As I write these words an Oregon administrative law judge is hearing arguments about how much damages the owners of the now closed Sweet Cakes bakery must pay for refusing to bake a wedding cake for a lesbian couple.
If the judge accepts the $150,000 fine proposed by state civil rights investigators, it will clearly be a gross injustice. As Pooh-Bah in the Mikado put it, “My object all sublime is to make the punishment fit the crime….” Can any reader believe that $150,000 fits this particular violation of the law? I do not know anything about the financial situation of the Sweet Cakes owners, but for most owners of a small business having to pay this much money would undoubtedly ruin them.
And how much damage did the bakery’s refusal to bake a cake actually cause the couple? Let’s assume that the value of the couple’s time is $100 an hour and that it took them two hours to locate another bakery which was willing to bake their cake. Perhaps they needed to drive around Portland burning $50 in gasoline in pursuit of the cake. Voila: Damages: $250.
All this is assuming that the law under which this case arose is valid, constitutional, and reasonable, which is doubtful. Duty-to-serve-everyone rules applying to innkeepers and restaurants are so reasonable that they existed under English common law centuries before antidiscrimination legislation was enacted in the U.S. Travelers, not least in the old days when transportation was very slow, were often at the mercy of a single local innkeeper or restaurant, and if arbitrarily refused service they might have nowhere to sleep or eat.
The more recent legislation under which the Sweet Cakes case arose considers a much wider range of businesses to be “places of public accommodation.” But as the Sweet Cakes case illustrates, there is a big difference between hotels and restaurants, on the one hand, and places which bake wedding cakes, on the other hand. Wedding cakes are ordered well in advance, so there is nothing like the time pressure confronting a traveler seeking a roof under which to sleep or a place to have dinner. And there are many places which produce wedding cakes and would be delighted to serve this couple; it is not a local monopoly.
Legislation going beyond the traditional duty-to-serve, requiring expensive government agencies and imposing potentially huge fines on places like Sweet Cakes, may therefore not be reasonably related to a legitimate public purpose and therefore may be unconstitutional.
The Eighth Amendment’s prohibition of “excessive fines” restricts only the federal government and therefore does not place limits on the government of Oregon. But the spirit of the Eighth Amendment makes it clear that to impose more than a very nominal fine on the owners of the now closed Sweet Cakes would be a manifest injustice.