An Ore­gon court will de­cide if a bak­ery can have its wed­ding cake and not sell it, too

▶ Christian bak­ers in Ore­gon want out of same-sex wed­dings ▶ “We’ve seen all this be­fore with re­spect to other … dis­crim­i­na­tion”

Bloomberg Businessweek (North America) - - Contents - �Josh Eidel­son

In Jan­uary 2013, Rachel Bow­man-cryer and her mother vis­ited the Gre­sham, Ore., bak­ery Sweet Cakes by Melissa to do a taste test for her wed­ding. Ac­cord­ing to court records, things turned tense af­ter Sweet Cakes coowner Aaron Klein asked for the names of the bride and groom. Bow­man-cryer told him there would be two brides. Klein re­sponded that he and his wife, Melissa, wouldn’t bake a cake for a same-sex wed­ding. Bow­man-cryer and her mother walked out. While Bow­man-Cryer wept in the car, her mother went back to try to change Klein’s mind. He held fast and quoted a line from Leviti­cus call­ing ho­mo­sex­u­al­ity an abom­i­na­tion. That night, Bow­man-Cryer’s fi­ancée filed a com­plaint with the Ore­gon De­part­ment of Jus­tice.

The state de­ter­mined in 2015 that the Kleins had vi­o­lated Ore­gon’s an­tidis­crim­i­na­tion laws and or­dered them to pay $135,000 in dam­ages

to the Bow­man-cry­ers, who got a cake from an­other bak­ery for their wed­ding. The Kleins are ap­peal­ing, ar­gu­ing that they had a First Amend­ment right to refuse the cou­ple a wed­ding cake. The cou­ple, who closed the Sweet Cakes shop in 2013 and now sell their goods on­line, say they’re happy to sell cook­ies or cup­cakes to gay cus­tomers. “Aaron and Melissa saw their bak­ery as their Christian min­istry to the com­mu­nity,” says Ken Klukowski, se­nior coun­sel at the Texas-based First Lib­erty In­sti­tute, a le­gal ad­vo­cacy group rep­re­sent­ing the Kleins. “To bake a cake cel­e­brat­ing a same-sex mar­riage would force them to en­gage in speech they dis­agree with.”

The case is one of sev­eral na­tion­ally in­volv­ing reli­gious busi­ness own­ers who claim states that pro­hibit dis­crim­i­na­tion on the ba­sis of sex­ual ori­en­ta­tion or gen­der iden­tity are in­fring­ing on their First Amend­ment rights. The Ore­gon at­tor­ney gen­eral’s of­fice, which de­clined to com­ment, is due to sub­mit a brief de­fend­ing the $135,000 judg­ment by June 13. In his find­ing against the Kleins, the ad­min­is­tra­tive law judge who re­viewed the case in April 2015 said re­fus­ing wed­ding cakes to gay cus­tomers was dis­crim­i­na­tory be­hav­ior. He cited the U.S. Supreme Court’s 2003 rul­ing that sodomy laws ban­ning gay sex acts vi­o­lated the con­sti­tu­tional rights of gay peo­ple.

The Kleins claim the sodomy prece­dent doesn’t ap­ply to their case be­cause wed­dings are not as “in­ex­tri­ca­bly in­ter­twined with gay iden­tity” as sex is. Just as Ore­gon law doesn’t re­quire fem­i­nist pho­tog­ra­phers to take pic­tures at frat houses, it shouldn’t sin­gle out Christian bak­ers, the Kleins ar­gue in their ap­pel­late brief. Do­ing so “sends a clear mes­sage that their iden­tity as reli­gious peo­ple is not wor­thy of state recog­ni­tion and that they can­not op­er­ate a busi­ness in Ore­gon un­less they fa­cil­i­tate same-sex wed­dings.”

Sim­i­lar ar­gu­ments were made, with­out suc­cess, in 2013 by the New Mex­ico wed­ding ven­dor Elane Pho­tog­ra­phy, which re­fused to pho­to­graph a same-sex wed­ding. The state’s Supreme Court ruled the First Amend­ment’s pro­tec­tions for re­li­gion and speech don’t give com­pa­nies that of­fer ser­vices to the gen­eral pub­lic li­cense to dis­crim­i­nate. The U.S. Supreme Court de­clined to hear Elane Pho­tog­ra­phy’s ap­peal.

“We’ve seen all this be­fore with re­spect to other kinds of dis­crim­i­na­tion,” says Jennifer Pizer, se­nior coun­sel for the LGBT non­profit Lambda Le­gal. In 1968, four years af­ter Pres­i­dent Lyn­don John­son signed the Civil Rights Act, the Supreme Court ruled unan­i­mously against a South Carolina bar­be­cue owner who claimed that re­quir­ing him to let black cus­tomers sit in his restau­rant, rather than only let­ting them buy take­out, in­ter­fered with his First Amend­ment rights.

The Kleins’ lawyers say such cases shouldn’t be con­flated with theirs. “The supreme law of the land now guar­an­tees racial equal­ity, just as it guar­an­tees reli­gious lib­erty,” says Klukowski. “The Con­sti­tu­tion says noth­ing about sex­ual ori­en­ta­tion.”

The bot­tom line An Ore­gon case re­opens the ques­tion of whether pri­vate busi­ness own­ers can refuse to pro­vide ser­vices for same-sex wed­dings.

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