by Travis Weber
January 5, 2018
On December 28th, the Oregon Court of Appeals ruled against Aaron and Melissa Klein, upholding a determination under state law that forced them to create a cake for a same-sex wedding against their consciences.
The court threw cold water on the Kleins’ First Amendment defenses, claiming that if it allowed them to proceed, then others seeking to defend racial discrimination through religious freedom claims would also be allowed to prevail.
The Court also goes overboard by accepting and recounting wholesale the feelings and perceptions of the upset same-sex couple, coloring bias into the entire narrative—while failing to do the same courtesy for the feelings and perceptions of Aaron and Melissa, who no doubt have been seriously harmed throughout this case. Moreover, Aaron and Melissa had to endure a barrage of hateful rhetoric directed at them as this incident developed, yet none of this is built into the court’s recounting of events, which ultimately supported highly excessive damages against the Kleins built on nothing more than the couple’s flimsy emotional narrative.
Yet there were a couple of bright spots in the opinion.
The one finding the court reversed was the part of the administrative ruling which acted as a “gag order” on the Kleins being able to speak about what happened to them. This finding was outrageous, and rightly reversed by the court of appeals.
Second, even though the court ruled against the Kleins’ freedom of expression claim, it recognized that to the degree such cake creations are artistic, they are very likely protected. Noting that “[i]t appears that the Supreme Court has never decided a free-speech challenge to the application of a public accommodations law to a retail establishment selling highly customized, creative goods and services that arguably are in the nature of art or other expression,” the court said that “[i]f BOLI’s [Bureau of Labor and Industry—the administrative entity which ruled against the Kleins] order can be understood to compel the Kleins to create pure ‘expression’ that they would not otherwise create, it is possible that the Court would regard BOLI’s order as a regulation of content, thus subject to strict scrutiny, the test for regulating fully protected expression.” This also “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.’)”
Well, the Supreme Court is about to decide this very issue in Jack Phillips’ case—Masterpiece Cakeshop v. Colorado Civil Rights Commission—in the upcoming months. When his case is decided, the Kleins’ case may be too. Indeed, at oral argument in Phillips’ case, the exact message “God Bless This Marriage” was mentioned by the justices as implicating protected expressive conduct (one wonders if the Oregon Court of Appeals specifically cited it in order to leave itself an “out”).
Finally, in another bright moment in its opinion, the Oregon Court of Appeals observed that the Kleins’ case (and therefore many of these wedding vendor cases) are unlike FAIR v. Rumsfeld, in which the Supreme Court said law schools must allow military recruiters (the military was under the “Don’t Ask, Don’t Tell” policy at the time) access to campus if they wanted to continue to receive federal funds. Opponents of the Kleins and others often claim their cases are like FAIR, and it was good to see the Court here dismiss that notion, observing that the law schools never objected to being forced to speak a message with which they disagree, while the Kleins and other wedding vendors do.
Despite these few promising points, the Oregon Court of Appeals ruling is a blow to freedom for all, and will only perpetuate the current culture war by suppressing the religious freedom of many people of good will who just want to live their lives in peace. The Kleins’ opponents could have easily obtained a cake from a nearby bakery, and the problem would be solved. Instead, once again, everyone has been dragged into years of litigation. Until a different approach to these conflicts is taken, we can only expect more of the same results.