SCOTUS Sends Oregon Gay Wedding Cake Case Back to Lower Court

In this Feb. 5, 2013, file photo, Melissa Klein, co-owner of Sweet Cakes by Melissa, in Gresham,Ore., tells a customer that the bakery has sold out of baked goods for the day. (Everton Bailey Jr./The Oregonian via AP, File)

A case involving a Christian Oregon couple that was successfully sued by the state for not baking a wedding cake for a gay couple was sent back to a lower court by the Supreme Court on Monday “for further consideration.”


Last term, the court ruled in favor of a Colorado baker who was sued by the state for discrimination.

Associated Press:

The couple, Melissa and Aaron Klein, cited religious beliefs as their reason for not providing services for a gay wedding. This touched off the latest in a series of such cases making headlines in recent years. During the court’s last term, justices ruled in favor of a Colorado baker in a similar situation, stating that a state body demonstrated improper hostility toward the baker’s religion in finding that he violated a state anti-discrimination law.

On Monday, the Supreme Court sent the Klein case back down to a lower court “for further consideration in light of” their Colorado decision.

The central disputes in the case — which pits LGBT rights against religious freedom considerations — have yet to be addressed by the Supreme Court.

The court keeps punting on deciding the fundamental issue of religious freedom, which isn’t surprising given the controversial nature of the issues involved. Chief Justice Roberts may be waiting for a case where the court can reach some sort of consensus instead of the usual 5-4 split.

Another similar case decided earlier also resulted in the Supreme Court refusing to decide the issue.


Daily Caller:

The Supreme Court followed a similar course in 2018 with a like controversy in Washington state, where florist Barronelle Stutzman refused a request for floral arrangements at the wedding of a longtime gay patron. Stutzman’s case was held in abeyance while the high court weighed the Masterpiece dispute. Eventually the justices returned the matter to a Washington state court with orders to reconsider it in light of Masterpiece.

The Washington Supreme Court again ruled against Stutzman on June 6, so Stutzman will file a second appeal at the U.S. Supreme Court. As such, the question of First Amendment defenses to public accommodations laws requiring businesses to serve gay patrons will return to the Court in the coming months.

The Oregon anti-discrimination board had a novel interpretation of what constitutes freedom of speech.

Cryer and Bowman filed a complaint with a state anti-discrimination panel. In turn, the Kleins argued their actions were protected under the First Amendment’s free speech and free exercise of religion clauses.

In a subsequent proceeding, state officials found that the Kleins violated Oregon’s public accommodations law. The Kleins were ordered to pay out a $135,000 fine and cease discriminating on the basis of sexual orientation. They have since closed their business because of the financial penalty.

A state court in Oregon upheld that decision, finding that cakes do not deserve full First Amendment protection because they incorporate many non-expressive elements, and whatever expression they convey is not imputed to the creator. The court further found that precedent barred the Kleins’ free exercise claim.


Oh, really? “Non-expressive elements” that are “not imputed to the creator”?  Says who? Deciding what is and what isn’t free speech was not the job of the government’s “non-discrimination panel.”  And if the statute is drawn that broadly, it should be challenged and struck down.

The court has taken no additional religious freedom cases this term so it’s likely the issue will be left hanging until after the 2020 election.


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