The Sweet Cakes litigation is your run-of-the-mill “devout Christian baker declines to bake a wedding cake for angry litigious homosexuals” case. The bakery is Sweet Cakes by Melissa (“Sweet Cakes”), located in Oregon and owned by Melissa Klein and her husband, Aaron. Their insane litigation opponents are lesbians Rachel Bowman-Cryer and Laurel Bowman-Cryer (“the lesbians”) (who have chosen to hyphenate their last name, because of course they have).

For purposes of this discussion only, let’s stipulate to the following facts:

  • By declining to bake a wedding cake for the lesbians’ wedding, Sweet Cakes discriminated against the lesbians on the basis of sexual orientation, which is prohibited by Oregon law.
  • Somehow — somehow — the lesbians incurred damages for emotional distress in the amount of $135,000.

Now, $135,000 is a large sum of money; to be sure, it is a sum that would bankrupt the Kleins were they forced to pay it. As is common these days, a fundraising page was set up for Sweet Cakes on GoFundMe, a crowdfunding site, for the specific purpose of paying any final judgment entered against them in the litigation.

For various reasons (including, but certainly not limited to, the utter ridiculousness of the lesbians’ claims regarding damages), the case received nationwide media coverage; consequently, the fundraising campaign was an immediate success.

sweetcakesgofundme65k

Sweet-Cakes-GoFundMe-page-4-24-15-6.30-pm-80k

sweetcakesgofundme105k

As you can see, it was rapidly approaching its goal, when — having reached a total of approximately $109,000 in just eight hours — GoFundMe suddenly removed the campaign from the website.

Enlarge

sweetcakesgofundme-Screen-Shot-2015-04-26-at-10.20.49-PM
A screenshot of the Sweet Cakes GoFundMe webpage, taken on April 26, 2015 at 10:20pm. It was first noticed to be missing at approximately 9:00pm PT on April 24.

GoFundMe did so purportedly because it violated their Terms of Service (“ToS”), the company said in the following written statement:

After careful review by our team, we have found the “Support Sweet Cakes By Melissa” campaign to be in violation of our Terms and Conditions. The money raised thus far will still be made available for withdrawal. While a different campaign was recently permitted for [Memories Pizza] in Indiana, no laws were violated and the campaign remained live. However, the subjects of the “Support Sweet Cakes By Melissa” campaign have been formally charged by local authorities and found to be in violation of Oregon state law concerning discriminatory acts. Accordingly, the campaign has been disabled.

We need not dwell on who complained to GoFundMe to get the campaign shut down — for our purposes, it will suffice to say that it was the Gaystapo et al., who could not handle the fact that so many people were supportive of the Kleins. They therefore demanded that GoFundMe remove the “bigoted, homophobic hate campaign” (that’s presumably the redundant phrase they would have used) or there would be hell to pay, in the form of the usual leftist boycotts and such. Because GoFundMe is run by weak-willed douchebags without a scintilla of integrity, they immediately caved.

The GoFundMe ToS (as they existed on April 24, 2015) were, in pertinent part, as follows:

GoFundMe ToS 042415 1 GoFundMe ToS 042415 2 GoFundMe ToS 042415 3

The only language that could even conceivably apply to the Sweet Cakes fundraising campaign would be “[c]ampaigns in defense of formal charges of heinous crimes, including violent, hateful, or sexual acts.”1There are two other items on this list, “[v]iolent or hateful material,” and “[m]aterials including bigotry, racism, sexism, or profanity,” that are “not allowed on GoFundme” and that one might argue are applicable here. However, this is simply not the case. The use of the word “materials” indicates that these provisions serve as restrictions on the specific content included on a campaign’s GoFundMe webpage, such as its text, images and/or videos, etc.; they are not restrictions on what one might perceive as the intention behind the campaign. It is clear from the screenshots provided above of the campaign’s GoFundMe webpage that no such prohibited materials are being displayed. There are two reasons why this provision is plainly inapplicable here. First, the action brought against Sweet Cakes is civil, not criminal, in nature. Neither the business itself, nor the Kleins personally, were charged with any crime; rather, they were charged with regulatory violations by an administrative agency, for which a civil judgment is the most severe remedy available. This alone categorically excludes the Sweet Cakes campaign.2The language “including violent, hateful, or sexual acts” elaborates on types of crimes, and does not extend to such acts in a non-criminal context. Even assuming, arguendo, that this were a crime, the notion that refusing to bake a cake for a gay wedding due to one’s religious objection rises to the level of “heinous” is absurd on its face and unworthy of serious consideration. (Indeed, even if religious objection were not the reason, I am still unwilling to consider the refusal to bake a cake for a gay wedding “heinous” under any circumstances.)

Second (and this is the point that everyone seems to have missed), even if we were to assume, arguendo, that (1) Sweet Cakes was charged with a crime, and (2) the crime was “heinous,” the Sweet Cakes campaign still does not violate the ToS because it is not “in defense of” anything. The campaign was created for the sole purpose of assisting the Kleins in paying the civil fine (judgment) imposed after their (ultimately unsuccessful) defense to the regulatory action against them had been completed. Once judgment is entered, no further “defense” of the claims is possible; the only thing left to do is to satisfy the judgment.3It should be noted that in Oregon, the judgment entered by the Administrative Law Judge is not technically final, but rather is a “Proposed Order.” The Proposed Order is then forwarded to the Commissioner of the Bureau of Labor and Industries, who enters a “Final Order.” The Commissioner may adopt all or any part of the Proposed Order in the Final Order, and has plenary review power. In practice, however, the Proposed Order of an Administrative Law Judge is usually adopted by the Commissioner in its entirety (as is the case in most administrative agencies). A respondent may appeal a Final Order to the Oregon Court of Appeals, Oregon’s intermediate appellate court, which applies a deferential standard of review in such cases. See Or. Rev. Stat. § 183.482(7) (“Review of a contested case shall be confined to the record, and the court shall not substitute its judgment for that of the agency as to any issue of fact or agency discretion.”). If unsuccessful, a respondent may file a petition for review with the Oregon Supreme Court (whose jurisdiction in such matters is entirely discretionary). It is unclear at this time whether the Kleins will choose to appeal the Final Order once it is issued. If they do, any such proceedings would logically meet the “in defense of” criterion, and therefore the funds raised could not be used for such purposes (e.g., fees for legal counsel), just as they could not be used for such purposes with respect to any earlier proceedings. However, it is readily apparent from the timing of the Sweet Cakes campaign (three days after the Proposed Order was issued) that its purpose was solely to help the Kleins satisfy the judgment entered against them, and no evidence exists on the face of the campaign itself to suggest that the funds raised would be used for any “in defense of”-type purpose. Paying a judgment/fine, whether civil or criminal, is not a “defense of” anything; to be sure, doing so actually ensures compliance with the law, not the opposite.

Interestingly, GoFundMe amended its ToS on April 29, 2015, just five days after removing the Sweet Cakes campaign (and amid criticism that it had treated Sweet Cakes unfairly). Its new ToS provides, in pertinent part, as follows (relevant changes for our purposes are indicated with red boxes):

Slice-1 Slice-3

As an initial matter, the analysis about to be undertaken is entirely gratuitous, as it would be foolish for one to believe that the April 29, 2015 amendments to GoFundMe’s ToS (after its removal of the Sweet Cakes campaign) somehow would apply retroactively to April 24, 2015 (prior to its removal of the campaign).

In any event, even if it did apply retroactively, the new introductory paragraph is just a more verbose way of saying what it already says in the “[w]hile these guidelines may not cover every unique scenario” paragraph, as well as stating what is already presumed under the law for any private company — to wit, that it has the right to take any action it chooses, for any reason it chooses.4This right does not, however, extend to discrimination in a manner prohibited by law (e.g., on the basis of one’s religion). In litigating claims of discrimination, it will most likely not avail a company to rely on that “catch all” power when it has already created lengthy and detailed ToS to which it generally adheres and explicitly invokes when making its decisions.

And finally, even under its new ToS, the Sweet Cakes campaign still would not be prohibited because (as discussed above) it isn’t “in defense of” anything. As you can see, GoFundMe changed

GoFundMe ToS 042415 2

to

Slice-2

By altering the language as it did, GoFundMe broadened that provision of the ToS to (1) cover campaigns in defense of civil as well as criminal proceedings, (2) cover campaigns in defense of uncharged allegations of heinous crimes, violent, hateful, sexual, or discriminatory acts, as well as those in which there are formal charges, and (3) detach from the phrase “heinous crimes” the language that follows it, so that the provision now covers campaigns in defense of heinous crimes as well as campaigns in defense of (heinous or non-heinous) violent, hateful, sexual, or discriminatory acts. However, that language does not detach any of these expansions from the threshold “in defense of” requirement. In other words, the provision only applies to

Campaigns in defense of formal charges or claims of (heinous crimes OR violent acts OR hateful acts OR sexual acts OR discriminatory acts).

For the same reasons mentioned above, the Sweet Cakes campaign is not “in defense of” any of these things; therefore, this provision of the amended ToS remains inapplicable to it.

On a concluding note, perhaps the most important thing to consider here is this: Because the judge ruled that the $135,000 fine will go to these lesbian “mental rape” survivors as compensation, and because the Kleins would likely have to declare bankruptcy to discharge such an obligation (as they lack the ability to pay it themselves), the Sweet Cakes fundraising campaign actually benefits the lesbian mental rape survivors — and therefore, removing the campaign harms lesbian interests. Indeed, not only does it harm the lesbian mental rape survivors (mentally re-raping them, if you will), but it also sets back the efforts of GLBTQIAMNOP equality and justice for all mental rape survivors everywhere. And so, one must ask: Why does GoFundMe hate gay people?

Footnotes   [ + ]

1. There are two other items on this list, “[v]iolent or hateful material,” and “[m]aterials including bigotry, racism, sexism, or profanity,” that are “not allowed on GoFundme” and that one might argue are applicable here. However, this is simply not the case. The use of the word “materials” indicates that these provisions serve as restrictions on the specific content included on a campaign’s GoFundMe webpage, such as its text, images and/or videos, etc.; they are not restrictions on what one might perceive as the intention behind the campaign. It is clear from the screenshots provided above of the campaign’s GoFundMe webpage that no such prohibited materials are being displayed.
2. The language “including violent, hateful, or sexual acts” elaborates on types of crimes, and does not extend to such acts in a non-criminal context. Even assuming, arguendo, that this were a crime, the notion that refusing to bake a cake for a gay wedding due to one’s religious objection rises to the level of “heinous” is absurd on its face and unworthy of serious consideration. (Indeed, even if religious objection were not the reason, I am still unwilling to consider the refusal to bake a cake for a gay wedding “heinous” under any circumstances.)
3. It should be noted that in Oregon, the judgment entered by the Administrative Law Judge is not technically final, but rather is a “Proposed Order.” The Proposed Order is then forwarded to the Commissioner of the Bureau of Labor and Industries, who enters a “Final Order.” The Commissioner may adopt all or any part of the Proposed Order in the Final Order, and has plenary review power. In practice, however, the Proposed Order of an Administrative Law Judge is usually adopted by the Commissioner in its entirety (as is the case in most administrative agencies). A respondent may appeal a Final Order to the Oregon Court of Appeals, Oregon’s intermediate appellate court, which applies a deferential standard of review in such cases. See Or. Rev. Stat. § 183.482(7) (“Review of a contested case shall be confined to the record, and the court shall not substitute its judgment for that of the agency as to any issue of fact or agency discretion.”). If unsuccessful, a respondent may file a petition for review with the Oregon Supreme Court (whose jurisdiction in such matters is entirely discretionary). It is unclear at this time whether the Kleins will choose to appeal the Final Order once it is issued. If they do, any such proceedings would logically meet the “in defense of” criterion, and therefore the funds raised could not be used for such purposes (e.g., fees for legal counsel), just as they could not be used for such purposes with respect to any earlier proceedings. However, it is readily apparent from the timing of the Sweet Cakes campaign (three days after the Proposed Order was issued) that its purpose was solely to help the Kleins satisfy the judgment entered against them, and no evidence exists on the face of the campaign itself to suggest that the funds raised would be used for any “in defense of”-type purpose.
4. This right does not, however, extend to discrimination in a manner prohibited by law (e.g., on the basis of one’s religion). In litigating claims of discrimination, it will most likely not avail a company to rely on that “catch all” power when it has already created lengthy and detailed ToS to which it generally adheres and explicitly invokes when making its decisions.
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