I recently wrote a column maintaining that the recommended fine against a small bakery for refusing to bake a wedding cake for a same-sex wedding is grossly and unjustly excessive. A number of letters and comments in the Oregonian, where my article appeared, have defended the fine. Some indignant readers even think the fine should be larger.
Something that seems to have been overlooked in recent discussions is the constitutional requirement that people not be deprived of life, liberty, or property without due process of law. A fundamental part of due process of law requires “notice,” namely that people be clearly warned about what actions are illegal and what the maximum possible punishment will be. For example, signs limiting parking to people who have handicap permits state the maximum fine---so many hundred dollars--- that may be imposed on violators.
Clearly the owners of the Sweet Cakes bakery could not have known that their refusal to bake a wedding cake for a lesbian couple could be punished with a $150,000 fine (now reduced to “only” $135,000). A somewhat similar case in the state of Washington recently drew a $1,000 fine, and I am not sure that case had been decided yet when the Sweet Cakes incident occurred. I would bet that Sweet Cakes would have made the cake if they had known they might be fined even $1,000 for refusing.
And this brings up a related point. The deterrent effect of a fine is a function both of the magnitude of that fine and of the likelihood that it will be imposed. It may well be, for example, that a 90% chance of a $5 fine would deter far more littering than a 1% chance of a $1,000 fine. And the owners of Sweet Cakes already incurred a “fine” for refusing to sell the cake: the loss of the profit they would have made on the cake. This “fine” was automatically levied on them without any need for the government to do anything. It was 100% certain.
It is not as if government has nothing else to do than to prosecute this kind of case. St. Thomas Aquinas, a Christian theologian, noted many centuries ago that it is impossible for government to outlaw all sins. He pointed out that government has limited enforcement capabilities and should not spread them too thin, neglecting to enforce more important laws which prosecuting less important ones. In cases like Sweet Cakes, where a small but 100% certain “fine” is automatically imposed on businesses which refuse to serve someone, it is particularly hard to justify an expensive tax-payer funded bureaucratic apparatus, particularly one which is free to impose huge additional fines without giving people the notice required by due process of law.
The problems facing members of racial minorities vastly outweigh those facing people trying to buy a cake for a same-sex marriage. Perhaps the state should concentrate its limited enforcement resources on enforcing duty-to-serve laws in the racial context and rely on the enlightened self-interest of bakeries to take care of the wedding cakes issue.