RELIGIOUS DEFENSES TO CLAIMS CONCERNING SEXUAL ORIENTATION DISCRIMINATION – WHY THE “SWEET CAKES BY MELISSA” DISPUTE IS DIFFERENT
Oregon received national media attention earlier this year when its Bureau of Labor and Industries (BOLI) announced in a January 2014 press release that a Gresham bakery violated the civil rights of a same-sex couple when it denied them service based on their sexual orientation. The couple filed a complaint against “Sweet Cakes by Melissa” under the Oregon Equality Act of 2007, a law that protects the rights of gays, lesbians, bisexual, and transgender Oregonians in employment, housing, and public places. Under that law, Oregonians may not be denied service based on sexual orientation or gender identity.
The law, however, provides an exemption for religious organizations and schools operating in Oregon, but it does not allow private business owners to discriminate based on sexual orientation. BOLI’s investigation concluded that the bakery was not a “religious institution” under the law and that its policy of refusing to make same-sex wedding cakes represents unlawful discrimination based on sexual orientation.
However, as BOLI recognized, “bona fide religious institutions” are exempt from this law. Oregon Revised Statutes 659A.006(3) states: “It is not an unlawful practice for a bona fide church or other religious institution to take any action with respect to housing or the use of facilities based on a bona fide religious belief about sexual orientation as long as the housing or the use of facilities is closely connected with or related to the primary purposes of the church or institution and is not connected with a commercial or business activity that has no necessary relationship to the church or institution.”
Similarly, concerning employment and sexual orientation, Oregon Revised Statutes 659A.006(5) states: “It is not an unlawful employment practice for a bona fide church or other religious institution to take any employment action based on a bona fide religious belief about sexual orientation: (a) In employment positions directly related to the operation of a church or other place of worship, such as clergy, religious instructors and support staff; (b) In employment positions in a nonprofit religious school, nonprofit religious camp, nonprofit religious day care center, nonprofit religious thrift store, nonprofit religious bookstore, nonprofit religious radio station or nonprofit religious shelter; or (c) In other employment positions that involve religious activities, as long as the employment involved is closely connected with or related to the primary purposes of the church or institution and is not connected with a commercial or business activity that has no necessary relationship to the church or institution.”
Therefore, Oregon churches and “other religious institutions” (including religious schools), while, of course, seeking to avoid unlawful discrimination, should be aware that they are exempt from laws prohibiting discrimination against sexual orientation in public places under the terms of Oregon Revised Statutes 659A.006(3). They are also exempt from employment discrimination under the terms of Oregon Revised Statutes 659A.006(5).
This article is not intended to encourage or discourage such conduct by religious institutions. Rather, its purpose is to inform Oregon churches and religious schools of their rights in this area once they have independently decided on a course of conduct.