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.
Religious Liberty
Furthermore, the Kleins decided to run their business “as their own little Christian ministry.” When they declined to bake for the bachelor party it was because “they did not believe they would be bringing glory to God by creating a message that was vulgar and unseemly.”
Aaron and Melissa Klein did not want to celebrate a same-sex wedding because they believe that marriage is between one man and one woman. “They just declined to embrace a message that violated their faith.”
This is a separate freedom, the right to the free exercise of their religion. “The issue here is whether or not a person has a First Amendment right to adhere to their beliefs and to express that without being punished by the government,” Klukowski said. The freedom to act out your faith is a fundamental right in the First Amendment.
Due Process
Perhaps the most egregious part of the Klein’s case was the judge’s public declarations against them, before he had even heard their arguments. Brad Avakian, commissioner of the Oregon Bureau of Labor and Industries, sentenced the Kleins after hearing their case. But before the trial even began, he publicly stated that they were in the wrong.
“Before the case had been presented to him, he said that the defendants had broken the law, that the law could not provide exceptions for people, and that people who act in this way need to be rehabilitated,” Klukowski explained. This “violated the clients’ right, in the ‘due process’ clause, to a fair hearing by an impartial decision-maker.”
Rather than even attempting to appear impartial, Avakian “had a clear bias even before arguments had been presented to him.” Furthermore, he “said publicly that people who believe as the clients do, and people who act on such beliefs, need to be rehabilitated by the government.” If Christians who hold mainstream faith-based beliefs about marriage “need to be rehabilitated,” America is no longer a free country. This totalitarian language is unmistakable.
A Gag Order
Avakian also declared that Aaron and Melissa Klein could not declare their beliefs about marriage, even in explaining what happened in the case. “Any time they publicly discuss that day can be held as a violation of Oregon’s advertising laws,” Klukowski explained. If the Kleins explain that they believe marriage is between one man and one woman, and that that is why they did not agree to bake the cake, Avakian ruled that such a statement is tantamount to advertising that the couple will discriminate against gays and lesbians in their business.
“Under Supreme Court precedent, this is what’s called ‘overbroad,'” Klukowski argued. Such orders, which prohibit people from engaging in First Amendment speech and extend the prohibition beyond the objectives of the government order, violate the First Amendment and need to be struck down.
Next Page: What does this case mean for the scuffle over transgender issues and donor freedom?
How Does This Apply to Other Issues?
Klukowski emphasized that First Liberty Institute does not take official positions on social issues like abortion, marriage, and transgender privileges. “We’re exclusively dedicated to protecting religious liberty,” he said.
Nevertheless, there may be overlap on issues like North Carolina’s vilified transgender bathroom law. The law seeks to defend the privacy rights of men and women, boys and girls, by explicitly reserving multiple-person restrooms to individuals who were born male or female. Opponents say that this is discriminatory and difficult to enforce, but they entirely overlook the concerns that perverts might use the transgender loophole to violate the privacy of others, particularly young girls.
Regardless of whether the law is good policy, one side of the debate is entirely overlooking the concerns of the other side, as is happening in the Kleins’ case. “There has been a brushing aside or even a vilifying of people who disagree with these things,” Klukowski explained. Opponents do not “just say you’re wrong, but they call people names and try to vilify and ostracize them.”
There is also a similar dynamic when it comes to forcing organizations to release their donor lists to the public. Last week, a California district judge struck down the state’s order that Americans for Prosperity (AFP) Foundation release its list of donors to them. The judge cited the First Amendment right to free speech, saying these donors have the right to contribute to organizations which advocate for causes they believe in.
Klukowski argued that First Liberty also agrees “that people have a First Amendment right to be able to contribute to messages that they agree with.” He added that, “to the extent that anyone could be intimidated or harassed — that people could take that information and seek to punish you for your civil involvement — there is an obvious First Amendment argument to be made that [forcing disclosure of donors] is chilling free speech.”
While Aaron and Melissa’s case does not touch on transgender issues or forced donor disclosure, the issues are related, and it is important for conservative Christians to make their presence known. Our rights are not to be trampled on simply because we have become a cultural minority. Indeed, that status makes the free speech and religious freedom rights of Christians that much more important.
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