Of Cakes and Expression

From a FB post of a friend, Bruce Nielson.

Sincere question for both left and right. 

Suppose the Supreme court refuses to pass judgement on the Jack Phillip baker case and instead throws it back to the state, but with the, following instructions. 

1. Retry this case with the understanding that refusal to make a specific artistic expression supporting gay marriage is protected under the constitution as freedom of expression.
2. But a generically decorated wedding cake is not a specific artistic expression, it’s just a cake. So, it’s not protected. 

In other words, what if they refused to rule on this specific case, but merely clarified that if a gay couple asks for a generic wedding cake (indistinguishable from any other wedding cake), and is refused, this is not protected. But if the wedding cake is obviously specifically a ‘gay wedding cake’ that this can be refused under freedom of expression. (For example, the cake shown below would be protected under freedom of expression because it's clearly a case of forcing a Christian to express support for gay marriage.) 

And then suppose that it goes back to the state with these instructions and the court notes that actually the gay couple left before finding out if the baker (Phillips) was willing to do a generic cake, and he thought he was only refusing to do a ‘gay specific’ wedding cake. Therefore he is found innocent and there are no damage for that specific case. 

So suppose the final ruling doesn’t harm the baker, and it does setup a freedom of expression protection for Christians, but it also means that Christian bakers will have to bake and even decorate at least generic wedding cakes for gay marriages. 

So in other words, what if the judgment protects both sides in the very ways they have most expressed a desire to be protected: Christians don’t have to make a specific gay wedding cake but gay couples can’t be refused service for creation of a cake for their wedding. 

Would you find this a viable solution and hail it as a victory (or at least an acceptable compromise)? Or would you reject it as a tragic loss for your side? 

Note: I have no idea if the Supreme court is even allowed to do something like this. This is a pure hypothetical to find out the degree to which people are willing to accept a compromise that tries to protect both sides.

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I like this comment thread to the post above by Jeffrey Thayne.

Jeffrey Thayne I would argue that a generic, frosted cake does not inherently carry expression, but a wedding cake does. By virtue of the fact that it is a wedding cake, it carries expressive meaning. It signals that what is happening is a *marriage*, or something very close to it. And so crafting a wedding cake for such an occasion, wether customized as a "gay" wedding cake or not, is an expressive activity.

The better difference would be buying a premade wedding cake off the shelf vs asking the artist to craft one specifically for the occasion.

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Bruce Nielson Thank you for the clear reply that followed what I asked for.

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Jeffrey Thayne To add to it, a wedding cake is more than just something for guests to eat. Whether specially customized to the couple or not, it carries ritual meaning and symbolism. And whether customized with special messaging or not, bakers are engaging in artistic activity when crafting them.

The distinction between premade vs. custom order cakes is important. One can decline create a custom order "world's best dad" two mug set. But one could not create a bunch of "worlds best dad" mugs but then decline to sell a man two of them if you think one is for his same sex partner.

Also, mug is a weird word.

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Nathaniel Givens I agree with Jeffrey.

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Kristopher Swinson I align somewhat with Jeffrey's explanation, even at the risk of appearing less compromising than may be desired. For a strained example, I've hired someone to do translation services for me and, in devising an hour reporting system, casually mentioned that I did not intend to pay someone to work on Sunday. In that case, I had no way or strong interest in checking up on that, but I made it clear enough I didn't wish to knowingly reward someone against my religious preferences.

With the cake, to my mind and for my purposes, conferring upon a same-sex marriage a cake stylized to celebrate union facilitates the celebratory in a manner against my conscience. There are conceivable scenarios where one partner simply comes in and orders a cake largely conforming to the traditional use, and then they adapt it themselves. However, if it came to my knowledge, I wouldn't want to use my craft as though upholding the rite.

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Kristopher Swinson One of the initial abuses of religious freedom against my Huguenot ancestors, eventuating in loss of professional standing, then property, then life, was mandating that they stand at attention in the streets whenever a Catholic festival procession came by. They were not allowed to so much as slip away. This tastes similar, in forcing more immediate involvement in a rite of a different belief. We proceed from rendering taxes unto Caesar to the forbidden leap of "swear by the Fortune of Caesar."

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Nathan Richardson I agree with Jeff's explanation, as a compromise. I still think the whole system would be better if people retained freedom of association and could just do or not do business with anyone they wanted. I think market and social forces are strong enough to counteract people who use their freedom in mean ways. And the obverse is increasing amounts of government coercion that just fragments society more and more. But yes, as a compromise, I think this outcome is satisfactory.

And the AirBNB one bothers me even more. Denying someone because they're Asian is of course ridiculous. But I don't want government to have the power to obligate people to let someone in their home or else forego an income stream. What if the client was using recreational-but-legal drugs? Or other similar scenarios? I think the world is big enough that we can just refer, and people can vote with their dollars.

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Jeffrey Thayne Nathan Richardson As a recovering libertarian, I still far prefer your scenario over any compromise. However, I do interpret the Fairness for All rhetoric from Church leaders as an invitation to find compromises like this, so as to defuse the culture wars (or at least not enflame them with doctrinairism). So on a practical front, I strive to find compromises that still preserve the most important core principles.

(By recovering libertarian, I mean that I still have a strong, nearly overriding preference for libertarian solutions as a matter of values -- freedom is still one of my core values. But I am less persuaded as I used to by the underlying logic used by many libertarians, so I find myself willing to compromise in some ways when politically necessary.)

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Nathan Richardson Agreed. I envision oodles of such practical compromises in the future.

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Bruce Nielson Jeffrey Thayne I think your point of view might come close to mine now. I am also not persuaded of the libertarian logic, but since they believe in free market, I think they are often right. But I think reality is that everything ultimately comes down to 'what do we need to do to accommodate everyone's concerns'. Thus, compromises.

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