Oregon bakers take bias case to state appeals court

Melissa and Aaron Klein finally had their day in court—four years after losing their business for declining to create a cake for a same-sex wedding. Today, the Kleins’ attorneys told the Oregon Court of Appeals a state agency’s claim against the Kleins misapplied state law, usurped both the Oregon and U.S. Constitutions, and revealed an inherent bias against people of faith.

A ruling in Klein v. Oregon Bureau of Labor and Industry likely will be appealed to the Oregon Supreme Court and from there join the procession of religious liberty cases making their way to the U.S. Supreme Court.

Moments after the hearing, the Kleins read from prepared statements outside the Oregon Court of Appeals in Salem. They spoke of their faith, their desire to honor God, and their hope that people of differing beliefs could live together peaceably.

“America is a place where the government can’t force you to violate your religious beliefs or tell you what to believe,” Melissa Klein said. “But we feel like that is exactly what has happened to us.”

Due process has been a long time coming for the Kleins. Since January 2013, their case has played out in the court of public opinion and before an Oregon Bureau of Labor and Industry (BOLI) administrative judge. But until today, the Kleins had never been granted the right to plead their case in court. Their attorneys with First Liberty Institute said in their appeal that BOLI, a state agency tasked with investigating and prosecuting violations of Oregon’s anti-discrimination laws, “violated the Kleins’ constitutional rights to religious freedom, free speech, and due process before an impartial tribunal.”

Two days before the hearing Aaron Klein told me the whole case should have been nothing more than “a simple disagreement.”

The saga began in 2013, when Aaron Klein told a customer that his and Melissa’s Christian convictions about marriage precluded them from creating a cake for the woman’s same-sex wedding. After the woman filed a complaint and the media got wind of the situation, the Kleins endured public protests outside their business and threats against their lives. By September, they shuttered their business. In 2015, a BOLI-appointed judge declared they had violated state law prohibiting refusal of service based on sexual orientation.

BOLI Commissioner Brad Avakian ordered the couple to pay $135,000 in damages and refrain from speaking in a manner that would indicate future intentions to violate the non-discrimination law. Michal Berry, a First Liberty attorney, called Avakian’s directive a gag order—a direct violation of state and U.S. constitutions—prohibiting them from discussing the specifics of the case and their faith.

The legal firm tried, unsuccessfully, to have Avakian removed from the case because of his public comments presupposing the Kleins’ guilt prior to the commission’s hearing.

“I had always heard about due process,” Aaron Klein told me. “When this came into play I was shocked that [it] did not apply.”

Many states like Oregon have civil rights commissions tasked with adjudicating alleged violations of state non-discrimination law. Typical jurisprudence does not apply in this process. The commissions appoint judges to hear testimonies, grant judgments, and mete out fines and damages. Only after the commission renders a decision can defendants appeal to a trial court.

“There really isn’t the due process that most Americans are used to seeing,” Berry told me. “There is a lack of transparency in these government agencies. They are not courts of law. It’s the rise of the administrative state.”

The fact that the Kleins had previously served the lesbian couple only bolstered their defense against allegations of discrimination based on sexual orientation, Berry said. But that argument didn’t work for Barronelle Stutzman, the Washington florist sued for refusing to create floral arrangements for the gay wedding of a long-time customer. The Washington Supreme Court ruled against Stutzman last week.

As in the Stutzman case, the Kleins’ attorneys told the Oregon Court of Appeals the commission refused to acknowledge the personally expressive nature of creating a custom-designed cake for an event like a wedding. Creating such designs is a form of speech that cannot be compelled, they argued.

Since they closed the bakery in 2013, Aaron Klein returned to his job as a garbage truck driver. He is on respite following shoulder surgery but expects to be back to work in a few weeks. Melissa continues to homeschool their five children—a 17-year-old daughter, and four sons, 14, 11, and 4-year-old twins.

In a September 2016 column, Rachel and Laurel Bowman-Cryers, the women who filed the complaint against the Kleins, claimed conservatives targeted them as part of a “larger plan to carve out exemptions in the law to discriminate.”

Aaron Klein dismissed that suggestion.

“It has nothing to do with discrimination,” he said. “We just want to do our job by our faith.”