SCOTUS to take the cake

[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.

“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.


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Which means it takes the knowledge that this specific cake is being made for a gay couple for it to be objectionable "expression" to the baker, which then means that the baker is discriminating against the individuals rather than having any valid claim to compelled "expression"

 

[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.


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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"

The First Amendment does not have the right to discriminate based on sexual orientation and nothing else clause.

Saying the First Amendment protects this kind of discrimination is to twist the Constitution into a pretzel.

It is not the protector of delusional prejudices.

Unfortunately Republican leaning judges are.

This is a Republican leaning judge issue.

A serious issue when the rights of Christians to discriminate comes up.

 

[RavenSky]

Custom made cakes, as the kind involved here, for a wedding ceremony, which is an expressive event, is expressive...

Wedding cakes are not part of the ceremony.

They are part of the after party

 

[untermensche]

Custom made cakes, as the kind involved here, for a wedding ceremony, which is an expressive event, is expressive...

Wedding cakes are not part of the ceremony.

They are part of the after party

It's such a bullshit issue anyway. A desperate last straw from people who first have a Constitutional conclusion and then desperately try to twist the Constitution to fit that conclusion, that prejudice.

Suppose we say the cake is the highest form of expression.

What gives this baker the right to discriminate based on sexual orientation and nothing else?

Why is his right to discriminate greater than the right of people to not face discrimination?

 

[Underseer]

Custom made cakes, as the kind involved here, for a wedding ceremony, which is an expressive event, is expressive...

Wedding cakes are not part of the ceremony.

They are part of the after party

It's such a bullshit issue anyway. A desperate last straw from people who first have a Constitutional conclusion and then desperately try to twist the Constitution to fit that conclusion, that prejudice.

Suppose we say the cake is the highest form of expression.

What gives this baker the right to discriminate based on sexual orientation and nothing else?

Why is his right to discriminate greater than the right of people to not face discrimination?

And that brings us right back to why these same arguments failed when it was about serving people with dark skin at the lunch counter.

Don't racists "alt right free speech advocates" never tire of being wrong over and over again?

This isn't rocket science. If you serve lunch, you have to also serve lunch to black people. No, that doesn't mean your rights are being taken away, it just means that your rights and at the tip of your nose (your rights do not include the right to take rights away from others), which is the same fucking standard this nation has always used. We aren't making exceptions to our notion of freedom just because someone wants to institutionalize bigotry.

 

[untermensche]

The problem is Republican leaning judges.

They are anything but conservative.

They are radical.

Radical in support of the rights of Christians to freely discriminate.

Not caring that there is no rational or moral basis for the discrimination. It is based only on delusion.

A delusion these Republican leaning judges share.

Law based on delusion. It is what you get from these Republican leaning judges.

 

[hurtinbuckaroo]

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.

How would you apply that to commissioned "traditional" art forms, where the patron chooses the subject? Could an atheist painter be sued for refusing to take a commission to create a religious image?

 

[RavenSky]

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.

How would you apply that to commissioned "traditional" art forms, where the patron chooses the subject? Could an atheist painter be sued for refusing to take a commission to create a religious image?

That's a good question, and I was considering it earlier. I was particularly thinking about portrait painters as an example. Could they turn down a commission to paint a gay couple? And to be honest, I am still chewing on it.

My first thought is that most "traditional" artists are not businesses in the same way a bakery is. An artist may display their pieces in a gallery for sale, but those will be clearly examples of the artist's personal expression because they will be already completed pieces that a buyer could buy or reject.

A commission, otoh, would entail an agreement with the customer to paint the customer's choice of subject. I think your example would be relatively easy - the artist could reject the commission based on religious icons not being within his speciality... just like a cake baker could reject an order for cookies because he doesn't normally bake cookies. Cakes and cookies are both bakery items, but only one is within the baker's area of speciality.

But if a portrait artist specializes in portraits of couples, could said artist refuse to paint a gay couple? IF we accept the argument that the artist's product is necessarily "expression" by virtue of the fact that it is "art", then the artist cannot be compelled to produce the portrait.

But given that his business is to produce portraits in exchange for money, can he discriminate against the gay couple? I'd think not.

But, because a portrait of a gay couple is readily identifiable as an "expression" of a gay couple (and potentially construed as an endorsement of gay couples) in a way that a cake can never be, would requiring the artist to paint the portrait be an example of compelling "expression" against the artist's personal beliefs.

At this point, I would tend to side with the portrait artist in this case. S/he should not be compelled to paint the portrait because the finished product is clearly identifiable as celebrating a gay couple. As much as I would personally disagree with the artist's position, I think I would have to support it in principle.

The cake baker, on the other hand... a cake is a cake is a cake. It is not, in and of itself, identifiable as "gay" or "straight", so the baker's objection has no basis other than discrimination against the potential customers.

 

[untermensche]

That's a good question, and I was considering it earlier. I was particularly thinking about portrait painters as an example. Could they turn down a commission to paint a gay couple?..

It depends if you have an artist actively choosing their subject material.

But this is a business open to the public expressing the desires of the public. An agent for the public, not somebody actively searching within the public for subject material.

How about a photographer that refused to photograph black people?

Should they be allowed to be dealing with the public in that manner?

 

[Elixir]

That's a good question, and I was considering it earlier. I was particularly thinking about portrait painters as an example. Could they turn down a commission to paint a gay couple?..

It depends if you have an artist actively choosing their subject material.

Yeah, THAT. Or so it should be...

If someone goes into a religious-yet-public bakery wanting a cake of their own design, say with devils and the number 666 all over it, does their public status require them to produce it, though?
I don't know...

 

[RavenSky]

That's a good question, and I was considering it earlier. I was particularly thinking about portrait painters as an example. Could they turn down a commission to paint a gay couple?..

It depends if you have an artist actively choosing their subject material.

But this is a business open to the public expressing the desires of the public. An agent for the public, not somebody actively searching within the public for subject material.

How about a photographer that refused to photograph black people?

Should they be allowed to be dealing with the public in that manner?

Another good question, and I like the way you present the distinction with the bolded.

And that would tend to lean back to the position that a portrait painter could not refuse to paint the gay couple if they generally put out an offer to paint portraits on commission.

 

[Elixir]

... a portrait painter could not refuse to paint the gay couple if they generally put out an offer to paint portraits on commission.

Yabut he could make them look really ugly!

 

[hurtinbuckaroo]

The cake baker, on the other hand... a cake is a cake is a cake. It is not, in and of itself, identifiable as "gay" or "straight", so the baker's objection has no basis other than discrimination against the potential customers.

But if, as you posted earlier, the cake can be considered an expression of the couple, it's no longer just a cake. What takes it to the "expression" stage?

 

[RavenSky]

The cake baker, on the other hand... a cake is a cake is a cake. It is not, in and of itself, identifiable as "gay" or "straight", so the baker's objection has no basis other than discrimination against the potential customers.

But if, as you posted earlier, the cake can be considered an expression of the couple, it's no longer just a cake. What takes it to the "expression" stage?

The couple chooses the colors, flavors, shape and design/decorations. To that degree, it is an expression of their wedding theme, but there is nothing about it that is an expression of the baker. As such, the baker cannot claim to being "compelled" to any "expression" of support for gay marriage. Further, whatever the ultimate shape, flavor, design of the cake, it is still just a cake. It isn't a "gay cake" or a "straight cake"

 

[Elixir]

 

[Loren Pechtel]

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.

Disagree--you're treating things as incompatible that arne't.

My yardstick:

Take 5 "professionals" (not all areas require all that much training) in doing whatever it is. Give them the same directions.

If the results are pretty much 5 clones, there's no artistic component. If there is a substantial difference, it's artistic.

 

[Elixir]

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.

Disagree--you're treating things as incompatible that arne't.

My yardstick:

Take 5 "professionals" (not all areas require all that much training) in doing whatever it is. Give them the same directions.

If the results are pretty much 5 clones, there's no artistic component. If there is a substantial difference, it's artistic.

Let's use designing an antenna for a spacecraft... Here's one that works better than any other design, and barely resembles any other preceding design. The developmental methodology is different... is it art? (It's cute, but that's not the question.)

 

[RavenSky]

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.

Disagree--you're treating things as incompatible that arne't.

My yardstick:

Take 5 "professionals" (not all areas require all that much training) in doing whatever it is. Give them the same directions.

If the results are pretty much 5 clones, there's no artistic component. If there is a substantial difference, it's artistic.

the issue is not "artistic component" - that's the point.

The supposed issue is whether the baker is being compelled to use his "artistic expression" to "express" views he doesn't endorse.

He isn't. No matter how "artistic" he or anyone else claims cakes are, there are no "views expressed" by the mere presence of a wedding cake.

 

[untermensche]

There are other issues.

Is prejudice against gay marriage today a legitimate religious belief? Maybe it was 2000 years ago, but that is not certain. Can that be demonstrated in any way?

 

[Worldtraveller]

That is really cutting it fine. This isn't about gays, but gay marriage. Would that argument work with race (a question asked a bazillion times in the hearing)? Sexual orientation isn't the issue, except how it refers to the marriage. I.E. their identity is irrelevant, so no discrimination based on identity... except that their identity is wholly locked with the marriage.

I don't normally discriminate against gays... but when I do, I refuse to give them Dos Equis. A sort of 'once in a while discrimination is okay' argument.

Which leads to the Ginsburg, etc... argument about "the line" to be drawn.

Cakes don't say anything... they are eaten. People seek the blessing of a priest, a Rabbi, parents, grandparents, maybe even get the rings blessed. No one goes to the bakery to get their wedding blessed. No one blesses a cake for a wedding. Its importance in a wedding is being misconstrued as something religious, when in fact, it is quite secular. Cakes don't have religion.

I'm not exactly certain what your standing is for the case regarding SCOTUS's action. Do they just micromanage and say this single act isn't discrimination or do they put a banner over artisans as a whole?

The right-wing argument seemed to be, 'well we allow for religious exemptions all the time, so why not here'. It is a compelling argument and harder to push aside. My argument, which matters not in this case as Ginsburg doesn't return my calls, is whether a cake is expression at all. Allowing this type of discrimination will allow "the gaming" of the system.

That is really cutting it fine. This isn't about gays, but gay marriage. Would that argument work with race (a question asked a bazillion times in the hearing)? Sexual orientation isn't the issue, except how it refers to the marriage. I.E. their identity is irrelevant, so no discrimination based on identity... except that their identity is wholly locked with the marriage.

"Work with race," as in, a KKK cake maker refuses to make a custom cake for an interracial marriage?

Cakes don't say anything... they are eaten. People seek the blessing of a priest, a Rabbi, parents, grandparents, maybe even get the rings blessed. No one goes to the bakery to get their wedding blessed. No one blesses a cake for a wedding. Its importance in a wedding is being misconstrued as something religious, when in fact, it is quite secular. Cakes don't have religion.

But cakes can express a message. The limiting principle would be custom made cakes to be used in an expressive event, such as a wedding ceremony, are part of the expressive event and express a message along with the expressive event. A custom made wedding cake is certainly expressive as a work of art and the evidence for this is the elaborate layers, design, swirls, thickness, use of colors, etcetera. Brides and people to be married spend a lot of time selecting a wedding cake and spend a lot of money for a custom made cake. People are not walking into a Dairy Queen and picking up a cake from the freezer as their wedding cake.

But you really did not articulate how a ruling, on the basis of these facts, results in a deluge of discrimination.

I can tell you how it would result in a 'deluge of discrimination'.
1) People are stupid.
2) Most even reasonable people are extremely ignorant of how laws work wrt court rulings and fine lines.
3) Faux Noise, notsoBreitbart, and other right wing organizations and propaganda outlets would proclaim victory without any of the nuance which you (rightly) allude to here.
4) Wannabe xian martyrs/hypocrits think they can discriminate, well, indiscriminately.
5) It takes years and lots of money to settle all of the cases of above assholes discriminating against anyone they want to.