The problem with cake

Cake has been getting attention lately, not because it’s delicious and should be enjoyed by all (which it is, and should be), but because it’s the subject of a controversial hearing about free speech. Specifically, whether it’s OK or not for a homophobic baker to refuse to bake a wedding cake for a gay couple. The baker in question, the Washington Post informs us, also refuses to make Halloween cakes for religious reasons:

To be compelled to do so would, he says, violate his constitutional right to speak freely. This, he says, includes the right not to be compelled to contribute his expressive cake artistry to a ceremony or occasion celebrating ideas or practices he does not condone. Well.

The First Amendment speaks of speech; its presence in a political document establishes its core purpose as the protection of speech intended for public persuasion. The amendment has, however, been rightly construed broadly to protect many expressive activities . Many, but there must be limits.

These limits include the fact that he was not asked to be physically present at the wedding or to otherwise participate in any way apart from providing the cake in return for a fee. The journo goes on to explain that a 1964 Civil Rights Act in the US compels any business to “serve all who enter” (ergo, when the couple in question walked into the bakery to order a wedding cake, it was their right to be accommodated). Except when “someone claimed his or her conduct was speech expressing an idea and therefore created a constitutional exemption from a valid and neutral law of general applicability.”

I’m not here to talk about or argue either law or ethics (because I can’t), but rather the absurdity to a lay person like myself of how the jurisprudence of this case eventually devolves into whether cake does, or could, constitute an expression of an idea, which basically means whether baking is art or *just* baking, the former of which would mean that the baker in question is protected by his appeal to his right to exercise free speech by refusing to engage with someone.

Previous research has led me into the murky waters of whether a recipe is copyrightable, thanks mostly to a case, back in 2006 (when there were no rules about how to behave on the Interwebs – thankfully we’ve all learned and abide by them now🤣) of “culinary plagiarism” – basically a restaurant in Australia copied dishes from one in the US, which was obviously uncool, but got the food media world scratching their heads about intellectual property rights of food and recipes. If this interests you at all, go read “On the Legal Consequences of Sauces: Should Thomas Keller’s Recipes be Per Se Copyrightable”, and “Intellectual Property Protection for the Creative Chef, or How to Copyright a Cake: A Modest Proposal”, but the take-home is that recipes (and food generally, therefore) can’t be copyrighted unless they contain some “expressive” narrative element which elevates them into a linguistic expression rather than just a set of instructions. So “Chop parsley” belongs to the commons (have at it), while Elizabeth David’s “Chop the parsley very finely indeed” is a work of literary expression, and the garlic butter for snails it contributes to, a work of art.

Because I am neither a legal scholar nor a philosopher, this is where I draw a blank (stare of confusion) trying to reconcile laws around freedom of speech and debates about whether a goddamn cake is an artistic expression. So if it can be proved in a court of law that said baker’s creations are works of art rather than a delicious result of the magic of eggs, flour, sugar etc and heat, then he is vindicated from not wanting to share that “art” with people he doesn’t respect on the principle of free speech (or rather the principle of being free not to “speak” to someone he doesn’t like)? Is that different from Alice Waters’ stance that she would refuse to serve Donald Trump if he suddenly pitched up at Chez Panisse, as she recently declared on Dean & Deluca’s Live from Prince Street podcast?

The author of the WaPo piece took the unwavering position that by bringing charges against the baker, the gay couple who were refused a wedding cake by one baker behaved “abominably”, for having “caused him serious financial loss and emotional distress”, and while they “might be feeling virtuous for having done so … siccing the government on him was nasty.”

I’m conflicted about the rightness or wrongness of any of this, which is ultimately futile, because the court will decide on the “appropriate” response and legal action, if any, this coming Tuesday. But I do feel sad about the fact that cake has been dragged into in a case of homophobia, apparent violation of free speech, and any other heinous infringements of basic human rights that people attribute to it. It’s as confusing to me as the My Little Pony movie is to Mark Kermode – where there’s apparently a joke about cake, and cake “going everywhere where it’s not supposed to go (and then there’s some stuff with hippos, and then there’s some fly-ey around stuff, and then there’s some colour, and then there’s some talking, and some more colour, and I have absolutely no idea).”

It’s a confusing time to be alive.

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