There have been a number of “wedding industry” religious freedom cases arising in the United States and the UK over the last few years. On 28 December 2017 the Oregon Court of Appeals, in Klein v. Oregon Bureau of Labor and Industries (CA Or; Dec 28, 2017, — P.3d —-, 2017 WL 6613356; 289 Or App 507 (2017)) upheld a $135,000 fine levied on the Kleins, wedding cake makers, for declining to make a cake for the wedding of Rachel and Laurel Bowmen-Cryer. The case is another example of religious freedom (and, arguably, freedom of speech) being over-ridden in the name of “dignitary harm” to same-sex couples. It is a good example of the issues being presented to the current Ruddock Inquiry into Religious Freedom being conducted in Australia at the moment.
Melissa and Aaron Klein were the owners of a bakery doing business as Sweetcakes by Melissa. They regularly made wedding cakes. Melissa had in fact supplied a wedding cake to Rachel Bowmen-Cryer previously, ordered by Rachel for the wedding of her mother Cheryl. On Jan 17, 2013, Rachel and her mother visited the shop, where Aaron was serving at the time, to order a cake for Rachel’s same sex wedding to Laurel. On discovering that both parties were women, Aaron said that “he was sorry, but that Sweetcakes did not make wedding cakes for same-sex ceremonies because of his and Melissa’s religious convictions” – as noted at p 512 of the report. There was then a further conversation after Rachel and her mother had first left the shop, when Cheryl returned. This is recorded as follows:
During their conversation, Cheryl told Aaron that she had previously shared his thinking about homosexuality, but that her “truth had changed” as a result of having “two gay children.” In response, Aaron quoted a Bible passage from the Book of Leviticus, stating, “You shall not lie with a male as one lies with a female; it is an abomination.” (at p 512)
This then led Cheryl to tell Rachel that Aaron had called her “an abomination.” This latter comment was of course not what Aaron had said, but there seems no dispute that the word had been used in describing the Old Testament view of homosexual activity.
Some social media and later “public” media comment ensued. The Bowmen-Cryers then complained to the Oregon Department of Justice and to the Board of Labor and Industry (BOLI), which conducted its own investigation. The Kleins were then charged with being in breach of:
ORS 659A.403, which entitles all persons “to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of *** sexual orientation,” ORS 659A.403(1), and further makes it “an unlawful practice for any person to deny full and equal accommodations, advantages, facilities and privileges of any place of public accommodation in violation of this section,” ORS 659A.403(3). (from p 514)
A hearing by an “Administrative Law Judge” (ALJ) concluded that there had been a breach of the statute, that no defences were applicable, and damages of $135,000 should be awarded for the “emotional harm” suffered by the couple on the refusal of service. The BOLI made a formal order in the terms recommended by the ALJ, but also added injunctive relief ordering the Kleins not to discriminate in the future (alleging that comments they had made in TV interviews and elsewhere indicated an intention to do so.) My previous comments on the case at an earlier stage can be found here.
The Appeal Decision
This decision of the Court of Appeals, Devore PJ, Garrett and James JJ (Garrett J writing for the Court) upheld the conviction and the fine, although it overturned the decision to issue an injunction, concluding that the BOLI had misinterpreted some statements of the Kleins. But the penalty of $135,000 was affirmed.
Garrett J ruled that (1) the denial of a wedding cake was in fact an act of “sexual orientation discrimination“; (2) while it was arguably a slight infringement of the First Amendment free speech rights of the Kleins, on balance the State’s interest in outlawing discrimination over-rode those free speech rights; and (3) since the “public accommodation” law did not explicitly target religious beliefs, it was not an unlawful interference with the free exercise of religion in terms of the religion clause of the First Amendment. (There were some other matters which don’t warrant further comment in this general post.) All of these are arguments that might be raised in future Australian litigation on similar issues, now that same-sex marriage is lawful here and Parliament has chosen not to provide explicit religious freedom protection for small businesses in the “wedding industry”.
1. Is refusing to supply a wedding cake for a same-sex wedding unlawful discrimination?
The first issue is whether declining to make a same-sex wedding cake amounts to treating a couple detrimentally on the basis of their sexual orientation.
The Kleins argued that it did not. They argued that they did not decline service to the complainants “on account of” their sexual orientation; rather, “they declined to facilitate the celebration of a union that conveys messages about marriage to which they do not [subscribe] and that contravene their religious beliefs” (at pp 517-518).
But the court did not agree. Garrett J held that it was enough to amount to unlawful discrimination if “the denial of full and equal accommodations [was] causally connected to the protected characteristic” (at p 519).
This is a debate that is common in these sort of cases. Courts are of course keen not to allow people to escape liability for discrimination by “sleight of hand”. A person who refuses a job to a woman cannot say “my policy was based on possession of breasts, and hence is not based on sex as such”. That is (putting to one side for the moment sex change issues!) in most cases “being a woman” and “possessing breasts” define the same class of persons. So is it true to say that “expressing support for same sex marriage” defines a class that is always identical with persons of a homosexual sexual orientation?
On the one hand, it is clearly true that not all homosexual persons support same sex marriage; and not all supporters of same sex marriage are homosexual persons. So one could argue that a person who makes a distinction based on “support for same sex marriage” is not automatically making a distinction based on sexual orientation. (I think this is a strong reason for saying that the Ashers case, to be heard in 2018 by the UK Supreme Court, should be decided in favour of the bakery, who were not asked to make a wedding cake, but simply to provide a cake expressing support for same sex marriage.)
On the other hand, the Klein case and similar cases do not simply involve people expressing support for same sex marriage, but involve a couple wanting to contract a same sex marriage- and that class of persons, it seems, is justifiably described as consisting only of homosexual persons. (Not all such persons will want to marry, but all those who marry in this way will be homosexual.)
There are still arguments that can be made against a refusal being of itself unlawful sexual orientation discrimination. The Kleins presented a very interesting argument based on a prior decision of the US Supreme Court in Bray v. Alexandria Women’s Health Clinic, 506 US 263, 113 S Ct 753, 122 L Ed 2d 34 (1993). There the court had ruled that opposition to abortion was not of itself animus towards women, even though abortions were only available to women. That was because opposition to abortion was not an “irrational surrogate for opposition to (or paternalism towards) women” (from p 270 of Bray, quoted at p 522 in Klein). The Kleins argued that, similarly, refusal to provide services to a same sex wedding was not “irrational”, although it particularly impacted on same sex attracted persons.
But this analogy was rejected by Garrett J. His Honour noted at p 523 that “where a close relationship between status and conduct exists, the Supreme Court has repeatedly rejected the type of distinction urged by the Kleins”, citing Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez, 561 US 661, 689, 130 S Ct 2971, 177 L Ed 2d 838 (2010) and Lawrence v. Texas, 539 US 558, 575, 123 S Ct 2472, 156 L Ed 2d 508 (2003). In other words, the court refused to accept a distinction between homosexual “orientation” and homosexual “behaviour” motivated by that orientation. (For cases dealing with this issue previously, and some cases where the distinction has been accepted, see my previous post here.)
2. Was this an infringement of the Kleins’ free speech rights?
If we accept that there is prima facie discrimination, is there a defence based on free speech? The Kleins argued that if the Oregon law did require them to participate in making a wedding cake celebrating a same sex wedding, they were being compelled to use their artistic talents to support a position they did not agree with. This, they said, was a classic example of their right to freedom of speech, or freedom not to speak, being infringed.
In many ways this was the strongest of the arguments in the Klein case and the one the court took more time to dismiss. For the purposes of a blog relating to Australian issues, however, it should be noted there is no free-standing right to free speech in our country parallel to the broad protection available in the US under the Free Speech clause of the First Amendment to the US Constitution.
The Kleins’ arguments had two limbs. First, they had to persuade the court that the act of making a wedding cake was an act of “expression of protected speech”. Second, they needed to show that the Oregon statute could not be used to over-ride this First Amendment right, on the basis of prior authority.
To briefly summarise, the court was not persuaded that the act of making a wedding cake was fully protected “free speech”. Interestingly, they conceded that free speech protections under the First Amendment could extend to more than “words”, or “art” in the traditional “art gallery” sense. For example, in the US Supreme Court decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 US 557, 571-72, 115 S Ct 2338, 132 L Ed 2d 487 (1995), the court did hold that a law mandating the inclusion of a homosexual support group in a St Patrick’s Day March would amount to requiring the march organisers to be seen to be sending a message of support for a cause which they in fact opposed. Hence the application of that law was struck down on First Amendment grounds. (See p 529 of Klein for the discussion.)
But here the court ruled that the Oregon law did not compel any particular message, and that Hurley had been said to apply in a “peculiar” non-commercial context which was not present in this case. In the end the court held that production of a wedding cake, even by use of artistic skills, did not amount to “expressive speech” of the sort fully protected by the First Amendment. They acknowledged, however, that there were “expressive” elements to the production of a wedding cake. Indeed, in an interesting aside which, if applied in the UK, would seem to exonerate Ashers Bakery, they commented at p 539 that:
It would be a different case if BOLI’s order had awarded damages against the Kleins for refusing to decorate a cake with a specific message requested by a customer (“God Bless This Marriage,” for example).
This example, of course, is very close to the situation in the Ashers Bakery case, where the customer had requested the message “Support Gay Marriage”. But in the Klein case the court held that there were not such clear “expressive” elements.
However, they acknowledged that “cake artistry” does involve someexpressive elements, and hence that they should apply what, in the arcane jargon of US First Amendment law, they described as “intermediate First Amendment scrutiny”. In broad terms, this meant that the Oregon law would be valid only if:
“ ‘it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.’ ” Turner Broadcasting System, Inc., 512 US at 662 (quoting O’Brien, 391 US at 377.) [this quote from p 541 of Klein]
The law passed these tests. The “interest” was the State of Oregon’s interest in both
ensuring equal access to publicly available goods and services and in preventing the dignitary harm that results from discriminatory denials of service (at pp 541-542, emphasis added).
This interest was not in itself, the court said, aimed at suppressing free expression. And the law was narrowly targeted to achieve these aims. So it withstood intermediate scrutiny.
3. A breach of religious freedom?
To turn to the final substantive argument, the court then considered whether the Oregon law was a violation of the Religion Clause of the First Amendment, by impairing free exercise of religion. This argument failed, primarily due to the court following the precedent set by the US Supreme Court in Employment Division, Oregon Department of Human Resources v. Smith, 494 US 872, 110 S Ct 1595, 108 L Ed 2d 876 (1990). This important decision, which I have mentioned previously on a couple of occasions (see eg here) was to the effect that there would be no protection for freedom of religion when Congress had enacted a “neutral law” (i.e. one not specifically targeted at religion), of general application.
Applying Smith, the Oregon Court held that the law on “public accommodations” did not itself target religious groups, and that the application of the law here to require an action seen by the Kleins as contrary to their religion, did not impede their free exercise. (See the discussion from p 544.) The Kleins also tried to argue that this case was in a special “hybrid” category recognised by the Smith decision, where there was an intersection of both religious free exercise and free speech rights. But the Court said at pp 546-548 that it doubted whether such a category really existed as a relevant legal doctrine, classifying the comments from Smith as mere dicta (apparently US shorthand for obiter dicta, the classic common law category of remarks made “by the way” but not legally binding on later courts.)
In some other US religious freedom cases, parties have been able to invoke legislation usually entitled “Religious Freedom Restoration Act” or something similar, passed by the various States and the US Congress after Smith to restore a greater protection enjoyed prior to that decision. (See here for one example of the use of an RFRA.) But there seems to be no such statute in Oregon, and the US Federal RFRA does not apply of its own force to State laws.
The end result is that the Kleins will be required to pay a substantial sum of money to assuage the hurt feelings of the Bowmen-Cryers at being denied a same sex wedding cake provided by them; of course, the couple had no problem in finding another shop which was happy to make such a cake. It seems that a key feature of the law which is held to justify its impact on the free speech of the Kleins is this concept of “dignitary harm” (see p 542). Indeed, Garrett J saw this as flowing logically from the change of law to allow same sex marriage in the US:
that interest is particularly acute when the state seeks to prevent the dignitary harms that result from the unequal treatment of same-sex couples who choose to exercise their fundamental right to marry. See Obergefell v. Hodges, ___ US ___, ___, 135 S Ct 2584, 2600, 192 L Ed 2d 609 (2015) (“The right to marry thus dignifies couples who wish to define themselves by their commitment to each other.”) (at p 542)
It may, with respect, be doubted if the logic is really as tight as implied here. After all, even in Obergefell, Justice Kennedy acknowledged that many people had genuine religious reasons for objecting to same sex marriage, not based on irrational animus. As Garrett J notes, “there are “decent and honorable” reasons, grounded in religious faith, for opposing same-sex marriage” (at p 550, quoting Obergefell, 135 S Ct at 2602.) It may also be doubted whether the State ought to be in the business of conferring dignity on citizens who wish to “define themselves” in certain ways.
Further, why, if the law is concerned with “dignitary harm”, does it ignore the indignity being imposed upon the Kleins, by penalising them for failing to do an act they conscientiously see as contrary to their faith? If such harms are now a part of the law’s calculus, then should there not be a serious attempt to weigh the harms on both sides? Can the law really balance out the right not to be told that a business owner disagrees with one’s sexual preferences (a decision which will be conveyed in most cases in a private conversation to which no-one else need be a party), with the right not to be required to disobey one’s God at the possible risk of one’s eternal destiny? And if indeed it be said that these rights are incommensurable, then may this not bring into doubt the whole business of making “dignitary harm” a separate legal right?
These and other issues will continue to be debated. The US Supreme Court has now (on Dec 5, 2017) heard argument on appeal in a very similar case, Craig v. Masterpiece Cakeshop, Inc., 370 P3d 272 (Colo App 2015), cert den, No. 15SC738, 2016 WL 1645027 (Colo Apr 25, 2016), cert granted sub nom Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 137 S Ct 2290 (2017). Its decision is awaited with great interest, as is the decision of the UK Supreme Court in the appeal in the Ashers Bakery case, due to be heard from 30 April 2018.
In Australia there have been no such cases before the courts yet, but the potential is there. Attempts to learn from overseas experience and provide a clear legislative solution to the issues were defeated in the passage of the legislation enacting same sex marriage for this country. These are matters that ought to be considered carefully in the current Ruddock Inquiry into Religious Freedom. Submissions are due in the tight time-frame of Jan 31, 2018, and I encourage Australian readers to make their views known.
This article first appeared on Neil’s blog, Law and Religion Australia. Click here to go to the website: