Yet Another Layer Added to 11-Year-Old Cake Case

Klein v. Oregon Bureau of Labor and Industries

​The Oregon Court of Appeals is once again considering the case of Aaron and Melissa Klein, owners of Sweet Cakes by Melissa after the U.S. Supreme Court twice sent their case back for reconsideration by that state court.
 
As Yogi Berra said, it’s like déjà vu all over again.
 
This case began 11 years ago when the Oregon Bureau of Labor & Industries (BOLI) fined the Kleins $135,000 for declining to make a cake promoting a gay commitment ceremony, which the Kleins said violated their religious beliefs. While it would be illegal – and should be – to refuse to serve food, lodging, or a million other items to people on the basis of their sexual orientation, this case touched on the First Amendment rights of the Kleins not to create a message that violates their religious belief. The state regulator even slapped the Kleins with a gag order that prevented them from discussing their case.
 
“We welcomed and served everyone in our bakery, but we could not endorse all messages,” Melissa Klein said.
 
“Freedom of speech has always included the freedom not to speak the government’s message,” said Stephanie Taub, senior counsel to First Liberty Institute, which represents the Kleins. “The First Amendment protects all Americans, of different perspectives and beliefs, to not be forced to use their art to send a message with which they disagree.”
 
After the Supreme Court ruled in favor of Jack Phillips in Masterpiece Cake Shop v. Colorado Civil Rights Commission in 2018 for refusing to make a cake for a same-sex wedding, the high court sent the Klein’s case back to Oregon. BOLI responded with a vengeance, this time imposing a $30,000 fine on the Kleins.
 
In June 2023 the Supreme Court for the second time sent this case back to the state for reconsideration, this time on the basis of its 303 Creative LLC v. Elenis, which allowed business owners to decline a service if it required them to create a message contrary to their religious beliefs. The Court clearly believes that the same principle that applies to a website designer also protects the religious rights of a baker.
 
How many times will a state regulatory body be allowed to refuse to acknowledge the authority of the U.S. Supreme Court? In January, the Oregon court heard oral arguments in this case to test that principle.
 
It is time for the Oregon court to tell state regulators: this cake is baked.