Oregon Baker Religious Freedom Case 'Ideal' for Supreme Court, Lawyer Says
Oregon bakers Aaron and Melissa Klein filed an appeal on Monday, challenging an order that they pay a $135,000 fine and not speak publicly about their religious commitments on the issue of marriage. After the couple, acting on their religious beliefs about marriage, rejected a lesbian couple's request for a wedding cake in 2011, they were charged with illegal discrimination.
Their appeal focuses on First Amendment issues like free speech and religious liberty, in addition to due process rights. One of the lawyers involved in the case said that it is "actually an ideal vehicle for the [United States Supreme] Court to decide" the issues of religious freedom and alleged discrimination against gays and lesbians.
"The U.S. Supreme Court has never heard a case of this nature before," Ken Klukowski, senior counsel and director of strategic affairs at the Liberty Institute, told PJ Media in an interview on Tuesday. He said there were two major reasons why the Klein's case has the highest court written all over it: a governmental harm and a distinguished lead counsel.
"In this case the government imposed a specific financial penalty, and it was a big one [$135,000], and they've already collected it," Klukowski said. "The Kleins have been injured by the government. Unlike other cases, there is a past-tense injury that can only be remedied if we prevail in court."
Besides this concrete harm, the case also has a major lawyer involved. C. Boyden Gray, who was White House counsel under President George H.W. Bush, is "one of the most distinguished constitutional lawyers in the United States," Klukowski explained. In addition to being the chief legal counsel to the president, Gray clerked for the late Chief Justice Earl Warren, and was a U.S. ambassador to the European Union.
"You have all the elements there that would make for a good U.S. Supreme Court case," Klukowski concluded. The case is in the process of being appealed to the Oregon Court of Appeals, where briefing will likely be completed in June. The losing side of that decision can ask the Oregon Supreme Court to hear the matter. If the Oregon Supreme Court renders a decision, the losing side can then petition to the Supreme Court to hear any federal constitutional issues in the case. First Liberty is serving pro bono as co-counsel on the case, after the Kleins heard about the organization at a religious liberty conference last fall.
Klukowski said the ruling against the Kleins violated three major constitutional rights: free speech, freedom of religion, and the right to due process.
Freedom of Speech
Klukowski explained the process Aaron and Melissa Klein used when baking wedding cakes. "Melissa would sit down with the couple and get a feel from them about what kind of elements in the cake would help convey a message of celebrating their union and providing Aaron and Melissa's blessing on the wedding," he said.
"The issue in this case is not discriminating on the basis of sexual orientation," the lawyer added. The Kleins had sold many cakes, cookies, and various baked goods to gays and lesbians before, but a wedding cake is a separate issue. They had also rejected baking cakes for other events, such as divorce parties and bachelor parties. Aaron and Melissa Klein previously rejected a request to bake a cake "in the shape of a certain body part."
"As the Supreme Court has recognized for decades, when artists are creating artwork, whatever message they are presenting is a form of speech and protected by the First Amendment," Klukowski told PJ Media. Aaron and Melissa Klein have a free speech right to deny baking a cake for a specific event, no matter what reason they provide for not wanting to partake. They have a right "not to be forced by the government to say something that you do not believe."
Next Page: How the ruling violated the Kleins' religious liberty and due process rights.