SALEM — It’s now been four years since a business decision put Aaron and Melissa Klein of Sandy in the forefront of one of the nation’s biggest religious liberty debates, but a key step in their legal battle lasted only about 45 minutes March 2.
On that day, the Oregon Court of Appeals heard the case of the Kleins, who refused in 2013 at their now-closed Gresham bakery to make a cake for a lesbian couple’s wedding. As reported by The Oregonian, they contend that state Labor Commissioner Brad Avakian and the Bureau of Labor and Industries violated state and federal laws by forcing them to pay damages to the couple.
An administrative law judge for the state agency ruled that the Kleins had unlawfully discriminated against gay, lesbian, bisexual and transgender people in jobs and in places that serve the public. The March 2 appeals court hearing was the first that took the case outside the jurisdiction of the Bureau of Labor and Industries.
In response, the Kleins’ legal team argued specifically that the state violated the Kleins’ rights as cake artists to free speech, their rights as citizens to religious freedom and their rights as defendants to due process. They also claim the $135,000 in damages ordered was excessive and that Avakian should have recused himself from the case because he had earlier praised an LGBTQ advocacy group on Facebook.
Spearhearding the Kleins’ legal effort is First Liberty Institute, a national religious freedom law firm, and the law practice of C. Boyden Grey, the former White House counsel for President George H.W. Bush. Adam Gustafson, a lawyer for First Liberty Institute, told appeals judges Rebecca Duncan, Joe DeVore and Chris Garrett that it is no more right for the law to force the Kleins to make a cake than it is to compel an architect to design a church or force a rabbi to marry a Christian and a Jew.
In response to questions from the judges, Gustafson argued that a business refusal to serve a same-sex wedding ceremony should not be likened, for example, to a refusal to serve an interracial couple, because race is a markedly and historically different issue from sexual orientation. Gustafson said the U.S. Supreme Court has found that Christians have a “decent and honorable” basis for believing same-sex marriage is wrong.
Assistant Attorney General Carson Whitehead argued the state’s case, which the Oregonian stated boiled down to two facts — the Kleins were willing to bake wedding cakes, but weren’t willing to bake one for Rachel and Laurel Bowman-Cryer because their’s was a same-sex wedding. Such discrimination is hugely harmful and a clear violation of state law, Whitehead contended.
The judges did not say when a decision is expected.
The four-year controversy has been an emotional one for both sides. Fervent opposition forced the Kleins to close their Gresham storefront and move the bakery to their home, and then eventually cease business. Talking to the press after the hearing, Melissa Klein teared up while describing how she and her family miss operating the business.
“When we opened our bakery, we loved serving all customers who came into the shop, regardless of their identity or beliefs,” she said. “My bakery wasn’t just called ‘Sweet Cakes Bakery.’ It was ‘Sweet Cakes by Melissa’ because I pour my passion and heart into each cake I make. My faith is a part of that. I was happy to serve this couple in the past for another event and I would be happy to serve them again, but I couldn’t participate in a ceremony that goes against what I believe.”
After the Gresham store closed, her husband drove a garbage truck to cover the family’s bills but has since been sidelined by a shoulder injury.
Donors nationally gave more than half a million dollars for the Kleins’ legal fees. The Kleins paid the $135,000 in damages, but it remains locked in escrow pending appeals.
The Bowman-Cryers left the hearing in tears and said the appeals process at times felt dehumanizing. Since they have not received payment from the Kleins, they said, they have had to scrape by on Rachel Bowman-Cryer’s earnings from cleaning houses. They adde that they have struggled to find a landlord willing to rent to them or employers willing to hire them due to the controversy.
The Kleins have been strongly praised by Family Research Council, a Christ-ian public policy ministry based in Washington, D.C. Staff member Travis Weber monitored the hearing and joined Executive Director Tony Perkins on a national broadcast to discuss it. In Weber’s view, the state’s attorney had a hard time defending the size of damages plaintiffs sought. Nor, said Weber, could the government credibly defend the behavior of Avakian, who he said has been heavily biased against the Kleins. Weber said the appeals court judges will clearly see this and rule for the Kleins.
Perkins, in a prepared statement, agreed: “A government able to bankrupt people for standing by their deepest beliefs is a government of unbridled power and a threat to everyone’s freedom. The heavy hand of the state must not be used to punish and fine people for merely seeking to live according to their beliefs. There has to be space in our society for people who hold differing views.”