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.