker’s speech is not in line with prior precedent.
But, alas, the *Masterpiece *decision never reached the core First Amendment free expression claim. That means future cases already working their way through the system might be the deciding precedent.
The most likely on deck case to address similar issues, Baronnelle Stutzman’s case out of Washington (aka Arlene’s Flowers Inc v Washington) holds a couple distinguishing issues that were not present in Masterpiece. There is no doubt that Stutzman was willing to sell other items as the customer in that case was a long time customer. She just was not willing to do the flowers for his same-sex wedding. In Masterpiece there had been some discussion here on the Dope as to whether Phillips was actually willing to follow through on his statements that he would have sold other goods to the Craig and Mullins.
And, as far as I can tell, the customers in Arlene’s Flowers never were a complaining party. Instead the state filed on its own behalf. And the state sued not just her business but her as an individual.
The Arlene’s Flowers case has been distributed for conference at the Supreme Court. A decision on a grant of *cert *may be forthcoming before the end of the month. I suspect the court may order the case remanded per curiam to exam whether the state’s actions in suing Stutzman as an individual demonstrate undue hostility demanding redress in accordance with their decision in Masterpiece.
In the case of the license plates a message “I like dick” is attached to the state. The state’s name is on the plate and the message is paraded around in public and the plate is a formally issued government document. It is reasonable to think the state approves of that message.
In the case of the cake no one knows who made it and it is intended for a private event. No one would ever think the message on the cake is approved of (or not) by the cake maker or represent the cake maker’s opinion/feelings. If you have the baker make a cake with a message “Jimmy’s BBQ - World’s Best Ribs!” are we to assume the cake maker is endorsing the message that Jimmy’s BBQ does, in fact, have the world’s best ribs?
Of course not. No one would think that. However, if your license plate said “World’s Best Ribs” then I would think that is a message the state has endorsed. The Idaho plate says “Famous Potatoes” which I take to mean the state is saying they have famous potatoes. If a baker put “Famous Potatoes” on a cake I wouldn’t even think to wonder what the baker’s opinion of that is and I cannot see where anyone else would either.