Christian wedding vendors who decline to provide services for same-sex ceremonies have suffered another legal setback.
The Oregon Court of Appeals ruled Dec. 28 that the state did not violate the First Amendment rights of Aaron and Melissa Klein in a 2015 order that included a $135,000 fine. The three-judge panel upheld a decision by the Oregon Bureau of Labor and Industries (BOLI) that found the Kleins’ refusal to design and bake a cake for a lesbian couple’s commitment ceremony was based on unlawful discrimination against homosexuals.
The ruling against the Kleins is the latest in a growing number of opinions against wedding service providers — including cake designers, florists and photographers — who conscientiously object to participating in same-sex ceremonies. One of those cases reached the U.S. Supreme Court in early December when the justices heard oral arguments in an appeal by a Colorado cake designer who refused to create a cake celebrating a same-sex couple’s wedding. The high court is expected to issue a decision before it adjourns in late June or early July.
Kelly Shackelford, president of First Liberty Institute, which is representing the couple, said the three-judge Oregon panel decided the Kleins “are not entitled to the Constitution’s promises of religious liberty and free speech.”
“Freedom of expression for ourselves should require freedom of expression for others,” Shackelford said in a written statement. “In a diverse and pluralistic society, people of good will should be able to peacefully coexist with different beliefs.”
Nancy Marcus, senior attorney for Lambda Legal, which is advocating for the lesbian couple, said the decision is “unsurprising because it is consistent with decisions by courts across the country that have similarly refused to create a new constitutional right of businesses to exempt themselves from civil rights laws and harm same-sex couples through discriminatory denials of service.”
The case began in 2013 when Aaron Klein — who co-owned with his wife Sweet Cakes by Melissa in Gresham, Ore. — declined a request by Laurel Bowman for a cake for her ceremony with Rachel Cryer. The Kleins said they were willing to serve gays and lesbians but believed their Christian faith prevented them from providing a cake for a same-sex ceremony.
Bowman and Cryer had a commitment ceremony in 2013 and a wedding in 2014 after same-sex marriage became legal in Oregon. After a public backlash, the Kleins — who had five children at the time — closed their bakery and moved their business to their home.
In its ruling, the appellate panel concluded the Kleins’ denial of service to Bowman and Cryer was “on account of” the lesbian couple’s sexual orientation under state law. The BOLI order in 2015 did not “impermissibly burden” either the Kleins’ free expression rights or their freedom of religion protected by the First Amendment, the judges ruled.
The judges wrote that they are unconvinced the wedding cakes designed by the Kleins “are entitled to the same level of constitutional protection as pure speech or traditional forms of artistic expression.”
The Kleins also provided no evidence the law “was enacted for the purpose of singling out religiously motivated action” or that BOLI “selectively targeted religion in its enforcement of the statute,” the panel said. “[N]either the sincerity, nor the religious basis, nor the historical pedigree of a particular belief has been held to give a special license for discrimination.”
In his 2015 order, BOLI Commissioner Brad Avakian rejected the Kleins’ contention their refusal to bake a cake for a same-sex marriage is not based on discrimination against homosexuals. There is “no distinction between the two,” he wrote.
“This case is not about a wedding cake or a marriage,” Avakian said. “It is about a business’s refusal to serve someone because of their sexual orientation.”
Before Avakian’s order, an administrative law judge had ruled against the Kleins and proposed damages of $135,000, a total the BOLI commissioner upheld.
The case before the Supreme Court involves Jack Phillips, a Christian who declined to design and decorate a cake for the wedding of two men because of his belief marriage is only between a male and a female. After the men filed a complaint with the state, the Colorado Civil Rights Commission ordered Phillips to create custom cakes for same-sex ceremonies or quit designing wedding cakes. He stopped designing wedding cakes. When Phillips appealed, the Colorado Court of Appeals upheld the commission’s order, and the Colorado Supreme Court declined in 2016 to review the decision.
— by Tom Strode | BP