Daily Archives: June 17, 2019

“Victory … for Religious Liberty for All Americans” After Supreme Court Reverses State-Sponsored Punishment of Oregon Bakers

Lawyers for Oregon Christian bakers call today’s move by the U.S. Supreme Court is a “victory for Aaron and Melissa Klein and for religious liberty for all Americans.”

First Liberty Institute

Aaron and Melissa Klein declined to make a wedding cake for a lesbian couple in 2013. Even though same-sex marriage was not legal in the state at that point, the couple complained. State-sponsored moves followed – including a gag order and $135,000 fine – forcing the Kleins out-of-business.

Public targeting of the couple in notoriously ‘liberal’ Oregon was fueled by the outrageous comments by then-head of the Oregon Bureau of Labor and Industries, Brad Avakian.

As the couple pointed out, Avakian publicly declared that Christians needed to be ‘rehabilitated’ for their beliefs:

[T]he Kleins argue that Avakian “said that ‘folks’ in Oregon do not have a ‘right to discriminate’ and stated that those who use their ‘beliefs’ to justify discrimination need to be ‘rehabilitate[d].’ ” (Alterations by the Kleins.) Later, the Kleins characterize Avakian as stating that “the Kleins *** needed to be ‘rehabilitate[d].’ “

Caselaw

As I explain in this post, the Supreme Court didn’t choose to decide the case (grant cert) but instead reversed the Oregon Appeals Court decision uploading BOLI’s actions. The Court vacated the Oregon’s Appeals Court decision and told them to do it over in light of the nation’s highest court Masterpiece Cakeshop decision.

First Liberty attorney, Kelly Shackelford, says that Oregon, as in the Masterpiece Cakeshop case, was openly hostile to the Kleins:

The Constitution protects speech, popular or not, from condemnation by the government. The message from the Court is clear, government hostility toward religious Americans will not be tolerated.

First Liberty Institute

First Liberty says Oregon’s contempt for the First Amendment was clear throughout its treatment of the Kleins:

The State of Oregon’s Bureau of Labor and Industries (BOLI) found that the Kleins had had violated Oregon’s public accommodations statute after Aaron and Melissa declined to design and create wedding cake celebrating a same-sex marriage. In addition to the $135,000 penalty for “emotional damages,” BOLI issued a gag order, preventing them from even talking about their actual beliefs. As a result, the Kleins were forced to shut down their bakery. Aaron and Melissa appealed the BOLI ruling to the Oregon Court of Appeals in April 2016. The Oregon Court of Appeals reversed the gag order but otherwise upheld the decision of BOLI in December 2017.

First Liberty Institute

First Liberty keeps a website about the Klein’s case. Here’s a video of the couple talking about the Supreme Court victory in the Masterpiece Cakeshop case:

Though the Supreme Court didn’t grant the certiorari in the case, the Klein’s case could end up back there. If the Kleins lose again in the Oregon Appeal’s Court they’re likely to appeal to the highest court again.

US Supreme Court Overturns Oregon Court in Case of ‘Sweet Cakes’ Baker Put Out of Business for Refusing to Make Cake for Gay Wedding

Image: Federalist Papers

Christian bakers, Melissa and Aaron Klein, have won a round in the U.S. Supreme Court. While the nation’s highest court didn’t take the case, it vacated the Oregon Appeals Court’s decision upholding the $135,000 fine and decision against the Kleins for refusing to make a cake for a gay wedding. The case has been sent back to the Oregon Appeals Court for a rehearing. The Oregon court previously said the Oregon Bureau of Labor and Industries (BOLI) was correct in fining the couple for failing to make a wedding cake for a lesbian couple. The fine and subsequent public bashing by the former BOLI chief, Brad Avakian, forced the couple to close their doors to the public.

The Kleins petitioned the Supreme Court in 2018 to take up their case after the Masterpiece Cake decision upheld a Colorado baker’s choice not to make a same sex wedding cake. In vacating the Oregon court decision and sending it back, the Supreme Court made it clear that the Masterpiece Cake decision changed the game and that the Oregon court should consider the new precedent in its decision on remand.

In their petition, the Kleins asked the Supreme Court to consider three things:

The questions presented are:
1. Whether Oregon violated the Free Speech and Free Exercise Clauses of the First Amendment by compelling the Kleins to design and create a custom wedding cake to celebrate a same-sex wedding ritual, in violation of their sincerely held religious beliefs.
2. Whether the Court should overrule
Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).
ii
3. Whether the Court should reaffirm Smith’s hybrid rights doctrine, applying strict scrutiny to free exercise claims that implicate other fundamental rights, and resolving the circuit split over the doctrine’s precedential status.

Scotusblog

The New York Times reports that the Klein’s were also asking a broader question than that posed in the Masterpiece Cakeshop lawsuit:

The Oregon case was in one way broader than the one from Colorado, as it asked the justices to overrule an important precedent from 1990, Employment Division v. Smith. In a majority opinion written by Justice Antonin Scalia, the Supreme Court ruled that neutral laws of general applicability could not be challenged on the ground that they violated the First Amendment’s protection of the free exercise of religion.
That decision, arising from a case involving the use of peyote in Native American religious ceremonies, is unpopular among conservative Christians, who say it does not offer adequate protection to religion, and with some justices. In January, the court’s four most conservative members — Justices Kavanaugh, Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — signaled that they were open to reconsidering the decision.

The New York Times

Based on the fact that the Supreme Court didn’t take the case, it’s clear they don’t want to answer that question just yet – unless the Oregon Appeals Court gives them a reason to.

During the well-publicized ordeal, former BOLI chief Brad Avakian publicly bashed the couple and instituted a gag order on the Kleins to stop defending themselves:

Respondents Aaron Klein and Melissa Klein to cease and desist from publishing, circulating, issuing or displaying, or causing to be published, circulated, issued or displayed, any communication, notice, advertisement or sign of any kind to the effect that any of the accommodations, advantages, facilities, services or privileges of a place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of sexual orientation

Oregon Bureau of Labor and Industries

Avakian’s obvious vendetta against the Christian couple caused even liberal Oregonians to turn against him. Avakian attempted to run for Secretary of State and lost to Republican Dennis Richardson, the first time a Republican had won state-wide office in decades.

The Klein’s were represented by the First Liberty Institute of Plano, Texas, Boyden Gray & Associates, of Washington, DC, and Herb Grey of Beaverton, Oregon. Emails seeking comment by the Kleins and their attorneys haven’t been returned yet, but this post will be updated as soon as they’re received.

No doubt this is a small measure of vindication for the couple whose business and reputations were destroyed by Avakian and the anti-Christian zealots working for the State of Oregon.