Tuesday, July 7, 2015

Oregon Takes Shot at Free Speech, Punishes Baker for Voicing Opposition to Same Sex Marriage

 On Thursday, the Commissioner of the Oregon Bureau of Labor and Industry handed down a decision that contains a chilling First Amendment assault on the right of the Oregon business owners to voice their opposition to same sex marriage.

The case involves a Christian couple, Melissa and Aaron Klein, who operated a bakery under the name “Sweetcakes by Melissa.”   Last year a long-time customer, Rachel Bowman-Cryer, came into the bakery and said she wanted a cake made for her wedding to her partner, Laurel Bowman-Cryer.  Aaron Klein declined saying the couple didn’t feel comfortable, that baking a cake to them involved participating in a ceremony that they had moral objections to.  The lesbian couple was apparently completely traumatized by the rejection, experiencing “outrage, embarrassment, exhaustion, frustration, sorrow and shame” after the rejection.  They did manage to pull themselves together enough to lodge a discrimination complaint with the OBLI.

See also:  Mennonite Couple Targeted Because of Religious Objections to Performing Same Sex Marriage

The administrative law judge for the OBLI found the Kleins had violated Oregon’s law against discrimination in public accommodations and awarded $135,000 in damages.  But Brad Avakian, Commissioner of the OBLI and who is responsible for signing off on the decision, decided the ALJ did not go far enough.   In a lengthy opinion, Avakian found that the Kleins also violated Oregon’s anti-discrimination advertising law, ORS 659A, 409.  That law provides:

[I]t is an unlawful practice for any person acting on behalf of any place or public accommodation as defined in ORS 659A, 400 to publish, circulate, issue or display, or cause 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 the 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.< It is common sense that the legislature intended the provision to apply to things like signs and advertisements in which a business owner indicated that he or she intends to discriminate in the provision of services. 

Commissioner Avakian, who the opinion
says in a footnote is an attorney but apparently flunked Constitutional Law 101, instead uses the advertising provision as a free wielding tool to attack the Kleins for daring to speak out about what the Oregon Department of Labor was doing to them.   In the opinion, Avakian cites the speech he thinks violated the advertising prohibition, speech that the Commissioner does not believe is protected by the First Amendment. First up is a passage from a Christian Broadcasting Network interview:
“A. Klein:  “I didn’t want to be a part of her marriage, which I think is wrong.”

M. Klein:  “I am who I am and I want to live my life the way I want to live my life and, you know, I choose to serve God.”
A. Klein:  “It’s one of those things where you never want to see something you’ve put so much work into go belly up, but on the other hand, um, I have faith and the Lord and he’s taken care of us to this point and I’m sure he will in the future.” 
The Kleins are also accused of violating the advertising law by a sign they posted in their business: 

“Closed but still in business.  You can reach me by email or facebook.   www.sweetcakesweb.com or Sweetcakes by Melissa facebook page.  This fight is not over.  We will continue to stand strong.  Your religious freedom is becoming not free anymore. This is ridiculous that we cannot practice our faith.  The LORD is good and we will continue to serve HIM with all our heart.”
The Commissioner then returns to another CBN interview for more language that is deemed to have violated the advertising prohibition:

Perkins (host):  …Tell us how this unfolded and your reaction to that.
A. Klein:   “Well, as far as how it unfolded, it was just, you know, business as usual.  We had a bride come in. She wanted to try some wedding cake. Return customer. Came in, sat down.  I simply asked the bride and groom’s first name and date of the wedding.  She kind of giggled and informed me it was two brides.  At that point, I apologized.  I said, “I’m very sorry, I feel you may have wasted your time.  You know we don’t do same-sex marriage, same-sex wedding cakes.”  And she got upset, noticeably, and I understand that.  Got up, walked out, and you know, that was, I figured the end of that.
Perkins:   “Aaron, let me stop you for a moment.  Had you and your wife, had you talked about this before; is this something that you had discussed?  Did you think, you know, this might occur and had you thought through how you might respond or did this kind of catch you off guard?”
A. Klein:  “You know, it was something I had a feeling that was going to become an issue and I discussed it with my wife when the state of Washington, which is right across the river from us, legalized same-sex marriage and we watched Masterpiece Bakery going through the same issue that we ended up going through.  But, you know, it was one of those situations where we said “well I can see it is going to become an issue but we have to stand firm.  It’s our belief and we have a right to it, you know.”  I could totally 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.  That is something that just kind of boggles my mind as to how a government that is under the jurisdiction of the Constitution can decide, you know, that these people’s right’s overtake these people’s rights or even opinion that this person’s opinion is more valid than this person’s; it kind of blows my mind.”
The Commissioner concluded that the above statements indicate a future intent to discriminate and thus violate Oregon law.  Perhaps in an attempt to evade an almost certainly successful as applied free speech challenge, the Commissioner concluded that while the Kleins violated the advertising law, the lesbian couple didn’t actually suffer any damage due to that violation. Rather the Commissioner said the entire $135,000 in “emotional damages” related to the denial service, not the public comments of the Kleins.  The Commissioner also made clear that the $135,000 was not punitive damages to punish the Kleins, which the Bureau had no legal authority to award, but was the sum necessary to make the lesbian couple whole for the emotional trauma that was suffered at the hands of the Kleins.

See also:  Odgaards Shut Down Wedding Venue After Facing Discrimination Complaint for Religious Objections to Hosting Same Sex Ceremony

At the conclusion of the decision, the Commissioner Avakian’s imposes a “gag order” on the Kleins as part of the judgment. While read in isolation it appears to simply track the anti-discrimination advertising language in Oregon law, it is clear from the facts the Commissioner cite as proof of violation that he intends a sweeping restriction on the Kleins’ ability to speak out about the case or voice their opinion on same sex marriage.  

But the decision goes beyond the Kleins.  Given he imposed no damages associated with the advertising provision, there is no apparent reason for Commissioner Avakian to have raised the issue and highlight rather innocuous comments he deemed violated the law.  Except for one reason. That reason is to use the case to tell the business community in Oregon that, if you are opposed to same sex marriage, you better sit down and shut up or you will be the next target of the Oregon Department of Labor.  The State of Oregon’s chilling assault on its citizens’ Free Speech rights needs to be repelled.

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