Who and what are ‘administrative law judges’ who apparently put Sweet Cakes by Melissa out of business for good?
As we explained on this website yesterday, the bakers who refused to make a cake for a same sex wedding have lost their case before state appointed Administrative Law Judge. But there’s a story behind this story.
At issue is the role and function of these “Administrative Law Judges” or “ALJs”.
For the uninitiated, ALJ’s are not actual judges nor are they part of our judicial branch of government. In Oregon, ALJ’s are agency employees whose job security depends on pleasing the statewide elected official (Secretary of State, Attorney General Bureau of Labor and Industries boss) who signs their paychecks.
In this case, Administrative Law Judge Alan McCullough works for Brad Avakian, so it’s little surprise this ALJ rubber stamped BOLI’s pre-determined outcome, much like city hearings officer do in local municipal contested case hearings.
McCullough previously made news when he ordered a Eugene store to pay a woman $60,000 for denying her service wih her”service dog.”
There’s more. As I pointed out here in 2013, now that the Sweet Cakes by Melissa case is left up to BOLI Director Brad Avakian the issue is likely over and done with. Avakian is hardly a fair arbiter in this case. Even though same sex marriage was not law when when Sweet Cakes case got started, Avakian helped set the stage as a legislator:
On its third reading, SB 2 was carried by Sen. Avakian and passed the state senate, 21-7, with two excused. All seven nay votes were Republicans, while four GOP senators – Frank Morse, Fred Girod, David Nelson and Jackie Winters – voted with the Democrat majority. SB 2 then went to the house, where it was amended to provide an exemption from the Act for “a bona fide church or other religious institution.” Notably, this amendment did not provide for an individual exemption based on that individual’s personal religious beliefs. SB 2 passed the house with amendments, 35-25, with four GOP members – Vicki Berger (Salem), Bob Jenson (Pendleton), Chuck Burley (Bend) and John Dallum (Hood River) – joining all 31 Democrats.
As I predicted back then, there are more problems Christians and others will confront because of this law:
…Oregon law presently does not require a church to provide the use of its facilities for same sex weddings (which are not legal in Oregon anyway – yet). However, if a church or religious institution operates a commercial or business activity, such as a thrift store, the religious exemption may not apply. But more importantly, the OEA’07 provides no religious exemption for individuals.
The Sweetcakes case presents an interesting legal argument in that, while on the surface the Kleins appeared to violate the OEA’07 by refusing to make the same sex wedding cake, they in fact refused to participate in an act that at present is not lawful in Oregon. …[T]he Kleins are not alleged to have told gay and lesbian customers they may not enter or shop at Sweetcakes by Melissa, nor have the Kleins refused to sell their products to any protected class – with one singular exception. Whether the BOLI staff, including the ALJ, agrees or not is doubtful. But consider the following hypothetical case.
Five members of a religious sect that practices polygamy – one man and four women – enter the bakery. The man tells the owner he wants a wedding cake to celebrate his pending marriage to all four of the women, who he lists as brides. The baker tells the man he and his companions are welcome to purchase anything in the store, but the baker will not make a wedding cake for a marriage act that not only violates the baker’s personal religious beliefs, but is not lawful in Oregon, which does not recognize plural marriages.
On its face, the baker has violated the OEA’07 by discriminating against the five customers, based on their religion, which is a protected class. But can the OEA’07 compel a “place of public accommodation” to participate in an act that is not lawful in Oregon? While there is no current Oregon case deciding that issue…
With an activist labor commissioner in Avakian on their side, one can expect more cases to be brought before BOLI or in civil court, claiming sexual orientation discrimination. Christian-owned businesses are particularly vulnerable to set-ups and shakedowns if they refuse to provide their services to a same sex couple or gay person, who may not sincerely want the service in the first place, but may be looking to a P Club type BOLI award.
I could understand the backlash from the gay and lesbian community. I could see that; what I don’t understand is the government sponsorship of religious persecution.
Bruce McCain is an attorney in private practice, member of the Reynolds School Board, retired Multnomah County Sheriff’s Captain and a member of the VictoriaTaft.com Blogforce.