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Supreme Court May Decide Another Gay Wedding Cake Case

Posted on: October 26th, 2018 by Art Leonard No Comments

Melissa and Aaron Klein, proprietors of the now-defunct “Sweetcakes by Melissa” custom-cake business in Gresham, Oregon, filed a petition for certiorari on October 19, asking the U.S. Supreme Court to strike down the $135,000 penalty imposed by Oregon authorities for their refusal to make a wedding cake for Rachel Cryer and Laurel Bowman in January 2013. Klein v. Oregon Bureau of Labor and Industries, No. ____ , seeking review of Klein v. Oregon Bureau of Labor and Industries, 410 P.3d 1051, 289 Or. App. 507 (2017), rev. denied by Oregon Supreme Court, June 21, 2018.  The Kleins claim in their Petition that the Oregon ruling violates their constitutional rights of free exercise of religion and freedom of speech.

The Kleins also claim that they did not discriminate against the lesbian couple because of their sexual orientation, contrary to the finding of the Commission that was affirmed by the state appeals court. And, perhaps most consequentially, they asked the Supreme Court to consider whether to overrule Employment Division v. Smith, 494 U.S. 872, which holds that the Free Exercise Clause does not exempt people with religious objections from complying with state laws of general application that do not specifically target religious practices.

The Kleins ask the Court to revisit a controversy it confronted last year in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018).  Both Oregon and Colorado forbid businesses in the state from discriminating against customers because of their sexual orientation.  In Masterpiece, baker Jack Phillips refused, initially on religious grounds, to make a wedding cake for a gay male couple, and Colorado officials found that he had violated the law, rejecting his First Amendment defense.  In his appeal of the Colorado Court of Appeals’ ruling affirming the Commission, Phillips asserted protection under both the Free Exercise and Free Speech Clauses of the First Amendment, claiming that the government may not compel a “cake artist” to express a message contrary to his religious beliefs, both as a matter of freedom not to speak and protection for religious freedom.

The Court did not rule directly on these questions in disposing of Phillips’ appeal, instead deciding that comments by some of the Colorado Civil Rights Commissioners, and the Commission’s rejection of some other discrimination claims filed by a provocateur who charged bakers with discriminating against him by refusing to make explicitly anti-gay cakes, showed that the state had not afforded an appropriately “neutral forum” to Phillips for consideration of his defense. On that basis, the Court reversed the state court and commission rulings and dismissed the case against Phillips.  However, in his opinion for the Court, Justice Anthony Kennedy reaffirmed that people and businesses do not enjoy a general free exercise right to refuse to comply with state laws of general application that do not specifically target religion.  Kennedy’s opinion avoided dealing with Phillips’ argument that as a “cake artist” he also had a valid free speech claim.  Two justices dissented, while others concurred in the result.

Justice Kennedy cited Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968), to support the Free Exercise point.  In that case, a restaurant owner cited his religious beliefs to refuse to comply with Title II of the Civil Rights Act of 1964, which forbids businesses affecting commerce from refusing to serve customers because of their race.  The Supreme Court affirmed the 4th Circuit, which had reversed the district court’s refusal to enjoin the restaurant’s discriminatory policy.  Kennedy could have just as well cited Employment Division v. Smith, which the Colorado Commission’s Administrative Law Judge had cited in his Masterpiece ruling, but Piggie Park may have seemed more apposite, as it involved enforcement of a general anti-discrimination law over religious objections. Smith, by contrast, involved a Native American man who had consumed peyote in a religious ritual and subsequently flunked his employer’s drug test, suffering discharge and denial of unemployment benefits.  The Supreme Court rejected Smith’s religious freedom challenge to his disqualification for benefits, finding that the incidental burden this posed on his free exercise of religion did not excuse him from complying with his employer’s lawful policy against employee drug use or require that an exception be made to the state’s unemployment insurance law, which denies benefits to employees discharged “for cause.” In a concurring opinion in Masterpiece Cakeshop, Justice Neil Gorsuch (joined by Justice Clarence Thomas) described the Smith ruling as “controversial,” implying that it deserved reconsideration.

The Kleins have followed up on Gorsuch’s signal by asking the Court to reconsider Smith or, alternatively, to “reaffirm” some comments Justice Antonin Scalia made in his opinion for the 5-4 Court majority in Smith, suggesting that when somebody raises a free exercise of religion claim in a case that also implicates “other fundamental rights,” such as freedom of speech, the Court should apply “strict scrutiny” to the challenged state action in order to vindicate the other fundamental right.  The Klein’s Petition points out that lower federal courts are divided about whether to follow Scalia’s suggestion for handling so-called “hybrid rights” cases – a suggestion the Oregon Court of Appeals expressly rejected in the Kleins’ case — and urges the Court to resolve a split of lower court authority by taking this case.

The Klein’s Petition also argues that they did not discriminate against Cryer and Bowman because of their sexual orientation; they would refuse to make a cake for a same-sex wedding regardless of the sexual orientation of the customer who sought this service. They related that just a few years earlier, they had produced a wedding cake ordered by this very lesbian couple, to celebrate the marriage of Rachel’s mother to a man, and that it was because Rachel and Laurel “liked the Kleins’ work so much that they wanted to commission a custom cake from Sweetcakes for their own wedding.”  The Petition also notes that the women quickly found another baker to make their wedding cake, and that a celebrity chef even gave them a second custom-designed cake for free.

On the other hand, it was reported that when the Kleins posted about the discrimination claim on their Facebook.com page, showing the image of the actual discrimination charge with contact information for the lesbian couple, the women received nasty messages, including death threats, which contributed to the Oregon Bureau’s decision to assess substantial damages for emotional distress.

The Kleins devote a large part of their Petition to arguing that they are “cake artists” whose creations are expressive works, entitling them to the same vigorous constitutional free speech protection normally provided to artists in less digestible media. As such, they claim the Oregon court erred in failing to apply strict scrutiny to the Bureau’s decision against them, as the Supreme Court has repeatedly held that the First Amendment protects an individual’s refusal to speak a message with which they disagree, the prime example being the Court’s unanimous decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), in which, overruling a 4-3 decision by the Massachusetts Supreme Judicial Court, the Court held that parade organizers had a right to exclude a group whose message they did not desire to include in their parade, which the Court deemed to be a “quintessential expressive association.”  Whether the Court is willing to deem baking a wedding cake the free speech equivalent of staging a parade with thousands of people on a state holiday is an interesting question.

If the Court grants the Petition, the most consequential issue could be the Kleins’ challenge to Employment Division v. Smith, in which the Court cast aside decades of First Amendment precedent to hold that general laws that place a heavy burden on somebody’s free exercise of religion must generally be obeyed nonetheless.  Under prior rulings, the government had the heavy burden of meeting the “compelling government interest” test in order to justify applying a general law that incidentally but substantially burdened somebody’s free exercise of religion.

Justice Gorsuch was correct in calling Smith a “controversial” decision. Congress was so incensed by Justice Scalia’s opinion (which drew dissents from liberal members of the Court) that a bipartisan coalition soon passed the first version of the Religious Freedom Restoration Act (RFRA), introduced by Chuck Schumer (House) and Ted Kennedy (Senate) and eagerly signed into law by Bill Clinton in 1993.  RFRA provided that any law imposing a substantial burden on somebody’s free exercise of religion could be challenged using the strict scrutiny standard.  The Supreme Court subsequently ruled that Congress did not have authority to overrule the Court’s constitutional ruling, but the Court later upheld a revised version of RFRA that applied only to federal laws that burden religious free exercise, holding that Congress could create a legislative exception to federal laws when they incidentally impose a substantial burden on religious exercise.  Federal RFRA provided the example for more than twenty states to pass their own versions, similarly restricting the application of their state and local laws.  State court decisions in several other states have interpreted their state constitutional religious freedom provisions to the same effect, rejecting the Supreme Court’s narrower interpretation of Free Exercise in Smith.

If the Supreme Court were to overrule Smith and restore the previous precedents, RFRA and its state counterparts would be rendered superfluous, as the First Amendment would once more restrict states from enforcing general laws that substantially burden a person or business’s free exercise of religion in the absence of a compelling state interest.  The impact on LGBT rights could be enormous, prompting new claims that application of anti-discrimination laws to people and businesses with religious objections to LGBT people violates the businesses’ constitutional rights – one of the claims the Kleins are pursuing in this case.

Oregon state officials have thirty days to file a response to the Petition, and Petitioners can file a Reply to the Response, which means that the Supreme Court’s file in the case will not be completed for consideration by the Court until at least early December and maybe longer if the Oregon Attorney General’s Office requests an extension of time to respond. But if the petition is granted in December, that would leave plenty of time for the Court to hear arguments and render a decision during its current term, which runs through the end of June.

Oregon Court of Appeals Rules against Baker in “Gay Wedding Cake” Case

Posted on: December 31st, 2017 by Art Leonard No Comments

A unanimous three-judge panel of the Court of Appeals of Oregon affirmed a ruling by the Oregon Bureau of Labor and Industries (BOLI) that Melissa and Aaron Klein, doing business as Sweetcakes by Melissa, violated the state’s public accommodations law by refusing to provide a wedding cake for Rachel and Laurel Bowman-Cryer.  The ruling upheld an award of $135,000 in damages, rejecting the Kleins’ argument that this application of the state law to them violates their 1st Amendment rights.  However, the court overruled the BOLI’s determination that the Kleins’ public remarks in connection with this case had also violated a separate section of the law forbidding businesses to announce in advance that they will discriminate in the future.  Judge Chris Garrett wrote for the panel.

This case is, for all practical purposes, a virtual clone of the Colorado case, Masterpiece Cakeshop, which was argued at the U.S. Supreme Court on December 5, 2017.

Rachel and Laurel first met in 2004 and decided to marry in 2012. Rachel and her mother, Cheryl, went to a Portland bridal show as part of their wedding planning, and visited Melissa Klein’s booth at the show.  Sweetcakes by Melissa had designed, created and decorated a wedding cake for Cheryl’s wedding two years before, and Rachel and Cheryl told Melissa that they would like to order a cake from her.  A cake-testing appointment was set up for January 17, 2013.  Rachel and Cheryl visited the bakery shop, in Gresham, for their appointment.  Melissa was at home performing child care, so the appointment was with her husband and co-proprietor, Aaron.  During the tasting, Aaron asked for the names of the bride and groom, and was told there were two brides, Rachel and Laurel.  “At that point,” wrote Judge Garrett, “Aaron stated that he was sorry, but that Sweetcakes did not make wedding cakes for same-sex ceremonies because of his and Melissa’s religious convictions.  Rachel began crying, and Cheryl took her by the arm and walked her out of the shop.  On the way to their car, Rachel became ‘hysterical’ and kept apologizing to her mother, feeling that she had humiliated her.”

In their car, Cheryl assured Rachel that they would find somebody else to make the cake. After driving a short distance, Cheryl turned back and re-entered the bakery by herself to talk with Aaron.  “During their conversation,” wrote Judge Garrett, “Cheryl told Aaron that she had previously shared his thinking about homosexuality, but that her ‘truth had changed’ as a result of having ‘two gay children.’  In response, Aaron quoted a Bible passage from the Book of Leviticus, stating, ‘You shall not lie with a male as one lies with a female; it is an abomination.’  Cheryl left and returned to the car, where Rachel had remained, ‘holding [her] head in her hands, just bawling.”  Cheryl telling Rachel that Aaron had called her an “abomination” didn’t make things any better.  Rachel later stated that “it made me feel like they were saying God made a mistake when he made me, that I wasn’t supposed to be, that I wasn’t supposed to love or be loved or have a family or live a good life and one day go to heaven.”  When they got home and told Laurel what had happened, she recognized the “abomination” reference from Leviticus and “felt shame and anger.  Rachel was inconsolable, which made Laurel even angrier.”  It was Laurel who filed an online complaint with the Oregon Department of Justice, but later she filed a complaint with BOLI, as did Rachel.

News of the complaints generated a wave of media attention, which resulted in death threats and adverse attention to Rachel and Laurel as well as to the Kleins. Ultimately, BOLI’s investigation concluded that the Kleins violated two sections of the public accommodations law, one forbidding discrimination by businesses in providing goods and services because of the sexual orientation of customers, the other, based on statements that the Kleins had made about the case, as well as a sign they posted in their bakery, that they violated a provision making it unlawful for a business to announce its intent to discriminate against customers because of their sexual orientation.  An administrative law judge (ALJ) sustained the first but not the second, finding that the comments in question related to the Klein’s position on this case and was not a general announcement of intent to discriminate in the future.  At the agency level, however, BOLI, disagreeing with the ALJ on this point, ruled that both provisions had been violated, and the Kleins appealed to the Court of Appeals.  The ALJ and BOLI agreed on an award of $135,000 in damages to Rachel and Laurel, to compensate them for the mental, emotional or physical suffering sustained because of the discrimination.  The agency rejected a claim for additional damages for mental, emotional or physical suffering stemming from the media and public response to their filing of the discrimination charges against the Kleins.

The first issue for the court was to determine whether the Kleins were correct in arguing that they had not violated the statute because, as they contended, their business does not discriminate against people because of their status as gay, but rather, in this instance, was declining to “facilitate the celebration of a union that conveys a message about marriage to which they do not subscribe and that contravenes their religious beliefs.” The court rejected this attempt to skirt the issue, commenting that “there is no reason to believe that the legislature intended a ‘status/conduct’ distinction specifically with regard to the subject of ‘sexual orientation.’”
Judge Garrett pointed to the state’s passage of the Oregon Family Fairness Act, which specifically provides that same-sex couples should be entitled to the same rights and privileges of different-sex couples. “The Kleins have not provided us with any persuasive explanation for why the legislature would have intended to grant equal privileges and immunities to individuals in same-sex relationships while simultaneously excepting those committed relationships from the protections of” the public accommodations law. The court pointed out that “under the distinction proposed by the Kleins, owners and operators of businesses could continue to oppress and humiliate black people simply by recasting their bias in terms of conduct rather than race.  For instance, a restaurant could refuse to serve an interracial couple, not on account of the race of either customer, but on account of the conduct – interracial dating – to which the proprietor objected.  In the absence of any textual or contextual support, or legislative history on that point, we decline to construe [the law] in a way that would so fundamentally undermine its purpose.”

Indeed, wrote the court, “The Kleins refused to make a wedding cake for the complainants precisely and expressly because of the relationship between sexual orientation and the conduct at issue (a wedding).  And, where a close relationship between status and conduct exists, the Supreme Court has repeatedly rejected the type of distinction urged by the Kleins.”  Judge Garrett cited the Supreme Court’s 2010 ruling, upholding the University of California-Hasting’s refusal to extend official recognition to a Christian Legal Society chapter whose membership policies excluded gay people, in which Justice Ruth Bader Ginsburg, writing for the Court, made this point, as well as Lawrence v. Texas, the Texas sodomy law case, where Justice Kennedy wrote for the Court that making gay conduct a crime was “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”

Turning to the constitutional challenges, the court rejected both the free speech and free exercise of religion arguments. For one thing, the court found, while conceding there would be an element of artistic expression and creativity in the process of making a wedding cake, this did not present the type of free speech issues that would merit strict scrutiny from the court.  Rather, the court found, the Supreme Court’s public accommodations jurisprudence treated such laws as neutral laws intended to achieve a legitimate purpose of extending equal rights to participate in the community, and not specifically targeted on particular political or religious views held by a particular business person.  The Kleins premised their arguments largely on the Supreme Court’s Hurley (St. Patrick’s Day Parade) and Dale (Boy Scouts) cases, in which the Supreme Court held that application of a public accommodations law to require an organization or association to include gay people would have to yield to the free expression rights of an organization that has a particularly expressive purpose.  They also focused on the famous flag salute cases from World War II and other cases in which the Supreme Court ruled that the government cannot compel private individuals to express a message dictated by the government.

Wrote Judge Garrett, “We must decide whether the Kleins’ cake-making activity is sufficiently expressive, communicative, or artistic so as to implicate the First Amendment, and, if it is, whether BOLI’s final order compelling the creation of such expression in a particular circumstance survives First Amendment scrutiny.” Reviewing the way the Kleins produced customized wedding cakes for their customers, the court found, “the Kleins’ argument that their products entail artistic expression is entitled to be taken seriously.  That being said, we are not persuaded that the Kleins’ wedding cakes are entitled to the same level of constitutional protection as pure speech or traditional forms of artistic expression.  In order to establish that their wedding cakes are fundamentally pieces of art, it is not enough that the Kleins %believe% them to be pieces of art.  For First Amendment purposes, the expressive character of a thing must turn not only on how it is subjectively perceived by its maker, but also on how it will be perceived and experienced by others.  Here, although we accept that the Kleins imbue each wedding cake with their own aesthetic choices, they have made no showing that other people will necessarily experience %any% wedding cake that the Kleins create predominantly as ‘expression’ rather than as food.”

Further, the court found that it would be a different case “if BOLI’s order had awarded damages against the Kleins for refusing to decorate a cake with a specific message requested by a customer (‘God Bless This Marriage,’ for example) that they found offensive or contrary to their beliefs.” Then an articulated message would be conveyed, and the First Amendment issue would be much stronger.  Responding to the Kleins’ concern that the wedding cake communicates a “celebratory message” about the wedding, which they did not wish to communicate, the court pointed out that “the Kleins have not raised a nonspeculative possibility that anyone attending the wedding will impute that message to the Kleins.”  In short, wedding guests will not respond to seeing the cake at the reception by thinking that the baker is “celebrating” or “approving” this wedding.  There is nothing in the law that requires the Kleins to formally endorse same-sex marriages.

However, having found that there is at least some First Amendment free speech interest involved, the court applied “intermediate scrutiny” and found that the state had a compelling interest “both in ensuring equal access to publicly available goods and services and in preventing the dignitary harm that results from discriminatory denials of service. That interest is no less compelling with respect to the provision of services for same-sex weddings,” wrote Garrett.  “Indeed, that interest is particularly acute when the state seeks to prevent the dignitary harms that result from the unequal treatment of same-sex couples who choose to exercise their fundamental right to marry,” as established in Obergefell, the Supreme Court’s marriage equality decision.

The court concluded that “any burden imposed on the Kleins’ expression is no greater than essential to further the state’s interest,” pointing out that “BOLI’s order does not compel the Kleins to express an articulable message with which they disagree. … Given that the state’s interest is to avoid the ‘evil of unequal treatment, which is the injury to an individual’s sense of self-worth and personal integrity,’” wrote Garrett, quoting from a prior Oregon Supreme Court case, “there is no doubt that interest would be undermined if businesses that market their goods and services to the ‘public’ are given a special privilege to exclude certain groups from the meaning of that word.”

Turning to the free exercise of religion point, the court noted that the Supreme Court held in Employment Division v. Smith that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribed (or prescribes) conduct that his religion prescribes (or proscribes).”  The “incidental effect” on religion of such laws does not violate the 1st Amendment.

The court devoted most of its analysis on this point to distinguishing cases offered by the Kleins as exceptions to this rule. All of those cases involved special circumstances where it could be shown that although the laws in question were neutral on their face, they had been intended by the legislature to apply to particular religious practices and were thus not really “neutral to religion.”  The Kleins also pushed a “hybrid rights” theory, mentioned in passing in the Smith case, under which when a party’s claim arises under two different constitutional rights guarantees (in this case speech and religious exercise) the burden of justification on the state should be raised to strict scrutiny.  The court observed that apart from the passing mention in Smith, that concept had not been developed by the Supreme Court, had been rejected by many other courts, and specifically had never been adopted by the Oregon Supreme Court in construing the state’s constitution.

The court rejected the Kleins’ arguments that recognizing a limited or narrow exception for businesses whose owners had religious objections to same-sex marriage would have only a “minimal” effect on “the state’s antidiscrimination objectives,” pointing out that “those with sincere religious objections to marriage between people of different races, ethnicities, or faiths could just as readily demand the same exemption. The Kleins do not offer a principled basis for limiting their requested exemption in the manner that they propose, except to argue that there are ‘decent and honorable’ reasons, grounded in religious faith, for opposing same-sex marriage, as recognized by the United States Supreme Court in Obergefell.  That is not in dispute.  But neither the sincerity, nor the religious basis, nor the historical pedigree of a particular belief has been held to give a special license for discrimination,” wrote Garrett.

The court rejected the Kleins’ claim for free speech and religious exemptions under the Oregon Constitution, pointing out that they had not advanced any additional arguments peculiar to Oregon constitutional jurisprudence that would justify going beyond the federal constitutional analysis in this case. The court also rejected the argument that BOLI’s ruling should be set aside because BOLI’s Commissioner had made public comments about the case before voting to affirm the ALJ’s ruling and award the damages.  The court found that the commissioner’s comments “fall short of the kinds of statements that reflect prejudgment of the facts or an impermissibly closed-minded view of law or policy so as to indicate that he, as a decision maker, cannot be impartial.”  The court rejected the Kleins’ objection to the damage award, finding that the ALJ and BOLI had scrupulously limited the award to damages flowing from the Kleins’ discrimination and had an adequate basis in the trial record to award the amounts in question, which were not out of line with awards in other cases.

However, the court concluded that BOLI erred by failing to affirm the ALJ’s conclusion that the Kleins had not violated a section of the law that forbids any business “to publish, circulate, issue or display… any communication, notice, advertisement or sign of any kind to the effect that any of the accommodations, advantages, facilities, services or privileges of the place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of. . . sexual orientation.” The court, agreeing with the ALJ but not with BOLI, found that the Kleins’ public comments about their determination to defend this case and to adhere to their religious beliefs did not specifically violate this provision.

The Kleins were careful in wording the sign they put up at their bakery and in their comments on Facebook and in the press to avoid stating that they would discriminate because of a customer’s sexual orientation. Their position throughout this case is that they were not engaging in such discrimination.  The court was not willing to interpret this section of the statute as exposing businesses to additional liability for stating publicly their belief that their past action had not violated the law.  Since BOLI’s calculation of damages awarded to Rachel and Laurel did not include any amount for violation of this section, however, the reversal of this part of the decision did not require any reduction in damages.

The Kleins were represented in this appeal by attorneys from several law firms, some specializing in championing socially conservative causes, so it would not be surprising to see them file an appeal with the Oregon Supreme Court. The Oregon attorney general’s office represented BOLI.  Lambda Legal filed an amicus brief on behalf of Rachel and Laurel.  A long list of liberal religious associations and organizations joined in an amicus brief filed by pro bono attorneys in support of BOLI’s ruling, and amicus briefs were also filed by the ACLU and Americans United for Separation of Church and State.