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  1. #1
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    Default Bake me a Cake, and make it a Masterpiece

    I wonder what people think of the case that is going to the Supreme Court of the USA, Masterpiece Cakeshop -vs- Colorado Civil Rights Commission.

    The case concerns a gay couple who wanted the Masterpiece cakeshop in Lakewood, Colorado.--

    The Colorado pair went to Jack Phillips, the owner of Masterpiece Cakeshop in Lakewood, to commission a custom wedding cake. Phillips, however, refused, citing his Christian faith, which he said prevented him from what he considered to be endorsing a same-sex wedding. Mullins and Craig filed a complaint to the Colorado Civil Rights Commission, since anti-LGBTQ discrimination is considered a violation of the state’s civil rights law. The Colorado Civil Rights Commission sided with the couple and ordered Phillips to sell cakes to all couples, regardless of sex, and to provide training to all staff to ensure compliance.
    https://www.vox.com/policy-and-polit...riefs-gay-cake

    The case has raised critical issues in the US which concern discrimination and free speech, but which may have a major impact, it is said, if the Supreme Court rules in favour of Masterpiece as, it is claimed, this would open the door to discrimination at a broader level with commercial enterprises refusing the custom of certain types of people based on their right to exercise their religious faith in the public sphere.

    The discrimination issue appears strong, if the claim is that if it is legal for a business to deny custom to LGBTQIAPN/B people, another may refuse to serve Jews, or Muslims, or for example, in a more 'refined' argument, an orthodox Jewish baker may refuse to bake a wedding cake for a Jew who is marrying a gentile.

    The argument concerns free speech and has been described thus:

    The baker, Jack Phillips, has two arguments: that the Free Exercise Clause allows “believers” a “freedom to live out their religious identity in the public square” and that Colorado is forcing him to “create art” he finds morally repugnant. Just as the state cannot force children to recite the Pledge of Allegiance, or its drivers to display its motto, so it cannot command Phillips to ventriloquize a message of tolerance he repudiates.

    http://fortune.com/2017/12/04/master...-civil-rights/

    Three things strike me about this case:
    First, I cannot understand how a cake can be considered a 'work of art', when it is in fact just a cake. Does this mean a bagel, a doughnut and a cheese sandwich can be classed as 'works of art'? Baking a cake does not require, and is not a form of artistic expression, unless someone can persuade me that it is.

    Second, having been told by Masterpiece they didn't want their custom, why didn't the couple just go somewhere else? Was there really no other option in either Lakewood or somewhere else in Colorado as far as bakers and wedding cakes are concerned?

    Third, how does one define a Christian? It seems to me that for someone to discriminate against a gay couple on the basis of their Christian faith begs the question -is Christianity so opposed to homosexuality that it must be confronted and denied in every walk of life, from personal belief to commercial transactions?

    There was a similar case in Northern Ireland a few years ago, but there the issue revolved on the wording that the couple wanted on their cake: Support Gay Marriage. The Christian baker refused and lost the case, but the moral argument actually rested with the baker, just as a Protestant baker being asked to write in sugar 'Support the Pope, Prods Out!' or a Catholic baker asked to write 'Ulster forever, No Popery in Ulster!'. And I wonder how many bakers of any religion or none would refuse to inscribe a cake with 'Happy Birthday, Cocksucker', satirical to the customer, offensive to the baker

    But there are serious issues here, and I am not sure how you unravel those complex arguments about commercial transactions, religious freedom, the right not be discriminated against, and so on.


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  2. #2
    Hung Angel Platinum Poster trish's Avatar
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    Default Re: Bake me a Cake, and make it a Masterpiece

    From a Dadaistic perspective, what is art is all in the presentation. If you frame it, display it in a gallery with the work of other artists and convince the viewers to regard as an object of art, then it’s an object of art. Art historians today seem agreed that Marcel Duchamp’s Fountain is a work of art. If Jack Phillips has ever had a showing of cakes in an art gallery, it would lend credit to his position. I don’t know that he has.

    The fact that the couple wanted Jack Phillips to do their cake and no one else, demonstrates they held his work in high regard. If this regard was due to the appearance of the cake more than its taste, this may also lend credit to baker’s position that he is an artist. Did they regard his cakes as art? I don’t know that they did, but it would be a question I’d ask if I were Phillips’ lawyer.

    I confess I never really questioned the idea that artists can take or refuse commissions at their own discretion. Whether a painter agrees to do your portrait or not, I always thought was a matter of money and inspiration. If he’s not inspired and the money doesn’t help, then he’s not inspired - find another artist. The problem with Phillips is he gave a reason for refusing the commission: same gender marriage is against his religion.

    I’d rather the couple not take this to court, because I think it’s likely to go against them and for the wrong reasons. The precedent will likely give people more power to exempt themselves from secular laws for narrow religious reasons. This not only weakens the civil rights everyone else, I think it also further splinters and weakens the practice of religion.

    My personal view of Phillips is that he’s neither an artist nor a very good Christian. From all accounts I hear, I think Jesus would have showed up at the wedding, blessed the couple and turned the water into wine.


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    "...I no longer believe that people's secrets are defined and communicable, or their feelings full-blown and easy to recognize."_Alice Munro, Chaddeleys and Flemings.

    "...the order in creation which you see is that which you have put there, like a string in a maze, so that you shall not lose your way". _Judge Holden, Cormac McCarthy's, BLOOD MERIDIAN.

  3. #3
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    Default Re: Bake me a Cake, and make it a Masterpiece

    I don't think the arguments of the religious zealots have any substance. What is the reason he does not want to bake the cake? Is it because his religion does not permit him to? I have seen no evidence that the religion proscribes it. Would a Christian or a Jew feel a similar aversion to selling a cake to someone who covets his neighbor's ass? It's a silly cop-out for a bigot who wants to use his religion as an excuse to discriminate. Churches and synagogues and mosques are already permitted such exemptions but private businesses should not be. If you open a private business, you are subject to civil rights laws.

    Is it really an issue of him being forced to express himself in a way that he feels morally conflicted about doing? Is he insisting that by putting two male names on a cake, he has engaged in a unique form of expression? Nobody is asking him to paint with icing two men engaged in sodomy. His objection is not based on the expressive conduct but the business transaction with people he has animosity towards. Would he be pacified if he were asked to bake a cake with no distinguishing characteristics, that looked like the cakes for any other wedding and the couple added their names with icing?

    It's probably true that baking can be a form of art, but in my view it's not the expressive element he objects to as much as the occasion for the transaction and how his cake will be used. But as Trish says, I would not be surprised if this doesn't end well.....


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  4. #4
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    Default Re: Bake me a Cake, and make it a Masterpiece

    Quote Originally Posted by Stavros View Post
    There was a similar case in Northern Ireland a few years ago, but there the issue revolved on the wording that the couple wanted on their cake: Support Gay Marriage. The Christian baker refused and lost the case, but the moral argument actually rested with the baker, just as a Protestant baker being asked to write in sugar 'Support the Pope, Prods Out!' or a Catholic baker asked to write 'Ulster forever, No Popery in Ulster!'. And I wonder how many bakers of any religion or none would refuse to inscribe a cake with 'Happy Birthday, Cocksucker', satirical to the customer, offensive to the baker
    I think this is the important thing to keep in mind. What is the real reason? Is it because he is being asked to adopt an explicit verbal message he objects to? That could be forced speech. Is it because someone is putting a demand on his creative talents that he does not feel inspired to fulfill? I don't believe either explanation is more than pretext.

    Then, what would be his argument if he were asked to bake a cake, the likes of which he baked for a heterosexual couple, without words on it, and it would be used in a gay wedding? If he objected it would have to be because he did not want to do business with gay couples or he wanted to control the use of his cake and the circumstances under which it's eaten. Could people object to having their products sold for use in gay weddings, or at gay bars, or for use in the home of gay individuals who will if they're lucky maybe be having sex in the presence of their craftsmanship?

    I don't see a bona fide issue here and don't think any of this is intended to protect religious practice as it were, but to coerce conformity in others.


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  5. #5
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    Default Re: Bake me a Cake, and make it a Masterpiece

    When Nikka announced her birthday last month and then begged for presents, I almost posted this picture, but I dig Nikka, and her avarice is part of her charm. Is it bad taste if it tastes good?


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  6. #6
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    Default Re: Bake me a Cake, and make it a Masterpiece

    Quote Originally Posted by trish View Post
    From a Dadaistic perspective, what is art is all in the presentation. If you frame it, display it in a gallery with the work of other artists and convince the viewers to regard as an object of art, then it’s an object of art. Art historians today seem agreed that Marcel Duchamp’s Fountain is a work of art. If Jack Phillips has ever had a showing of cakes in an art gallery, it would lend credit to his position. I don’t know that he has.

    I’d rather the couple not take this to court, because I think it’s likely to go against them and for the wrong reasons. The precedent will likely give people more power to exempt themselves from secular laws for narrow religious reasons. This not only weakens the civil rights everyone else, I think it also further splinters and weakens the practice of religion.
    My personal view of Phillips is that he’s neither an artist nor a very good Christian. From all accounts I hear, I think Jesus would have showed up at the wedding, blessed the couple and turned the water into wine.
    I agree with your comments on the Christian aspect of the case, but wonder if there other options in Lakewood, I would expect there to be more than one bakery, in the small town I live in there are at least three independent bakers who do bespoke cakes as well as two well-known chains that do it.

    As for the question, is a cake art? In the first place, Duchamp was playing a practical joke on the exhibition in New York for which he produced the 'fountain', but also, as was common with Dada-ism, questioning the basic category of art. The problem is that because art is associated so obviously with presentation -be it a painting or a sculpture- there is an assumption that anything produced for this purpose has the status of art. Duchamp was well aware that he was breaking a norm about what a piece of art might be, and he wanted to emphasise how much humour there is in art, something the awfully serious New York collectors and critics did not seem to grasp, but also to turn the question around, for maybe the truth is that Fountain is not a work of art, but can be perceived as such, and that is where the racket comes in. Thus, when the American painter George Bellows complained to the collector Walter Arensberg the latter

    countered by pointing out that the correct fee had been paid. "'You mean to say, if a man sent in horse manure glued to a canvas that we would have to accept it!', said Bellows. 'I'm afraid we would,' said Walter."

    http://www.telegraph.co.uk/culture/a...evolution.html

    In 1987 American conservatives wanted funding for the arts cut owing to the display of Andes Serrano's photo Piss Christ which they decided was not art, or, if it was, intended to be offensive and obscene. But perhaps the closest example we have to the nonsense that a cake is a work of art, is the work of Damien Hirst, from that notorious/famous shark to the more recent extravagant creations, because while they may artistic in design, what they end up is, in fact, furniture. There are famous styles in furniture, Chippendale, Biedermayer and so on, but it really is just furniture.

    I could go on, but let me just say that one of the best examples if the work of a first class American fraud called John Cage, who was incapable of telling the difference between sound and music, and thus insulted every human being with ears to hear with the meaningless garbage for which he was probably paid ridiculous sums of money, ditto Andy Warhol.

    The issues around the law and free speech I will note in reply to Broncofan.


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    Last edited by Stavros; 01-19-2018 at 07:48 AM.

  7. #7
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    Default Re: Bake me a Cake, and make it a Masterpiece

    Quote Originally Posted by broncofan View Post
    I don't think the arguments of the religious zealots have any substance. .....Churches and synagogues and mosques are already permitted such exemptions but private businesses should not be. If you open a private business, you are subject to civil rights laws.
    I think the important point you make is the distinction between places of religious worship and places of commerce, such as shops. Although it is possible for non-believers to enter religious establishments during ceremonies -supervised in some, I think- the basic assumption must be that such places exist for a specific purpose that is religious and not commercial, and are protected in law, although this has not prevented some activists from trying to prevent the construction of places of worship, mosques being an example.

    What I don't quite understand is this issue of the 'public sphere' where the argument is that Phillips should have the right to deny service to customers if they offend some aspect of his religion as he understands it even if there are arguments that claim it is not part of the religion. Normally, I assume, most people would not know if the baker was a Christian although they might know if he or she is Jewish if it is Kosher bakery, or if the premises are run by, let us say, Sikhs wearing turbans, or Arabs specialising in Middle Eastern bread, and so on though they could be Christian as well as Muslim. It is obvious when you see a Kosher or a Halal butcher what the products on sale are and how they have been prepared, but anyone can go in and buy, the customers need not be exclusively Jewish or Muslim.

    But does this mean the Christian baker should in fact place a visible sign in the window or on the door stating 'This is a Christian Bakery'? And would it also be a violation of laws on discrimination if Masterpiece placed a notice in the window or on the door that stated 'We do not serve homosexuals'? It seems to me that Phillips produced his objection without the customers realising that he was offended by gay marriage. But is he right to bring his religious objections into the public sphere where this conflicts with a commercial transaction? I am not sure how the law deals with this as there are two conflicting issues, as has already been pointed out.

    What are the potential consequences for this? Should commercial premises place notices warning potential customers that they discriminate on religious grounds? I don't see how this can be legal. Would it enable people with certain religious views to prevent the public expression of say, a film they they believe offends their religion maybe even attacks it in is entirety? I am thinking of Alex Gibney's film on Scientology Going Clear which I would assume the 'church' would under new rulings want to prevent being shown. For legal reasons, the film is banned in the UK, for example. But there are plenty of films that attack Muslims and Jews on religious grounds, is this an aspect of 'free speech' that, far from being extended, should be limited if not banned, in law?
    https://www.theguardian.com/world/20...it-going-clear

    I think what I am asking is this: is the potential there for discrimination to be legal, but also for an activist consequence where the 'public sphere' is not just there for individuals to express themselves, but to shut down those who oppose their religious views? I am also not sure how this works with regard to Federal and State law, noting if it is true that Colorado has had a reputation for being a 'gay friendly' state.


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    Default Re: Bake me a Cake, and make it a Masterpiece

    The issue of whether it is federal or state law is a confusing one. Colorado is a fairly gay friendly state as you mention so the statute at the state level is an anti-discrimination statute on the basis of sexual orientation. The baker is arguing it should not apply to him on two grounds that are based on our federal constitution: free exercise of religion and free speech (really compelled speech; a negative implication of free speech is that you shouldn't be compelled to utter a message you disagree with).

    Various states have passed laws that are called religious freedom restoration act laws that attempt to broaden the scope of the constitutional protection provided in the free exercise clause. I would assume these tend to be conservative states and Colorado is not one of them which is fortunate. Here is a link on some of the states that have these model acts...I'm not a big fan of them for some reasons we've been discussing...but mainly because I don't know that people should be able to have ad hoc exemptions from laws. https://en.wikipedia.org/wiki/State_...storation_Acts

    I've mentioned before but the free exercise clause has tended to be interpreted in such a way that it does not strike down laws that are facially neutral. As long as the laws prohibit the same conduct whether it's done by a member of a religion or not they tend to be viewed as acceptable. That would not be good for the baker, because the law is facially neutral and prohibits homophobic discrimination by religious and non-religious parties.

    The free speech argument is the one that the whole artistic license/compelled speech issue is bound up in. I found this interesting blog that has some case law summaries on similar issues. http://blogs.lse.ac.uk/usappblog/201...portant-cases/


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    Default Re: Bake me a Cake, and make it a Masterpiece

    I have never been to that blog before so I don't necessarily recommend it. I thought he included a lot of relevant case law but I'm not sure he did a great job of reconciling all of the cases or determining which precedents would be most relevant.

    I think if the baker wins it's more likely to be on the speech argument than the free exercise argument. This is especially so since Colorado doesn't have a religious freedom restoration act and I have trouble believing the court will interpret free exercise of religion so broadly.


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    Last edited by broncofan; 01-19-2018 at 10:38 AM.

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    Default Re: Bake me a Cake, and make it a Masterpiece

    Quote Originally Posted by broncofan View Post
    The issue of whether it is federal or state law is a confusing one. Colorado is a fairly gay friendly state as you mention so the statute at the state level is an anti-discrimination statute on the basis of sexual orientation. The baker is arguing it should not apply to him on two grounds that are based on our federal constitution: free exercise of religion and free speech (really compelled speech; a negative implication of free speech is that you shouldn't be compelled to utter a message you disagree with).
    I will admit that I had never heard of Compelled Speech before and had to google it, whereupon I came across an article on it which is also related to the Lakewood case. It is also a fact that in 2011 same-sex marriage was illegal in Colorado and that the couple intended to marry in the state of New York, but hold their reception in Colorado, and that their wedding planner recommended the Masterpiece bakery. Also, the couple were upset enough to refer the incident to the Colorado Civil Rights Commission, rather than walk away, but there is also anecdotal evidence of gay people being refused by other businesses such as florists, so this may be a wider issue rather than just two men and a baker. I believe Phillips has now stopped baking wedding cakes.

    There are two interesting points in the article I found -one is that the Supreme Court has not established what Compelled Speech is in law-
    Part of the problem in fashioning such an explanation is that the Court—to this point—has not done a very comprehensive job in creating compelled speech doctrine, even as the justices have accepted or deflected compelled speech claims in particular cases.

    The other concerns the difference between a product, in this case a cake, and expression, thus:
    the problem with compelled speech is that someone is forced to communicate a message he or she finds objectionable,
    however, in this case,
    the context is a commercial one, rather than a more intimate one,
    and thus
    Wedding cakes are not understood as taking a position on the merits or morality of the marriage (an interracial marriage, an interfaith marriage, or an elderly person marrying a so-called “trophy spouse”).
    https://verdict.justia.com/2017/09/2...-supreme-court

    I think this makes it hard for Phillips to argue he was being compelled to endorse something that offended him as a Christian as well as being illegal at the time, because the wedding cake itself cannot be identified as a form of expression that violated his rights, whereas his refusal to bake the cake because his customers are gay is a violation of the law on discrimination.


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