Cake Decorator: Artist or Specialist Retailer?
By Bill Arnett
When I first heard about the Denver gay marriage wedding cake case I thought, "Wow. Clear example of discrimination." We learned today that the Supreme Court has ruled, 7–2, in the baker's favor. I went and read the decision (skimmed it, actually), after which I thought, "Wow, cake decorators are artists?" That's essentially what the case hinged on: Is a cake decorator an artist or a specialist retailer. At what point does a part-time grocery store cake decorator moves up the bakery food chain to becomes a pastry artist due all of the free speech rights and privileges we reserve for writers, poets and musicians?
Let's swap some specifics of this case to make things more clear and assume this baker is actually a painter. No disputing he is an artist, although his work is mostly in the fantasy genre (this will be important later). He has a shop that sells finished paintings and he will also take commissions. One day a customer comes in and asks the painter to prepare a painting of his grandfather decked out in his service uniform. Doesn't seem like a problem, until our painter learns that the uniform the grandfather is to wear is that of a KKK grand wizard. At this point our painter, like any person with half a brain in their head and heart in their chest, says, "No. I won't do it. I find the KKK morally repugnant and will not use my artistic skills to paint your grandfather."
This is perfectly legal. He's an artist. His work is a form of artistic expression. How could he be compelled to paint it? Would a policeman stand over his shoulder, to make sure he's giving it his best effort? Could anyone else step in and do the painters job? Yes, but it wouldn't be the same painting. It's a free speech case with an extra level: we are free to say whatever we want (duh) but we also can't be compelled to say something we don't want to.
Back to the example: the potential customer is furious and turns to leave. On his way out he see a finished painting of a fantasy wizard and offers to buy it. Our painter, through gritted teeth, says, "Yes, you may purchase it. As a licensed commercial retailer I am obligated to sell you any of my stock that you are willing to pay for regardless of how I feel about you as a person." The man buys the wizard painting, leaves, and is immediately hit and killed by a car (at the subsequent funeral no one cries for him). As our painter runs out to see what happens he sees that the painting has survived without a scratch. He looks in amazement as the wizard in the painting gives him a knowing wink.
If our painter had refused to sell the painting on moral grounds then yes, a court could compel him to complete this transaction. Besides, anyone else could step in and run the credit card and the end result would be identical. This is why Kim Davis went to jail. Clerking for the county is not a form of artist expression and anyone could perform her job identically.
Is a cake decorator an artist? Tough question. The decision was very narrow so it will be difficult to apply it in other circumstances but I'm sure some racists, bigots, and homophobes will try. Are barbers artists? Or bartenders? Or chefs? Could they refuse to share their artistic expressions with others they disagree with? Not looking forward to sorting out who is and isn't an artist... we can all agree that Hobby Lobby sure as heck isn't, right?