What is the case about?
In 2013, a lesbian couple went into Sweet Cakes, a bakery in Oregon, to order a “wedding cake” for their same-sex commitment ceremony. When the couple told the baker, Aaron Klein that it was for a same-sex ceremony, he told them he would serve homosexuals but that his religious beliefs would not allow him to participate by creating the cake for them. The couple filed a complaint with the Oregon Labor Commission, claiming Sweet Cakes and the Kleins discriminated against them because of their sexual orientation.
Last week, Oregon Labor Commissioner Brad Avakian finalized a preliminary ruling ordering Aaron and Melissa Klein to pay $135,000 in emotional damages to the couple they denied service.
“This case is not about a wedding cake or a marriage. It is about a business’s refusal to serve someone because of their sexual orientation,” said Avakian, a political appointee. In his ruling he notes he finds “no distinction” between refusing to serve a same-sex wedding and discriminating against people because of their sexual orientation.
“[Aaron Klein] denied the full and equal accommodation, advantages, facilities and privileges of Sweet Cakes by Melissa to Complainants based on their sexual orientation thereby violating ORS 659A.403,” claims the ruling.
How much were the Kleins ordered to pay the couple?
The Commissioner awarded the lesbian couple $135,000 in “damages for emotional and mental suffering resulting from the denial of service.”
What were the claims of emotional and mental suffering?
The lesbian couple claims they suffered extensive emotional and mental suffering because they were discriminated against for their sexual orientation and because of the public attention it generated (attention which was brought about by their filing a public complaint).
The couple listed several dozen examples of “emotional and mental suffering” including: “acute loss of confidence,” “doubt,” “excessive sleep,” “felt mentally raped, dirty and shameful,” “high blood pressure,” “impaired digestion,” “loss of appetite,” “migraine headaches,” “pale and sick at home after work,” “resumption of smoking habit,” “shock,” “stunned,” “surprise,” “uncertainty,” “weight gain,” and “worry.”
No doctor, counselor, or psychiatrist confirmed any of these symptoms. The commissioner merely accepted these claims at face value even though his own ruling stated that Laurel Bowman-Cryer was frequently an unreliable witness:
[Laurel Bowman-Cryer] was a very bitter and angry witness who had a strong tendency to exaggerate and over-dramatize events. On cross examination, she argued repeatedly with Respondents’ counsel and had to be counseled by ALJ to answer the questions asked of her instead of editorializing about the denial of service and how it affected her. Her testimony was inconsistent in several respects with more credible evidence.
What was the basis of the claims of emotional and mental suffering?
The Bowman-Cryers claimed distress both because of the discrimination and because of the attention they received because of their legal complaint.
The couple filled out an Oregon Department of Justice Consumer Complaint Form against the Kleins and Sweet Cakes by Melissa which clearly stated the information would become part of the public record and be released to the business and persons it was about. Aaron Klein posted the complaint on her Facebook page (at the time he only had 17 “friends” on his page). The Bowman-Cryers contacted their lawyer who asked Aaron Klein to take it down, which he did.
The Bowman-Cryers lawyer then sent a letter to several media sources asking that the lesbian couple’s name not be used in any news reports.
However, after an LGBT protest outside the bakery, the couple thanked the protestors on the Facebook page called “BoycottSweetCakesByMelissaGRESHAM” and indirectly identified themselves as the couple involved.
Did the Commissioner order a “gag order” on the Kleins?
A gag order (also known as a gagging order or suppression order) is an order by a court or government restricting information or comment from being made public. The Commissioner did order a “gag order” by ordering the Kleins to cease and desist violating ORS 659A.403 and 659A.409.
The relevant portions of ORS 659A.403 merely state that everyone in Oregon is “entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account … sexual orientation…” However, ORS 659A.403 states that it is an unlawful practice for any person “acting on behalf of any place of public accommodation” to “publish, circulate, issue or display, or cause to be published, circulated, issued or displayed, any communication, notice, advertisement or sign of any kind to the effect that any of the accommodations, advantages, facilities, services or privileges of the place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of . . . sexual orientation . . .”
In an interview with Family Research Council’s Tony Perkins, the Kleins explained why they could not bake the cake for the couple and they “don’t do same-sex marriage, same-sex wedding cakes.” This was presented as evidence of the Klein’s future intent to violate 659A.403.
Because of this interpretation of the law, the Oregon commissioner is requiring that the Kleins cease-and-desist from claiming that they will not provide services for same-sex weddings, either in their store or in public.
In much of the commentary on this ruling, especially on social media, there has been some confusion about the scope of the cease and desist order that was issued. The Kleins still retain their right to speak to the media and to express their opinion about homosexuality and same-sex marriage provided that they do not mention they will continue to refuse services for same-sex weddings or speak about the subject “on behalf” of their business.
The Kleins, however, consider this to be an illegitimate restriction since they are not discriminating based on sexual orientation but are merely refusing to participate in a civil ceremony and “celebration” that violates their religious beliefs.
What happens next for the Kleins?
The Kleins have 10 days to file exceptions to the proposed order, and one of their attorneys has already pledged to contest the $135,000 damages award. On the Sweet Cakes by Melissa Facebook page, the Kleins wrote:
The final ruling has been made today. We have been charged with $135,000 in emotional damages, But also now Aaron has been charged with advertising. (Basically talking about not wanting to participate in a same-sex wedding) This effectively strips us of all our first amendment rights. According to the state of Oregon we neither have freedom of religion or freedom of speech. We will NOT give up this fight, and we will NOT be silenced. We stand for God’s truth, God’s word and freedom for ALL Americans. We are here to obey God not man, and we will not conform to this world. If we were to lose everything it would be totally worth it for our Lord who gave his one and only son, Jesus, for us! God will win this fight!
