SCOTUS to take the cake

[RavenSky]

It looks like Justice Kagan is looking at this claim of expressive cakes with equal measures of amusement and disbelief:

JUSTICE KAGAN: But you have a -- you have a view that a cake can be speech because it involves great skill and artistry. And I guess I'm wondering, if that's the case, you know, how do you draw a line? How do you decide, oh, of course, the chef and the baker are on one side, and you said, I think, the florist is on that side, the chef, the baker, the florist, versus the hairstylist or the makeup artist? I mean, where would you put a tailor, a tailor who makes a wonderful suit of clothes? Where does that come in?

MS. WAGGONER: Your Honor, the tailor is not engaged in speech, nor is the chef engaged in speech but, again, this Court -*

JUSTICE KAGAN: Well, why -- well -* woah. The baker is engaged in speech, but the chef is not engaged in speech?

 

[Angra Mainyu]

Let’s use an example from the oral argument.

A customer walks into the business and asks for a custom made, rainbow cake. No questions are asked about the cake by the cake maker. No statements are made by the customer as to the use of the cake. Expressive speech?

Customer enters cake shop and requests a custom made, rainbow cake. Customer tells cake maker the cake is for a gay pride parade and/or same sex wedding. Expressive speech?

The latter hypo is most certainly expressive speech by the cake maker. The former, less clear.

The facts of this case parallel the latter hypo.


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As far as I know, there was no discussion of design, so am I getting it right that you say they parallel the latter hypo in their expressiveness, not because of what they actually express?

If so, let's say an anti-Black racist does not want to participate (with his speech) in the act of marrying a Black person, so he bakes no custom-made cakes for weddings in which at least one of the people getting married is Black. Wouldn't that also fall under expressive speech?

He can say he's not discriminating because of what they are (Black), but because of what they're is doing - namely, marrying a Black person. And he refuses to bake cakes for anyone who marries a Black person.

Alternatively, an anti-White racist who wants White people to cease to exist may protest that he does not want to participate in the wedding between two White people: she will only bakes cakes for weddings with at most one White person, in order to reduce Whiteness (unless they're gay, in which case she doesn't care because she reckons they won't produce any offspring). It might be replied that as long as she bakes cakes for a Black person who marries a White person but not for a White person who marries a White person, then she's discriminating on the basis of what they are (i.e., White). However, if that argument holds, then if a baker bakes a cake for a woman who marries a man but not for a man who marries a man, he's discriminating on the basis of what they are (i.e., men), so it would not be discrimination based on sexual orientation, but still it would be so on the basis of gender or sex.

That aside, in the current situation in the US (very different from the situation when laws against racial discrimination were first passed), anti-discrimination laws in public accommodation are still a justified restriction of freedoms. But regardless, I would like to ask you whether you think the cases I raised above (i.e., anti-Black racist baker and anti-White racist baker) are also cases of expressive speech, and if so, why or why not.

We may assume that the racists sell non-custom-made cakes to anyone who want them and pays for them.

 

[RavenSky]

MS. WAGGONER: No, but when we have someone that is sketching and sculpting and hand designing something, that is creating a temporary sculpture that serves as the centerpiece of what they believe to be a religious wedding celebration, that cake expresses a message.

From the start, this baker has claimed that he views weddings as religious acts, and that this is part of the reason he won't bake cakes for gay marriages.

By this argument, he could refuse to bake a cake for an atheist wedding too.

 

[RavenSky]

Some of this is making me laugh out loud:

JUSTICE ALITO: What would you say about an architectural design; is that entitled to -- not entitled to First Amendment protection because one might say that the primary purpose of the design of a building is to create a place where people can live or work?

MS. WAGGONER: Precisely. In the context of an architect, generally that would not be protected because buildings are functionable, not communicative.

JUSTICE ALITO: You mean an architectural design is not protected?

MS. WAGGONER: No. Architect -* generally speaking, architectural would not be protected.

JUSTICE BREYER: So in other words, Mies or Michelangelo or someone is not protected when he creates the Laurentian steps, but this cake baker is protected when he creates the cake without any message on it for a wedding? Now, that -- that really does baffle me, I have to say.

 

[Elixir]

MS. WAGGONER: No, but when we have someone that is sketching and sculpting and hand designing something, that is creating a temporary sculpture that serves as the centerpiece of what they believe to be a religious wedding celebration, that cake expresses a message.

From the start, this baker has claimed that he views weddings as religious acts, and that this is part of the reason he won't bake cakes for gay marriages.

By this argument, he could refuse to bake a cake for an atheist wedding too.

Good. Then someone can condemn him to Hell just by not disclosing their atheism.

 

[coloradoatheist]

Some of this is making me laugh out loud:

JUSTICE ALITO: What would you say about an architectural design; is that entitled to -- not entitled to First Amendment protection because one might say that the primary purpose of the design of a building is to create a place where people can live or work?

MS. WAGGONER: Precisely. In the context of an architect, generally that would not be protected because buildings are functionable, not communicative.

JUSTICE ALITO: You mean an architectural design is not protected?

MS. WAGGONER: No. Architect -* generally speaking, architectural would not be protected.

JUSTICE BREYER: So in other words, Mies or Michelangelo or someone is not protected when he creates the Laurentian steps, but this cake baker is protected when he creates the cake without any message on it for a wedding? Now, that -- that really does baffle me, I have to say.

But if they just wanted a cake why didn't they go to the multitude of other places that make cakes? They could have gone to Dairy Queen, Albertsons, King Soopers, etc any of which have a variety of cakes.

 

[Elixir]

Some of this is making me laugh out loud:

JUSTICE ALITO: What would you say about an architectural design; is that entitled to -- not entitled to First Amendment protection because one might say that the primary purpose of the design of a building is to create a place where people can live or work?

MS. WAGGONER: Precisely. In the context of an architect, generally that would not be protected because buildings are functionable, not communicative.

JUSTICE ALITO: You mean an architectural design is not protected?

MS. WAGGONER: No. Architect -* generally speaking, architectural would not be protected.

JUSTICE BREYER: So in other words, Mies or Michelangelo or someone is not protected when he creates the Laurentian steps, but this cake baker is protected when he creates the cake without any message on it for a wedding? Now, that -- that really does baffle me, I have to say.

But if they just wanted a cake why didn't they go to the multitude of other places that make cakes? They could have gone to Dairy Queen, Albertsons, King Soopers, etc any of which have a variety of cakes.

You're obviously a shill for Big Cake. Some people like that local/small business loving touch, and don't want McCake for their sacred festive event.

 

[RavenSky]

Some of this is making me laugh out loud:

JUSTICE ALITO: What would you say about an architectural design; is that entitled to -- not entitled to First Amendment protection because one might say that the primary purpose of the design of a building is to create a place where people can live or work?

MS. WAGGONER: Precisely. In the context of an architect, generally that would not be protected because buildings are functionable, not communicative.

JUSTICE ALITO: You mean an architectural design is not protected?

MS. WAGGONER: No. Architect -* generally speaking, architectural would not be protected.

JUSTICE BREYER: So in other words, Mies or Michelangelo or someone is not protected when he creates the Laurentian steps, but this cake baker is protected when he creates the cake without any message on it for a wedding? Now, that -- that really does baffle me, I have to say.

But if they just wanted a cake why didn't they go to the multitude of other places that make cakes? They could have gone to Dairy Queen, Albertsons, King Soopers, etc any of which have a variety of cakes.

As one of the Justices noted in the 113 page transcript of the hearing, not every community has choices of bakeries. Apparently one of the amicus briefs introduced showed several towns that had only one or two bakeries. A ruling for an exception to public accommodation laws could effectively shut down every avenue to a wedding cake or any other product its seller claims is "expressive" for, not only gay couples, but atheists, inter-racial couples, non-christians, etc.

If this baker doesn't want to sell his cakes to non-christians, perhaps he should just close up his shop

 

[coloradoatheist]

But if they just wanted a cake why didn't they go to the multitude of other places that make cakes? They could have gone to Dairy Queen, Albertsons, King Soopers, etc any of which have a variety of cakes.

As one of the Justices noted in the 113 page transcript of the hearing, not every community has choices of bakeries. Apparently one of the amicus briefs introduced showed several towns that had only one or two bakeries. A ruling for an exception to public accommodation laws could effectively shut down every avenue to a wedding cake or any other product its seller claims is "expressive" for, not only gay couples, but atheists, inter-racial couples, non-christians, etc.

If this baker doesn't want to sell his cakes to non-christians, perhaps he should just close up his shop

And it's your choice that if you live in a small town, that is going to happen on other products as well. If you want to live somewhere that has everything you want any time you want, you move to the city.

 

[RavenSky]

But if they just wanted a cake why didn't they go to the multitude of other places that make cakes? They could have gone to Dairy Queen, Albertsons, King Soopers, etc any of which have a variety of cakes.

As one of the Justices noted in the 113 page transcript of the hearing, not every community has choices of bakeries. Apparently one of the amicus briefs introduced showed several towns that had only one or two bakeries. A ruling for an exception to public accommodation laws could effectively shut down every avenue to a wedding cake or any other product its seller claims is "expressive" for, not only gay couples, but atheists, inter-racial couples, non-christians, etc.

If this baker doesn't want to sell his cakes to non-christians, perhaps he should just close up his shop

And it's your choice that if you live in a small town, that is going to happen on other products as well. If you want to live somewhere that has everything you want any time you want, you move to the city.

In the Scotus examples given, the small towns were tied to military bases - the people living there don't have a choice to move to another place.

That is the point of public accommodation laws - if you choose to be in the business of selling stuff to the public, you sell that stuff to ALL of the public. You don't get to pick and choose the customer based on your own bigotries

 

[coloradoatheist]

And it's your choice that if you live in a small town, that is going to happen on other products as well. If you want to live somewhere that has everything you want any time you want, you move to the city.

In the Scotus examples given, the small towns were tied to military bases - the people living there don't have a choice to move to another place.

That is the point of public accommodation laws - if you choose to be in the business of selling stuff to the public, you sell that stuff to ALL of the public. You don't get to pick and choose the customer based on your own bigotries

And if something was important to them, in their time off they can drive to somewhere else to find it. It's not like nobody has ever driven thousands of miles to pick up something they need somewhere else. And all businesses discriminate on different things. McDonalds doesn't sell tacos, so if you want to buy tacos, you don't go to McDonalds.

 

[RavenSky]

And all businesses discriminate on different things. McDonalds doesn't sell tacos, so if you want to buy tacos, you don't go to McDonalds.

You tried this stupid argument before, and it didn't work then either.

No one anywhere is suggesting that any shop must provide a product or service that they don't ordinarily provide. But if they DO provide a product - such as a wedding cake - they do not get to discriminate against the customer by refusing to sell that person said cake.

 

[blastula]

The baker is essentially demanding control over what you do with the product after purchase.

 

[RavenSky]

The baker is essentially demanding control over what you do with the product after purchase.

excellent point

 

[Jason Harvestdancer]

An end user license agreement then. Interesting.

 

[coloradoatheist]

And all businesses discriminate on different things. McDonalds doesn't sell tacos, so if you want to buy tacos, you don't go to McDonalds.

You tried this stupid argument before, and it didn't work then either.

No one anywhere is suggesting that any shop must provide a product or service that they don't ordinarily provide. But if they DO provide a product - such as a wedding cake - they do not get to discriminate against the customer by refusing to sell that person said cake.

And to the customer there is absolutely no difference. A store has your product/service in the matter you want, if it doesn't you go somewhere else. There is no guarantee if any product/service that every store has what you want when you want it.

 

[Jimmy Higgins]

I see nothing there that "decimates" anyone's argument that the baker engaged in pure discrimination based on the sexual orientation of the customers.

- - - Updated - - -

But the expression is in the decorations on the cake by the baker... somehow.

But the same apparently doesn't apply to the dressmaker or ring maker or florist... somehow

Because making a dress is easy. It isn't like baking a cake. Do you use eggs to make a dress? No! Do you use fondant to make a dress? No! Do you use expression to make a dress? No!

The cake is the central part of the wedding. It is why it is on the alter next to the naked bride who isn't wearing her dress yet because that is a party thing.

I made a "custom cake" for my daughter's birthday.

I'm curious what the expression is here. Based on James Madison's take, it is whatever I claim it is.

Why did you choose a paw patrol themed birthday and a cake with a dog face?


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Clearly I was expressing my love for Paw Patrol.

 

[RavenSky]

And all businesses discriminate on different things. McDonalds doesn't sell tacos, so if you want to buy tacos, you don't go to McDonalds.

You tried this stupid argument before, and it didn't work then either.

No one anywhere is suggesting that any shop must provide a product or service that they don't ordinarily provide. But if they DO provide a product - such as a wedding cake - they do not get to discriminate against the customer by refusing to sell that person said cake.

And to the customer there is absolutely no difference. A store has your product/service in the matter you want, if it doesn't you go somewhere else. There is no guarantee if any product/service that every store has what you want when you want it.

To the customer there is a huge difference; and your *argument* was soundly defeated the first dozen times you tried it. I'm not doing it again.

Try reading the transcript from the hearing, or any article related to the actual case before the USSC before you try to post anything else.

 

[James Madison]

Some of this is making me laugh out loud:

JUSTICE ALITO: What would you say about an architectural design; is that entitled to -- not entitled to First Amendment protection because one might say that the primary purpose of the design of a building is to create a place where people can live or work?

MS. WAGGONER: Precisely. In the context of an architect, generally that would not be protected because buildings are functionable, not communicative.

JUSTICE ALITO: You mean an architectural design is not protected?

MS. WAGGONER: No. Architect -* generally speaking, architectural would not be protected.

JUSTICE BREYER: So in other words, Mies or Michelangelo or someone is not protected when he creates the Laurentian steps, but this cake baker is protected when he creates the cake without any message on it for a wedding? Now, that -- that really does baffle me, I have to say.

Ms. Waggoner gave an answer consistent with the existing law. Generally architecture and architectural design isn’t expressive but in certain contexts and instances both can be expressive.

Breyer used specific examples that would be exceptions to a generalized rule but they do not refute the generalized rule. A generalization by its nature has exceptions.

Breyer didn’t contest her suggestion his examples were exceptions or the veracity of her generalization.


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[RavenSky]

Some of this is making me laugh out loud:

JUSTICE ALITO: What would you say about an architectural design; is that entitled to -- not entitled to First Amendment protection because one might say that the primary purpose of the design of a building is to create a place where people can live or work?

MS. WAGGONER: Precisely. In the context of an architect, generally that would not be protected because buildings are functionable, not communicative.

JUSTICE ALITO: You mean an architectural design is not protected?

MS. WAGGONER: No. Architect -* generally speaking, architectural would not be protected.

JUSTICE BREYER: So in other words, Mies or Michelangelo or someone is not protected when he creates the Laurentian steps, but this cake baker is protected when he creates the cake without any message on it for a wedding? Now, that -- that really does baffle me, I have to say.

Ms. Waggoner gave an answer consistent with the existing law. Generally architecture and architectural design isn’t expressive but in certain contexts and instances both can be expressive.

Breyer used specific examples that would be exceptions to a generalized rule but they do not refute the generalized rule. A generalization by its nature has exceptions.

Breyer didn’t contest her suggestion his examples were exceptions or the veracity of her generalization.


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Then cake bakers are not an exception either