On September 2, 2022, First Liberty petitioned the U.S. Supreme Court to review an Oregon Court of Appeals decision that upheld the state-imposed punishment of bakery owners, Melissa and Aaron Klein. The Oregon Bureau of Labor and Industry had determined that the couple had violated a generally applicable public accommodations law in refusing to bake the cake and had even increased the fine because Aaron Klein had quoted the Bible when he communicated the refusal to the prospective customers.
This is the second time the Kleins have appealed to the Supreme Court on this issue. In June 2019, the Supreme Court vacated the original 2016 Appeals Court’s decision to consider a recent case in favor of Masterpiece Cakeshop. In the Masterpiece case, the Court found that the state must provide “neutral and respectful consideration” to “sincere religious beliefs motivating [they’re] objection.” In the Oregon case, the Supreme Court vacated the lower court decision given that the bakers, Aaron and Melissa Klein, were not afforded this “neutral and respectful consideration.”
The Oregon case began in 2013 in Gresham, Oregon. The bakery, “Sweet Cakes by Melissa,” was forced to close when the Oregon Bureau of Labor and Industries (“BOLI”) imposed a $135,000 penalty against it because it refused to create a custom cake for a same-sex wedding because of its religious convictions.
According to the Kleins’ lawyers, BOLI was biased against religious expression. They said the prejudiced commissioner “accused the Kleins of using religion as ‘an excuse for their actions and said they needed to ‘learn from [the] experience’ and be ‘rehabilitate[d].’”
BOLI felt that increased damages were appropriate because when Aaron had explained his position to Cheryl McPherson, mother of one of the brides, he had quoted the Bible, and it offended the mother and couple. There is some factual disagreement about what Aaron said to Cheryl. Aaron said that he had quoted Leviticus 18:22 to her: “You shall not lie with a male as one lies with a female; it is an abomination.” Cheryl disagreed and said that he called her daughter and her fiancé abominations.
In assigning damages, the BOLI “prosecutor argued that what mattered was that Aaron used the word ‘abomination,’ and how that word affected Rachel and Laurel Bowman-Cryer [the lesbian couple].” The administrative law judge (ALJ) agreed but credited Aaron’s testimony about what he had said to Cheryl. The ALJ assigned damages despite this.
Aaron and Melissa appealed the BOLI decision in 2016, with the Oregon Court of Appeals upholding the decision but removing the gag order.
Jennifer Pizer, the Bowman-Cryer attorney, said, “The court was right five years ago and is still right today…The Kleins‘ faith does not give them a pass to ignore Oregon’s Public Accommodation Law.”
Following that decision, the Kleins appealed to the Oregon Supreme Court, which denied review of that opinion. They then approached the U.S. Supreme Court, which vacated the decision in June 2019.
After the June 2019 Supreme Court decision vacating the Oregon Court of Appeals decision, the Kleins returned to the Oregon Court of Appeals. The Appeals Court struck the $135,000 in damages because the BOLI commission prejudice had violated the First Amendment’s strict neutrality condition. The Court of Appeals found that:
“The prosecutor’s closing argument apparently equating the Kleins’ religious beliefs with ‘prejudice,’ together with the agency’s reasoning for imposing damages in connection with Aaron’s quotation of Leviticus, reflect that the agency acted in a way that passed judgment on the Kleins’ religious beliefs, something that is impermissible under Masterpiece Cakeshop.”
The Court of Appeals returned the case to BOLI, finding there was “no reason to think” BOLI would still be biased against the Kleins. The BOLI commission reimposed $30,000 in damages based on the prior hearing, with no new hearing called, and the underlying liability for the Kleins remained in place.
Although the restrictions placed on the Kleins may seem to violate the Free Exercise Clause, the Oregon Court of Appeals and the Supreme Court found in Masterpiece Cakeshop that religious liberty could be restricted under a neutral, generally-applicable law in line with Employment Division v. Smith (1990). In Masterpiece Cakeshop, the Supreme Court focuses not on religious liberty or free expression of religion but government neutrality in legal procedure. However, some justices, including Justice Thomas, thought religious freedom should not be restricted.
Given that the Oregon Court of Appeals considered whether BOLI was biased and still found the Kleins liable for discrimination, the Supreme Court will have to more directly evaluate the viability of the Smith approach to free-exercise jurisprudence.
The First Liberty lawyer for the Klein’s said in the recent petition to the Supreme Court:
“All Americans are entitled to due process, with a fair hearing before an unbiased tribunal. The Kleins never received that…We hope the [Supreme] Court will hear the Kleins case and clarify that all Americans have a constitutional right to due process, free speech, and religious liberty.”
Case Materials: Melissa Elaine Klein, et vir, Petitioners v. Oregon Bureau of Labor and Industries (Cert filed 9/7/2022) , U.S. Supreme Court Docket No. 22-204
Caden Benedict is a Senior at Pepperdine University majoring in Economics and minoring in Great Books. He is the Founder and Editor-in-Chief Emeritus of the The Pepperdine Beacon, a media and news organization preserving and promoting the values and mission of the university through a relentless pursuit of truth. He plans to attend law school and enter the film industry after his education.