John Corvino writes, of the narrowly decided Masterpiece Cakeshop v. Colorado Civil Rights Commission, that the Supreme Court punted on many of the substantive issues:
What counts as protected speech, and why? Does it matter if the cake is custom? If it has words on it? How do we distinguish messages that are integral to one’s identity as a member of a protected class and those that are incidental to it?
We suspect it does matter if the cake is custom, but that the focus on messaging is a red
velvet herring. To our minds, this isn’t primarily an issue of protected speech, at least in the sense being widely discussed in connection with the recent SCOTUS decision. Sherif Girgis and Robert P. George argue that custom wedding cakes bear expressive content, in particular, the recognition that the event the cake figures in is a wedding. We are skeptical about the prospects for this argument. As Chief Justice Roberts observed during oral argument, it’s hard to see why whether a cake is custom or not would make an expressive difference with respect to acknowledging the wedding as such. But the notion that a cake carries such expressive content strikes us as highly dubious in the first place. Setting aside any text or wedding imagery (which we assume would be a little too déclassé to be on offer in the first place from a cakeshop with ‘Masterpiece’ in its name), a wedding cake is just a really awesome cake. There is no systematic way to distinguish wedding cakes from other cakes on the basis of their intrinsic features. Wedding cakes are typically multi-tiered, but many high-end wedding cakes are one-tiered and there are plenty of other show-stopping alternatives to the multi-tiered cake. And, of course, multi-tiered cakes are often used to celebrate other occasions (including mermaid parties!).
Supposing that the baker does not believe that gay weddings are weddings, why think that a cake they bake for such an event carries the recognition that the event is a wedding? Wouldn’t it just be a fancy cake they baked for an event they see as a fake wedding? Being served at a wedding is what makes a cake a wedding cake; no one thinks that a cake has the power to confer wedding status on an event that’s not already a wedding, and baking a cake that will be served at an event that the baker does not consider a wedding surely does not entail assenting to the claim that it’s a wedding.
We don’t think the only question here is whether or not a cake carries expressive content that might conflict with sincerely held religious beliefs. Unsurprisingly, given the nature of this blog, we think the more important question is rather: but is it art???
There are two distinctions we need to draw before we can get where we’re going with this. First, we need a rough distinction between art and craft; a more rigorous distinction would require deciding on a substantive theory of art, and we’ll set that aside for now. As Socrates might put it, a craft is a practice that operates on the basis of knowledge of a set of principles. What sorts of materials and designs make for sturdy shoes? Water-resistant? Comfortable? Flashy? A custom shoemaker applies their craft knowledge to create a product according to a customer’s specification. Art is different: it does not proceed from general principles but rather from particular, personal inspiration. The second distinction is between commissioned and non-commissioned art. If an artist creates an artwork of their own accord and puts it up for sale, surely it would be wrong for them to refuse to sell it to a certain buyer for discriminatory reasons.
Commissioned art, however, is where we think the issue becomes significantly more complex. Artists are rightly afforded a great deal of latitude with respect to the creative projects they choose to adopt. Let’s start with some less controversial cases. Suppose there is a very talented African-American jazz musician whose work is generally recognized as artistically valuable. For the sake of the example, suppose that the singer also owns a music shop where she sometimes works the counter selling CDs. A white man named Billingsly Armstrong who runs a non-integrated private golf club down the road comes into purchase a CD, with the express intention of playing it in the club. The musician doesn’t have a good artistic reason to refuse his purchase, as distasteful as she might find the thought of her music being played in that venue. The music has been recorded, it’s for sale to the public, and Billingsly Armstrong is a paying customer.
But suppose further that Billingsly Armstrong and his friends really love the CD and return to offer the musician a handsome sum to give a concert at the club. The artist might have good artistic reasons for not wanting to perform in this venue for these people. Live performance involves feedback and inspiration from the atmosphere of the venue and the crowd’s energy, and she may not wish to perform amidst the country club’s atmosphere and energy. The artist should be afforded the freedom to refuse the performance invitation.
What exactly is the difference maker? Creativity is a highly personal thing to sell. Engaging one’s creative powers in a project commissioned by someone else is potentially alienating, and so artists are rightly afforded a high degree of autonomy about when they will commit themselves to such a project. When Billingsly Armstrong buys the CD, he buys the results of the artist’s creative process. When he seeks to commission a performance, he tries to buy the creative process itself. As a rule of thumb, artists should not be required to engage in alienated creative activity (unless already under contractual obligation, etc.).
One might object that live performance is a special case. We think, however, that the case generalizes to other forms of commissioned art. Imagine a painter is commissioned to paint a mural in the home of a wealthy couple that captures their purported loving relationship. As he produces sketches and studies for the project prior to finalizing the contract, however, it becomes clear to the painter that the wife is cruelly treated by the husband, who belittles her at every opportunity. As he works, he is consumed with the feeling that his planned painting, which presents their relationship in a positive light, would be a travesty. The artist can decide to reject the commission and abandon the project because they find it alienating to paint something they believe to be false.
Up to this point, we’ve chosen examples where the artist’s motivations are reasonable and palatable to our moral sensibilities. The possibility of alienation from one’s creativity, however, does not seem to require a good reason. Ill-grounded alienation is still alienation. We propose that there is a strong presumption in favor of artistic autonomy: one shouldn’t have to engage one’s creativity in ways one finds alienating. An artist with morally abhorrent views might be a bad person and a bad artist, but they don’t thereby forfeit their right to artistic autonomy.
To be clear, we don’t take a presumption in favor of autonomy to override automatically all other concerns, because the value of artistic autonomy must be balanced against other values, and that’s a job for political philosophers, legal scholars, courts, and the like. Our point is just that there appears to be a relatively strong norm against having to create art that one doesn’t want to create, and that it’s arguably distinct from the broader question of how equality should be protected in the marketplace.
So how does the apply to cakes? We don’t know what the necessary and sufficient conditions are for a cake to count as art, but we are damn sure that this cake is art:
But seriously: The baker should be afforded the relevant kind of artistic autonomy with respect to cakes for same-sex weddings only if his cakes are works of art and the commission in question would require him to deploy his creativity in an alienated way. Merely providing a customer with a range of flavors, fills, and colors isn’t enough. Promising to make a cake exactly how the customer wants isn’t enough. That’s the stuff of craft. But if the couple wants him to read their love letters and create an original cake-art masterpiece inspired by their relationship, that’s potentially a different story.
Status as art is a high bar that most wedding decorations won’t clear. Not everything done with great skill is art. Most wedding accoutrements — we’re looking at you, floral arrangements — don’t stand a chance because they’re clearly not art, they’re crafts. If there’s an artist out there who works in the medium of floral arrangement, that’s different, but the typical florist is not going to make the cut.
We remain agnostic with respect to Masterpiece Cakeshop, because we don’t know enough about the particulars of the case. It’s possibly a hard question whether or not the cakes they produce qualify as art, but we think this is the question we should be focusing on, not the question of whether the cakes have messages baked into them.
 “It is evident that none of the rules of composition are fixed by reasonings a priori, or can be esteemed abstract conclusions of the understanding, from comparing those habitudes and relations of ideas, which are eternal and immutable. Their foundation is the same with that of all the practical sciences, experience; nor are they any thing but general observations, concerning what has been universally found to please in all countries and in all ages. Many of the beauties of poetry and even of eloquence are founded on falsehood and fiction, on hyperboles, metaphors, and an abuse or perversion of terms from their natural meaning. To check the sallies of the imagination, and to reduce every expression to geometrical truth and exactness, would be the most contrary to the laws of criticism; because it would produce a work, which, by universal experience, has been found the most insipid and disagreeable.” -Hume, “Of the Standard of Taste”