March 22, 2017
by John Kaempf

The Status of the “Sweetcakes by Melissa” Christian Bakery-Gay Wedding Case in Oregon

Readers of this newsletter likely know that in 2015, shortly after the U.S. Supreme Court’s decision that legalized gay marriage nationwide, Brad Avakian, Oregon’s BOLI (Bureau of Labor and Industries) Commissioner, issued his Final Order in a BOLI case entitled In the Matter of Melissa Elaine Klein, dba Sweet Cakes by Melissa.

Commissioner Avakian ruled that the respondents in the Sweet cakes case, Aaron and Melissa Klein, the married Christian owners and operators of a bakery, violated Oregon law and must pay the complainants, a lesbian couple, $135,000 in damages. This is because, pursuant to their sincerely held Christian beliefs, the Kleins refused to bake a cake for the complainants’ same-sex wedding. Commissioner Avakian ruled that the Kleins violated Oregon’s “public accommodations” law, which, among other things, prohibits a place of “public accommodation” from discriminating against a person based on their sexual orientation.

Commissioner Avakian also accused the Kleins of “bigotry” in his Final Order.

The Kleins appealed the BOLI decision to the Oregon Court of Appeals.

On March 2, 2017, the Oregon Court of Appeals heard oral argument from attorneys for both sides. The court’s questions focused on these relevant issues for religious entities: Under Oregon law, is it illegal for businesses to refuse service to a customer based on a business owner’s sincerely held religious belief about the customer’s sexual orientation? Did BOLI Commissioner Avakian improperly prejudge the case through public comments he made against the Kleins before he decided their case?

A written decision by the Oregon Court of Appeals is expected sometime in late 2017 or early 2018. If the decision goes against them, the Kleins’ next option is to ask the Oregon Supreme Court to exercise its discretion to take their case.

Many court watchers believe that given the important free exercise of religion constitutional issues and the national attention this case has received, further appeals, perhaps even as far as the U.S. Supreme Court, seem likely.

The odds of the U.S. Supreme Court accepting the Kleins’ case are increased by the fact that a virtually identical case, Craig v. Masterpiece Cakeshop, was decided in Colorado. In 2015, the Colorado Court of Appeals held, contrary to the Kleins’ position, that the free exercise of religion clause of the First Amendment did not protect a Christian baker’s refusal to sell a wedding cake for a same sex marriage, and that his conduct violated Colorado’s “public accommodations” law. In 2016, The Colorado Supreme Court refused to accept the baker’s appeal. He then filed a “petition for certiorari” to the U.S. Supreme Court, asking that it take the case and decide the federal constitutional issue it raises, which is identical to that raised by Oregon’s Sweet Cakes by Melissa case. That petition is now pending before the U.S. Supreme Court.

Thus, the appellate status of this issue, including whether the U.S. Supreme Court decides it, remains in flux.

Readers can monitor this issue through the Religious Law Update Blog on the top of the Home page of