By JOHN FORTMEYER
GRESHAM — Could the recent — and very controversial — Hobby Lobby ruling by the U.S. Supreme Court help the Christian couple from here who have been charged with discrimination in their bakery business?
Possibly — but only time will tell.
That is the general assessment of Herb Grey of Beaverton, one of the attorneys representing Melissa and Aaron Klein, owner of Sweet Cakes by Melissa.
In a case that has made national news, the Oregon Bureau of Labor and Industries (BOLI) charges that the Kleins in January 2013 discriminated against Rachel Cryer and Laurel Bowman-Cryer because of their sexual orientation. The charge centers on the Kleins’ refusal to bake a cake for the two women’s same-sex marriage ceremony; the Kleins counter that no discrimination took place and that the state is violating their religious, conscience and free-speech rights. Grey said as the case continues at the state level, and then if it winds up in an appeals process in the federal courts, the June ruling by the High Court in the Hobby Lobby case might help influence the ultimate outcome.
The justices ruled 5-4 last month that Hobby Lobby Stores Inc. and Conestoga Wood Specialties Corp. did not have to provide contraceptive coverage that violated their religious beliefs. Prior to the ruling, U.S. companies were required to provide such coverage under the Affordable Care Act, known informally as Obamacare.
“The central issue that ties the Hobby Lobby/Conestoga Wood Specialties and Oregon’s Sweet Cakes by Melissa cases together is government infringement on well-established fundamental rights which would force business owners to choose between their religious convictions and their ability to earn a living,” said Grey.
Grey said the justices did not come up with “wild new jurisprudence” in their ruling as “vociferous opponents” claim, but instead simply applied a well-established constitutional standard of review. According to a long line of cases, as well as the federal Religious Freedom Restoration Act of 1993, “if an individual’s right to religious freedom is to be violated by government action, the government must first establish a compelling government interest, and then choose the least restrictive means to accomplish that compeling interest.” Grey said. In other words, “the government is not allowed to judge the sincerity of legitimacy of people’s religious beliefs, but must accommodate those beliefs if possible,” he said.
But Grey contends the state agency wrongly sees no need nor any justification for such balancing of interests. “BOLI’s position is contrary to decades of Supreme Court jurisprudence, which has just been reaffirmed in Hobby Lobby and Conestoga,” he said.
The case next goes before BOLI Administrative Law Judge Alan McCullough in a hearing scheduled to begin Oct. 6.