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 some
expressive 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
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.