Denver, Colorado’s Masterpiece Cakeshop has received a lot of attention as the Supreme Court weighs whether the bakery should have legally been allowed to refuse to sell a wedding cake to a same-sex couple, but an Oregon bakery’s case is still underway. Last week, the Oregon Court of Appeals ruled that Sweetcakes by Melissa did, in fact, violate state law when it refused to serve a same-sex couple and upheld a $135,000 fine against the owners, Melissa and Aaron Klein.
The Sweetcakes case unfolded in early 2013, just a year after the Masterpiece Cakeshop refusal, but the details of the cases are nearly identical. Rachel and Laurel Bowman-Cryer sought a cake for their impending nuptials, and when owner Aaron Klein refused to sell them a wedding cake for their ceremony –before any discussion about the design of the cake could even take place — the couple filed a complaint with the Oregon Bureau of Labor and Industries (BOLI). In 2015, an administrative law judge recommended a fine of $135,000 for the Kleins in damages. A three-judge panel of the Court of Appeals unanimously ruled that the Kleins must pay the fine.
“Sweetcakes provides a service — making wedding cakes — to heterosexual couples who intend to wed, but it denies the service to same-sex couples who likewise intend to wed,” they wrote in their decision. There was no way to interpret that as anything but discrimination “on account of” the couple’s sexual orientation.
Like Jack Phillips, owner of Masterpiece Cakeshop, the Kleins argued that they weren’t discriminating against the couple because they were gay, but because of the “conduct” they were being asked to “endorse” — a same-sex wedding. The appeals court rejected that distinction, noting that this was exactly the kind of discrimination the Oregon legislature was trying to prevent. More importantly, drawing such a distinction would endanger protections for other protected groups:
…[U]nder 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 ORS 659A.403 in a way that would so fundamentally undermine its purpose.
It’s impossible to draw a distinction between the couple’s sexual orientation and their relationship, the court reasoned, because “[t]he 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).”
The court did wrestle with the question of whether cakes constitute expression in a way that would protect the Kleins’ refusal, noting 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.”
The panel concluded that wedding cakes are semi-expressive, in that they may contain aesthetic components, but they are still largely viewed as objects primarily to be eaten moreso than serve as works of art:
…[T]he 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.
The Court concluded that BOLI’s order against the Kleins “reflects a concern with ensuring equal access to products like wedding cakes when a seller chooses to sell them to the general public, not a concern with influencing the expressive choices involved in designing or decorating a cake.”
It’s worth noting that the Court of Appeals could have waited for the Supreme Court to issue its ruling in the Masterpiece Cakeshop case, but chose not to. In 2014, for example, after the Supreme Court agreed to hear a same-sex marriage case (Obergefell v. Hodges), many federal courts hearing similar cases put them on hold until a Supreme Court precedent was established.
The First Liberty Institute, which represents the Kleins, expressed disappointment about the decision in a press release. The organization’s president, Kelly Shackelford, claimed that the Court had “decided that Aaron and Melissa Klein are not entitled to the Constitution’s promises of religious liberty and free speech. In a diverse and pluralistic society, people of good will should be able to peacefully coexist with different beliefs.”
First Liberty is considering appealing the decision to the Oregon Supreme Court.