SCOTUS to take the cake

[untermensche]

You are just expressing some prejudice about what is and isn't art.

You like art that requires a lot of skill. And want to give that art special rights.

Nothing more.

Nah...I particularly care about the 1st Amendment Free Speech Clause, believe Speech, which includes the right not to speak, is important. I also believe public accommodation laws are important. I see an opportunity to appease both interests without completely surrendering the entirety of one to the other.

Anybody can wrap their prejudice with the Constitution.

The doing so and nothing else shows a weakness of position.

A person has the freedom to speak only to the extent it does not interfere with the lives of others.

When looking at a right we should look at the consequences of everybody expressing it.

I do not want to live in a society that gives people with religious delusions the right to make the lives of others more difficult based only on those delusions.

Might as well move to Iran or Saudi Arabia.

 

[Jimmy Higgins]

Other than "eat me" or "The baker clearly likes making and decorating cakes"? The weddings I've been to, I've never though, "Wow... the baker must have really approved of this wedding!"
And not a single one of those swirls says "I bless and condone the wedding". It is undeniably a type of art. Decorating cakes as such takes lots of training and effort. But expression? The guy is selling cakes for a living. It is his trade. I'd presume no level of expression (which really is a wild and absurd gray area argument invented for this case by lawyers) of the baker for a cake that they are selling for hundreds (thousands?) of dollars. They are making a living off of it. That is why you pay them for their time and skill.

Lots of money is spent on a cake, jewelry, the dresses. A ton of stuff that is hand crafted or made. Does that indicate anything other than a desire for something to look nice, not a desire to have the blessing of a seamstress?

It will allow for the gaming of the system. It creates a new branch of acceptable discrimination among a certain groups of people against a certain group of people. An "expressive event"? "Expression"?

How does SCOTUS say this wasn't discrimination without it covering all areas of artisan work for all "expressive events"? This goes beyond cakes, beyond weddings. Right now, "religious" people are clawing at any way they can deny gays their elevated status as equal human in the US. We saw this before in the 50s and 60s, given it was a tad bit more violent then.

Admitting the cake is art is likely a fatal admission. Such an admission puts the cake in the realm of expressive speech like pictures made by an artist/painter/sculptor, including those used in a wedding.

Looks pretty = art to me. If there is a SCOTUS understanding of "art" that is much more rigid than the typical use of the word, then that is not what I meant.

Admission this elaborate level of cake making involves a lot of training and effort is also likely fatal, and immediately distinguishes this type of cake making from mere sandwich making.

And I hardly founded an argument on sandwiches. It takes time to make a beautiful cake. Said cake looks beautiful... doesn't express anything though. It takes a long time to do a lot of things. That doesn't mean it is expressive.

A great example of this kind of cake making as expressive speech is prominently displayed on the show Cake Boss. The cakes on Cake Boss are expressive. Looking at those cakes on Cake Boss it becomes readily apparent the type of cake making displayed is an art!

Art as in skill and craft. Not art as in, this cake makes me feel like the baker endorses gay marriage. Art art is about expressing an ideal. Cake art is about making a cake look nice and complicated.

Mr. Phillips cake making parallel to those artful and expressive cakes on Cake Boss.

The cakes are not expressive on Cake Boss. They look like a space ship or a hippo doing the tango. They do not express anything except, my god... how much for the hippo cake?!

Both, Cake Boss and the cakes at issue in this case, involve the type of cake making requiring a lot of skill, creativity, training, practice, and is no ordinary cake one picks up from Dairy Queen to be consumed.

The odd thing with this statement is that the bakery can make plenty of complicated cakes that aren't for weddings. And all of a sudden the "expressive" part seems to disappear. Birthday cake? Anniversary cake? Expensive, skills, training... no expression any more.

The expressive message is one of joy for the married couple, a congratulatory message, for the married couple, and their venture together.

[Hulk]Cake look pretty.[/Hulk] That is the expression.

 

[blastula]

I'm not convinced this is as clear cut as you are all implying. If the baker was refusing to serve gay people in general then he is clearly being discriminatory. But it isn't so clear if he is refusing to provide a particular message. If, for example, a Christian were to request a cake with a cross on top, I think he would be within his rights to decline, without this being religious discrimination. (Refusing to serve Christians because they were Christian would be discriminatory though.) This is the point Gorsuch was (poorly) trying to make I think.

I also think a lot depends on what was advertised too. If gay marriage was legal in the state, then the baker advertising that he makes wedding cakes (without specifying the gender of the participants) then this is enough to make the refusal of the gay wedding cake discriminatory. If, however, it was not legal in the state, he could quite reasonably claim that his advert never implies he would make gay wedding cakes.

Cakes for gay weddings are made the same way as cakes for straight weddings.

 

[untermensche]

I'm not convinced this is as clear cut as you are all implying. If the baker was refusing to serve gay people in general then he is clearly being discriminatory. But it isn't so clear if he is refusing to provide a particular message. If, for example, a Christian were to request a cake with a cross on top, I think he would be within his rights to decline, without this being religious discrimination. (Refusing to serve Christians because they were Christian would be discriminatory though.) This is the point Gorsuch was (poorly) trying to make I think.

I also think a lot depends on what was advertised too. If gay marriage was legal in the state, then the baker advertising that he makes wedding cakes (without specifying the gender of the participants) then this is enough to make the refusal of the gay wedding cake discriminatory. If, however, it was not legal in the state, he could quite reasonably claim that his advert never implies he would make gay wedding cakes.

Cakes for gay weddings are made the same way as cakes for straight weddings.

And even if it is art there is no rational basis to deny your art to a gay wedding.

Prejudice with no rational basis behind it should not be recognized in law.

 

[coloradoatheist]

I do agree with the others that if they use expression in this case, they need to define it again for the purpose of making products.

 

[James Madison]

I do agree with the others that if they use expression in this case, they need to define it again for the purpose of making products.

“Define it” how? The only rational way to “define it” is on a case by case basis, on the basis of the facts presented.

For instance, a black piece of cloth, tied tightly around the arm, likely isn’t expressive without more contextual facts. But add the contextual facts of an unpopular war, black armbands used to protest the war, and suddenly the ordinary, unexpressive piece of cloth is expressive in how it’s used.

Or simply, a custom made cake with the colors red, white, and blue involved, and nothing more, may not be expressive. However, the use of the cake at a July 4th party is expressive.

Same for some products.


Sent from my iPhone using Tapatalk

 

[James Madison]

Looks pretty = art to me. If there is a SCOTUS understanding of "art" that is much more rigid than the typical use of the word, then that is not what I meant.

Admission this elaborate level of cake making involves a lot of training and effort is also likely fatal, and immediately distinguishes this type of cake making from mere sandwich making.

And I hardly founded an argument on sandwiches. It takes time to make a beautiful cake. Said cake looks beautiful... doesn't express anything though. It takes a long time to do a lot of things. That doesn't mean it is expressive.

A great example of this kind of cake making as expressive speech is prominently displayed on the show Cake Boss. The cakes on Cake Boss are expressive. Looking at those cakes on Cake Boss it becomes readily apparent the type of cake making displayed is an art!

Art as in skill and craft. Not art as in, this cake makes me feel like the baker endorses gay marriage. Art art is about expressing an ideal. Cake art is about making a cake look nice and complicated.

Mr. Phillips cake making parallel to those artful and expressive cakes on Cake Boss.

The cakes are not expressive on Cake Boss. They look like a space ship or a hippo doing the tango. They do not express anything except, my god... how much for the hippo cake?!

Both, Cake Boss and the cakes at issue in this case, involve the type of cake making requiring a lot of skill, creativity, training, practice, and is no ordinary cake one picks up from Dairy Queen to be consumed.

The odd thing with this statement is that the bakery can make plenty of complicated cakes that aren't for weddings. And all of a sudden the "expressive" part seems to disappear. Birthday cake? Anniversary cake? Expensive, skills, training... no expression any more.

The expressive message is one of joy for the married couple, a congratulatory message, for the married couple, and their venture together.

[Hulk]Cake look pretty.[/Hulk] That is the expression.

Custom made cakes, as the kind involved here, for a wedding ceremony, which is an expressive event, is expressive. The cake is not only a part of the approving, celebratory message of the wedding at the reception, but the cake expresses the same message.

The cake is prominently placed for the purpose of allowing people to view the cake. The cake is displayed so people can, as you say, admire its beauty. It’s beauty is a result of skill, craftsmanship. The beauty, resulting from the skilled labor of human hands, is another factor, along with the expressive event, showing the cake to be expressive.

Just as a custom made cake, with the colors red, white and blue, to be used at a July 4th celebratory event, is expressive, so is the elaborate, custom made cakes for weddings by Mr. Phillips.

And you’re ignoring the point under discussion. The expressive event in which the object is to appear is a limiting principle to preclude what you allege but cannot show will occur, an Armageddon, world ending discrimination. (Not talking about cakes with symbols or words).




Sent from my iPhone using Tapatalk

 

[untermensche]

Custom made cakes, as the kind involved here, for a wedding ceremony, which is an expressive event, is expressive. The cake is not only a part of the approving, celebratory message of the wedding at the reception, but the cake expresses the same message.

Yes. The message is a wedding is taking place.

Nothing else.

If a person has a rational basis to dislike gay marriages they possibly might be allowed to discriminate.

But since there are none it is absurd that anybody should have that right.

And even more absurd that the right would be recognized by the SC.

The way people twist logic to give some the right to discriminate.

 

[jonatha]

Cake Boss and the cakes at issue in this case, involve the type of cake making requiring a lot of skill, creativity, training, practice, and is no ordinary cake one picks up from Dairy Queen to be consumed.

You're going to extend the decision to ice cream sundaes?

I told you it was a slippery slope...

 

[RavenSky]

It has previously been argued (probably in a different thread) that #3 in particular would mean Subway's "sandwich artists" could deny service based on religious conviction.

If assembling a Subway sandwich is "art", surely assembling a McDonald's burger is also. "What is art" is a very slippery slope...

Not at all. The question isn't whether X or Y is "art." The question is whether X and/or Y are expressive. A Subway sandwich maker could not deny service to a person ordering a sandwich for lunch, on the basis of free speech, in which the sandwich is to be consumed by the purchaser and nothing more.

The same may be said for the porous McDonald's example. Making a McDonald's burger, for a person purchasing the burger to consume the burger and nothing else, does not involve any speech and therefore, denial of service on the basis of speech is not possible.

In addition, as Justice Alito noted through his questioning, merely doing the same, easy, mundane task of assembling food together to make a sandwich is not speech. Throwing a burger on bread, with cheese, lettuce, and tomato, is not speech. Neither is such conduct tantamount to the kind and type of elaborate wedding cake making involved in the case.

Subway and McDonald's will "customize" your sandwich as well. As will the bakers at the grocer or Carvel when they customize the "ready-made" cakes for someone's birthday or retirement party (or wedding).

I will agree that there is a level of skill required to make a decorative cake. We don't have a Sandwich Wrecks website because very few people actually care what their sandwich looks like.

That said, you indicate that the supremes are trying to make a distinction between "artistry" and "expression" - wherein the claim is that the cake "expresses" the artist's message in much the same way paint on canvas does. I disagree, and that that would create the slippery slope others have mentioned.

If anyone is expressing a message with a wedding cake, it is the people purchasing said cake. Not the baker assembling it. Choosing a cake for a wedding is, quite frankly, far more like choosing your sandwich from Subway - choose a cake flavor, choose a frosting, choose a shape, choose a design - all from a pre-set menu of what the baker has available and can do. Making a wedding cake for a "gay wedding" is absolutely no different whatsoever from making a cake for any other wedding. The couple still chooses from the baker's available menu of flavor, frosting, shape, and design/decorations. The end result is, as I said, an expression of the couple's preferences... not the baker's.

But I am not in the least bit surprised that the currently stacked USSC is going the opposite way - most of them are the same people that came up with the absurd idea that corporations are people and that non-living entities can hold religious beliefs that they can impose on their employees... so why not pretend a baker is "expressing himself" with a paint-by-numbers cake in order to discriminate against gay couples.

 

[RavenSky]

I think it was Gorsuch who noted he hasn't eaten a wedding cake yet that tasted good. Wedding cakes are meant to be decoration, which is why people spending crazy money on them looking nice. Of course, people don't spend that money on a cake that expresses anything other than beauty.

Gorsuch didn't taste my daughter's wedding cake

The groom's father is a baker, so he created a cake that was as delicious as it was beautiful. It was also a genuinely custom cake - and 100% expressive... of the theme of my daughter's wedding. There wasn't a single element that said "heterosexual wedding". It did scream "seaside wedding" though.

 

[RavenSky]

While food can be eaten, this doesn’t alter the fact food, although capable of being consumed, can constitute as expressing a message in certain contexts.


Sent from my iPhone using Tapatalk

I do agree that food can be expressive, and can be works of art in their own right.

People hires ice sculptors to create literal works of art for parties.

But I disagree that a wedding cake is the expression of anyone other than the couple themselves. As you noted yourself, couples spend a great deal of time and attention to choosing their cake so that it is exactly as THEY want it to be.

The baker - while hopefully talented - is not (and should not be) expressing himself in someone else's cake. He should be using his skill to execute THEIR expression.

 

[RavenSky]

Facts of the case. This isn't the first time the Court has encountered expressive speech. The Court has addressed expressive speech in O'Brien, Texas v. Johnson, Barnes v. Glen Theatre, Tinker v. Des Moines, several others, and a doctrine has been established for determining when conduct is expressive.

One factor is, "[T]he nature of activity, combined with the factual context and environment in which it was undertaken..."

There are other factors.

In any of those cases, was it decided in a vacuum? Finding for the baker will likely end the Colorado protections. Furthermore, could affect the Federal protection as well, unless a new test is available.

You can repeat the same claim to as nauseum, but repetition isn’t persuasive, other than causing the need for aspirin.

You’ve made no demonstration the apocalyptic event of “end Colorado protections” follows from a victory for the cake maker.


Sent from my iPhone using Tapatalk

If, as the argument seems to be, the act of a baker creating a cake that expresses the couple's wishes with regard to flavors and colors and swirls of icing is de facto an "expressive act" by the baker, then the same argument could be made to apply to the wedding dress seamstress and the invitation printer and the florist and the event caterers and every other business involved in a typical wedding. Every one of them - including the baker - is hired to execute the couple's vision (or expression) of their own wedding.

And why would this ruling be limited to weddings? What happens when someone wants to throw a surprise party for their same-sex partner? IF the baker gets to make the argument that his wedding cakes are his artistic expression, he can make the same argument for any cake bake by his business. And every other part-planning business could make the same argument as to their wares.

 

[RavenSky]

Jimmy John’s contract doesn’t make them artists or expressing a message. You really think such a contract rationally establishes someone as an artist or expressing a message?

Do you really think having the technical skills to bake and decorate a cake for a couple's wedding makes the baker an artist or expressing his own artistic expression?

- - - Updated - - -

The state cannot compel you to express things, even if that refusal is based on a delusion.

So the wedding invitation printer can refuse to print the wedding invitations, too?

 

[untermensche]

What needs to be made clear.

When all the smoke clears we are ONLY talking about the right to discriminate based on sexual orientation and nothing else.

If somebody says it is about something else they are not only lying but their motives should be closely questioned.

This is the right this baker wants.

Why should he have it?

 

[RavenSky]

Admitting the cake is art is likely a fatal admission. Such an admission puts the cake in the realm of expressive speech like pictures made by an artist/painter/sculptor, including those used in a wedding.

Admission this elaborate level of cake making involves a lot of training and effort is also likely fatal, and immediately distinguishes this type of cake making from mere sandwich making.

A great example of this kind of cake making as expressive speech is prominently displayed on the show Cake Boss. The cakes on Cake Boss are expressive. Looking at those cakes on Cake Boss it becomes readily apparent the type of cake making displayed is an art! Mr. Phillips cake making parallel to those artful and expressive cakes on Cake Boss. Both, Cake Boss and the cakes at issue in this case, involve the type of cake making requiring a lot of skill, creativity, training, practice, and is no ordinary cake one picks up from Dairy Queen to be consumed. Mr. Phillips is analogizing his cake making as tantamount to the expressive cakes of Cake Boss.

The expressive message is one of joy for the married couple, a congratulatory message, for the married couple, and their venture together.


Sent from my iPhone using Tapatalk

Who's message is being expressed? And either way, how does that apply to the points the Supremes are making

 

[Underseer]

As has already been expressed in meme form, if you are a conservolibertarian, you believe that baking a cake for a gay couple counts as participating in homosexuality, but voting for a pedophile doesn't make you pro-pedophilia.

The mental gymnastics necessary to believe some of those things must be very tiring.

 

[RavenSky]

You are just expressing some prejudice about what is and isn't art.

You like art that requires a lot of skill. And want to give that art special rights.

Nothing more.

Nah...I particularly care about the 1st Amendment Free Speech Clause, believe Speech, which includes the right not to speak, is important. I also believe public accommodation laws are important. I see an opportunity to appease both interests without completely surrendering the entirety of one to the other.


Sent from my iPhone using Tapatalk

Which again raises the question of whose speech (expression) are we discussing here? The wedding couple? Or the baker?

Further, is it really a "work of art"? Does/should technical skill rise to the level of "artistic expression"? We may casually refer to a cake as a "work of art" but should that really be a legal definition to allow for a specific kind of discrimination against a customer?

And IF a "work of art" that is an "expressive work", how does a cake that looks like any other cake "express" "gay wedding"

 

[RavenSky]

I do agree with the others that if they use expression in this case, they need to define it again for the purpose of making products.

ALL products... and therein is the slippery slope.

 

[Jimmy Higgins]

And you’re ignoring the point under discussion. The expressive event in which the object is to appear is a limiting principle to preclude what you allege but cannot show will occur, an Armageddon, world ending discrimination. (Not talking about cakes with symbols or words).

The bouquet is an integral part of a wedding, as are the bride's dress and bridemaid's dresses. The jewelry, possibly the biggest? Photographer is a pretty big deal. In fact, a wedding is nothing but a lot of critical things that are expensive and require skill and can be considered art... and subject to this "expression" crap argument. So most of the big cogs in a wedding can become an issue for a gay couple.

And if a gay couple is located in a rural Trump voting area, it becomes possible that a wedding isn't even possible now because services can be legally restricted from them. We've already been here with the Civil Rights movement (the interstate commerce argument). The only difference here is that SCOTUS appears willing to pretend that homosexuality is a "choice", where as race isn't a choice.

In general, the Supreme Court has been more likely to expand rights than to restrict them, but in this case, they'd be expanding the rights of individuals to discriminate and reduce the rights of gays. You seem to think this isn't that big of a deal because it is 'just weddings', but this will be used to game the system.

Breyer made the distinction between artist and artisan in the hearing. What the baker makes is definitely wonderful and nice, but this idea that it is "expression" is a lie. The cake expresses the ideal of beautiful or abstract or whatever the couple wants. No gives a rat's butt what the baker thinks about the wedding, it is just about the cake. No one sees to the cake for the baker's expression.