Same-sex wedding cakes – Oregon style

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Oregon's own version of Masterpiece Cakeshop v. Colorado Civ Rts Commn (awaiting decision at the US Supreme Court) was decided on December 28 – holding that cake shop owners who refused on religious grounds to make a cake for a same sex-couple violated Oregon's anti-discrimination statute. The court rejected the cake-makers' argument that the 1st amendment allowed them to refuse. Klein v. Oregon Bureau of Labor and Industries [PDF] (Oregon Ct App 12/28/2017).

Aaron and Melissa Klein, doing business as Sweetcakes by Melissa, refused to make a cake for Rachel and Laurel Bowman-Cryer's wedding. Aaron stated that he was sorry, but that they did not make wedding cakes for same-sex ceremonies because of his and Melissa’s religious convictions.

Oregon law (ORS 659A.403) prohibits a place of public accommodation from denying “full and equal” service to a person “on account of * * * sexual orientation.” So the Bowman-Cryers complained to the Oregon Bureau of Labor and Industries (BOLI). BOLI found a violation of the statute, and awarded $135,000 in damages for the Bowman-Cryers's emotional distress. The Oregon Court of Appeals affirmed the award.

The Kleins argued that there was no violation of the statute because they did not decline service “on account of” the Bowman-Cryers's sexual orientation; rather, “they declined to facilitate the celebration of a union that conveys messages about marriage to which they do not [subscribe] and that contravene their religious beliefs.” In other words, the Kleins argued that there's a difference between “gay conduct” and sexual orientation – that they're OK with gay customers so long as those customers do not use the cakes in celebration of same-sex weddings. In a lengthy discussion, the court essentially concluded that this is a distinction without a difference, rejecting the idea that the statute distinguishes between status and conduct.

The court then turned to the Kleins's argument that the 1st amendment shelters them from the Oregon statute under the facts of this case. The court wrestled mightily with a number of US Supreme Court decisions, and ended up with a sort of balancing test, summing it all up this way:

"[W]e conclude that the Kleins have not demonstrated that their wedding cakes invariably constitute fully protected speech, art, or other expression, and we therefore reject the Kleins’ position that we must subject BOLI’s order to strict scrutiny under the First Amendment. At most, the Kleins have shown that their cake-making business includes some arguably expressive elements as well as non-expressive elements, so as to trigger intermediate scrutiny. We assume (without deciding) that that is true, and then conclude that BOLI’s order nonetheless survives intermediate scrutiny because any burden on the Kleins’ expressive activities is no greater than is essential to further Oregon’s substantial interest in promoting the ability of its citizens to participate equally in the marketplace without regard to sexual orientation."

This Oregon case sounds a lot like the Masterpiece Cakeshop case – but without the lengthy argument that the cakemaker is really an artist. As for that, the Oregon court said:

"To be clear, we do not foreclose the possibility that, on a different factual record, a baker (or chef) could make a showing that a particular cake (or other food) would be objectively experienced predominantly as art—especially when created at the baker’s or chef’s own initiative and for her own purposes. But, as we have already explained, the Kleins never reached the point of discussing what a particular cake for Rachel and Laurel would look like; they refused to make any wedding cake for the couple."

Finally, the court addressed the Oregon constitution, as Oregon courts are wont to do, and concluded that the Oregon constitution does not require an exemption on religious grounds to an otherwise neutral law.

The Kleins did win on one point. They were charged with violating the statute by making statements communicating an intention to discriminate in the future. But statements made by the Kleins merely described historical events and expressed their views regarding the moral and legal issues in the litigation. They could not reasonably be understood to express the intention to discriminate in the future

Interesting case. Can't wait to see what the US Supreme Court does with Masterpiece Cakeshop.