Two Bakers Loose Appeals of The Cake and Fine($135k) For Refusing to Bake for Gay Couples
The Oregon Court of Appeals unanimously upheld a ruling — and a $135,000 fine — that two Gresham bakery owners discriminated against a gay couple by refusing to make them a wedding cake, violating Oregon law.
The courts did reverse a portion of the Bureau of Labor and Industries decision that said Melissa and Aaron Klein violated Oregon law by communicating their intent to discriminate against same-sex couples in the future.
The appeals court decision, released Thursday, came almost nine months after attorneys representing the Kleins and the attorneys for the Bureau of Labor and Industries argued before the three-judge panel.
It came years after Rachel Bowman-Cryer and Laurel Bowman-Cryer first stopped at the Kleins' custom-cake bakery.
The couple had no idea a simple item on their pre-wedding to-do list would end in such controversy.
They decided to order a cake from Sweet Cakes by Melissa, a Gresham bakery recommended by a relative, for their upcoming commitment ceremony. Rachel Bowman-Cryer and her mother stopped by the shop for a tasting and to order the cake.
When Aaron Klein found out the cake was for two brides, he told Bowman-Cryer he and his wife did not make cakes for same-sex weddings because of their religious beliefs.
According to a brief filed by the civil rights organization Lambda Legal, when Bowman-Cryer's mother returned to the bakery to reason with Aaron Klein, he called her daughter and her soon-to-be daughter-in-law "abominations."
The Bowman-Cryers filed a complaint with the state Bureau of Labor and Industries, alleging they were denied public accommodation of the Kleins' business services because of their sexual orientation.
BOLI investigators determined the refusal constituted unlawful discrimination and ordered the Kleins to pay $135,000 in damages to the Bowman-Cryers.
The Kleins balked at first, then paid the $135,000 and vowed to appeal the case. The money was placed in a government account until the appeals process ends.
Oregon bakery owes damages to same-sex couple
First Liberty Institute, a national religious freedom law firm, which represented the Kleins along with Boyden Gray said attorneys will review the decision and consider their options for further appeal with the Kleins. The case could continue to the Oregon Supreme Court if they file a petition within 35 days.
Kelly Shackelford, president and CEO of First Liberty Institute, said they are disappointed in the ruling.
“Freedom of expression for ourselves should require freedom of expression for others," Shackelford said. "Today, the Oregon Court of Appeals decided that Aaron and Melissa Klein are not entitled to the Constitution’s promises of religious liberty and free speech.”
A similar case, involving a Colorado bakery, went before the U.S. Supreme Court earlier this month.
Paul Thompson, attorney for the Bowman-Cryers, said he will be watching that case closely.
The Oregon Court of Appeals listened to an appeal Thursday, Mar. 2, 2017, in Salem by the lawyer for Melissa and Aaron Klein, the Oregon bakers who were fined $135,000 for refusing to bake a cake for a same-sex wedding in 2013. The couple that sued the Kleins listened during the hearing.
When Thompson contacted the couple Thursday morning, he said they were elated but still processing the news.
"We're really happy with the outcome," he said. "It's a great day for equality in Oregon."
The Bowman-Cryers held a commitment ceremony in June 2013 and were married in May 2014, four days after same-sex marriage became legal in Oregon.
The legal battle made national and international headlines.
According to the Oregonian/OregonLive, donations poured in for the Kleins, they campaigned in Iowa with Ted Cruz at "Rally for Religious Liberty," and C. Boyden Gray, the former White House Counsel for George H.W. Bush, offered to represent the couple for free.
Since their complaint became public, the Bowman-Cryers have received countless harassing messages calling them evil and "the dumb lesbians who ruined those Christian bakers' lives," according to Lambda Legal's brief.
The Bowman-Cryers said the case was not simply about a wedding cake, their marriage or their wedding. It is about whether it is OK for a business to refuse to serve people because of the owner's religious beliefs.
The couple said they moved to Oregon because the state stands strong for equality and they are proud to raise their daughters where people believe in dignity and respect.
"Today’s ruling sends a strong signal that Oregon remains open to all," BOLI Commissioner Brad Avakian said in a statement.
The shop front for Sweet Cakes by Melissa closed in 2013, but the couple continued to run the business out of their home until 2016, when it closed permanently.
"We lost everything we loved and worked so hard to build," Melissa Klein said following oral arguments before the Oregon Court of Appeals in March.
Through tears, Klein said she poured her heart and passion into each cake and designed each one to fit each couple perfectly. As a devout Christian, she incorporated her faith into every aspect of her life, especially her work.
The Oregon Court of Appeals listened to an appeal Thursday, March 2, 2017, in Salem by the lawyer for Melissa and Aaron Klein (center), the Oregon bakers who were fined $135,000 for refusing to bake a cake for a same-sex wedding in 2013.
"I was happy to serve this couple in the past for another event and would be happy to serve them again, but I couldn't participate in the ceremony that goes against what I believe," she said.
Klein said she feels like the government violated her family's religious beliefs and told her what to believe.
During oral arguments before the Oregon Court of Appeals in March, the Kleins' attorney Adam Gustafson said forcing someone to participate in a same-sex wedding violated their free speech and religious freedom.
Oregon court hears Sweet Cakes bakery owners' appeal
The law cannot compel art, he said. Simply put, Melissa's custom cake-baking was her art and should be fully protected by the First Amendment.
The Kleins did not discriminate based on sexual orientation; rather, they chose not to participate in a same-sex wedding ceremony because they believe marriage should only exist between a man and a woman, Gustafson said.
Judge Joel DeVore asked whether it would be discrimination if a baker refused to make a cake for an interracial couple based on religious belief.
"Race is different from sexual orientation," Gustafson said, adding that laws barring interracial marriages were proxies for racial bias and white supremacy.
The First Amendment also protects the right to be free from compelled speech. The state is required to extend an exemption for religious hardship to protect "decent and honorable" people like the Kleins, he said.
Carson Whitehead, the assistant attorney general with the Oregon Department of Justice, represented BOLI. He argued the case turns on two simple facts: The Kleins refused to provide the exact same service for a same-sex couple that they would with a heterosexual couple, and the denial of services was based on sexual orientation.
The Kleins denied the couple service before there was even a discussion of an inscription. Whitehead said this constituted a refusal of services, not compelled speech.
"Cake baking isn't pure speech," Whitehead said, adding that cakes serve all kinds of functions for all kinds of reasons.
He also argued that the damages awarded to the couple were reasonable considering the emotional distress they experienced.
The appeals court ruled that the Oregon law barring discrimination was clear and the Kleins violated it by refusing service based on the couple's sexual orientation.
The judges also stated the Kleins' attorney failed to show that wedding cake constituted "fully protected speech or art." At the most, the business was a combination of expressive and non-expressive elements. Therefore, the Kleins' First Amendment rights were not violated.
The court also ruled the $135,000 fine was reasonable and consistent with past BOLI rulings on emotional distress.
After the arguments in March, the Bowman-Cryers left the courthouse in tears. The Kleins gathered with their attorneys outside.
"I'm thankful we actually got to have our day in court," Aaron Klein said. "Man's court is going to do what man's court is going to do. The honest truth is we just seek to serve the Lord."
In a statement issued Thursday, the Bowman-Cryers said now all Oregonians can go into any store and expect to be treated like any other person.
"It does not matter how you were born or who you love," they said. "With this ruling, the Court of Appeals has upheld the long-standing idea that discrimination has no place in America."
By Whitney Woodworth: wmwoodwort@statesmanjournal.com, call 503-399-6884 or follow on Twitter @wmwoodworth
Comments