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.

The headline here, of course, is whether the baker is being let off on a technicality. The state argued that it is discriminatory for a business to refuse service to a group of people because of the owner’s religious beliefs, and civil rights groups are understandably alarmed by the precedent this case (and the similar Colorado case now before the Supreme Court) could set. But at the risk of trivialising an important issue, the thing that intrigued me about the judge’s ruling was the distinction it makes between activities that involve “artistic expression” and other kinds of work.

The legal point about defining the cake as “artistic expression” is that, in a nuptial context, a block of red velvet sponge encased in icing can be a bearer of meaning. But the ruling also implies some assumptions about what it is supposedly like for an artist to produce an artwork. It seems worse to ask an artist to create an “artistic expression” that “offend[s] her heartfelt religious principles” than just asking someone who objects to gay marriage to pour drinks at a gay wedding. It would be more like, say, asking a Chinese dissident to write a poem in praise of President Xi Jinping. The main point of the ruling is that the cake carries meaning. But it also suggests, albeit subtly, that an artist suffers harm when she is forced to go against her “heartfelt … principles” in a way that an ordinary service-provider or craftsperson can’t.

This rhetoric relies on a very familiar idea about the nature of art, as opposed to other kinds of productive activity. We get right away that an artist can’t just mechanically go about making a work of art, without letting her convictions get involved. That might be fine for washing dishes. But to call something an “artistic expression” suggests that the artist must be deeply, emotionally involved with what she’s doing.

Familiar as it is to us, this sharp distinction between the fine arts and other kinds of work has not held true for all cultures at all times. In Western societies, it did not really take hold until the 19th century. One early exponent of the idea that art and work were categorically opposed to one another was the German poet and philosopher Friedrich Schiller, who lamented the way that the modern division of labour had turned people into one-sided cogs. This argument led him to draw a stark opposition between art and work, which anticipates in some ways the logic of the California ruling. Any given job, he argued, only requires some of the worker’s faculties, but it is in the nature of art to engage every part of a person’s personality.

For Karl Marx, writing during a period of rampant industrialisation, the dehumanising nature of modern work was more directly connected to the capitalist system of production. Marx famously used the term “alienated” to describe labour that is sold to an employer, rather than being used for the worker’s own ends. Part of what this means is that labour under capitalism did not express the will or personality of the worker: rather, as far as the worker is concerned, “the product of labour” is an “alien object”.

The part of the recent ruling that implies certain views about the nature of artistic work is secondary to the legal argument. 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. But it is an important part of the ruling’s rhetoric. The description of Miller’s beliefs as “heartfelt” and “deeply held”, used in conjunction with the idea that she is an artist, implies that using her skills to express views she disagrees with would be distressing for her.

But outside of the free speech argument, how deeply Miller believes that same-sex couples shouldn’t be married is irrelevant. To imply that it isn’t suggests that the strength of one’s objections to other people’s lives and choices should be taken into account in discrimination cases. This comes dangerously close to recognising homophobia and other discriminatory attitudes — provided they are “heartfelt” — as valid grounds for discrimination.

John Attridge is an academic at the University of New South Wales.

Peter Fray

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