Come on, John, I know you’re out there….
Even if one believes that the refusal of Sweet Cakes to make a wedding cake for a gay couple was a dubious exercise of religion as well as a mean and petty one, the astounding punishment levied on the now defunct bakery’s owners must be condemned as an abuse of power.
Having already lost their bakery business due to mob action online by Gay Marriage Advocate Furies, Aaron and Melissa Klein were walloped by former Oregon Labor Commissioner Brad Avakian with a $135,000 judgment for “emotional damages” to the couple. He also issued a gag order on the ex-bakers that forbids the Kleins from explaining to potential customers of Sweet Cakes their anti- same-sex wedding policies.
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UPDATE (7/9): This is, I have learned, an overly simplistic description. Ken at Popehat explains what’s really going on as far as the “gagging” goes.
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Of course—I guess I can’t really say “of course” if such a travesty can occur—no state can order anyone not to talk about anything in such a situation. The unconstitutional gag order is essentially moot, since to violate it the Kleins would have to still own a bakery and they do not, but it still acts to intimidate others and chill freedom of speech. It must be challenged and overturned. The fine is also unconscionable, and effectively makes villains out of the originally aggrieved couple if they don’t immediately agree to waive it. There is a duty in law to mitigate damages: the couple could and did minimize the harm of their cake request’s rejection by obtaining a wedding cake elsewhere. The Kleins didn’t stop them from getting married, and any harm that came to them from the publicity of their humiliation by the bakery was exacerbated by the couple’s own actions, not the Kleins’. $135,000? That’s beyond punitive. That’s vengeance.
The damages are allegedly supposed to compensate the gay couple for the various maladies they suffered as a result of being rejected. The rejection was unethical—I have strong doubts about whether it was illegal—but the couple’s complaints make the word “stretch” look like a stretch. Among them:
- “Felt mentally raped, dirty and shameful”
- “Dislike of going to work”
- “Doubt”
- “Pale and sick at home after work”
- “Sadness”
- “Felt stupid”
- “Loss of sleep”
- “Excessive sleep”
As Ed Morrissey writes regarding the silly list,
I hate it when excessive sleep combines with loss of sleep to result in … what, exactly? Normalcy?
I had not seen the list before, and it is asinine. What the hell is “mental rape”? Since when is “doubt” a compensatable malady? A fair and rational commissioner would take one look at such a list and conclude that this was a kitchen sink list devised in a brain-storming session and designed to cash in.
Maybe I’m Pollyanna, I have to believe that there exists somewhere in Oregon an openly gay and intensely ethical lawyer—even better, a same-sex married pair of lawyers, like in “Adam’s Rib”!— who like John Adams in the Boston Massacre case realizes that the system’s treatment of parties that he or she could consider foes is unjust and a threat to citizens everywhere. Such a lawyer will recognize that the Kleins’ punishment represents a threat to all citizens, and is an illegal, unethical and unconscionable abuse of power. Imagine the benefits to all involved—the Kleins, society, and the lawyer— if that gay lawyer took on the Kleins’ cause pro bono, and won.
Such a heroic, principled and compassionate act might remind the Kleins, as well as others of their mindset, that gay people can be admirable human beings, and that treating them otherwise is neither ethical nor Christian, whatever one thinks one has a right to do. It might even cause gay social justice warriors cheering every official punch to the Kleins’ metaphorical solar plexus to understand that it cripples the cause of tolerance, acceptance and diversity for them to respond to ignorance with cruelty and hate.
Come on, John! I know you’re out there. Get to work. Your country needs you.
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Spark and Facts: Hot Air
Ethics Alarms 
First, thanks for the reminder about Adams and the Boston Massacre… I’d forgotten that moment in American history.
Second, I agree with you. This borders on train-wreck status, as no one, least of all the original aggrieved party (and their lawyer), is looking very good about now.
Third, you might want to proofread paragraph 2–looks like you changed directions in mid-sentence.
Oh-oh. The 7 AM post problem. I’m checking now…
ARRHHHHHHHHHHH!!!!! Just read it, Nothing like changing a subject into an object mid-sentence, and back again. I’m an idiot. I should be fined $135,000.
As a representative at large of the Grammatically Correct Union, I can accept your fine on behalf of the English Language.
(It should be noted, fine collectors such as myself aren’t strictly required to be perfect in our use of grammar… A liberty I indulge in often)
Maybe I’m polyallah, but in the Kleins’ case I am consoled by the Ethics What Goes Around Comes Around Principle. I have to believe there exists somewhere in Oregon an element of ISIS that knows the names and address of the newly caked-and-eating-it-too couple. Oh, Jack, please don’t think I am alluding to any threat of violence; ISIS needs that $135,000 for a good lawyer, just for a start, and somebody must eventually out-do the Clintons at foundation fund-raising. Let’s just say it would be in that couple’s best interests to hand over all that money to ISIS.
Polyallah! Is that original? That’s wonderful!
It came to me as I thought of my first sentence, playing off of what you wrote about Pollyanna. With the way my brain works (or doesn’t), I can never be sure if I am borrowing a term or imagining a new one. I don’t believe I have seen or heard it before.
You had to find that picture? On July 4th? I’m brainstorming a lawsuit. I’m already losing sleep over it.
I was proud I found it. I was looking for “gay John Adams.”
“Vengeance is mine,” sayeth the LGBT Industrial Complex. Today’s word is “vindictive.” Can you say “vindictive” boys and girls?
You are hoping against hope, Jack. I think the fault lies mainly not with the couple, unless there is evidence that they shopped around looking for a Christian bakery to say no so they could sue, but rather with the commissioner, who was either bitterly angry or looking to make a name and move up. There’s probably immunity from suit on the commissioner’s part, and, if case law in Oregon wrt administrative decisions is anything like it is in NJ, such decisions are entitled to deference unless there is either plain error or they are against the weight of the credible evidence. No judge in his right mind is going to rule this was plain error, and it’s all too easy to say the credible evidence is something not to be disturbed, because no judge wants to face the voters with every rainbow warrior out for his hide. Maybe the appellate court will rule the gag order unconstitutional as a plain First Amendment violation three or four years down the road, after a ton of money and time is expended, but there is no saving the Kleins. This is the new normal, where you better toe the line and closed issues are closed. It’s a classic Pyrrhic victory, where one group got what it wanted, but it came at the expense of making us all a little less free.
Have faith. Gay John Adams won’t let us down. With luck, he even identifies as Abigail.
Gay Sekulow?
Even though the continued arrogant “We will obey God’s law, not Man’s” utterings from the perps practically invite a citation for contempt of court, should those words be put into action… the court here is contemptible.
$135,000 is so manifestly unjust and unreasonable that the case should be thrown out with prejudice. As should those responsible for the obscenity that is the gag order.
Even on the basis of Realpolitik, this travesty of justice should be fought by GLBT legal groups. The trouble is that all of them put together don’t have the budget of any of the top 4 opponents – Liberty Council, PJI etc.
It should be fought by everyone else too.
So when is a same-sex couple going to walk into a Moslem-owned bakery, order a wedding cake, and then sue when the baker says no?
When?
WHEN?
And if not…why not?
Not to hard to figure out. You can fill in the blanks yourself.
This is what I get for believing MSM….
http://www.thenewcivilrightsmovement.com/brint/almost_everything_you_heard_on_the_sweet_cakes_case_is_false
The agency announced the order in a press release, writing:
The BOLI Final Order awards $60,000 in damages to Laurel Bowman-Cryer and $75,000 in damages to Rachel Bowman-Cryer for emotional suffering stemming directly from unlawful discrimination. The amounts are damages related to the harm suffered by the Complainants, not fines or civil penalties which are punitive in nature.
The Final Order notes that the non-economic damages are consistent with the agency’s previous orders, such as an earlier ruling against a Bend dentist In the Matter of Andrew W. Engle. In that case, BOLI awarded a Christian employee $325,000 in damages for physical, mental and emotion suffering due to religious discrimination and harassment.
According to BOLI’s reasoning, a portion of those emotional damages resulted from the Kleins’ public statements and actions in response to receiving the complaint.
“The Agency’s theory of liability is that since Respondents brought the case to the media’s attention and kept it there by repeatedly appearing in public to make statements deriding Complainants, it was foreseeable that this attention would negatively impact Complainants, making Respondents liable for any resultant emotional suffering experienced by Complainants. The Agency also argues that Respondents are liable for negative third party social media directed at Complainants because it was a foreseeable consequence of media attention.”
And apparently the “gag” bit is wholly fictional.
“Conservative media outlets, like Breitbart and several others, and hate groups, like the Family Research Council, ran with that — posting stories that the Kleins had been subjected to a gag order by the state. That’s factually incorrect. The Kleins have not been issued a gag order, nor are they prohibited from speaking about the case, as they and others allege.”
Come on, ZB, I trust your fairness, and that post is just a lefty version of Breitbart. Why has no one else picked up on this “misrepresentation”? Because it isn’t one.
I wrote: “He also issued a gag order on the ex-bakers that forbids the Kleins from explaining to potential customers of Sweet Cakes their anti- same-sex wedding policies.” Explaining their policies is prohibited under an order that says they can’t “promote” their policies. Are you arguing that it’s not a technical gag order? “gag” order isn’t a legal term anyway, but a descriptive one. It says they can’t say something. Gag.
Meanwhile, THIS..
According to BOLI’s reasoning, a portion of those emotional damages resulted from the Kleins’ public statements and actions in response to receiving the complaint.
…is worse than I thought. They are fined for talking to the news media and telling their side of the story! Outrageous.
It’s more complicated than that, and also more complicated that my post implied.
http://popehat.com/2015/07/08/lawsplainer-so-are-those-christian-cake-bakers-in-oregon-unconstitutionally-gagged-or-not/
THAT’s ridiculous. The social media “harm” was as much the fault of the complainants. Also totals $135,000, which is what we were told, and which remains ridiculous. “The The Final Order notes that the non-economic damages are consistent with the agency’s previous orders, such as an earlier ruling against a Bend dentist In the Matter of Andrew W. Engle. In that case, BOLI awarded a Christian employee $325,000 in damages for physical, mental and emotion suffering due to religious discrimination and harassment.”
At best, an “everybody does it” excuse: “we’ve done this before.” But that was a ruling against an employee, not a customer.
Surely you can’t defend this decision, zoebie. It’s indefensible.
See the final ruling:
Click to access Sweet%20Cakes%20FO.pdf
In particular :
There are three issues here – first, ambulance-chasing and what many could reasonably view as unjust compensation for torts in general in the local environment. “Many” includes me, BTW.
Second, should compensation be based on actual harm or reasonably foreseeable harm? If one slaps someone in the face lightly in an illegal but minor battery – should the compensation be based on the negligible harm such an action would be likely to cause, or the actual harm (bruising due to haemophilia, and subsequent death due to undiagnosed leukemia).
Here the complainants, on the evidence, by their own special circumstances, genuinely had glass jaws. Harm done was out of all proportion to the original offense, or so the court found. It would be dangerous for me to second-guess them from a distance, I don’t see that the award was manifestly unreasonable, even though I may have come to a different conclusion had I been the judge.
Third, had a lesser award been granted, this would rightly be seen as inconsistent with other, arguably unjust, awards in the past, leading to the conclusion that some pigs are more equal than others. Is the injustice due to inconsistency more harmful than the injustice in awards in general? The rot has to be stopped somewhere.
Not an easy one. I’d recuse myself from judgment here. It may be cowardice, but without knowing more about the law in Colorado, previous cases, and seeing the witnesses when they gave testimony, I can only think that it’s not a good decision, not be sure. It is a defencible one, even if I wouldn’t defend it.
I don’t think it’s defensible in the least. A tort victim has the duty to mitigate harm: this couple magnified it by their own actions. $135,000 as a penalty for being assholes is too much by miles. If I knew the store would be put out of business and fined that amount when at most it was an inconvenience, I would not even complain. This case didn’t help gay-straight understanding, it worsened it.
Oh don’t worry – the respondents have raised well over the $135,000 in donations from their publicity campaign, as planned. They’re making out like bandits, with plenty left over to run the appeal to keep the money flowing in.
Being the right kind of asshole pays well, if you can drum up enough publicity.
And they’re still in business, they moved to an online presence only, as have many businesses. No need for an expensive to run shopfront.
The first GoFundMe site raised $109,000 before it was blocked.
The money is now coming from Samaritans Purse and other sites.
http://www.huffingtonpost.com/2015/04/25/sweet-cakes-by-melissa-online-fundraiser-_n_7139894.html
Ka Ching!
Their online store : http://www.sweetcakesweb.com/
The fact that someone pays your excessive fine doesn’t make it less excessive, or more just.
True – it should make no difference. Moral luck comes into play (regarding the plaintiffs anyway).
Even if the evidence strongly suggests that it was a money-making venture from the start. The money continues to roll in, they may even get more than the $840,000 the pizza shop owners got, though their expenses are higher too.
https://video-nrt1-1.xx.fbcdn.net/hvideo-xtf1/v/t43.1792-2/11399347_633890066713679_1862561904_n.mp4?efg=eyJxZSI6InZpZGVvX3ByZWZlcnJlZF90YWdzXzIwMTUwMTIxLHRoZV9sYXVuY2hlZCIsInJsciI6MTUwMCwicmxhIjoxMjA0fQ%3D%3D&rl=1500&vabr=412&oh=dc06d2ebc77976d4258fd2c6eb984ce5&oe=55A1219A