Coercion 1, pluralism and liberty 0

An Oregon hearing officer recommends $135,000 in damages against Melissa and Aaron Klein, owners of Sweet Cakes by Melissa in Gresham, Ore., who had declined to cater a gay wedding on grounds of religious scruples [Oregonian, earlier]


  • Liberty for many gay couples across the nation: 1

    Liberty for a single business, who were setup Primarily to sell produce and NOT as a place of worship: 0

    Happy with that.

    • Your scales of justice are a bit unbalanced there. You think only a single business loses liberty? First, it’s *every* business, not just one. Second, it’s the PEOPLE who own the businesses who lose their liberty. Businesses are just an abstraction.

      And for what? We aren’t talking about refusing to let someone buy a house here. We aren’t talking about refusing medical care. We aren’t talking about being unable to buy groceries, or open a bank account, or ride the bus. We’re talking about a wedding cake. It’s a once in a lifetime purchase for most people. It’s also something they plan well in advance, so a refusal by one business is not going to have any serious negative impact. Heck, in the worst-case scenario where nobody would be willing to sell a cake, they could just bake one. For that, you’re willing to sacrifice someone’s conscience.

      And you think $135,000 is an appropriate fine for one act of discrimination? Shouldn’t there be some sense of proportionality?

      And gay marriage was not even recognized by Oregon at the time. It wasn’t even a recognized “wedding” as far as the state was concerned.

      And… it’s doubly frustrating to read this kind of story after a story about Operation Choke Point, where businesses are told by regulators that they need to discriminate against legal but unfavored businesses like gun dealers and strip clubs.

      “who were setup Primarily to sell produce and NOT as a place of worship”

      You don’t shut off your religion when you go to work. You don’t get a free pass on a sin because you were on the clock at the time. And it’s not like you’d even care if there WAS something about religion in the business charter.

      The next time you see a story about a business that pursues profit over morality, just remember: You were the one that told them they weren’t allowed to pursue both.

      • I have no qualms of a business being forced to not discriminate over a person. (The person actually doing the making of the cake had the option to get someone else to do it.)
        Perhaps i am a liberal wuss. Never the less. that’s what i believe. No one has yet managed to convince me that this is materially different that discrimination in the 50’s. It involves no actual real hardship for the business, so why not?
        If its a one or two person business, i may have some sympathy, but as this place had a couple of people working for them, none here.

        The fine, well stupid fines have been a part of the US legal for a long time now. Welcome to the US legal system.

        “And gay marriage was not even recognized by Oregon at the time.”

        “You don’t shut off your religion when you go to work.”
        If you find you get to work and cant do you work because of your beliefs, then you find someone who isn’t offended by the work involved and get them to do it.

        “The next time you see a story about a business that pursues profit over morality, just remember: You were the one that told them they weren’t allowed to pursue both.”
        Most businesses do already. Those that don’t get their directors replaced…

  • If liberty means anything, it means the government must force cake bakers to cater gay weddings, because a gay couple that has to shop around for a caterer can’t really be “free.” And of course, if we allow bakers to refuse catering gay weddings, Jim Crow will immediately return.

    Did I just about sum up the leftist argument on this?

    • Dem,

      There are two competing interests here:

      1. Religious liberty of service providers to discriminate against anyone who you say your religion says you should discriminate against.

      2. The right of everyone to receive services.

      At some point, one or the other has to give.

      Our society has said that religious convictions mandating discrimination based on skin color should be prohibited. The question here is whether religious convictions mandating discrimination based on secual orientation should be prohibited.

      At some point, we have to draw the line. On one extreme, we can allow any discrimination based on any reason. On the other extreme, we can forbid any discrimiination based on any reason (eye color, hair style, intelligence, athletic ability?).

      I think there is a legitimate argument that discrimination on the basis of sexual orientation is not harmful enough to society to require it be forbidden. There is also a legitimate argument to the contrary.

      I would point out that some, if not many, of the objections to laws against discrimination based on race were based on religious convictions.

      To say that religous liberty is paramount is to invite anarchy at worst, and an inefficient society, at best.

      • Allan, why do you consider number 2 a right? Under what moral context do I have a right to claim another person’s labor?

        I don’t offer this flippantly, but as a legitimate question as your argument seems to presume there is a conflict of rights here. Why did this gay couple have the “right” to get this cake? Or any cake for that matter? What claim do they have on the labor of any baker beyond the baker’s willingness to make them a cake?

        • People have the right not to be discriminated against based on certain factors. That is a societal choice we have made. The same as the societal choice we made to allow religious liberty.

      • Allan,

        Just a quick response to your points.

        1. Religious liberty not to be compelled to participate in a competing religious ceremony with which you disagree.

        2. There is, so far as I am aware, no such right. We do not, in fact, have a right to receive services. That places an onus on the provider of services, after all. To take the simplest of discriminatory reasons, we do not compel people to provide services to those who cannot pay. So that, right there, should do away with the idea this is a right.

        We have indeed prohibited discrimination based on race. Due to our history, I’ve generally accepted that as a necessary evil. On the other hand, I’ve heard this stretched to encompass so many other things, including sexual orientation, that I increasingly wonder whether that was a bad idea – those slippery slope arguments sound ever more convincing.

        However, I’m unsure why we have to draw a line. We can, and should, say that our government cannot discriminate – that’s fine. I’m less certain why we need to prohibit it in private dealings. If someone refuses customers, that just opens opportunity for someone else.

  • A key legal issue here is the validity of “Administrative Law”.

    This prosecution case was conducted by an “administrative law judge” for the ‘Oregon Bureau of Labor and Industries’… and initiated by government “prosecutors” employed by that same state agency. The whole setup is blatantly unconstitutional & unjust… but the governments in the U.S. are rarely discouraged by such trivia.

    You have an Executive branch government agency creating its own rules/regulations (laws) and enforcing those laws with its very own judicial system.
    How convenient ! — all three branches of government (executive, legislative, judicial) combined into one powerful agency, run by un-elected bureaucrats.
    (unfortunately this outrageous setup is commonplace across America).
    Administrative Law and its evil entrails should be totally abolished.

    Of course the most fundamental legal issue here is “Freedom of Association” — a basic human & Constitutional right… that was illegally stripped away from Americans by the Federal 1964 Civil Rights Act.

  • So, Allan, it seems as if you have vaguely adopted the “Jim Crow will return” argument. Frankly, it is just silly to believe that to maintain our existing civil rights laws as to race and sex, we need to also force bakers to cater gay weddings. The circumstances are so different as to defy comparison — a black who could not eat at a lunch counter in 1950s Alabama is nothing like a gay couple in 2015 who might be refused catering by a smattering of bake shops.

    Whatever religious liberty may have been at stake in the case of race was exceedingly minimal, while the case for prohibiting racial discrimination was quite strong. In the case of gay weddings, the religious liberty claim is much stronger — though you and I might think it silly — whereas the “liberty” interests of the gay couples is virtually non-existent.

    • Dem,

      What? I don’t think that allowing discrimination on religious grounds will lead us back to Jim Crow days. I do think that it is a legitimate public policy choice. And I note that religious convictions can lead to the argument that anything is ok. We would not allow human sacrifice, even it were part of a religious rite.

      your second point is a valid argument. We may not agree as to the strength of the liberties involved. That is a public policy choice. IMHO, if your business is open to the public, it is open to the public. If you sell wedding cakes, you sell them to everyone. If you don’t, you don’t.

      What I wonder is what would happen if a gay couple asked for a cake with two guys on top and the baker refused to put them there. That is the sort of speech that probably should be protected.

  • $135,000 is a grossly excessive damage award.

    People fired from their jobs typically get less than this in emotional distress damages. See, e.g., Hetzel v. County of Prince William (reducing damage award to less than this).

    The award is so ridiculously large that it seems to designed not to compensate, but to terrorize people who share the archaic beliefs of these small business owners. It’s like $500 in genuine emotional distress damages, plus $134,500 in punishment for thought-crime.

  • “The right of everyone to receive services”


    You mean, the right of everyone to confiscate the labor of others?

    If that is not what you mean, please explain this fascinating “right”.

    • Of course not.

      If you do not want to provide a service, don’t open a business offering the service. If you want to open a business, hyou should be willing to provide the service without discriminating on what is considered an illegal discriminatory basis.

      • If you want to open a business, hyou should be willing to provide the service without discriminating on what is considered an illegal discriminatory basis.

        Most likely this discrimination wasn’t illegal when they opened the business. These laws are fairly new.

        At some point, you have to either work for a business or own a business, unless you want to starve. So saying “you shouldn’t own a business” doesn’t help anyway.

  • Would it be unconstitutional to close business on Christmas or whatever one’s holy day?

    This is where letting people just get along makes the most sense. If there was demand,, and most demand hor cakes for gay marriage would play out shortly after a change in law to allow gay marriage,.bakeries would advertise for business. “We love serving anyone in love”. for example. If there were only one bakery in town, residents could appeal to it to serve the occasional same sex couple, or some lady could offer to bake the cake as a wedding gift. OK, OK – some resident could so offer.

  • You got it right Hans. It is meant to terrorize people into complying. It is meant to keep people from speaking out, while a minority of a minority obtains it’s revenge.

  • So refusing so cater a mixed race marriage on the basis of “religious scruples” would be a victory for liberty…

    I just want one libertarian Republican to say it – “I’m in favor of bigots who run businesses being able to refuse service to anyone for any reason”, which is the classic Walter Block “defending the undefendable” style libertarian. It’s also political suicide, which is the real reason I suspect no one is willing to trumpet it from their rooftop …

    Be well,
    Dave H.

    • I just want one libertarian Republican to say it – “I’m in favor of bigots who run businesses being able to refuse service to anyone for any reason”, …….

      And I just want one person from the other side of the aisle to say it – “my bigotry which forces people to act against their religious or moral beliefs is superior than a belief that allows people to make their own choices.”

    • … yes. Yes, if it’s really against your beliefs to do so, you should be able to refuse to cater a mixed race marriage. (This is not to say that I think doing so would be a good thing.) And yes, it would be political suicide to take that viewpoint.

      There’s a sliding scale of necessity vs luxury, I think. Hospital emergency rooms cannot discriminate on any basis, even an inability to pay, because a refusal of service would often literally lead to someone’s death. But when we’re talking about wedding cakes, it’s all the way up on the “luxury” side of the scale.

      I think there’s also a difference between refusing to serve black people or gay people in general, and refusing to serve the wedding itself. It’s literally a celebration of something you find to be immoral.