Round three for Sweet Cakes bakers

The discussion of sheet cakes, tier cakes, tastings, and cake decorations during arguments before a panel of the Oregon Court of Appeals last Tuesday likely would have amused any observers. Yet for Aaron and Melissa Klein, the proceedings could not have been more serious.

The Sweet Cakes by Melissa bakers were before the court for the third time in a decade over their religious beliefs. In 2013, they decided not to custom design a cake for a same-sex wedding because of their Biblical conviction that marriage is only between one man and one woman. After the two women turned away by the Kleins filed a complaint with the state’s Bureau of Labor and Industries, the agency fined the Kleins $135,000, effectively shuttering their business.

In January 2022, the appeals court panel doubled down on a 2017 decision from another court panel that ruled that the Kleins discriminated against the two women. But that panel also found that the state showed hostility toward the Kleins’ religion, so it sent the case back to the state agency for reconsideration of the fine. But the agency reimposed a fine, while reducing it to $30,000.

When the Kleins appealed to the U.S. Supreme Court, the court sent the case back to the Oregon Court of Appeals to reconsider in light of the outcome of 303 Creative v. Elenis in June 2023. In that long-anticipated ruling, the Supreme Court vindicated the right of Colorado website designer Lorie Smith not to be compelled to design websites to celebrate same-sex weddings.

Last Tuesday, judges on the appeals court panel seemed at pains to distinguish 303 Creative from the case before them, searching for facts that might lead to a different result—seemingly anything that would provide them a way to reaffirm their previous ruling that the Kleins committed discrimination. For over 30 minutes, they peppered Klein counsel James Conde with questions that sought admissions that would help them draw fine distinctions.

“When you refer to sitting down with the client and going through the [design] process, then would I be correct in understanding that the petitioners never got to that process, that [the Kleins] rejected the petitioners at the outset?” asked Judge Joel DeVore.

Conde pivoted to the Kleins’ business model, arguing that the fact that they never sat down to discuss design was irrelevant. “They’re in the business of designing custom-designed cakes,” he countered. “That’s the service they offer to the public, and because that’s the only service they offer to the public in terms of weddings, we think that Melissa Klein didn’t have to get all the details from the customer before refusing service.”

Judges also wrestled with what they considered the mixed nature of the case, involving both speech and conduct, both the expression—that is, speech—involved in designing a cake and the conduct of baking a cake. They also pondered how to define what qualified as expressive activity protected by the First Amendment.

But perhaps most telling was a barbed question by Judge Kristina Hellman. “If your clients are going to opt for an exception [to the state’s anti-discrimination law] based on free speech, how are citizens here supposed to know about that so that they don’t go into a place of public accommodation that holds itself out as open to all, only to learn in an exceptionally humiliating way that it is not actually open to them at all?” she asked.

Conde countered with an argument familiar to free speech advocates. “I’m sorry that’s offensive to them, but I think the First Amendment protects offensive speech,” he said. “That’s what the First Amendment is all about.” He added that the answer to speech you don’t like is more speech—something he said happened in Oregon when others spoke out in favor of the disappointed couple.

The three-judge panel went easier on Carson Whitehead, the attorney who represented the state, yet still sought guidance on the implications of a ruling in favor of the state. What about sheet cakes? And what about three-tier cakes? What about a simple cake with a design that bore no obvious message?

Amid this culinary diversion, Whitehead dropped a candid observation that the panel could seize on to avoid a broader ruling. “It would be an awkward thing for a public accommodation to have tiers of service, which makes me wonder if it’s not a public accommodation at all and this is a completely different case,” he suggested. A narrow ruling like that could offer a way for the court to avoid affirming Oregon law and yet free the Kleins from penalty. But judges did not seize on it.

In rebuttal, Conde gave a passionate plea for relief for his clients. “This case has been going on for decades,” he said. “[The state agency] has destroyed the Kleins’ business, denigrating their religion as prejudice and fining them over $100,000 for quoting the Bible in a conversation about religious truth. I think 303 Creative should end this case.”

In a news release, First Liberty Institute senior counsel David Hacker summarized the implications of a ruling in favor of the Kleins, who he said have for years “endured a wave of hate, vile comments and even death threats.” He added that they had lost their business and were forced to leave the state.

But he also pointed to broader implications. “Winning this case … could help countless Americans in the marketplace who face hostile treatment and the real threat of losing their business or their livelihood because of their beliefs.”

The court gave no timetable for its ruling.