Oregon appeals court upholds $135,000 cake fine

An Oregon appeals court has upheld the oppressive $135,000 fine levied on bakers Melissa and Aaron Klein, who turned away a gay couple’s wedding cake order [Whitney Woodworth, Salem Statesman-Journal] As I observed two years back, the use of ruinous fines to punish non-ruinous conduct is a wider problem in our law, not just here. The Oregon court did reverse one state finding related to the Kleins’ supposed announcement of a future intent to discriminate, to which I and others had taken particular exception.

As my colleague Roger Pilon put it about the Colorado case, “If there is intolerance here, it is from those who would force a man to choose between his religious beliefs and his livelihood.”

P.S. Eugene Volokh on the court’s main ruling and on the “threat to discriminate” sub-issue.


  • It is interesting to juxtapose the utter solicitousness of judges/bureaucrats to actual racial discrimination in things like college admissions with the utter ruthlessness in stamping out religious freedom.

  • http://reason.com/volokh/2017/12/29/calif-prosecuting-man-for-insulting-post

    Would the California authorities be prosecuting posts on other websites?

  • It’s punishing actions which discriminate against minorities, in order to make those considering discriminatory action, or carrying it out, change their minds.

    It’s a big fine, yes, apparently because the judges agree – at two levels – that one needs to really discourage such acts.

    The religious element is almost irrelevant. A couple of questions:
    – if the bakers had been Islamic, would you still be defending them so stridently? Answer honestly.
    – if the bakers had refused to make this on some other anti-gay basis (say, one of their siblings had been murdered by someone gay), would you still be defending them so stridently?

    Again, it’s about discriminating against minorities. That’s all. What the bakers believed isn’t relevant.

    • Welcome to our little blog, Charles. I assume your motive-spotting tone, your implication that you are unmasking bad faith, and your complaint of stridency are all addressed at what I wrote in my post, rather than at those who left earlier comments.

      Perhaps as a newcomer here you do not realize that the premises of my writing are libertarian, which means that I would defend the bakers’ right to decide the same questions for themselves if they happened to be Muslim or ideologically Islamist (“Islamic” is a solecism here, I believe) or motivated by some purely personal aversion.

      Had you realized those things, you might have phrased your questions in a less imperious and less absurd way. Happy 2018!

    • It’s also about forced speech & forced labor.
      The bakery owners would sell the couple any goods they had ready-made on the shelf.
      They refused to create a one-of-a-kind artistic cake to celebrate an event they have religious objections to.
      Nobody has a right to my labor or creativity. One can’t force art. One shouldn’t try.

      These principles apply to a an anti-semite painter that won’t paint a bar mitzvah portrait, a vegan architect who won’t design an abattoir, or a Muslim caterer who won’t cook pork ribs. It’s wrong to try to force them to, even if you strongly disagree with their decision.

    • “The religious element is almost irrelevant”

      Um, seriously? Given that the constitution speaks in terms of the “free exercise” of religion, your statement is antithetical to our constitutional tradition. Here the government is conditioning entry into the cake-making business on checking one’s religion at the door.

      As for your relatively contentious comments, I’d say that I would be more than happy to defend the right of an Islamic butcher to refuse to butcher pork. With respect to the :”whys” of the alleged animus, surely you understand that courts generally, for obvious reasons, do not get into the sincerity of one’s beliefs.

      There are, of course, hard cases. e.g., Islamic cab drivers refusing to transport seeing-eye dogs etc.

  • Charles,
    Why is government even involved? What happened to the right to refuse service? If it was me, I would have looked until I found a baker who would make the cake. I wouldn’t have gone crying to the government, unless I had an agenda that I wanted to push.

  • Charles,

    The couple could have walked down the street for five minutes and found another baker to make their cake. Nobody was or will be prevented from having any cake they want at their wedding.

    The question is, why was the government’s response so overwhelmingly out of proportion to what most people would consider a small annoyance? It looks to disinterested parties (like me) that the government is really just interested in suppressing religious thought, and is willing to do so with great verve and vigor upon the flimsiest of excuses.

  • What I don’t understand is how just the bureaucracy and an appeals court can order them to pay, without a jury trial. I know the 7th Amendment’s right to trial by jury has been held to not apply to states for some weird reason. But according to the Oregon constitution,

    In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial, as in civil cases.

    In all civil cases the right of Trial by Jury shall remain inviolate.

    In actions at law, where the value in controversy shall exceed $750, the right of trial by jury shall be preserved

    As you can see, whether this is civil or criminal, it appears that they should be entitled to a jury trial. So where’s the loophole that makes this legal? No matter what the law says, it can’t override the state constitution, right?