That isn’t what artistic expression means
But the people who are trying to claim that a bakery refusing to make a cake for a gay couple’s wedding or a reception is the same sort of refusal are being more than a bit disingenuous. The judge in the Colorado case does a great job of explaining why this argument (and others) don’t hold up. I’ll quote the most salient part:
The undisputed evidence is that Phillips categorically refused to prepare a cake for Complainants’ same-sex wedding before there was any discussion about what the cake would look like. Phillips was not asked to apply any message or symbol to the cake, or to construct the cake in any fashion that could be reasonably understood as advocating same-sex marriage. After being refused, Complainants immediately left the shop. For all Phillips knew at the time, Complainants might have wanted a nondescript cake that would have been suitable for consumption at any wedding. Therefore, Respondents’ claim that they refused to provide a cake because it would convey a message supporting same-sex marriage is specious. —Administrative Law Judge Robert Spencer
As the Judge acknowledges elsewhere (as part of his explanation about how different forms of expression are or are not legally determined to be considered Constitutionally protected speech), decorating these sorts of fancy cakes does require a lot of skill and artistry. But in most cases, the only message anyone who looks at the cake is going to receive is, “That’s a pretty cake!”
If the people asked the baker to make a cake shaped like two penises, the baker would then have a leg to stand on with the artistic expression argument. But even then, the response as a businessman should be, “We don’t do that kind of cake here. Here’s some examples of the sorts of things we will do.” Creating a particular cake may be a form of artistic expression, but deciding whether or not to serve a customer is not.The Colorado case is a good example of this whole issue because Colorado doesn’t have marriage equality. This case (as all of the others that have made the news) are resulting in legal action because of much older anti-discrimination laws, not because of any new “gay marriage” law. The anti-discrimination law says that, if you’re a business offering products or services for sale to the public, you can’t refuse service to someone because of their race, gender, religion, ethnic background, or sexual orientation. You can refuse service to someone who vandalizes your store. You can refuse service to someone who has refused to pay a previous bill. You can refuse service to someone who insults or assaults your employees or your other customers.
But you can’t refuse service to someone simply because of who they are. And these laws don’t create special protections for gay people. That phrase, “sexual orientation” includes all orientations. You can’t refuse to serve someone just because they’re straight, either.The folks defending these bakers are all claiming to be oppressed victims of the Gay Gestapo or something. But their arguments all come from a place of privilege. They aren’t oppressed minorities. They suffer from that myopia that only people who are used to being entitled have. Another good example is that Carolina legislator who fought hard to enact a tuition voucher law that would allow parents to use taxpayer money to help pay tuition at private religious schools, who became outraged when a group of muslim families in her state used the vouchers to offset the cost of sending their children to an Islamic school, also in her state. She was incensed and apoplectic… (and it was all caught on tape). Later, after things had been explained to her, she gave a faux apology by explaining that it just hadn’t occurred to her that religious meant any religion other than Christianity. And it really is that they don’t think of any of those other religions as “real.” Similarly, they don’t believe that straight people are protected by the anti-discrimination laws because they don’t believe that the concept of sexual orientation describes a real phenomenon. They believe that people perform homosexual acts, but they don’t believe that people are homosexual. Some very prominent people have insisted quite recently that gay people don’t exist. The fact that the priest who said that is also the leader of a group trying to cure gay people shows just how twisty their grasp of logic is.
They think that sexual orientation is a delusion, and so the only people who have one are us homos, therefore the only people that anti-sexual-orientation-discrimination laws apply to are us. Similarly, the only religion they think is real is theirs (as in, their specific interpretation of it), therefore the only people for whom religious liberty applies is them, therefore anything that doesn’t let them force their religious beliefs on others is restricting religious liberty.
All of which explains why they think that refusing to make a cake for a gay couple’s wedding reception is artistic expression. They don’t understand what artistic expression is:
The aim of art, the aim of a life, can only be to increase the sum of freedom and responsibility to be found in every man and in the world. It cannot, under any circumstances, be to reduce or suppress that freedom, even temporarily. —Albert Camus