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.

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.

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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Originally Posted by Stavros

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

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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.

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?
https://preview.ibb.co/iN6xMm/6.jpg

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Originally Posted by trish

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.

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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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Originally Posted by broncofan

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.

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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.

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/

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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Originally Posted by broncofan

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).

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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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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.

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Just googling Lakewood, Co bakeries I came up with at least fourteen peppering a map of the town; one of them called Elegant Bakery is just two blocks down the street from Masterpiece and advertises European-style bakery specializing in fancy, custom-decorated cakes and pastries.

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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.

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I think I could learn a lot strolling through a gallery or an art museum with you, even though we clearly have different tastes in art and music as well as differences on what constitutes art and music. I think functionality doesn’t necessarily excludes a wardrobe, a chair, a cathedral or an urn from being a work of art. Nor do I think that a musical work need be composed (or can be composed) in such a way that every performance is identical. In some works there can room for both interpretation and serendipity. In aleatoric works it can be difficult to strike the right aesthetic balance between control and chance. Some experiments work (like the performance by John Cage, David Tudor, Michael Pugliese and Takehisa Kosugi of Five Stone Wind and recorded by Mode) and some not so much.

But back to the cake. Could Phillips argue that he makes cakes and pastries for public consumption on a daily basis which he displays and sells in the front of his store; but that he also creates works of art in the back of his store which are privately commissioned - even though the transaction might take place within the public space of the store? I’m guessing this wouldn’t work if the revenue collected for the commissioned work goes into the public business.

Is the reading material in prisons covered by free speech law? I ask having read that Michelle Alexander's book The New Jim Crow has been banned in some New Jersey prisons, along with books on El Chap and 'true crime' books. There is an article on it here-

https://www.theguardian.com/us-news/...jersey-prisons

So what if the Baker loses the case again, yet still refuses to bake cakes for people that he considers Damning?
Do you lock up his shop and send him to jail? What about Civil Court? Would the Baker be forced to pay pain and suffering damages to the Gay couple who were scarred for life?
Just like Art is worth more than the cost of the paint and canvas, the actual crime here is minimal, by forcing the issue up the Courts Ladder, the cost of deciding this point of law has turned a hundred dollar wedding cake into a million dollar question of expressive liberty (ART)

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Originally Posted by trish

I think I could learn a lot strolling through a gallery or an art museum with you, even though we clearly have different tastes in art and music as well as differences on what constitutes art and music. I think functionality doesn’t necessarily excludes a wardrobe, a chair, a cathedral or an urn from being a work of art. Nor do I think that a musical work need be composed (or can be composed) in such a way that every performance is identical. In some works there can room for both interpretation and serendipity. In aleatoric works it can be difficult to strike the right aesthetic balance between control and chance. Some experiments work (like the performance by John Cage, David Tudor, Michael Pugliese and Takehisa Kosugi of Five Stone Wind and recorded by Mode) and some not so much.

But back to the cake. Could Phillips argue that he makes cakes and pastries for public consumption on a daily basis which he displays and sells in the front of his store; but that he also creates works of art in the back of his store which are privately commissioned - even though the transaction might take place within the public space of the store? I’m guessing this wouldn’t work if the revenue collected for the commissioned work goes into the public business.

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A discussion on art is for another thread so I will just say that the problem with Dada was that like naughty schoolboys shouting rude words in the middle of Mass, it intended to shock, but in doing so made the 'event' more relevant than the works provoking outrage. They didn't really have much to say, and their work occupies a niche in art history as does Surrealism, another failed project. At least with Duchamp, and also Joan Miro there is a sense of fun, of not taking art too seriously.

As for the cake, I think the point is that there must a distinction between a commercial transaction and the intimate thoughts of the baker. He did offer to sell the couple other items from his bakery, I believe a Brownie? I think that is one of those soggy bricks masquerading as a pudding. Whatever. Phillips is a committed Christian and objected to same-sex marriage, and it seems the wedding cake, rather than the brownies for him was perhaps too symbolic of marriage, but did he have the right to make his intimate views a matter of commerce? As suggested in the article from Verdict I linked earlier, would another baker refuse to bake a wedding cake for an inter-racial couple? That Philips made a point over the wedding cake but not other items suggests his case is weak, for to be consistent should he not have refused to sell them any of his products because he believes homosexuality to be a sin that he cannot condone? And as a consequence the couple did go to another bakery. As for a wedding planner, isn't that a phoney job that was invented to 'inspire' couples and their families to spend loads of money on something that can probably be done much cheaper?

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Originally Posted by Stavros

Is the reading material in prisons covered by free speech law? I ask having read that Michelle Alexander's book The New Jim Crow has been banned in some New Jersey prisons, along with books on El Chap and 'true crime' books. There is an article on it here-

https://www.theguardian.com/us-news/...jersey-prisons

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I would assume it is. Laws that regulate free speech can typically control the time, place, and manner that speech is uttered but cannot absolutely prohibit the speech unless it is in a category that is unprotected ((obscenity, true threat, etc.) or the state has a compelling interest that it has chosen the least restrictive means to advance. This book would not be within any of those categories of unprotected speech. Prison authorities might say they have a compelling interest in maintaining order so that they can place limits on speech that civilian laws do not, but this could not be seen as necessary and their restriction is not the most narrowly tailored they could find. Afterall, this is not a book that is recommending violence or explaining how to break out of prison.

https://theintercept.com/2018/01/08/...w-jersey-aclu/

From this article:

In addressing prisoners’ First Amendment rights, the U.S. Supreme Court has repeatedly clarified that “‘[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution,’ nor do they bar free citizens from exercising their own constitutional rights by reaching out to those on the ‘inside.'” Because “The New Jim Crow” addresses corrections policy and other social and political issues of public concern, it “occupies the highest rung of the hierarchy of First Amendment values and is entitled to special protection.

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Originally Posted by Stavros

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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This is also my view. There is no confusion as to what he endorses or believes. By selling a cake he is not in effect saying, "I support your marriage and wish you two everlasting happiness." Such a shame that he would regard making such a statement as oppressive.

The reason I think it's possible that the court might try to find some merit in this argument is because they often aren't as brave as they should be. This represents a bit of a compromise in terms of consequences. If they found that the baker had a right to refuse on the basis of religious objections then anyone with religious objections could refuse to do business with gay couples in preparation for their marriage and it would be harder to find a limiting principle. On the other hand, if they say he is being forced to express himself in ways that are uncomfortable, it already is limited to circumstances where the transaction includes an implicit or explicit message. It's just that I don't see his objection to be based on any expression and I like the test fashioned in the piece you linked.

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Originally Posted by broncofan

The reason I think it's possible that the court might try to find some merit in this argument is because they often aren't as brave as they should be. This represents a bit of a compromise in terms of consequences. If they found that the baker had a right to refuse on the basis of religious objections then anyone with religious objections could refuse to do business with gay couples in preparation for their marriage and it would be harder to find a limiting principle. On the other hand, if they say he is being forced to express himself in ways that are uncomfortable, it already is limited to circumstances where the transaction includes an implicit or explicit message. It's just that I don't see his objection to be based on any expression and I like the test fashioned in the piece you linked.

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I am assuming then that this will be more interesting than usual as it will be the first major test of the new Supreme Court, although I assume Neil Gorsuch will be considered a junior member of that court -?

And I assume the New Jim Crow has been banned because certain people just don't like it.