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Having your cake, wedding, speech, and art, and eating it too

Even the act of peeling a potato can be an artistic act if it is consciously done. – Joseph Beuys

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“Mr. Chief Justice, and may it please the Court: The First Amendment prohibits the government from forcing people to express messages that violate religious convictions. Yet the Commission requires Mr. Phillips to do just that, ordering him to sketch, sculpt, and hand-paint cakes that celebrate a view of marriage in violation of his religious convictions.”

So began the oral arguments before the Supreme Court earlier this month in the now-famous lawsuit between Jack Phillips, the owner of Masterpiece Cakeshop of Denver, and David Mullins and Charlie Craig, a gay couple, who are suing Phillips for refusing to make a cake for their wedding.

In this opening statement by the lawyer Kristen Waggoner, on behalf of Masterpiece Cakeshop, there was no mention of baking, but rather “sketching, sculpting, and hand-painting.” Nor was there any mention of decorating, but rather of “expressing a message.” The rest of the text of the oral arguments is just as curious, if not downright weird. I delighted in reading it, laughing out loud at the surreal (so to speak) conversation. The case is ready-made (so to speak) with potential puns, word play and jokes. What I found most extraordinary was the amount of time devoted to the question of art, and if baking a cake constitutes an art work. The upcoming decision, it seems, does not hinge on free speech or civil rights, but rather: Can a cake be art, or more succinctly, what is art?

When I first learned about this case, I immediately concluded that Phillips is an ignorant bigot and that clear civil rights violations occurred. If Woolworths must serve lunch to anybody who sits down at their counter, then a baker must bake for anyone who asks him to. It’s obvious. Cake closed. But once they dragged art into it, the arguments are not so clear. Logic fails me on this one. Just when I think I’ve got it, I reckon with numerous “what if’s/devil’s advocate” examples that throw a wrench in the works.

After all, when the Supreme Court decides a single case, it determines almost all others to follow. It’s a blanket decision. By the time a case reaches the Supreme Court, one may feel fairly confident that some big, unresolved question lurks, otherwise the Supreme Court would not agree to hear it. It is then the duty of the Court to weigh the perceived social axioms in conflict, and try to establish a justification that aligns with the supposedly self-evident truths of the Constitution.

At the time of this writing, the jury is still out, and will be until next year when a decision is expected. But after attempting to hash out the questions posed by the various justices, it seems that if the court decides that cakes and baking are art, then judging by their questions, they will opine that the baker has virtual carte blanche to say or do almost anything he wants. As long as it’s art. It’s as if art resides in the rare air above the fray of loaded politics and civil rights.

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Anything is art if an artist says it is. – Marcel Duchamp

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But wait. That’s not true. The phenomenon of governments, and in particular the United States government, deciding what is art or not is not abstract (so to speak). I too, at public gatherings in the early 1990s, railed against Jesse Helms and his ilk. I too advocated to free the yams and urine. Mine wasn’t the first degenerate generation, and we won’t be the last.

Goebbels views the Degenerate Art exhibition, 1937. Image courtesy of Wikipedia.

Goebbels views the Degenerate Art exhibition, 1937. Image courtesy of Wikipedia.

Isn’t eliminating the cloud cuckoo land chasm between art and life the entire goal of 20th-century art? Where does one draw the line (so to speak) between them? Indeed, this was the specific question asked by Justice Kagan.

In an article in the Washington Post about the case, Roxanne Roberts wrote “And so the intersection of cake and art is complicated, to say the least.” This gets my vote as quote of the year.  Where, exactly do cake and art intersect? Other than existing in the same universe, I’m not sure. I think they exist in the same intersecting place as art and grass, or art and roller coasters, or art and tires. Hmm…

Gene Pool, Grass Car and Grass Suits, 1992, Art Car Parade, Houston (L. to R. - Gene Pool, Sasha Sumner, the author.)

Gene Pool, Grass Car and Grass Suits, 1992, Art Car Parade, Houston (L. to R. – Gene Pool, Sasha Sumner, Michael Galbreth)

 

Carlsten Höller, Untitled (Slide), 2011. Installation view: Carsten Höller: Experience, New Museum, NYC. Photo: Benoit Pailley

Carlsten Höller, Untitled (Slide), 2011. Installation view: Carsten Höller: Experience, New Museum, NYC. Photo: Benoit Pailley

 

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Art is anything you can get away with. – Marshall McLuhan

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Claes Oldenburg, Floor Cake, 1962

Claes Oldenburg, Floor Cake, 1962

I am for ready-to-cook art, eat better art, ham art, pork art, chicken art, tomato art, banana art, apple art, turkey art, cake art, cookie art… I am for an art that grows up not knowing it is art at all… – Claes Oldenburg

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Many people mistake art with design, and good art with elaborate and/or high-end design. It may be sometimes, but that it not its essence. If it is, it is not what I do nor the art that I am interested in.

If baking is not expression any more than walking is, and if a cake is not art, and if it’s nothing more than mixed and decorated flour and sugar (actually, pretty sculptural now that I think about it) then Phillips is indeed nothing more than a bigoted asshole who has broken the law and that’s that. But every time I reach this conclusion, I snatch from out of thin air examples of art work and artists who directly and convincingly contradict this conclusion. The problem escalates into a gigantic, logically explosive uh-oh. It’s not only turtles all the way down, there are infinite amounts and varieties of turtles extending infinitely in all directions. If everything is art, then nothing is art. If everyone is special, then no one is.

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Every human being is an artist. – Joseph Beuys

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I myself will take stupid-but-not-evil over not-stupid-but-evil any day. I don’t believe either party in this case is evil. But something’s wrong. I can, in a stretch, see it both ways. But I know that that eventually won’t fly, as a decision will be reached. Both may be, but one must be, wrong.

If progressive people (and aspiring progressive people) want to protect their right of free speech, to “create” in an unrestricted, free manner, they should side with the baker, regardless of how reprehensible he may be, and how painful his stance is for the progressive person. If Serrano can dunk a plastic crucifix into a vat of pee and piss off Christians (so to speak), then why can’t Phillips not bake a cake in order to fuck with (so to speak) homosexuals? But then this protected bigotry, i.e. “speech,” would apply to potato peelers, tire changers, and anyone in any service situation. Is “No Shirt, No Shoes, No Service” a type of bigotry?

Put another way, do you support a peaceful, ordered society where everyone is treated equally? Or do you say, “I don’t know what I like but I know what art is”? If this is then the case, the rights of the individual, regardless of harm to society, is paramount. Law then devolves into the realm of philosophy and the age-old conflict between the one and the many.

Display, Masterpiece Cake Shop

Masterpiece Cakeshop

 

Wayne Thiebaud, Cakes (1963), National Art Gallery Washington, oil on canvas 152×183 cm

Wayne Thiebaud, Cakes (1963), National Art Gallery Washington, oil on canvas 152×183 cm

I recently had a lively discussion about this whole escapade with two artist friends of mine. Each is of an age to have been around the block a couple of times, both have degrees in art, and both have decades of knowledge and experience under their belts. Each felt strongly about the issue. Given that I maintain complete photographic memory and the capacity for total recall, here is that verbatim, 100% accurate, word-for-word conversation:

Artist No. 1: Look, it’s a cake. It’s not art. The guy’s not an artist, he’s an asshole.

Me: Agreed. No doubt. But what does that have to do with it? How many artists do you know who are assholes?

Artist No. 1: Yeah… You’re right about that. But you and I both know this is not art. It’s a fucking cake!

Me: But can’t a cake be art? How many artists do you know who work with food? How many do you know who use food, and eating food, as their art?

Artist No. 1: Yeah… .

Artist No. 2: I don’t want anyone telling me whether I’m an artist or if what I do is art!

Me: But what about other art experts, like Museum Curator X?

Artist No. 2: Fuck Museum Curator X! Look, isn’t that the point — to have complete freedom with your work?

Artist No. 1: I don’t care if he’s an artist or not. I’m coming at it from just plain decency. He’s an asshole. You and I know he’s not an artist and that cake is not art. That’s just the way I feel about it and that’s that.

Me: Fine and valid. But what does how you “feel” about it have to do with the law? The court’s obligation and responsibility is to weigh the facts without passion or prejudice and to come to a decision. And this decision will have ramifications for all of us, not just the baker and the couple, and for a long time. In essence, the court is trying to decide what is art or what is not. Do you want the government deciding this?

Artist No. 1: No way! But this is different. He’s just selling cakes.

Me: Well, maybe. But can’t selling be art? What about Warhol? Or Damien Hirst?

Artist No. 2: You can have your art and eat it too!

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Making money is art and working is art and good business is the best art. – Andy Warhol

But money is a massively important thing in the world, so I want to take it on, too. I don’t think you can make art without considering it. – Damien Hirst

Art is making something out of nothing and selling it. – Frank Zappa

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Portrait, 1959. Cover of The Saturday Evening Post, February 13, 1960. ©1960 SEPS: Licensed by Curtis Licensing, Indianapolis, IN. All rights reserved. Norman Rockwell Museum Collections.

Norman Rockwell, Triple Self-Portrait, 1959. Cover of The Saturday Evening Post, February 13, 1960. ©1960 SEPS: Licensed by Curtis Licensing, Indianapolis, IN. All rights reserved. Norman Rockwell Museum Collections.

 

sign in Masterpiece Cake Shop

Sign in Masterpiece Cakeshop

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The name of ‘artist’ is an insult. – George Grosz

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The Art Guys, wedding cake served at CAMH for the reception after the ceremony for The Art Guys Marry a Plant (2009). Cake baked at Kroger.

Some conservative pundits have argued, quite convincingly, that it’s only a cake, for goodness’ sake. No one is preventing anyone from getting married, so get over it, leave the bigot to his own small-mindedness, and please consider buying your cake somewhere else. There is some “live and let live” validity to this reasoning. For example, the nearby Le’Bakery Sensual, bakes wedding cakes, LGBTQ cakes, erotic cakes, custom cakes, art cakes, and even “uncategorized cakes.” (I think that about covers it.) Why David Mullins and Charlie Craig didn’t first go there seems like an oversight. Unless, of course, they were trying to prove a point about civil rights.

Gay Orgy Cake, as advertised by Le’Bakery Sensual

Gay Orgy Cake, as advertised by Le’Bakery Sensual

I have no doubt that the baker believes in his religion-based bigotry. I’m convinced about that. But I’m not convinced that he is convinced that he is an artist. I’d guess many (most?) others are skeptical, too, including bakers. But who’s to say? The Supreme Court? If the Supreme Court can determine that a corporation is a person, then why wouldn’t it decide that a cake can be art? I’m not so sure I’m comfortable with that.

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In art, the only one who really knows whether what you’ve done is honest is the artist. – Bruce Nauman

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In the midst of a recent conversation with a friend who is an architect about what architects actually do and architecture in general, he shared how important it was to maintain one’s architectural license and that you needed to have a license to be called an architect. I commented that it was also the case with lawyers and doctors. We laughed that artists are outside the sphere of needing a license to “practice.” I shared with him that a conceptual, absurdist idea I’ve had for years was to issue art licenses — to declare someone an artist and bestow upon them the title of artist whether they were or not, and to start a whole bureaucratic system to award “art licenses.” I still like that idea.

However, cake is not art according to Duff Goldman, an authority on baking cakes, as he stated in the authoritative publication People Magazine.

And yet, how is this not art?

Nascar Cake by Duff Goldman (Yes, the car is an actual cake.)

Nascar Cake by Duff Goldman (Yes, the car is an actual cake.)

Art? Artistry? Artisanship? Craft? Decoration? Is art protected free speech? The mind (or at least my mind) reels.

A decision by the Supreme Court is expected next year. They’ll need all the time and help they can get. I here now publicly offer my services of advice for the justices, for a fee of course. But why wait? I say we join the nearest tribe, grab a virtual pitchfork, and decide for ourselves in the court of of public opinion (i.e. unsocial media). Now that’s a government of the people, by the people, and for the people if there ever was one.

So there you have it, dear reader. I’ve (sort of) reached a decision (for today, at least) and I’m sticking to it (until I change my mind). But then again, what do I know? I’m no artist.

William Wegman, Reading Two Books, 1971 

William Wegman, Reading Two Books, 1971

 

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3 Responses

  1. Christina Rees

    The whole matter is upsetting to those of us who believe that art (even angry or absurd or anarchic art) is some combination of brutally honest and (therefore?) redemptive and/or worthy, and/or worthy of protection. Intention of course is key — the original intention of the artist, and the intention of the defense — and Phillip’s lawyers are cynically screwing with that fundamental point. The Court should throw the whole matter out as spurious.

    What you’ve done here is present the conundrum progressives must face with fear and loathing— we uphold our right to call “our” art Art, but the social conservatives (who would happily censor us at every turn) are sly and brutal, and don’t at all care about of our deep historical investment in the question “What is art?” The current political right is pretty pathological, after all. (Lee Atwater made sure of that.) When Phillips’ defense lawyers picked the “but this is art” argument, they were attempting to beat us at our own game and highjack our established arguments for protecting art from censorship, and as you write, in this political shit-show environment they could win this case. And then all bets would be off. Everyday service-industry bigotry (and much more) will be protected by law, no matter how gross and harmful it is.

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