Mar 6, 2018

How a US judge decided ‘artistic expression’ was a legitimate defence of discrimination

A recent ruling out of the US has raised big questions about discrimination and the first amendment, but it also says a lot about our views on the nature of work.

Last month, a California Superior Court upheld the right of a baker, Cathy Miller, not to “design or create” cakes intended for same-sex wedding celebrations. Judge David R. Lampe ruled that forcing her to do so would violate Miller’s first amendment rights. A cake in this circumstance is not just a mixture of butter, flour, eggs and sugar designed to appeal to human taste buds, but a symbol, which can be taken to express certain views.

The ruling hinged on the idea that a cake for Miller is an “artistic expression”, and therefore something akin to speech. The court specified that if it had been a “retail tyre shop” refusing to supply tyres to a same-sex couple, anti-discrimination laws would have applied. Equally, a cake prepared earlier would not have qualified -- this is why Jimmy Kimmel’s skit on the subject had a waiter offering a lesbian diner one of yesterday’s salads. But because a custom-made wedding cake is a form of “expression”, obliging Miller to fill the order would constitute “compelled speech”, and so violate her rights under the free speech clause.

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6 thoughts on “How a US judge decided ‘artistic expression’ was a legitimate defence of discrimination

  1. Roger Clifton

    I for one am grateful to all the production artists who plod through an 8 hour day, applying more rhythm and momentum to their efforts than inspiration, while flattering the norms and values of their intended market. By alienating their own passions of the moment from their creation, they maximise their sales and income as surely as any self-employed worker.

    Perhaps more personally involved would be the graffitist defiling a clean wall, working with excitement and speed lest he be caught by a furious owner and beaten to a pulp. Perhaps that is art in the sense described above. However it would be art in the same sense if he were caught and the bloodied body were to be nailed upside down on the aforesaid wall. That is, of course, once the owner is aesthetically satisfied with the result of his efforts.

  2. Camm

    Graphic designers just became an awfully privileged lot in California.

  3. kyle Hargraves

    Is the matter really so complex?

    “The part of the recent ruling that implies certain views about the nature of artistic work is secondary to the legal argument.”

    The fundamental legal argument, one might have thought – in regard to the contract – would be the existance (or otherwise) of “offer and acceptance”. Clearly the merchant did not accept the offer. The reasons are irrevalent.

    “It doesn’t really matter to the free speech case that we can imagine Miller’s hypothetical distress, were she obliged to make an artwork that violated her religious beliefs.” – .mmm : hypothetical? Just how did this adjective come to to be justified?. But in any event, the statement is tantamount to the point mentioned (3rd paragraph). As an aside “religion” seems to be a vehicle for which an exemption can be made for anything.

    “But outside of the free speech argument, how deeply Miller believes that same-sex couples shouldn’t be married is irrelevant. ” Its irrelevant because the sentement cannot be quantified. The whitness cannot be connected to a “sencerity meter”.

    “This comes dangerously close to recognising homophobia and other discriminatory attitudes — provided they are “heartfelt” — as valid grounds for discrimination.”

    Now, apparently, we really are confused. Free speech either exists or it doesn’t. Of course, with every right there is a corresponding responsibility but, apparently, when analysising corporate tax for the ABC free speech does not exist; in fact it might be career-limiting. Ditto for so called Orwellian initiatives such as “hate speech” legislation and ipso facto desires to satinise the world.

    Alternatively, religious views ARE “valid grounds for discrimination”; particularly in Semitic-based religions (where there any amount of injunctions against particular practices). If “religious views” are to be recognised then ANY view is to be recognised; in the former case it is not a matter of logic although it could be argued that over millennial intervals the rules for community conduct possess an empirical foundation.

  4. zut alors

    Tradies have an effective method of not undertaking work for clients they view as undesirable or problematic ie: they add another nought to the price of the quote. This tends to keep them morally intact.

  5. AR

    I first sought bedsitters in 60s London when the notes in newsagents stated quite clearly “No Irish, no blacks”.
    I thought this was fine – it showed me where not to go.
    As with open carry of guns by those so lackin’ that they need to be packin’ in the Benighted States – bugger “concelaed carry’ licences.
    I would much rather I know what sort of cretins and moral vacuums abound so that I can avoid them.

  6. warwick fry

    I would have thought that the case(s) of commissioned works of art that don’t satisfy the client could have been invoked. I recall the magnificent mural of Diego Rivera commissioned by Rockefeller. (I think a price tag of US$2 million was involved). Rockefeller had it destroyed because Rivera refused to remove portraits of Trotsky and Lenin.

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