October 19, 2017

The Cake Artists brief says our right to freedom of expression is a strong as the right of artists who work in media other than cake.

I'm noticing the BRIEF FOR CAKE ARTISTS AS AMICI CURIAE IN SUPPORT OF NEITHER PARTY (PDF) in the pending Supreme Court case — Masterpiece Cakeshop v. Phillips — about whether there's a religious freedom exemption to the requirement not to discriminate against gay people.

I love this brief. It says what I believe I've been saying in numerous posts. It's not a question of whether people with a religious objection to same-sex marriage can refuse to sell all manner of goods and services to gay customers. Nor is about about whether the cakeshop is forced to "bake a cake" for the wedding. It's about whether it must decorate the cake — apply icing and other materials to the surface of the cake to shape images and write words that say something substantive about the wedding. 

From the brief:
Amici take no position as to which party should prevail in this specific case. Their interest lies in making a single point—that their work, like that of petitioner Jack Phillips, requires artistic exertion within an expressive endeavor to generate works of art. Many of the amici listed below would gladly have prepared the cake that respondents requested—but they would have done so by accepting a commission to create a work of edible art. Amici wish to illustrate—literally, through the images of their own work in this brief—that cake design and preparation is an art....

Cakes for every conceivable occasion, ranging from the grandeur of weddings to abject apologies, can convey articulable messages. Sometimes words are used to assist in conveying those messages. But the art of custom cake design and creation is not so limited. Other times, the art behind a cake is simply sheer beauty or the technical mastery that it required. Cake artists must be adept at a multitude of artistic endeavors beyond simply “baking.” They must have visual-arts skills to design a cake that is pleasing to the eye—painting, drawing, and sculpting. They need the skills of an interior designer to create a unified whole from a series of individually artistic elements. They require the grace and technical powers of an architect, so that the final product moves from the theoretical to the real....

[C]ustom wedding cakes—even of the traditional variety—typically involve subtle elements that reflect the personality of the new couple (and perhaps the artist).... Cakes can still be instantly identifiable as part of the wedding genre yet involve stunning and unique elements that appear only as part of a special design.

The argument continues in this vein, with many more photographs of cakes, so please go to the link and see.

At one point, the argument turns to "America’s multi-cultural traditions" and shows an example of a very distinctive cake celebrating a wedding and the couple's Indian cultural heritage:
Even as a wedding cake carries a message about the wedding, the photograph of the cake conveys a legal argument: Art can come in cake form and the expression contained in cake can be complex and even — bonk you over the head, liberal Justices — multi-cultural.

This has me thinking that gayness is also a culture within "America’s multi-cultural traditions." A cake for a same-sex wedding might be a generic cake, but the Cake Artists wouldn't give this couple just another cake. They'd get specific. Yes, I'm seeing the brief goes in this direction at page 16. Some of the Cake Artists on the brief make cakes for same-sex weddings, and they make them a specific expression of gay pride. I'd been thinking of the expression in terms of the icing and other stuff on the outside of the cake, but the brief describes a cake with coloring in the batter, so that the cake-cutting at the reception would be a performance: revealing a rainbow.

That idea of performance is used, later in the brief, to counter the argument that cakes are transitory food:
But the fact that any given cake is a vanishing work does not distinguish it from artistic performances on the stage (or, indeed, protests on the street). Nature’s beauty is no less revealed through the flower that blooms for a single day than through the tree that lives for a thousand years; likewise, an ice sculpture is not inherently less artistic than one carved from stone....
That's getting poetic. Are legal briefs art?

The conclusion is not about who ought to win the case, but only "that cake artists are indeed practitioners of an expressive art and that they are entitled to the same respect under the First Amendment as artists using any other medium."

145 comments:

rhhardin said...

The civil rights law fucked it up in the first place, though. Religion or art shouldn't come into it at all.

Just whether it's a monopoly market.

rhhardin said...

The whole exercise in other reasons is to get common sense back into the law where it's been removed, under cover of this or that artifice.

Oso Negro said...

Maybe Harvey Weinstein was a performing artist who worked in semen and female nudes.

Larry J said...

It seems certain freedoms are reserved for special people and not for everyone. Some claim a freedom from being offended but don't care how much they may offend others. Likewise, many claim freedom of speech for themselves while denying it to others.

Ignorance is Bliss said...

Are legal briefs art?

Some are. Others are pornography. Those in support of Roe were snuff films.

AlbertAnonymous said...

You will be made to care...

Most interesting point I read in the various briefs is the point that apparently the Colorado commission takes the position that you CAN refuse to make a cake that is anti gay marriage (ie you could refuse to make a cake saying “one man one woman only” or some such thing) but you MUST NOT refuse to make a cake that’s pro gay marriage.

Because equality I suppose.

Kevin said...

How long until we're told hate cakes are not protected by the first amendment?

rhhardin said...

An ad for an upcoming documentary on the c-word it turns out is about cancer.

Kevin said...

Freedom of expression is a lovely idea.

It would also obliterate much of current law.

Kevin said...

I don't think the justices will have a problem deciding what is and is not art.

They will know it when they see it.

rehajm said...

The conclusion is not about who ought to win the case...

But after reading the brief we know who should win the case.

Assrat said...

>It would also obliterate much of current law.

Now for me, that's a feature.

Phil 3:14 said...

Somewhere in there beneath all of the frosting and food coloring is a cake.

Somewhere in there beneath all of the praises of ART is a point.


(I'm no lawyer but this case just seems so simple and oblivious...like a plain sugar cookie. "I'm sorry I can't bake THAT cake.")

Chuck said...

Well this is a bit like video replays in football. There is an original call on the field, which deserves deference and which can only be overturned upon clear and convincing video evidence.

So we have state laws, which are presumptively valid, and which can only be overturned upon clear and convincing Constitutional law.

This cake case is a bit unlike Lawrence v Texas (Texas anti-homosexual sodomy laws) and Obergefell v Hodges (anti-same sex marriage amendments to the state constitutions of Michigan, Ohio, Tennessee and Kentucky). In Lawrence and Obergefell, perfectly valid and duly enacted state laws should have been given due deference from the federal courts since the Constitution doesn't speak to homosexual sodomy or homosexual marriage, and because any sensible understanding of the language, meaning, intent, purpose, etc., of the drafters of the Constitution and every amendment thereto would have agreed that they never presumed to federally proscribe state laws on homosexual sodomy and marriage.

In this cake case, there is a duly-enacted (unwise, perhaps, but duly enacted) Colorado civil rights law. Federalism demands some level of deference. Only a real, true religious devotion -- not some general multiculturalism -- could overcome that deference.

The original legal sin in all of this was Lawrence, and then Windsor, and then Obergefell. Justice Scalia famously said that as a member of the federal judiciary, he would no sooner prohibit states from enacting laws against homosexual sodomy than he would require states to enact laws against homosexual sodomy. He was right, of course.

Thanks to the overweening efforts of law school faculties and the law profession culture, any social non-acceptance of legally normalized homosexuality has been banished to the narrow backwater of "religious freedom." And now we will see how narrow that backwater is.

I am not nearly so exercised about the Colorado cake case, as I was over the Lawrence-to-Obergefell abominations. Because I regard it as cold comfort that any public expression of opposition to legally normalized homosexuality can only be based on strict religious bases. What about the simple personal moral objection?

Kevin said...

We were all sitting here this morning, enjoying our coffee and talking about cake.

And then Chuck turns it into a discussion of sodomy...

Points, however, for not mentioning Trump.

Laslo Spatula said...

"We'd like to order a cake for a celebration..."

"Sure, that's what we do! What would you like it to say?"

"Happy Abortion Day!"

"Uh...excuse me...?"

"We want a cake that says "Happy Abortion Day!" Our daughter is having her first abortion, and we want to celebrate her Choice..."

"I'm not even sure I know what that cake would look like..."

"Yeah. We probably don't want anything that looks too much like a baby: I think that would make our daughter sad..."

"So: a 'Happy Abortion Day' cake..."

"Although my wife and I were thinking: if it HAS to have a baby as decoration maybe you could put wings on it."

"Like an angel..."

"Exactly! An abortion angel..."

"Okay..."

"And no pink or blue. Because: you know..."

"No pink or blue: got it. And when do you need this cake...?"

"Pretty soon -- she's already in her seventh month..."

I am Laslo.

Oso Negro said...

@Chuck - Beyond the simple personal moral objection, how about the public health considerations? Hepatitis C! A threat to ALL baby boomers says my doctor! Is this one of those "scare everyone to protect the sensibilities of a privileged few" things, says I? No, no, no he said. But the truth is out there. Same with the recent resurgence of syphilis. It isn't a raging epidemic among suburban soccer moms.

Quaestor said...

In an art gallery.

Not in an art gallery.

Bay Area Guy said...

No need to worry. Professor Larry Lessig has a 3-step plan to replace the offending cake with a warm apple pie.

Darrell said...

Professor Larry Lessig has a 3-step plan

3-tier plan.

Dust Bunny Queen said...

Exactly what I've been saying all along about the cake issue and gays.

The gays can and had been going into the bakery to buy the baked goods. Cakes, Brownies, Cookies, Danish etc. GENERIC goods that are on sale for anyone and everyone. The gay couple were never denied service for the day to day business products of the company.

HOWEVER....the demand that the cake artists create a special, one off, individually designed and crafted item for them (the gay couple) is completely different than buying a generic chocolate cake or even a generic birthday cake with a simple Happy Birthday Chuck message written on it.

It takes years of practice and artistry to be able to create specialty cakes. Then to demand that the artist create something that is offensive to the artist, that is contrary to their basic religious views is a demand too far and is a violation of the artist's rights.

If the court decides that you CAN force someone to do work for you, then we might as well just bring back slavery and indentured servitude.

Ignorance is Bliss said...

Chuck said...

Well this is a bit like video replays in football. There is an original call on the field, which deserves deference and which can only be overturned upon clear and convincing video evidence.

...in which the Supreme Court will be playing the role of the replay official reviewing the touchdown in the Patriots-Jets game.

David Docetad said...

"It's not a question of whether people with a religious objection to same-sex marriage can refuse to sell all manner of goods and services to gay customers."

But it should be that and more. It should be a matter of people being able to do what they want, serve who they want.

Who wants service from somebody who does not want his business? No me.

Who wants service from somebody who refuses to serve blacks or gays a muffin at a coffee shop? Not me.

Who wants service from a Jewish deli that will not put cheese on my steak sandwich? I mean the cheese is right there!. I'm OK with that.

Who wants service from a dress maker who does not want to make men's clothes? I'm OK with that.

Who wants service from a baker who doesn't want to produce a gay wedding cake? I'm OK with that too.

The fine point analysis of the law is silly here. It's not about the law, its about forcing people to accept the insanity of "same-sex marriage" and all that it implies.





Chuck said...

Kevin said...
We were all sitting here this morning, enjoying our coffee and talking about cake.

And then Chuck turns it into a discussion of sodomy...

Kevin it is because that was the term discussed in Scalia's landmark dissent in Lawrence v. Texas, 539 U.S. 558 (2003). It is the most precise, most efficient language for what was at issue.

https://www.law.cornell.edu/supct/html/02-102.ZD.html

I know that bringing up "homosexual sodomy" in polite legal circles is jarring. It is supposed to be. We are all getting used to softened terms like "gay" and "marriage equality," because language has meaning and language has power, and the proponents of expanded homosexual rights and the legal normalization of homosexuality want to turn that power to their advantage. (Why wouldn't they?)

rhhardin said...

The baker's defense on the specific issue ought to be that he makes wedding cakes, and gay marriage isn't a marriage no matter what the state wants to say.

He does real marriage, not gay marriage. Real marriage is the business he's in.

rhhardin said...

If the state broadens the definition, it doesn't broaden the business he's in.

Dust Bunny Queen said...

Who wants service from somebody who does not want his business? No me.

Me either

The above would be MY response to being forced to bake a cake :-)

As a legal question: Creating a wedding cake is a contract (usually) where the design and cost are decided ahead of time. If the provider of the cake defaults or does a decidedly bad job the buyer can sue.

Can you be FORCED into a contract in which you do not want to be a participant? Use the example of a building contractor. Can he/she be FORCED to build your house for you?

Laslo Spatula said...

"I'd like a specialty cake..."

"Sure! That's what we do! What kind of cake would you like?"

"I want a cake with a vagina on it."

"A vagina? What is that celebrating?"

"It's not celebrating anything. I just like to fuck cakes."

"You like to fuck cakes?"

"I like to fuck cakes. I'm a Cake Fucker."

"Well, this is certainly new to me. You want a cake with a vagina on it."

"So I can fuck it: yes."

"Is there anything else you would like on this cake?"

"Yeah. I want an asshole on the back."

"You want an asshole on the back of the cake?"

"Yeah. So I can fuck that, too."

"Because you are a Cake Fucker."

"Exactly."

"Is there anything else?"

"Yeah. Do you make pies...?"

I am Laslo.

rhhardin said...

A union can force you to negotiate with them. Maybe gays are a union.

Ralph L said...

Is this the other Chuck?

I remember Althouse had a post years ago that argued artists are necessarily conservative. I think she meant in their wanting to protect individual liberty for their own devices (and other vices).

Unknown said...

Distinction made and appreciated: baking a cake versus decorating it to send a specific message.

This point may have been made before but I missed it until now.

-sw

rhhardin said...

Cakegate.

cubanbob said...

Chuck the point isn't about sodomy but rather does an artist have to accept any commission offered? Taking the Colorado position to the extreme yes the artist has to take the commission and can only have artistic expression within the officially approved boundaries.

Jason said...

Althouse: I love this brief. It says what I believe I've been saying in numerous posts. It's not a question of whether people with a religious objection to same-sex marriage can refuse to sell all manner of goods and services to gay customers. Nor is about about whether the cakeshop is forced to "bake a cake" for the wedding. It's about whether it must decorate the cake — apply icing and other materials to the surface of the cake to shape images and write words that say something substantive about the wedding.

Missed it by a mile.


Dust Bunny Queen said...

The baker's defense on the specific issue ought to be that he makes wedding cakes, and gay marriage isn't a marriage no matter what the state wants to say.

No! the defense is that he makes Wedding Cakes as a special one time special individual order by contract The shop isn't full of Wedding Cakes every day to be bought at any time by walk in customers.

The defense is that end product (wedding cake) is so "offensive" to the artist that it cannot be forced to be created. Going into whether gay marriage is a thing is not even needed as a defense

This is just ONE reason that the artist can decline to be forced to work for you.

1. Perhaps the cake/house you want is too difficult, structurally unsound and you don't want the liability.

2. Ingredients or components that you demand are unavailable or impossible to get>

3. The result will be so freaking ugly you don't want your name associated with it!!

4. Perhaps the artist/contractor is just "too busy to take on additional contracts or orders at this time".

Lots of reasons.

Chuck said...

cubanbob said...
Chuck the point isn't about sodomy but rather does an artist have to accept any commission offered? Taking the Colorado position to the extreme yes the artist has to take the commission and can only have artistic expression within the officially approved boundaries.

The point in Lawrence and Bowers v. Hardwick before that was very definitely "homosexual sodomy." Then, there is the federalism -- under admittedly different facts as I pointed out -- issue that is common to all of the cases.

See, I don't disagree with you, cubanbob. Indeed, the Colorado Civil Rights Commission is that no cake baker (t-shirt maker? printer? candlestick maker? indian chief?) can refuse to participate in a pro-homosexuality message creation.

And the only escape is if you have some deeply-held religious belief. I think that that formulation perverts the law, and civil rights, and religion itself.

I also recognize -- I thought it was clear from my writing above -- that we need to recognize that the state of Colorado has a civil rights law, and a commission, that says that the law of the state is that there can be no discrimination against homosexuals.

For my part, I bring that home to my state and argue that all of the various proposals for expanded civil rights laws to cover homosexuals are problematic, and point to Colorado as Exhibit One.

Colorado voters can, if they wish, pass a new law and elect new representatives to reverse this law. It should not be left to the federal courts to police these things. It should also not be up to the federal courts to overturn the same-sex marriage bans that states enact. See how this is supposed to work?

Ron Winkleheimer said...

"that cake artists are indeed practitioners of an expressive art and that they are entitled to the same respect under the First Amendment as artists using any other medium."

Is that even in dispute? Seriously, I don't understand why anyone would think otherwise.

Farmer said...

The conclusion is not about who ought to win the case, but only "that cake artists are indeed practitioners of an expressive art and that they are entitled to the same respect under the First Amendment as artists using any other medium."

That sounds exactly like a conclusion about who ought to win the case.

Bob Boyd said...

I heard about a woman who married herself. No really. It's called sologamy or longslogamy or something.

Can an American citizen refuse to make a longslogamy cake?

I don't know if was a same sex marriage or not.

tcrosse said...

Is that even in dispute? Seriously, I don't understand why anyone would think otherwise.

There is considerable opinion to the effect that First Amendment protections do not extend to "Hate Speech".

Sebastian said...

"It's about whether it must decorate the cake" In other words, what everyone else means by "baking a cake."

@Oso: "how about the public health considerations? Hepatitis C! A threat to ALL baby boomers says my doctor! Is this one of those "scare everyone to protect the sensibilities of a privileged few" things, says I? No, no, no he said. But the truth is out there. Same with the recent resurgence of syphilis. It isn't a raging epidemic among suburban soccer moms." Now, now. You aren't denigrating gay "culture," are you? The fact that gay "culture" cannot be discussed for what it is shows that progs haven't quite won the culture war yet.

But that is what this is about. They may lose this round, with Gorsuch in place and depending on what Tony feelz. They want Christian bakers or decorators beaten down because they want Christians beaten down because they want to cleanse the culture of atavistic religion that obstructs prog rule. It is strictly about outcomes. Here, it is just a matter of waiting out the judicial conservatives until progs have the numbers and can lock in their preferences, as they did with abortion and SSM.

Crazy Jane said...


Who cares about the art thing?

Can a baker be required to decorate a Happy Hitler's Birthday cake? Can a sign painter be compelled to make an ISIS banner? Can a construction company decline to build a meeting hall for the Westboro Baptist Church?

If not, why not?

Ron Winkleheimer said...

There is considerable opinion to the effect that First Amendment protections do not extend to "Hate Speech".

Yeah, with "Hate Speech" defined as stuff I disagree with.

Freeman Hunt said...

Good. The attempt to exclude cake decorating from artistic expression was calculated snobbery.

CStanley said...

"that cake artists are indeed practitioners of an expressive art and that they are entitled to the same respect under the First Amendment as artists using any other medium."

Is that even in dispute? Seriously, I don't understand why anyone would think otherwise.


I think the evidence of this being in dispute is that the transactions are being treated as general merchant sales of commodity products rather than contracted services to produce artistic works.

As soon as you recognize this distinction it becomes obvious that the cake designers have the right to refuse contracts.

Hunter said...

Chuck said...
Colorado voters can, if they wish, pass a new law and elect new representatives to reverse this law. It should not be left to the federal courts to police these things.

Would the same be true about a state law that prosecutes speech? Banning guns? Implementing random warrantless searches?

If the law in question has the effect of forcing someone to act against their freely held religious beliefs, then it is up to the federal court to police, thanks to incorporation.

cubanbob said...

@ Chuck, Colorado voters can do what they wish except for violating someone's US constitutional rights. If the baker has a wedding cake in the display case and a gay couple wishes to buy that cake and the bakers refuses to sell them because they are gay that very same cake the baker would sell to anyone else then the law would be valid. If the cake in the display case was already sold and the couple asked the baker to make another cake for them that the same as the one in the display case and the baker refused to do so because they were gay then the law would also be valid. The question is can the State force someone on the grounds of discrimination law to create an artistic expression they don't wish to create?

EDH said...

Also, remember the major civil rights cases like Heart of Atlanta Motel contained findings that the discrimination in accommodations substantially interfered with the fundamental right of interstate travel.

Is anyone even saying that a baker's refusal to decorate a cake a certain way has interfered with same sex marriage in a similar way?

Therefore, I don't see a statutory limitation on baker's First Amendment right as advancing an important much less a compelling state interest.

Rick Turley said...

When do we get the Supreme Court case about forcing doctors to perform abortions?

Hunter said...

@Crazy Jane

The reason why you can refuse some things and not others is because the person being refused isn't on the Special List of Protected Classes.

Not only is this the law; it is actually a core argument of the "bake the damn cake" crowd.

Why can't I have a Nazi cake? "Because Nazis aren't on the list!"

I wish I were exaggerating.

Jason said...

CStanley breaks the code.

These are private contractual transactions negotiated between two parties. These cases don't even involve public accommodations.

Claiming 'First amendment' or 'religious freedom' exemptions isn't even broad enough. The same issue would come up for a caterer providing napkin rings.

If I'm a janitorial services company, a locksmith company, an HVAC repair company, an electrician or a plumber, and 'artistic expression has nothing to do with my services, I still assert the freedom to turn down a contract with Planned Parenthood. Why? because I want no association whatsoever with them.

I don't want to see them.
I don't want to be obligated to take their calls.
I don't want to be asking them for money every month.
I don't want to put my employees in the position of having to walk in their abortion rooms to do their work.
I don't want my work van with my name and logo on it sitting in their parking lot.
I don't want anything to do with them.

I assert that right.

If someone wants to know why, I also assert the right to say nothing. Or tell that person the reasons are not their concern.

Let's go further: I can own a business that is normally a place of public accommodation. A restaurant, with a big room in the back I can use for banquets. I will happily serve anyone who walks in in normal street clothing of whatever ethnicity who just wants a meal, without making me and my business a part of their cause.

I reserve the right to refuse to rent my banquet hall for an event to which I object. For any reason.

And no, it's not just Planned Parenthood.

And that list and those reasons can be different for everybody.

The libtards, as usual, are beyond stupid on this issue. The sad thing is, they've dragged people into that intellectual sewer with them on this issue who should know better.

William said...

Some French writer said that humans are exquisitely calibrated machines for turning fine wines and food into piss and shit. I suppose this encompasses wedding cakes. Wedding cakes are an art form, but they seem an especially ephemeral form of art. I suppose the wedding photos preserve memories of them, but then they're an artistic creation that can only endure in memory or one step removed from reality......I wonder if Laslo's vagina wedding cake should be done in chocolate for the butt hole appurtenance. That seems kind of disgusting, but it would add to the verisimilitude. Perhaps butt holes are better represented by a more abstract form of art. A true artist selects and edits many details in his path to perfection.

CStanley said...

Is anyone even saying that a baker's refusal to decorate a cake a certain way has interfered with same sex marriage in a similar way?

I get the sense that, whether or not it would be openly admitted, the plaintiffs in these cases do see it that way. The idea hews closely to the reasoning for forcing the issue of "marriage equality" rather than civil unions. It is not enough for the couple to be allowed to gain the same legal recognitions and privileges for their union, because they also claim the right to be on equal moral footing with married heterosexual couples. Therefore, (according to this thinking) no one should have the right to express opprobrium- even in such a passive way as declining a contract to participate in celebratio of gay marriage.

Hunter said...

@cubanbob

Of course, the entire premise here is a violation of freedom of association, which both Congress and the courts chose to throw out long ago.

Apparently it was so wrong for Southern states to violate freedom of association with Jim Crow laws that the federal government needed to take over the job of telling people how they must associate.

CStanley said...

Thanks Jason....I completely agree.

It's not wrong to assert that both artistic expression and religious freedom are at stake here...but both arguments miss the mark because they are much too narrow!

I liked the brief presented here, but no one should have to file such a brief in order to prove that one's ideas of expression are artistic enough! Would the cake designers fail the test if they were creating tacky wedding cakes?

rhhardin said...

Picasso represented assholes with asterisks.

Sort of a footnote.

Fred Rawlings said...

Hands on Originals Tee shirt business won their case because Tee Shirts are speech, all the way back to the Vietnam war.

In 2012, the (Lexington KY) Human Rights Commission said that service refusal violated the city’s fairness ordinance, part of which prohibits businesses which are open to the public from discriminating against people based on sexual orientation.

However, the Court of Appeals disagreed on Friday, ruling that speech is not necessarily protected under the fairness ordinance.

While the ordinance does protect gays and lesbians from discrimination because of their sexual orientation, what Hands On Originals objected to was spreading the gay rights group’s message, Chief Judge Joy A. Kramer wrote in the majority opinion. That is different than refusing to serve the group because of the sexual behavior of its individual members, she wrote. A Christian who owns a printing company should not be compelled to spread a group’s message if he disagrees with it, Kramer wrote.

“The right of free speech does not guarantee to any person the right to use someone else’s property,” Kramer wrote.

“In other words, the ‘service’ Hands On Originals offers is the promotion of messages,” she wrote. “The ‘conduct’ Hands On Originals chose not to promote was pure speech. There is no contention that Hands On Originals is a public forum in addition to a public accommodation. Nothing in the fairness ordinance prohibits Hands On Originals, a private business, from engaging in viewpoint or message censorship.”

Read more here: http://www.kentucky.com/news/politics-government/article150169482.html#storylink=cpy

Ann Althouse said...

"I remember Althouse had a post years ago that argued artists are necessarily conservative. I think she meant in their wanting to protect individual liberty for their own devices (and other vices)."

Yes. Thanks for remembering. I said it back in 2005:

"To be a great artist is inherently right wing. A great artist like Dylan or Picasso may have some superficial, naive, lefty things to say, but underneath, where it counts, there is a strong individual, taking responsibility for his place in the world and focusing on that....

"I'm not saying that the great artist adopts a right wing political ideology. If fact, I agree with you that the great artist needs to separate himself from politics and certainly to get it out of his art. I'm saying there's something right wing about doing that. My comment arose in a discussion of the Scorsese documentary on Bob Dylan, which shows how he did not fit in with the left wing folksingers who tried very hard to keep him in their fold and felt betrayed when he alienated himself from them. My observation is that he was, at heart, a great artist, and it was not possible to do what was needed to be a good lefty, which would require a strong focus on group goals and communal values. He certainly wasn't switching to right wing politics. He was getting out of politics.

"I'm calling that right wing. It's certainly antithetical to left wing politics, which requires you to remain engaged and would require the artist to include politics in his art. The great artist sees that those requirements will drag him down. That's what I'm theorizing. Feel free to debate that and reject it if you want. All I'd like to ask is that you get your mind around what I'm trying to say before reflexively rejecting it. I'm not surprised that lefty bloggers and commenters can't do this. They've got to enforce the kind of values that freaked Bob Dylan out and made him want to disengage from their clutches. And don't even get me started on my experience with lefty bloggers. They treat me miserably, and if I tried to get along with them, it would guarantee mediocrity. And thus, I am a right wing blogger – even though I don’t share many beliefs with right wing politicos."

Ann Althouse said...

""It's about whether it must decorate the cake" In other words, what everyone else means by "baking a cake.""

You sound as though you've never made a cake. The baking part is when you put the pans with raw batter into a hot oven and take them out when they've risen properly and before they get overdone. Baking is a type of cooking.

When the cake has cooled, you get it out of the pan and you can ice it. Most people just spread the icing on. But you can also decorate the cake, usually with more icing, in some different color. You do a sort of bas-relief on the icing with more icing. No one who actually makes cakes would call the decorating part "baking."

walter said...

Blogger William said..
I suppose the wedding photos preserve memories of them,
--
Some save the top tier of the cake. Probably not after fucking it.
Behold

Static Ping said...

I am very certain that the brief is here to prevent the Supreme Court from making an ignorant declaration that custom cake baking is some sort of generic service, which would make it an obvious public accommodations case. This will probably annoy certain Justices to no end given that this will require them to be more creative in their bull****, or, golly, actually do their jobs. The fact that this case even got this far is disheartening as Colorado's actions are a blatant violation of Freedom of Religion, Freedom of Speech, and the Right to Contract, plus it is completely unnecessary use of government power in a non-monopoly scenario done clearly out of spite. Wars have been fought for less.

The cakes are indeed very impressive. There are whole cooking shows about making these. The thought that anyone could think this is not art is baffling.

Assrat said...

I'm not a lawyer, but I'm uncomfortable with the free speech / religious argument because it is insufficiently broad.

I think it is a hardship if someone fires you or refuses to let you rent a hotel room. But refusing to make a wedding cake? That deserves sympathy, and I'd join a boycott, but getting a court order? No.

DKWalser said...

Finally! I'm glad someone is making the argument that I've been hoping to see. Given the wide protections the Court has built up around the 1st Amendment's guarantee of the freedom of expression, I've never understood how the lower courts were able to hold that a photographer, a florist, or baker could be compelled to use their artistic talents to express approval of an event the individual artist did not approve of. Under the 1st Amendment, we cannot force anyone to pledge allegiance to the flag. We cannot require anyone to speak approvingly of anyone holding political office. Nor can we compel anyone to use their artistic talents to convey patriotic messages. We cannot even prevent people from desecrating the flag or from destroying other objects that are symbolic of our nation and culture.

But, we can require someone to decorate a cake in celebration of a gay wedding? That just doesn't fit with all the prior case law. The kids on Sesame Street could have told you which thing didn't belong with the rest.

mockturtle said...

Let them eat cake! But only in its unadorned state. What if a bakery, when asked to make a wedding cake specific to a same-sex marriage, said they would provide the cake layers and the decorating supplies [with instructions] and let them do it themselves? Surely that would meet the legal requirements even if the cake would likely end up looking like an explosion in a Play-doh factory.

Kevin said...

We were all sitting here this morning, enjoying our coffee and talking about cake.

And then Chuck turns it into a discussion of sodomy...

Kevin it is because that was the term discussed in Scalia's landmark dissent in Lawrence v. Texas, 539 U.S. 558 (2003). It is the most precise, most efficient language for what was at issue.

You don't know how to laugh at yourself when we're all having a good time, do you? I would have made the same comment about myself, had I instead, ahem, Lawrence into the discussion.

As for the case, it can't be that this is the one and only case which makes your point. There must be others. If not, it's certainly not much of a general principle you're arguing, but a one-off. And I don't believe it is.

Let's drop the fascination with Lawrence and Scalia's quotable statements surrounding it and get on with using other examples.

If we do, perhaps people who like the outcome in Lawrence might also start to see the issue with the Supreme Court's increasing reach.

Kevin said...

Can a baker be required to decorate a Happy Hitler's Birthday cake? Can a sign painter be compelled to make an ISIS banner?

Oh Hell, just get to the most basic example. Can a baker be required to create a cake with Obama's face and the word NIGGER in all caps underneath?

Put it that way and see how many people side for the plaintiffs.

cubanbob said...

@ Hunter freedom of speech,freedom of religion and freedom of association often parallel but they are not the same.

Birches said...

Chuck, you are missing the fact that the most persuasive argument in favor of the Cake Maker involve freedom of expression, not religious liberty.

Kevin said...

You sound as though you've never made a cake. The baking part is when you put the pans with raw batter into a hot oven and take them out when they've risen properly and before they get overdone. Baking is a type of cooking.

When the cake has cooled, you get it out of the pan and you can ice it. Most people just spread the icing on. But you can also decorate the cake, usually with more icing, in some different color. You do a sort of bas-relief on the icing with more icing. No one who actually makes cakes would call the decorating part "baking."


Althousesplaining.

HoodlumDoodlum said...

Ann Althouse said...You sound as though you've never made a cake. The baking part is when you put the pans with raw batter into a hot oven and take them out when they've risen properly and before they get overdone. Baking is a type of cooking.

You sound as though you didn't read your own post. Maybe this was added later?

I'd been thinking of the expression in terms of the icing and other stuff on the outside of the cake, but the brief describes a cake with coloring in the batter, so that the cake-cutting at the reception would be a performance: revealing a rainbow.

Sure sounds like "the baking part" can itself involve artistic expression.

Chuck said...

Jason at 9:08:

I am not going to paste your entire post here for reference to save Althouse some space, but I don't think that any civil rights ordinances are going to force you to provide public accommodation to Planned Parenthood.

The problem is with narrower civil rights statutes and ordinances, that include LGBTQ/Whatever protections. Those laws don't usually extend to ideological protections.

So I think you can discriminate against PP and PP can't sue you or run to the civil rights commission.

Again; for people who are concerned about the social direction here... Don't let your state or city enact one of these civil rights ordinances in the first place. This Colorado case wouldn't be happening, but for Colorado's Anti-Discrimination Act (CADA), and its application by the Colorado Civil Rights Commission.

This case came straight out of Colorado. Litigated on state law grounds in state courts, then cert granted to the Supreme Court of the United States. I have no affection for the four liberals on the Court and Kennedy. But let's be clear that unless you view the court as a needed corrective to supervise all state laws, the blame first and foremost rests with Coloradans who enacted the law and the commission. That law can be erased a lot easier than Lawrence and Obergefell can be reversed.

I sure hope that Coloradans who side with Materpiece Cakeshop, Ltd. will take the action that they can take within their own state before they blame SCOTUS judges.

And yeah, if some people want to say, "What good is it, when we pass our own duly-enacted laws to ban same-sex marriage, when the federal courts re-write them?" I say "Amen; let's get a better Court to overturn Lawrence and Obergefell."

HoodlumDoodlum said...

Damn it, Kevin! That'll teach me to refresh the comments page before posting.

Sebastian said...

"You sound as though you've never made a cake." OMFG.

I'll be sure to remind my partner, next time she announces that she is going to bake a birthday cake, that she is also supposed to decorate it. Then again, for the sake of common sense and domestic harmony, maybe not.

HoodlumDoodlum said...

Jason said...If I'm a janitorial services company, a locksmith company, an HVAC repair company, an electrician or a plumber, and 'artistic expression has nothing to do with my services, I still assert the freedom to turn down a contract with Planned Parenthood. Why? because I want no association whatsoever with them.

But Jason your enjoyment of that freedom of association might hurt someone's feelings and we simply can't have that.

More substantively: the way the Constitution is currently interpreted seems to be that you freedom of association is viewed as a very minor right when it comes to one's economic life, and further that any freedom of association you might otherwise have is applicable only to non-protected people/groups. Since LGBTQIAPK* people are members of a protected group that status (as protected) trumps any silly "Constitutional freedom" you have.

In other words: sure you can discriminate all you like against CERTAIN people and groups--that's your right as an American! But under no circumstances will you be allowed to discriminate against OTHER people and groups--try that and your goin' to jail my friend.

The whole of the law, then--the fundamental question itself!--simply becomes whether you are or are not a member of a protected group/class. If so, well, different rules apply.

Just like it says in the Constitution, right? Just like any understanding of "the rule of law" deems necessary.

Chuck said...

Birches said...
Chuck, you are missing the fact that the most persuasive argument in favor of the Cake Maker involve freedom of expression, not religious liberty.

I am not missing that, but you are right that I did not write much about the First Amendment part.

I do want Mr. Phillips to win this case, of course. I favor his First Amendment rights to decline to participate in a celebration of a same-sex marriage. His right to decline to engage in forced speech.

I think that even Althouse is making that case here. She can probably do it better than I can.

My point was to resist the basis of the Colorado law in the first place. (An issue where I suspect that Althouse and I disagree.) Everything that I was saying about religious liberty applies to First Amendment speech liberty. And I don't want to force persons with moral objection(s) to homosexuality be forced to defend and document that objection via a religious carve-out or a First Amendment carve-out. I'd like to see a lot more democracy, and a lot less courtroom litigation, on the subject.

I might be open to a charge of hypocrisy and inconsistency if I said that the federal courts had no business poking around in state laws barring same-sex marriage, and then claim that the federal courts need to step in to protect Masterpiece Cakes. I don't want to be inconsistent in my federalism.

What I want to do more than anything is to say to the state of Colorado, "See what a mess you have made with your stupid p.c. law aimed at protecting your so-called LGBTQ community? You should get rid of your law. Don't make the courts do it."


Kevin said...

Sure sounds like "the baking part" can itself involve artistic expression.

Where is the Martha Stewart amicus brief where she describes exactly what is, and is not, "a good thing"?

Kevin said...

I'll be sure to remind my partner, next time she announces that she is going to bake a birthday cake, that she is also supposed to decorate it.

No, no. That's her artistic choice once it comes out of the oven.

Kevin said...

I'll be sure to remind my partner, next time she announces that she is going to bake a birthday cake, that she is also supposed to decorate it.

No, no. That's her artistic choice once it comes out of the oven.


We have now come full circle in this discussion. The entire conversation boils down to whether Sebastian can force his girlfriend to decorate his birthday cake.

Michael K said...

"It takes years of practice and artistry to be able to create specialty cakes."

When my kids were little we told them they could have their birthday cake decorated the way they wanted. There was a baker who was terrific at making these funny cakes. The kids would come up with ideas, like having a ski lift or a sailboat on the cake and he could do it.

It was truly art,

walter said...

I think Jonathan Richman wrote a song called "Vagina Cake"..or he should.

David Docetad said...

Jason is precisely right.

The issue of art is completely beside the point.

All of the lawyers' endless prose about it is meaningless.

rhhardin said...

I used to make cornbread but who has the time.

Ann Althouse said...

"You sound as though you didn't read your own post. Maybe this was added later?"

I can't understand what you're trying to say. I need you to be explicitly.

Maybe what was added later? What's the "this" and what in the post are you talking about? I'm quite aware of the part where I say the artistry could be at the batter (and baking level), but I'm explicit about that in the post.

CStanley said...

Further to the point about contracts vs services, I find it interesting that the challenges thus far have been about artistic aspects of wedding services (cakes and photography.) In the broadest sense (not that I expect this to happen) wouldn't most wedding services be contracts, allowing those who offer them to legally discriminate if unwilling to participate in gay weddings? Say, for example, a party/reception venue or a caterer?

Daniel Jackson said...

"Who wants service from a Jewish deli that will not put cheese on my steak sandwich?"

This comment, combined with Madame Dust Bunny's comment of the return of slavery, is pretty much the essence of this case.

Extending the logic of the those challenging the cake baker to decorate a cake (that the baker objects to on religious grounds), a person could walk into a Kosher Deli and DEMAND that the owner/preparer violate their religious observance to mix milk and meat.

The preparer could say this violates my observance (and certification) of Kosher Laws and I refuse to do it.

No, you MUST do it.

The difference escapes me.

Chuck said...

HoodlumDoodlum said...
...

The whole of the law, then--the fundamental question itself!--simply becomes whether you are or are not a member of a protected group/class. If so, well, different rules apply.

Just to be clear, the term of art in Con Law is "suspect classification." And Professor Althouse could, I expect, blow us all away with several brilliant lectures on how "suspect classification" and some related tests of Constitutional scrutiny work in Con Law.

But Justice Kennedy never had the intellectual honesty or the legal integrity to say that homosexuals are a "suspect classification" under his formulation of Constitutional interpretation.

Justice Scalia observed that Kennedy's argle-bargle majority opinions about liberty interests and "dignity" and some purported animus toward homosexuals had simply "laid waste to our foundations of rational-basis jurisprudence..."

And much of it stems from Kennedy's fudging on whether homosexuals ever constituted a "suspect classification" (because there is no Constitutinoal basis upon which to make such a classification).

HoodlumDoodlum said...

Ann Althouse said...I can't understand what you're trying to say. I need you to be explicitly.

Sorry; I will endeavor be as explicitly as I can be.

You seemingly disagreed with a commenter over the scope of the phrase "bake the cake" as used in and around this dispute. You explained to what baking a cake entails. You differentiated the baking process as you described it from the decorating process. Your post itself, though, did include a description of the baking process that would be covered by the "artistic" part of the decorating process. Based on that portion of the post it wouldn't seem like you had any disagreement with the commenter's assertion that "bake the cake" necessarily includes an artistic component (since just the batter prep part does--it's as much of a choice NOT to make it rainbow as it would be to make it rainbow, etc), but your post describing what baking means seemed to indicate that you did disagree.

My post attempted to juxtapose those two seemingly-contrary positions.

Jason said...

Chuck @ 9:49

I'm sorry... did you have a point?

walter said...

Bad idea to put the offended in charge of your food.
They might Harvey it.

HoodlumDoodlum said...

Chuck said...Just to be clear, the term of art in Con Law is "suspect classification." And Professor Althouse could, I expect, blow us all away with several brilliant lectures on how "suspect classification" and some related tests of Constitutional scrutiny work in Con Law.

Speaking only for myself: away am I prepared to be blown. It seems like an imposition to repeatedly request the "law professor" angle on such things so I try to keep it to a minimum (fearing always I'll be told to pay for law school myself if I want law professors' lectures, etc).

CStanley said...

I need you to be explicitly.

Althouse practicing at becoming an accomplished writer of fortune cookie sayings.

buwaya said...

From the outside of the con-law inside baseball issues, it seems like these are all matters of ritual. The substance of the thing is decided by a balance of power, all the arguments are merely packaging meant to give the decision, and moreso the deciders, an image of legitimacy.

If an expedient decision must be made, an argument will be found.

This and many other things were decided, or will be, by last years turn in US politics.

Todd said...

Crazy Jane said...

Who cares about the art thing?

Can a baker be required to decorate a Happy Hitler's Birthday cake? Can a sign painter be compelled to make an ISIS banner? Can a construction company decline to build a meeting hall for the Westboro Baptist Church?

If not, why not?
10/19/17, 8:39 AM


Can a Doctor be forced to perform an abortion?

If not, why not?

Saint Croix said...

I love this brief.

Althouse the artist loves art and wants to protect this important freedom.

But don't forget cruel neutrality!

IN SUPPORT OF NEITHER PARTY

That shoots a tingle up her leg.

buwaya said...

And, indeed, legal briefs could well be art.
They are creative works meant to persuade, no more and no less than a saints image in a church. Often they are made only to demonstrate skill.
They do not derive from mathematical logic. They rest on all manner of "fuzzy" things, even alleged facts.
That they can be appreciated only by the cognoscenti does not reduce their status as art.

LordSomber said...

I don't think that I can take it
'Cause it took so long to bake it
And I'll never have that recipe again

Todd said...

Ann Althouse said...

"I'm not saying that the great artist adopts a right wing political ideology. If fact, I agree with you that the great artist needs to separate himself from politics and certainly to get it out of his art. I'm saying there's something right wing about doing that.

10/19/17, 9:18 AM


I think most artists types are left wing with specific exceptions. If you really want to see the exceptions, start replicating their copy-righted works without permission!

darrenoia said...

It is the height of irony that the gay rights lobby, on having the Supreme Court recognize that the government shouldn't be able to prevent two people from entering into a (marriage) contract, immediately made it its next step to try to use the government to force people to enter into contracts they don't want.

Or maybe it's not irony so much as a complete lack of principle.

Chuck said...

Crazy Jane said...

Who cares about the art thing?

Can a baker be required to decorate a Happy Hitler's Birthday cake? Can a sign painter be compelled to make an ISIS banner? Can a construction company decline to build a meeting hall for the Westboro Baptist Church?

If not, why not?

No, no, and no.

Reasons; there is no Colorado law, which requires a Colorado commission to enforce the rights of a protected group. [Substitute your own chosen state or locality, or in some cases federal statute, for "Colorado."]

The common law and the law of statutory interpretation isn't just out there swimming in a world of social controversies and internet memes, trying to do the right thing and make sense of the world.

As I have stated repeatedly in this thread, there is a Colorado Anti-Discrimination Act. It prohibits discrimination against homosexuals. A Colorado civil rights commission enforced it, and Colorado courts upheld it.

Colorado doesn't have a law protecting the public accommodation of Nazis, or ISIS, or Westboro Church members (although the latter might get interesting on free exercise of religion grounds).

So your series of questions is pretty easy to answer, and misses the point. You need to look at the Colorado law. And the many similar laws.

As I have now said repeatedly, the thing to do is to not enact those laws in the first place. The federal civil rights statutes mostly stick to race and nationality, and with some additional statutes directed to gender (sex, not "trans-gender") issues.

The reason these cases are coming up is because liberal jurisdictions are passing all of these LGBTQ "civil rights" laws.

Gahrie said...

If fact, I agree with you that the great artist needs to separate himself from politics and certainly to get it out of his art.

I strongly disagree with this. Entertainers should keep politics out, but not artists. The problem is, many entertainers think that they are artists, and some artists think that they are entertainers.

I'm saying there's something right wing about doing that.

Not necessarily, but it is true that the Left believes that everything is political, including and perhaps especially, art.

Chuck said...

CORRECTION:

Reasons; there is no Colorado law, which requires a Colorado commission to enforce the rights of a protected group like any of the ones you posit.

My apologies.

Gahrie said...

As I have stated repeatedly in this thread, there is a Colorado Anti-Discrimination Act. It prohibits discrimination against homosexuals. A Colorado civil rights commission enforced it, and Colorado courts upheld it.

The issue, and thus the Supreme Court case, is does Colorado's
Anti-Discrimination Act violate the Federal Constitution?

Gahrie said...

Can a Doctor be forced to perform an abortion?

Not yet.....

Gahrie said...

In other words: sure you can discriminate all you like against CERTAIN people and groups--that's your right as an American!

In some cases you must discriminate against certain groups... White men and Asians.

Saint Croix said...

Maybe Harvey Weinstein was a performing artist who worked in semen and female nudes.

That's exactly what he would be.

If he had consent.

Performance art cases are tricky First Amendment issues (imho), because often the authorities aren't abridging speech nor press, but rather action (e.g. taking your clothes off). And it's unclear why there would be a private/public distinction in any First Amendment case. Also why do we care if the audience consents to the message? That's alien to free speech principles too. It makes little sense, from a free speech perspective, to say you can do art in private but not in public. So if nude dancing is art and protected by the First Amendment, we should allow nude dancing in public as well, regardless of how pissed off we might be because somebody is waving their junk in our face.

Also, you could certainly claim--and I would claim--that Harvey Weinstein has a First Amendment right to say offensive things to women or anybody else. "You want to suck my cock?" is protected by the First Amendment. It's not like the government is in the business of defining special groups ("artists") and giving them rights other people don't have. Whatever right I have, Harvey Weinstein has, and vice versa. The illegal nature of what he did was not in any offensive speech, but rather conduct. That might be battery, assault, or denying people work opportunities because of their gender.

Gahrie said...

Can you be FORCED into a contract in which you do not want to be a participant?

Before Obamacare, the answer was no....now sadly it is not.

Chuck said...

Gahrie said...
"As I have stated repeatedly in this thread, there is a Colorado Anti-Discrimination Act. It prohibits discrimination against homosexuals. A Colorado civil rights commission enforced it, and Colorado courts upheld it."

The issue, and thus the Supreme Court case, is does Colorado's
Anti-Discrimination Act violate the Federal Constitution?

Yeah, yeah, I get that. Of course I get that. And I hope Mr. Philips prevails. I said that. Everybody gets it; the First Amendment versus CADA.

But what I alone have been saying, it seems to me, is the primary cure is a democratic one; just don't write laws like CADA in the first place. I'd be so pissed if I was in Colorado; I'd be taking names of all of the people who helped enact the latest amendments to C.R.S. § 24-34-601 et. seq. And the names of the Civil Rights Commissioners. Take names and kick asses in the next election(s).

Instead of leaving it to federal judges to do our social engineering.

Chuck said...

Gahrie said...
Can you be FORCED into a contract in which you do not want to be a participant?

Before Obamacare, the answer was no....now sadly it is not.

Oh don't be silly. Obamacare doesn't force you to do anything. You don't have to get health insurance if you don't want it, and nobody will "force" you. You might be looking at a tax penalty, of course.

But nobody was screaming about "Obamacare!" when they got their state-mandated auto insurance, or their legally-mandated worker compensation insurance.

You're not being serious.

Jason said...

Obamacare forces nuns to sign off on abortion, dumbass.

Assrat said...

> doesn't force you to do anything.

Yeah, Gharie. Next you'll be saying that the government keeps you from committing murder. They don't, of course. They just punish you if you do.

Gahrie said...

Chuckles is now defending the Obamacare mandate?

What exactly is it that supposedly makes you a Republican?

Bruce Hayden said...

"that cake artists are indeed practitioners of an expressive art and that they are entitled to the same respect under the First Amendment as artists using any other medium."

"Is that even in dispute? Seriously, I don't understand why anyone would think otherwise."

This is one of those issues that my partner is emphatic about. Her first husband was an executive chef at a big name facility in Vegas. The executive pastry chef was French trained, and wouldn't let any of his junior chefs decorate the really big wedding cakes. She remembers seeing him, up on a ladder, putting the finishing touches on his creations on multiple occasions. He also helped get her through her two pregnancies with his other creations. She assures me that if you ever suggested to his face that his work didn't quality fly as art, he would, in truly Gallic fashion, come after you with a knife.

Putting on my IP hat - I don't think that there is any question that a lot of custom wedding cakes qualify for copyright protection, under US law. There are two basic requirements - original expression, fixed in a tangible medium. The amount of original expression required is minimal. There just has to be some (more than alphabetizing a telephone book). And if loading a program into RAM is fixation in a tangible medium, a cake is far less transient.

Which gets me to the problem, as I see it. We are talking compelled speech or expression. If this were based in federal law (e.g. the Civil Rights Act), the result should be fairly straight forward - the law was enacted based on a Constitutional power grant (e.g. Commerce Clause for the Civil Rights Act of 1964). BUT the 1st Amdt is power limiting - it's entire purpose was to limit what the govt could do. It's a two step process - first you look to see if the govt had the power to enact the legislation. Then, you look to see (typically in the Bill of Rights) if they were forbidden from doing so (or, to enforce the law as applied). Forced speech (or expression) violates the 1st Amdt, so regardless of the justification for any law mandating it, that law should be unconstitutional, at least as applied.

Now, originally, and for a bit over four score years, the states could essentially infringe on free speech (if not forbidden by their own constitutions). But then the South lost the Civil War, and the 14th Amdt was enacted. And ultimately, it was interpreted to incorporate much of the Bill of Rights to the states. That should mean that CO can pass whatever laws they want (or the Blue state imports who are moving there can) , but they can't violate the 1st Amdt. Can't ban, or worse maybe, force speech. A law banning "hate speech" is unconstitutional as written, and state civil rights laws interpreted to ban such unconstitutional as applied. Ditto, if not more so, for forced speech or expression.

Assrat said...

>But nobody was screaming about "Obamacare!" when they got their state-mandated auto insurance, or their legally-mandated worker compensation insurance.

And that is so right. I can choose not to have a car to avoid paying auto insurance. I can choose not to hire employees and not pay workman's comp. And I can choose to have no corporeal body so I don't have to buy insurance.

Chuck must be one of those Lifelong Republicans who voted for Obamacare.

Ralph L said...

Meade said...
I am more of an artist myself and not at all a political ideologue. I dislike politics and care a lot about art and freedom. I blog as an art project and an exercise in personal freedom.
- Right Wing Ann
(verification word always takes me at least two tries)
9/28/05
at least you tries

Ralph L said...

Ann Althouse said...
lmeade: Well observed.

l already!

mccullough said...

How is cake a fixed medium? It's meant to be eaten. Is it copyright infringement to cut it? Eat it?

PackerBronco said...

Tying the issue into artistic expression is too narrow. It really comes down to products and services. Is a business obligated to provide any product or perform any service that a customer might wish? A Christian bookstore might be obligated to sell to atheists, but it is under no obligation to to provide books that atheists might like.

So too, a cake baker is obligated to sell to cakes to homosexuals, but should be under no obligation to provide a cake that celebrates homosexual weddings.

Assrat said...

>How is cake a fixed medium?

Computer memory isn't fixed either, but you can copyright a work that only exists there.

Not a lawyer, but I suspect that the legal definition of fixed medium means that it can be fixed, if you choose to do so. You can eat your cake, but you can also preserve it.

PackerBronco said...

Blogger mccullough said...
How is cake a fixed medium?


How is impromptu theater a fixed medium?

Saint Croix said...

Chuck said...Just to be clear, the term of art in Con Law is "suspect classification." And Professor Althouse could, I expect, blow us all away with several brilliant lectures on how "suspect classification" and some related tests of Constitutional scrutiny work in Con Law.

It's a mess, and there's a big fight brewing over this mess.

Start with the text. "No state shall...deny to any person within its jurisdiction the equal protection of the laws."

Conservatives argue that this provision protects all American citizens, and in the same way. We all have the same rights.

Liberals argue that this provision protects certain groups of American citizens, who have special privileges the rest of us do not have.

Thus, many on the left think that black people, women, Muslims, and gays have special rights. Usually these groups are referred to as "minorities," even though women are actually in the majority. Anyway, minorities have rights, majorities do not, under this interpretation. So you will see different analysis and hear different arguments depending upon whether the person is part of a minority group or not. And leftists begin to disfavor minority groups that are doing well. Are Jews doing well in American society? Then you start seeing leftist antipathy to Jews. Are recent African immigrants doing well in American society? Leftists start attacking and criticizing them, too. Or Asians. The leftist project is to criticize any of the groups that are on top. There are even some leftists who feel sympathy for poor white men who are homeless. And yet other leftists see them as white males and feel no sympathy. The whole project is a mess and, from a legal perspective, a really bad joke. I believe it was Justice O'Connor who opined that the Supreme Court would get around to abandoning this idiotic idea in 2028. She's invented a constitutional law with an expiration date. Why it's good now and bad in the future, I have no idea. This whole sorry mess is usually referred to as "identity politics" and nice people abhor it.

Anyway, on the right is the idea is that we all have the same rights and the same laws under our Constitution and the American way of life. Under this reading, the equal protection clause protects all of us in the same way. Racial discrimination is always suspicious, regardless of skin color. Sex discrimination is also suspicious, depending on context. There are many instances where sex discrimination is entirely appropriate. For instance, in dating, relationships, marriage, and baby-making, almost all of us engage in sex discrimination. Hence, not suspicious at all. So sex discrimination is referred to as "intermediary" review.

(It's intermediary because it's a review between "suspicious" and what is called "rational basis review" which is another can of worms. Basically the proponents of rational basis review argue that every law in existence has to be rational, and if it's irrational it offends the equal protection clause. Since it would cause civil war to go around striking down laws on the grounds of stupidity, the judiciary rarely uses this one. So 99.9% of laws pass rational basis review).

I don't know if that's brilliant, but it's the Cliff notes version.

Dust Bunny Queen said...

"You sound as though you've never made a cake." OMFG.

I'll be sure to remind my partner, next time she announces that she is going to bake a birthday cake, that she is also supposed to decorate it. Then again, for the sake of common sense and domestic harmony, maybe not

My God, some of you people are obtuse.

I can make pancakes and call them Birthday Cakes. That doesn't make them the same thing as what most (normal) people consider a "Birthday Cake".

A Birthday Cake generally has a basic cake base that is then decorated with some basic icing. Generic Cake. What makes it a Birthday Cake, instead of a generic cake is the decoration of artistic flairs such as icing roses, flowers, foliage, sculpted characters, items that have meaning for the birthday recipient, fluted borders, dropped icing ropes, coloring, shading, fondant sculptures etc etc.

The Birthday cake will then, usually, have a message personalized to the birthday recipient. Like "Happy Birthday Sebastian you Dork!!!!"

All these decorations which are customized and geared to the individual.

Of course, you don't always have to have those customized elements. Your girlfriend can bake you a chocolate cake, shove it in front of you and call it a birthday cake. Her choice. She is doing this out of the goodness of her heart and you should be grateful :-D The cake artist is being asked to decorate and customize the cake for money as a part of a contractual economic transaction.

BTW, The baker is not always the decorator either. Often the process of a Wedding Cake can take several people. Someone(s) to bake the base of the cake and then the Decorators or artists who may be more than one person.

Do you need MORE detail? I can provide it :-D

Ralph L said...

Somehow we ended up with the top layer of a former neighbor's daughter's wedding cake in our freezer for about a decade.
The tradition once was that the couple ate the top on their first anniversary, but the couple moved to China for a few years, and we didn't see any of them until the son's wedding years later. Just as well, since I didn't particularly like the family.

Chuck said...

Assrat said...
...

Chuck must be one of those Lifelong Republicans who voted for Obamacare.

I certainly did not. Only Democrat members of Congress "voted for Obamacare." And unlike some blogresses, I never once voted for Obama.

But I'll tell you what sort of Republican I am; I am a practical-minded one, who realizes that a system cannot possibly afford "pre-existing condition coverage" guarantees without penalizing persons who elect to remain uninsured until they get sick (a pre-existing condition). It would be like allowing everyone to wait to buy fire insurance until the moment the fire department was called. Or allowing everyone to avoid Gulf-region flood insurance until they saw the storm track on The Weather Channel.

Assrat said...

>But I'll tell you what sort of Republican I am;

I knew this already. Either an incompetent one, or an incompetent imposter.

Gahrie said...

But I'll tell you what sort of Republican I am; I am a practical-minded one, who realizes that a system cannot possibly afford "pre-existing condition coverage" guarantees without penalizing persons who elect to remain uninsured until they get sick (a pre-existing condition). It would be like allowing everyone to wait to buy fire insurance until the moment the fire department was called. Or allowing everyone to avoid Gulf-region flood insurance until they saw the storm track on The Weather Channel.

True. But a Conservative would say that a person who doesn't buy health insurance should suffer the consequences of not doing so, not that everyone should be forced to buy insurance because some people make bad choices.

Laslo Spatula said...

It is possible to be a Republican AND a Cake Fucker.

I am Laslo.

Todd said...

Laslo Spatula said...
It is possible to be a Republican AND a Cake Fucker.

I am Laslo.

10/19/17, 1:10 PM


Sure. There is nothing in the Republican handbook (at least not my 2016 revision h copy) forbidding fornication with pastries, pies, or cakes.

I may not agree with your right to f*ck a cake but I will die protecting that right!

Chuck said...

...But a Conservative would say that a person who doesn't buy health insurance should suffer the consequences of not doing so, not that everyone should be forced to buy insurance because some people make bad choices.

A doctrinaire conservative would then say just as quickly, "So of course this fantasy about forcing insurers to cover all pre-existing conditions also has to be jettisoned."

And that's fine, for a libertarian freak like Rand Paul. But it's pretty terrible electoral politics at the retail level.

And remember, slashing away health insurance provisions like that is NOT what Trump campaigned on! TRUMP CAMPAIGNED ON COVERING EVERYBODY; PROVIDING EVERYBODY WITH "GREAT" COVERAGE.

Trump took the entitlements of Obamacare and larded them up with extra fat and made them part of his campaign.

Because, as David Frum says, the core competency of Trump is not doing high level deals with powerful counterparties. Rather, the core competency of Trump is duping gullible people.

walter said...

Arty Legal Brief

n.n said...

It's telling that homosexuals choose to identify with exclusive labels: "gay", "lesbian", that isolate them from others on the transgender (i.e. physical and/or mental) spectrum: bisexual, transvestite, crossover, fluid. The constructed "gender" classification schedule was designed to normalize political congruence ("="). It's not over, and Pro-Choice will not shield progressives and social liberals from the consequences of their selective, unprincipled, and opportunistic religious/moral, scientific, and legal philosophy.

Jim at said...

Never in my wildest dreams did I ever think the simple act of baking a cake would be used as a partisan weapon in order to bludgeon your political opponents. But that is the world the left has created for the rest of us.

Thanks. Thanks a lot, assholes.

tcrosse said...

Laslo takes the cake.

CWJ said...

I have nothing to add except to emphasize the malice that brought this case about in the first place. The "angry gay" is a real subset of the community, and those I've encountered take vindictiveness to the extreme.

But not all is anger. Given the cummulative length of Chuck's several comments on this thread, this little gem made me laugh.

"I am not going to paste your entire post here for reference to save Althouse some space,..."

Sebastian said...
This comment has been removed by the author.
exiledonmainstreet said...

"Sure. There is nothing in the Republican handbook (at least not my 2016 revision h copy) forbidding fornication with pastries, pies, or cakes."

I would think doughnuts would be the most fuckable of pastries for obvious reasons. Just think of that saucy little French cruller tucked away in the corner of the Dunkin Doughnuts box, coyly awaiting your advances.

Sebastian said...

"Do you need MORE detail?" You mean, you thought the detail wasn't entirely and utterly obvious to anyone over the age of, oh, 3? So obvious, in fact, that when a fair portion of the population discusses "baking a cake" or the problems faced by a "baker" of cakes they do not assume that the decorating is part of the issue at hand?

I love you DBQ, really I do, but is this what we have to look forward to when women are in charge of everything?

Sebastian said...

"A doctrinaire conservative would then say just as quickly, "So of course this fantasy about forcing insurers to cover all pre-existing conditions also has to be jettisoned."" Indeed. Since such coverage makes a mockery of the very notion of insurance.

Actual "pre-existing conditions"--birth defects and such--we will cover out of a collective fund, paid for by direct taxes, monitored and controlled by the people's representatives.

We can argue about when conditions that somehow have come into existence become "pre-existing" for the purpose of collective burden-sharing. But that's no reason to destroy the actual insurance system.

CWJ said...

exiled,

A new twist genderwise on the "French tickler."

southcentralpa said...

Made this same point weeks ago, and the Professor zapped it. Vindication... Now, if someone would go to a baker and demand a cake that says "Bong Hits 4 Jesus" (during school hours but off school property) lulz (Morse v. Frederick)

Drago said...

"Because, as David Frum says, the core competency of Trump is not doing high level deals with powerful counterparties. Rather, the core competency of Trump is duping gullible people"

LOL

Frum and LLR Chuck.

You could not squeeze more "wrong" into 2 "analyst/prognosticators".

Unknown said...

People imagine that in the bad old days whites were simply refusing service to blacks all over the place. In fact, so many whites WERE hiring blacks and serving them and living next door to them that the democrats got the Jim Crow laws passed making it illegal to do so. Without government interference, integration was on the way to becoming a done deal.
Thus the claims that not making cakes for gays is just like Jim Crow is backwards. Gays can find plenty of places that will bake them a fancy cake.
Let's consider another example: a couple want a photographer to come do their nudist wedding. Should they have the right to refuse?

David in Cal said...

Dumb honesty is punished. If a gay couple asked about a cake from a baker who said he would bake one, but that he opposed homosexuality, the couple would immediately go elsewhere for their cake.

gregq said...

Ann Althouse writes:
Nor is about about whether the cakeshop is forced to "bake a cake" for the wedding. It's about whether it must decorate the cake

I'm sorry, but you are wrong here.

The contents of what goes in to the cake is at least as much of an artistic endeavor as decorating it. That is, after all, why couples do cake tastings before picking out their wedding cake.

You want to buy an "off the rack" product? Fine, the "Civil Rights Commission" can complain if they won't sell to you.

You want to buy something custom? It's their absolute right to refuse to have anything to do with you. Because "custom" == "art" == "First Amendment right not to be involved"

Chuck said...

Unknown said...
...
Let's consider another example: a couple want a photographer to come do their nudist wedding. Should they have the right to refuse?


I have now lost all count of how many red herrings there are in these comments.

No, there is no problem with refusing to work for a nudist wedding. Why? For the simple reason that no civil rights law that I know of prohibits discrimination against "nudists."

These comments continue to veer off into weird little hypothetical backwaters that have no connection to reality. But as I have also repeatedly proclaimed, I do not favor the homosexual plaintiffs in this case. The real problem is the civil rights law in Colorado and the Colorado Civil Rights Commission's application of the law.

I keep harping on that because I suspect that Althouse likes such laws, as long as there can be carve-outs for First Amendment liberty exceptions. (As in this case.) Whereas I am saying that states and localities are making a big mistake by passing such laws in the first place. Because such laws are what lead to cases like this.

Todd said...

David in Cal said...

Dumb honesty is punished. If a gay couple asked about a cake from a baker who said he would bake one, but that he opposed homosexuality, the couple would immediately go elsewhere for their cake.

10/19/17, 9:30 PM


I think that is "wishful thinking" in that maybe 9 out of 10 would but that 10th couple would feel compelled to "make a point" and demand that the cake be made anyway and if it was not 100% perfect (possibly in spite of) they would sue for something/anything. Once the baker's opinion were known, no amount of vilification would be enough. He must be destroyed, his business must be destroyed, his family must suffer.

This is not 100% of gay couples in that as you suggest, most would not like it but would go elsewhere where their business is appreciated but it just takes one. Wrong think must be eradicated regardless of the cost...