The Oregon Bureau of Labor and Industries (BOLI) announced Monday that the owners of Sweet Cakes by Melissa violated a state nondiscrimination ordinance when they refused to sell a wedding cake to a lesbian couple. They may have to pay the couple as much as $150,000, though damages will be determined at a future hearing.
Aaron and Melissa Klein, co-owners of Sweet Cakes by Melissa, refused to sell a wedding cake to Rachel Cryer and Laurel Bowman (now Bowman-Cryer) because they were a same-sex couple in January 2013. The Kleins became martyrs for conservative opponents of LGBT equality, claiming that they were being persecuted for their beliefs — both because of the complaint the couple filed with the state and the public backlash they faced. The backlash led them to close their storefront and operate their bakery out of their home.
Last year, BOLI found there was significant evidence to hold the Kleins accountable for their discrimination. They could either settle with the Cryers or they would be charged. Those charges were filed over the summer, and Monday’s ruling is essentially the verdict on those charges.
Administrative Law Judge Alan McCullough wrote a detailed decision that addresses some of the various issues that came up in the dispute. These same issues are relevant to the similar cases that continue to play out across the country.
For example, the Kleins contended that they were not discriminating on the basis of sexual orientation, but simply refused to participate in a same-sex marriage. One of their arguments was that Aaron Klein had previously sold a cake to Cryer. McCullough points out that such evidence does not vindicate Klein, because there is no evidence he had knowledge of her sexual orientation at the time.
Moreover, the judge agreed with BOLI that “there is simply no reason to distinguish between services for a wedding ceremony between two persons of the same sex and the sexual orientation of that couple. The conduct, a marriage ceremony, is inextricably linked to a person’s sexual orientation.” In other words, discrimination against a same-sex couple because of what they might uniquely do can not be distinguished from discrimination on the basis of their sexual orientation. There are U.S. Supreme Court cases that speak to this link between conduct and class, though they look at the angle of sex instead of love. When the Court overturned sodomy laws in 2003’s Lawrence v. Texas, it found that a law or policy that targets “homosexual conduct” constitutes “an invitation to subject homosexual persons to discrimination.” The justices then applied this same reasoning in the case Christian Legal Society v. Martinez (2010). There, a university group wanted to reject gay students because of their “conduct,” but the Supreme Court concluded that discrimination on the basis of acting gay was indistinguishable from discrimination on the basis of being gay.
When the discrimination originally took place, Cryer was with her mother, Cheryl McPherson, and Bowman-Cryer wasn’t present. This, the Kleins argued, meant that Bowman-Cryer does not have standing in a complaint against the bakery and they could not be liable to her, which would halve their potential fine. The judge disagreed, calling it a “false premise that a person cannot be discriminated against unless they are physically presented to witness an alleged act of discrimination perpetrated against them.” The Kleins’ own testimony about the significance of a wedding cake to a marrying couple demonstrated that Bowman-Cryer had the same cause of action as her wife.
The main argument the Kleins put forth was that compliance with the state nondiscrimination law constituted “compelled speech.” McCullough countered that “Respondents were not asked to issue a marriage license, perform a wedding ceremony, or in any way legally recognize Complainants’ planned same-sex wedding.” The Kleins were “under no compulsion to publicly ‘speak the government’s message’ in an affirmative manner that demonstrates their support for same-sex marriage.” The event would be private, not public, and regardless of whether making a wedding cake may be expressive, “the operation of Respondents’ bakery, including Respondents’ decision not to offer services to a protected class of persons, is not.”
In turn, they similarly claimed that producing a wedding cake was a violation of their religious beliefs. In analyzing law that might support such a claim, McCullough arrived at an important distinction based on the Kleins’ own testimony: “Their refusal to make a wedding cake for Complainants was not a religious practice, but conduct motivated by their religious beliefs.” This is important because, unlike the conduct link for sexual orientation, other jurisprudence has established that religious freedom does not relieve individuals of complying with a a law that is “neutral” in applicability irrespective of religion, like nondiscrimination protections.
If Oregon had a version of the “Religious Freedom Restoration Act” (RFRA), as several states do, it may have protected the Kleins in this case. They had argued that the Supreme Court’s decision favoring Hobby Lobby’s denial of contraception coverage to female employees ought to provide them the same religious protection as business owners. McCullough pointed out that Hobby Lobby was decided not on constitutional grounds, but under the federal RFRA, which does not apply in states. There’s no guarantee that a state RFRA would help, as New Mexico’s RFRA did not save photographer Elaine Huguenin after she refused to photograph a same-sex commitment ceremony, although Hobby Lobby had not yet been decided when Huguenin lost her case. It is these state-level RFRAs, or variations thereof, that conservatives are trying to pass in states across the country to enable the kind of anti-LGBT discrimination the Kleins are now culpable for.