2015.66: The Unlawful Sweetcakes Order

 Posted on July 12, 2015 in Uncategorized

You've probably heard about the bakers in Oregon penalized $135k for refusing to bake a wedding cake for a lesbian couple. You probably haven't read the order. I have so that you won't have to.

(It's long-3,000-plus words-so tl;dr: The facts are fascinating, but if you must, jump over the facts to the conclusion.)

You may have heard that the bakers were also ordered not to talk about the case (true) or that they were fined for doxxing the couple (false). ((Posts to that effect are based on this language in the order:

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 the media attention.

That is the Agency's theory of liability, that is, one party's argument. What did the Commissioner think of that theory?

The Commissioner concludes that... the facts related solely to emotional harm resulting from media attention do not adequately support an award of damages.

So the wildly popular theory that the Kleins paid damages for doxxing the Bowman-Cryers is based on a reading-comprehension failure. (See also Eugene Volokh on this subject.)

Should the Kleins have paid damages for doxxing the Bowman-Cryers? Well, no, if for no other reason than that they didn't dox them. They published the first page of the Bowman-Cryers' complaint, on which the Bowman-Cryers had put their address, on their Facebook page for less than a day at a time that they had 17 "friends." The Oregon Department of Justice sent the same information to the media two weeks later.

Even if the Kleins had researched and published the Bowman-Cryers' identities, liability would not be appropriate: people seeking state to have the state punish other people risk community scorn, and ought to.))

The Kleins violated Oregon Revised Statute 659A.406; this is pretty clear: acting "on behalf of a place of public accommodation" they "denied full and equal accomodations" because of the Bowman-Cryers' sexual orientation when they refused to bake a wedding cake for them. The Kleins do not appear to have disputed that they (actually, he, but she was held jointly and severally liable) violated 403; the issue is whether their right to exercise their religion trumps the statute. ((My view is that it does. The Kleins should be free not to do business with the Bowman-Cryers, just as I am free not to do business with the Kleins.))

The Kleins were also found liable for violating Oregon Revised Statute 659A.409: publishing a communication to the effect that services would be withheld on account of sexual orientation. This finding is on shakier ground: their strongest indication that they would continue withholding services on account of sexual orientation was this note on their door:

This fight is not over. We will continue to stand strong. Your religious freedom is becoming not free anymore. This is ridiculous that we cannot practice our faith. The LORD is good and we will continue to serve HIM with all our heart. [heart symbol]

If 409 is not facially unconstitutional, it is unconstitutional as applied; by finding that statements like that violate 409 and enjoining further violations of 409 the Commissioner of the Oregon Bureau of Labor and Industries, Brad Avakian, enjoined the Kleins from making statements like "the fight is not over." (See also Popehat on the subject.)

But I want to talk about the damages in this case. The Commissioner could not order a fine or penalty. In fact, he gertrudes:

In [this] order, the forum considers the extent of Complainants' emotional suffering and the cause of that suffering; and the appropriate amount of damages. Any damages awarded do not constitute a fine or civil penalty, which the Commissioner has no authority to impose in a case such as this. Instead, any damages fairly compensate RBC and LBC for the harm they suffered and which was proven at hearing. This is an important distinction as this order does not punish respondents for their illegal conduct but, rather makes whole those subjected to the harm their conduct caused.

So $135,000 is, in his opinion, fair compensation to RBC and LBC for the emotional suffering caused by Aaron Klein's refusal to bake them a wedding cake.

Nonsense.

This is Commissioner Avakian sending a message-a message that, as he notes, he has no authority to send-to people who would politely decline to participate in gay marriages. To justify the huge sum, he goes at length into the Bowman-Cryers' mental suffering, most of which has only a tenuous relationship to the Kleins' conduct.

When RBC asked AK to bake her a cake, AK "stated that he was sorry, but that Sweetcakes did not make wedding cakes for same-sex ceremonies because of AK's and MK's religious convictions." Not exactly the stuff of nightmares.

RBC began crying. She felt that she had humiliated her mother, CM (who was with her) and was anxious about whether CM was ashamed of her. (CM had come to terms with RBC's homosexuality recently-she "had believed that being a homosexual was wrong until only a few years earlier" than the cake incident.) CM walked RBC out of the store; RBC "became hysterical and kept telling CM ‘I'm sorry' because she felt that she had humiliated CM."

"In the car, CM hugged RBC and assured her" that RBC had not humiliated her. Just kidding. CM assured RBC that "they would find someone to make a wedding cake." ((Protip: when your grown child becomes hysterical about a cake, it's not about the cake.

This is mostly true of non-grown kids too.))

CM drove a short distance, then returned to Sweetcakes to talk to AK alone, leaving RBC in the car "bawling." CM told AK that she used to think like him, "but her ‘truth had changed' as a result of having ‘two gay children.' AK quoted Leviticus 18:22 to CM, saying ‘You shall not lie with a male as one lies with a female; it is an abomination.'" Which would be a pretty shitty thing to say to the mother of two gay children, unless said mother had subscribed to the same philosophy herself until recently.

So that's the end of the matter, right? RBC, already bawling in the car, doesn't need Leviticus quoted at her; she needs a mother's love. It would have been a crappy cake anyway. I mean, how could a heterosexual pastry chef possibly be any good?

Oh, no. Because, apparently addicted to drama, CM returns to the car, where her child has been bawling while CM discusses theology with AK, and tells RBC "that AK had told her that ‘her children were an abomination unto God.'" Since she had raised RBC as a Southern Baptist, her telling RBC that AK thought she was an abomination (a message that RBC had surely gotten from church and family, including CM, for most of her life) "made her feel as if God made a mistake when he made her, that she wasn't supposed to be, and that she wasn't supposed to love or be loved, have a family, or go to heaven." In other words, all of the feelings that had made her flee Texas (whence she and her brother had moved so that they "could be more accepted in the community") for the Pacific Northwest.

CM drove RBC, still crying, home, where LBC asked what had happened, and Drama Mama CM related to LBC what AK had told RBC and what AK had told CM-"your children are an abomination." Raised Catholic, LBC recognized the Leviticus quote, and was "shocked." ((Gambling in Casablanca?)) LBC took AK's words to mean "‘this is a creature not created by God, not created with a soul; they are unworthy of holy love; they are not worthy of life.' She immediately thought that this never would have happened if she had not asked RBC to marry her and felt shame because of it. She also worried that this might negatively impact CM's acceptance of RBC's sexual orientation."

LBC tried to soothe RBC. RBC pushed her away. "LBC lost her temper and started yelling that she ‘could not believe this had happened' and that she could ‘fix' things if RBC would just let her." ((We are getting a clear picture of unstable people raised in dysfunctional families.))

One of LBC and RBC's two foster daughters was "extremely agitated from events at school that day." LBC could not calm her, and RBC was unavailable (presumably because she "continued crying and spend much of that evening in bed"). LBC did not know how to handle the situation. That night, she was "very upset, cried a lot, and was hurt and angry."

CM called Lauren at the wedding venue and told her that Sweetcakes, whom Lauren had recommended, had refused them cake service. She also posted a review on Sweetcakes's Facebook wedding page and on another wedding website recommending that gay couples avoid Sweetcakes's "because they discriminate against gay people."

Lauren emailed RBC and LBC wanting the details. That evening (same evening she was unavailable to console her young daughter) RBC emailed Lauren back: "This is twice in this wedding process that we have faced this kind of bigotry"; this is an interesting detail unexplained in Avakian's order.

LBC, the partner who got the story from CM, filled out an online complaint form with the Oregon DOJ. She stretched the truth ((In his order, Avakian found that LBC "had a strong tendency to exaggerate and over-dramatize events...Her testimony was inconsistent in several respects with more credible evidence." In short, she was not a truthful witness.)) a bit: "Today...we went for our cake tasting.... We were then informed that our money was not equal, my fiancé reduced to tears."

RBC's brother AC got home and had a 30-minute conversation with LBC and RBC about what happened.

All of that happened on the first day, January 17, 2013.

The next day, RBC "felt depressed and questioned whether there was something inherently wrong with the sexual orientation she was born with and if she and LBC deserved to be married like a heterosexual couple."

The church she came up in would say that she and LBC did not deserve to be married; her mother would, until recently, have agreed; but these thoughts became Aaron Klein's fault when he refused to sell her a cake. ((As though by compelling us to treat strangers nicely the state could erase all our self-doubt and emotional pain.)) RBC spent most of the day in her room, trying to sleep.

The days following were rough. RBC had difficulty controlling her emotions and cried a lot; LBC and RBC argued because RBC couldn't control her emotions. "They had not argued... since moving to Oregon."

RBC became more distant in her family relationships. She and her brother AC were not as close "for a little bit." She questioned whether she could be a good mother because of her difficulty controlling her emotions. ((What parent hasn't?)) She was still "very sad and stressed" a week later.

LBC felt "extreme anger, outrage embarrassment, exhaustion, frustration, intense sorrow, and shame as a reaction to AK's refusal to provide a cake. She felt sorrow because she couldn't console E, she could not protect RBC, and because RBC was no longer sure she wanted to be married.... she was not sure she could protect RBC if any similar incidents occurred." ((It's interesting how people fall into stereotypical gender roles.))

Drama-queen CM took over responsibility for contacting the wedding vendors. She found a gay-friendly bakery (amazing!) and made an appointment. CM did most of the talking until they got to the design of the cake; the bakery charged $250 for the cake (which AK would have charged $600 for).

The Oregon DOJ sent a copy of the complaint to AK; AK posted a copy on his website. He had only seventeen friends (though the page was apparently public), and he took down the posting the same day. Meanwhile, one of LBC's friends ((More drama!)) emailed her to tell her to look at the posting. LBC did, and called the couple's lawyer. ((The complainants had lawyered up.))

On February 1, LBC found out that AK's refusal to make their wedding cake had made the news. She may have found out because RBC got a call from a talk radio host and called LBC.

The couple became afraid that their foster children would be taken away. ((The "Love Joy Feminism" blog post that started the "doxxing" rumor also said that "State officials told the Bowman-Cryers that if they couldn't protect the foster children in their home from the harassment that resulted from the Klein's public posting of their home address, etc., they would lose the children." This is untrue: they had been instructed, before the cake incident, that it was their responsibility to make sure that the foster children's "information was protected.")) LBC's headaches increased; she felt intimidated and became fearful. Their lawyer sent out a press release requesting privacy.

There was a protest outside the bakery on February 9th; RBC and LBC both made comments on the Facebook page organizing the boycott "in which they indirectly identified themselves as the person who sought the wedding cake and thanked people for their support."

On February 12, 2013, the Oregon Department of Justice emailed a copy of the complaint to the media. The findings of fact do not mention whether DOJ redacted the complainants' names and addresses first-a fact that Avakian surely would have mentioned had it been true.

After the DOJ publicized their complaint, LBC had a confrontation with "an aunt who had physically and emotionally abused her as a child and also owned all of the family property": "the aunt insisted through social media that LBC drop the complaint. She also called LBC and told her she was not welcome on family property and she would shoot LBC ‘in the face' if LBC ever set foot on the family's property in Ireland or the United States." LBC was devastated "as it meant she could not visit her mother or grandmother, both of whom lived on family property. ((See the note above about Commissioner Avakian's comments on LBC's testimony.))

Meanwhile, "RBC's sister, who believed that homosexuals should not be allowed to get married, wrote a Facebook message to teh Kleins to tell them that she supported them. This was a ‘crushing blow' to RBC, and it hurt her and made her very angry at her sister."

From February 1, 2013, "many people have made ‘hate-filled' comments through social media and in the comments sections of various websites that were supportive of Respondents and critical of or threatening to Complainants. These comments and the media attention caused RBC stress, anger, pain, frustration, suffering, torture, shame, humiliation, degradation, fear that she would be harassed at home because the DOJ complaint with Complainants' home address had been posted on Facebook, and the feeling that her reputation was being destroyed."

"The publicity from the case and accompanying threats from third parties on social media made RBC ‘scared' for the lives of A, E, LBC, and herself."

I assume that Avakian included all the facts "necessary to provide context to Complainants' claim for damages" and omitted all the facts irrelevant to that claim. For example, if he hadn't considered, as part of their damages claim, the fact that people were shitty to them on the Internet, ((Gambling in Casablanca?)) he would have omitted that fact. If someone had harassed the complainants at home he would have included that fact.

Consider how things might have been different had CM-who until recently might herself have quoted Leviticus to LBC and RBC-kept her mouth shut after talking to AK. While RBC was very upset by the denial of cake, it was CM's words to her that had her doubting her worthiness. LBC's reaction, too, was not triggered only by AK's refusal to bake the cake, nor by AK telling RBC that she was an abomination (he didn't), but also and more significantly by CM telling LBC that AK had told her, CM, that "her children" were an abomination.

What's really going on here? CM's recent acceptance of RBC's sexual orientation is so tenuous, in the view of RBC's life partner, that the baker quoting scripture is a threat to it. I hunch that, consciously or not, CM wanted LBC and RBC to feel shitty about their sexual orientation.

If someone says something shitty to you about me, and you relay it to me, you are not doing me a favor; any emotional harm I suffer as a result is on you. The burden should have been on the BOLI to show that any emotional harm was caused by the Kleins. But Commissioner Avakian made no effort to distinguish between the effect of the denial of accommodation, and the effect of CM stirring up trouble.

AK never initiated contact with the media. He did not give the complainants' names to the media. He never told the media anything but the truth. Even if he had done more to spread the story than post the complaint for a few hours and respond to media inquiries, it would not be appropriate to hold him responsible for the Internet's reaction to the story: if you sue someone and people find out and say mean things about you, the defendant is not liable for your hurt feelings. Yet Avakian did not try to distinguish between the effect on the complainants of the denial of accommodation and the effect on them of filing a complaint with the state.

We take our victims as we find them, and someone breaking the law by refusing accomodation based on a forbidden distinction assumes the risk that the potential customer is on the edge of breakdown already because of incompetent parenting and a repressive upbringing. But he doesn't and shouldn't assume the risk that the potential customer's family will make things worse.

So the Kleins are not responsible for CM telling RBC and LBC that AK told CM that her gay children were an abomination. Nor are they responsible for any of the effects of that statement.

The Kleins are not responsible for LBC's aunt threatening to shoot her in the face.

The Kleins are not responsible for RBC's sister not supporting her against the Kleins.

The Kleins are not responsible for the community's response to LBC and RBC's complaint. They are especially not responsible for others' hateful comments.

RBC and LBC were not harassed at home. The Kleins are not responsible for RBC's fears that they would be.

The Kleins should no more have to pay for the harm that Rachel and Laurel Bowman-Cryer suffered because of the complaint they filed than they should get credit for the free cake the Bowman-Cryers got from Charm City Cakes.

By including in his assessment these myriad effects that the Kleins had nothing to do with, Avakian shows his true and unlawful intent: to punish the Kleins and make an example of them disproportionate to the damage that they caused.