October 14, 2015
by John Kaempf

The “Sweetcakes By Melissa” Dispute – Oregon’s Bureau Of Labor and Industries (BOLI) Made National News This Year By Ordering Christian Bakers to Pay a Lesbian Couple $135,000 for Refusing to Make a Cake For Their Wedding Based on the Bakers’ Religious Beliefs

1. A summary of the Sweetcakes ruling by BOLI and its rejection of the Christian bakers’ First Amendment free exercise of religion defense

On July 2, 2015 – the week after the U.S. Supreme Court’s decision in Obergefell v. Hodges, 135 Supreme Court 2584 (2015), which legalized gay marriage nationwide (as separately discussed in this newsletter) – Brad Avakian, Oregon’s BOLI Commissioner, issued his Final Order in a BOLI case entitled In the Matter of Melissa Elaine Klein, dba Sweetcakes by Melissa.

Commissioner Avakain ruled that the respondents in the Sweetcakes case, the owners and operators of a bakery, violated Oregon law and must pay the complainants, a lesbian couple, a total of $135,000 in damages because, pursuant to the respondents’ sincerely held religious beliefs, they refused to bake a cake for the complainants’ same -sex wedding. Commissioner Avakain ruled that this 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.

The relevant facts as found by BOLI are as follows: The complainants, Laurel Bowman- Cryer (LBC) and Rachel Bowman- Cryer (RBC), are a lesbian couple. They decided to get married and wanted to buy their wedding cake from “Sweetcakes by Melissa” (Sweetcakes), a bakery then based in Gresham, Oregon, that was owned and operated by respondents Melissa Klein and Aaron Klein, a Christian married couple with young children. RBC and her mother, Cheryl McPherson (CM), visited Sweetcakes in January 2013 for a cake tasting appointment conducted by Mr. Klein, whose wife was at home caring for their infant twins on the day at issue. Mr. Klein asked for the names of the bride and groom, but RBC told him “that there would be two brides” and “their names are Rachel and Laurel.” At that
point, Mr. Klein stated that “he was sorry, but that Sweetcakes did not make wedding cakes for same-sex ceremonies because of [the Kleins’] religious convictions.” (Emphasis added.)

In response, RBC began crying, feeling that she had “humiliated” CM, her mother, and was “anxious” about whether her mother “was ashamed of her” because her mother “had believed that being a homosexual was wrong until only a few years earlier.” RBC’s mother
walked RBC out of Sweetcakes to their car. RBC became “hysterical” and kept telling her mother “I’m sorry” because she felt she had “humiliated” her.

RBC’s mother hugged her “and assured her they would find someone to make a wedding cake.” CM then returned to Sweetcakes a short time later by herself and spoke to Mr. Klein. During their conversation, CM told Mr. Klein that she used to think like him, but her “truth had changed” due to having two gay children. CM testified that Mr. Klein then quoted Leviticus 18:22 to her, saying: “You shall not lie with a male as one lies with a female; it is an abomination.”

CM then left Sweetcakes and returned to the car, where RBC had remained, “just bawling” and holding her head in her hands. CM told RBC that Mr. Klein had told her that “her children were an abomination unto God.” This made RBC even more upset. She was raised as a Southern Baptist, and “the denial of service in this manner made her feel as if God made a mistake when he made her, that she wasn’t supposed to be, and that she wasn’t supposed to love or be loved, have a family, or go to heaven.”

RBC and her mother then returned home, where her mother told LBC, RBC’s fiancée, what had occurred at Sweetcakes. This “upset” LBC and made her “very angry.”

On June 27, 2013, the complainants had a commitment ceremony in Portland (Oregon law at the time did not allow them to be married). Other bakers delivered free wedding cakes to the ceremony.

On August 28, 2013, RBC filed a complaint with BOLI, alleging that Sweetcakes “had discriminated against her by refusing to make her a wedding cake because of her sexual orientation.” Complainants were legally married in 2014, a few days after Oregon’s ban on samesex marriage was struck down in federal court.

BOLI conducted a hearing (essentially a mini-trial) in March 2015, which included witness testimony and exhibits. The BOLI Administrative Law Judge (ALJ) made the following legal conclusions (among others): (1) Sweetcakes was a “place of public accommodation” under Oregon statutory law, which states that a “place of public accommodation” means any “place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements, transportation or otherwise;” (2) Mr. Klein denied complainants “the full and equal accommodations, advantages, facilities and privileges of Sweetcakes” based on their sexual orientation, thereby violating Oregon statutory law, which provides, in relevant part, that “all persons” are “entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of sexual orientation.” The ALJ also ruled that (3) complainants “suffered mental and emotional suffering” as a result of Mr. Klein’s violation of Oregon law, and that (4) as partners, Mr. and Mrs. Klein are jointly and severally liable for Mr. Klein’s violation of Oregon law.

The ALJ awarded complainant RBC $75,000 in damages for “emotional suffering.” The ALJ awarded complainant LBC $60,000 in damages for “emotional suffering” ($15,000 less than RBC) “because she was not present” when Mr. Klein denied the requested service. The ALJ further found LBC’s “testimony about the extent and severity of her emotional suffering to be “exaggerated in some respects.”

Therefore, the ALJ ordered the Kleins to pay a total of $135,000 to the complainants. BOLI Commissioner Avakian affirmed this ruling by the ALJ.

In reaching its holding, BOLI (through Commissioner Avakian) rejected the Kleins’ defense based on the free exercise of religion provisions of the United States and Oregon Constitutions. BOLI held that the Kleins’ statements “announcing their clear intent to discriminate in the future” – to continue to refuse to sell cakes for same-sex weddings pursuant to their Christian beliefs – “just as they had done with Complainants was not a religious practice but was conduct motivated by their religious beliefs.” (Emphasis added.) BOLI further held: “This case is not about a wedding cake or a marriage. It is about a business’s refusal to serve someone because of their sexual orientation. Under Oregon law, that is illegal.” (Emphasis added.)

The Kleins claimed that they were “not denying service because of Complainants’ sexual orientation but rather because they do not wish to participate in their same sex wedding ceremony” based on their religious beliefs. (Emphasis added.) However, BOLI “found there to be no distinction between the two.”

BOLI then accused the Kleins of “bigotry,” holding that their “conduct was a clear and direct statement that [the complainants] lacked an identity worthy of being recognized. The denial of these basic freedoms to which all are entitled devalues the human condition of the individual, and in doing so, devalues the humanity of us all.” (Emphasis added).

Concerning the $135,000 in total damages awarded, BOLI held that it “did not constitute a fine or civil penalty,” but merely “fairly compensates” the complainants “for the harm they suffered ***. This is an important distinction as this order does not punish respondents for their illegal conduct but, rather makes whole those subjected to the harm their conduct caused.” (Emphasis added.)

In any event, BOLI, a state government entity, ordered the Kleins to pay the complainants $135,000 for refusing to bake a cake for their same-sex wedding based on the Kleins’ sincerely-held religious belief opposing same-sex marriage.

As a result of this dispute, the Kleins were forced to close Sweetcakes. They announced their intent to appeal BOLI’s rulings to the Oregon Court of Appeals. They also sought help through a legal defense fund.

The Sweetcakes dispute in Oregon touched off a nationwide controversy about the right to “public accommodations” and for gay people to now marry versus the longstanding First Amendment constitutional rights to freely exercise one’s religion and to engage in free speech. BOLI’s July 2, 2015 Final Order in the Sweetcakes dispute dovetails with and was issued shortly after the June 26, 2015 decision by the U.S. Supreme Court in Obergefell, which made same-sex marriage legal nationwide, as discussed in the separate article in this newsletter.

2. Religious institutions and religious persons in Oregon and nationwide can expect legal challenges to their religious beliefs based on the Obergefell case legalizing same-sex marriage and the ability of administrative agencies to go after groups it does not like for political reasons.

Religious institutions in Oregon and nationwide can expect more legal battles involving the First Amendment right to freely exercise one’s religion and the right to free speech versus anti-discrimination laws such as those at issue in the Sweetcakes dispute, as well as the new constitutional right to same-sex marriage.

Indeed, on August 13, 2015, the Colorado Court of Appeals, in a case involving facts virtually identical to those in Oregon’s Sweetcakes dispute – the Christian owner of a bakery refused to sell a wedding cake to a samesex couple based on his religious
beliefs – cited both the ruling of (1) Oregon’s BOLI in the Sweetcakes case; and (2) the U.S. Supreme Court’s decision in Obergefell to support its holding that the Christian baker’s refusal to bake a cake for a same-sex wedding violated Colorado’s “public accommodations” law. Craig v. Masterpiece Cakeshop, Inc., 2015 Westlaw 4760453 at footnotes 1, 6, 10 (Colorado Court of Appeals 2015).

The Colorado Court of Appeals in the recent Craig decision also rejected the Christian baker’s free exercise of religion and free speech constitutional defenses. Id. at *15-20.

Interestingly, however, when “the tables were turned,” and perhaps “tipping its hand” as to its bias, the court in the Craig case seemed to contradict itself when it confirmed that a different bakery did not have to bake a cake for a Christian that the bakery and a Colorado administrative agency deemed “offensive.” The court held that the Craig case (a Christian baker refusing to bake a cake for a same-sex wedding based on his religious beliefs), just Like Oregon’s Sweetcakes case,

is distinguishable from the Colorado Civil Rights Division’s recent findings that Azucar Bakery, Le Bakery Sensual, and Gateaux, Ltd., in Denver did not discriminate against a Christian patron on the basis of his creed when it refused his requests to create two bible-shaped cakes inscribed with derogatory messages about gays, including “Homosexuality is a detestable sin Leviticus 18:22 [the same Bible verse Christian baker Aaron Klein allegedly quoted in Oregon’s Sweetcakes BOLI case]. The Division found that the bakeries did not refuse the patron’s request because of his creed, but rather because of the offensive nature of the requested message. Importantly, there was no evidence that the bakeries based their decisions on the patron’s religion ***. Conversely, Masterpiece [collectively, the defendant baker and his bakery in the Craig case] admits that [the] decision to refuse [the plaintiffs’] requested wedding cake was because of its opposition to same-sex marriage which, based on Supreme Court precedent, we conclude is tantamount to discrimination on the basis of sexual orientation.

Id. at footnote 8 (citations omitted).
Therefore, in Oregon and Colorado (for now – these disputes are only getting started), whether a baker can be forced to bake a cake he or she does not want to bake, or whether someone can be forced to provide a service to or make a product for someone engaging in an act that violates their religious beliefs, appears to depend on who finds the cake, other product, or service “offensive.” A religious person or organization can expect to be found in violation of the law for refusing to bake a cake for or sell another product to a person related to an event it opposes for religious reasons. However, a secular (non-religious) person or organization that finds a religious themed cake “offensive” will likely not be found in violation of the law, and will thus not be forced to bake a cake (or make another product) or be forced to pay damages for not doing so, unlike the Kleins in the Sweetcakes case and the defendant baker in the recent Craig case from Colorado.

However, Oregon churches, religious schools, and other religious institutions should note that Oregon law provides an exemption to Oregon’s anti-discrimination laws for religious organizations and schools. BOLI concluded that the Sweetcakes bakery was not a “religious institution” under the law and that its policy of refusing to make samesex wedding cakes represents unlawful discrimination based on sexual orientation.

“Bona fide religious institutions” are exempt from the anti-discrimination laws at issue in the Sweetcakes case. 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.” (Emphasis added.)

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.” (Emphasis added.)

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 claims under the terms of Oregon Revised Statutes 659A.006(5).

It has been suggested by U.S. Solicitor General Donald Verrilli and others that religious entities that continue to oppose gay marriage after the recent Obergefell decision legalizing it nationwide should lose their tax exempt status. Many, including U.S. Supreme Court justices, as shown by the majority and dissenting opinions in the Obergefell case, believe a U.S. Supreme Court case addressing the conflict between (1) the new constitutional right to same-sex marriage; and (2) the First Amendment constitutional rights to freely exercise one’s religion and to free speech is inevitable in light of the free exercise of religion implications of Obergefell, as well as related disputes like the Sweetcakes matter in Oregon and the recent Craig case from Colorado.

Finally, concerning the Sweetcakes and Craig cases, David French, an attorney and staff writer for National Review, wrote as follows on its website on July 7, 2015, reflecting the concerns of many religious entities about BOLI’s ruling in the Sweetcakes case and essentially predicted the later holding in the Craig case:

It is critical to understand that [the Sweetcakes ruling by BOLI] is not the result of a conventional court proceeding. *** It is a process that is rife with conflicts of interest, ideological from the start ***. In states across the country, discrimination complaints against businesses like the Kleins’ originate not in court but instead in state agencies like BOLI ***. The agencies and commissions are often led by explicitly ideological politicians who make no pretense of impartiality, instead openly declaring that they’ll aggressively find and punish “discrimination” wherever it’s found. *** Americans have long recognized the inherent bias when one person functions as “judge, jury, and executioner.” ***

The Kleins’ case is no exception. *** For example, [BOLI Commissioner Brad Avakian] committed an act that would typically disqualify judges in civil or criminal proceedings by publicly commenting on the Kleins’ case before it came before him. On February 5, 2014, he posted a link to a story of a bakery providing a free wedding cake to the complaining lesbian couple and declared, “Everyone has a right to their religious beliefs, but that doesn’t mean they can disobey laws already in place.” *** Avakian speaks as a politician while exercising the power of a judge. *** While litigants typically have a right to appeal agency rulings to “real” courts, these appeals not only come at the end of an exhausting, expensive, and often years-long administrative process, they’re often extraordinarily limited ***.

Core constitutional liberties are adjudicated by bureaucrats who possess minimal constitutional expertise yet operate under clear political and ideological mandates.

In such a circumstance, the question isn’t whether litigants like the Kleins will prevail, but whether they ever had a chance. (Emphasis added.)


Consistent with Mr. French’s opinion about BOLI being biased and overtly political – not neutral like a court – recent investigative reporting reveals that BOLI worked closely with a gay rights advocacy group against the Kleins in the Sweetcakes case. Kelsey Harkness reported on June 1, 2015 on the website Dailysignal.com that communications obtained through a public records request show that BOLI employees participated in phone calls, text messages, and attended meetings with Basic Rights Oregon, the largest LGBT advocacy group in Oregon, which has actively spoken out against the Kleins.

Regardless of one’s opinion about same-sex marriage, this advocacy and bias by BOLI against one side and for another side in a pending matter before it is not fair, and sets a dangerous precedent for other disputes.

Ms. Harkness reports that according to emails, BOLI Commissioner Brad Avakian met with Basic Rights Oregon on multiple occasions. Emails also show Mr. Avakian purchasing tickets costing hundreds of dollars to attend Basic Rights Oregon’s annual fundraising galas and gay pride parades while BOLI’s case against the Kleins was pending. Also, in 2012, Basic Rights Oregon donated almost $8,000 to Mr. Avakian’s bid for BOLI commissioner. Therefore, Mr. Avakain and Basic Rights Oregon admittedly “scratched each other’s backs,” and both admittedly wanted to “make the Kleins pay” – literally.

In her article, Ms. Harkness quotes Von Spakovsky, a critic of the administrative law process, who says the relationship between Mr. Avakian and an activist group would be an obvious ethics violation in the court system. He states that “the agency is acting as judge, prosecutor, jury, and executioner, which is a basic violation of fundamental due process protections.”

This is consistent with Mr. Avakian, in February 2014, publicly accusing the Kleins of breaking the law before hearing the case against them. Ms. Harkness also notes that Mr. Avakian appointed the ALJ who heard the evidence in the Sweetcakes matter, and whose $135,000 award Mr. Avakian then affirmed. Therefore, this statement about the Sweetcakes case by Mr. French resonates: “In such a circumstance, the question isn’t whether litigants like the Kleins will prevail, but whether they ever had a chance.”

Also, concerning the Craig decision recently issued in Colorado, Mr. French similarly opined as follows on August 14, 2015 on the National Review website:

Follow the “logic.” The refusal of a religious customer’s request for a religious message is not discrimination on the basis of religion in part because the baker has helped convey other religious messages from other religious customers. Yet refusing a gay customer’s request for a message celebrating gay marriage is sexualorientation discrimination even though the baker has helped other gay customers convey other messages. Got it. The logic is clear: Gays win and Christians lose. ***

I expect the bakery will appeal this ruling to the Colorado Supreme Court and, ultimately, perhaps even to the U.S. Supreme Court.

In conclusion, in light of (1) the Obergefell U.S. Supreme Court decision this year legalizing same-sex marriage nationwide; (2) BOLI’s treatment of the Christians who owned and ran the “Sweetcakes by Melissa” bakery; and (3) the similar treatment of the Christian baker in the recent Craig case from Colorado, religious entities and individuals can expect to face legal challenges if their sincerely held religious beliefs lead to decisions that allegedly violate secular rights to equal treatment.

Also, such challenges should give rise to future court battles based on the defense that the First Amendment constitutional rights to the free exercise of religion and to free speech allow religious institutions and religious people to make these decisions without being second-guessed by secular courts or government agencies.

A U.S. Supreme Court decision addressing this ongoing clash of competing constitutional rights seems likely, and the only issue is how soon it will occur. In the meantime, religious institutions in Oregon and nationwide need to be mindful of their First Amendment rights to freely exercise their religion and to engage in free speech.