In their petition for judicial review, the Kleins argue that BOLI erroneously concluded that their refusal to supply a cake for a same-sex wedding was a denial of service "on account of" sexual orientation within the meaning of ORS 659A.403 ; alternatively, they argue that the application of that statute in this circumstance violates their constitutional
As explained below, we reject the Kleins' construction of ORS 659A.403 and conclude that their denial of service was "on account of" the complainants' sexual orientation for purposes of that statute. As for their constitutional arguments, we conclude that the final order does not impermissibly burden the Kleins' right to free expression under the First Amendment to the United States Constitution. We conclude that, under
I. BACKGROUND
We will discuss the relevant evidence and factual findings in greater detail within our discussion of particular assignments of error, but the following overview provides context for that later discussion.
As part of the wedding planning, Rachel and her mother, Cheryl, attended a Portland bridal show.
After the bridal show, on January 17, 2013, Rachel and Cheryl visited the Sweetcakes bakery shop in Gresham for a cake-tasting appointment, intending to order a wedding cake. At the time of the appointment, Melissa was at home providing childcare, so her husband, Aaron, conducted the tasting.
During that tasting, Aaron asked for the names of the bride and groom. Rachel told him that there were two brides and that their names were Rachel and Laurel. At that point, Aaron stated that he was sorry, but that Sweetcakes did not make wedding cakes for same-sex ceremonies because of his and Melissa's religious convictions. Rachel began crying, and Cheryl took her by the arm and walked her out of the shop. On the way to their car, Rachel became "hysterical" and kept apologizing to her mother, feeling that she had humiliated her.
When Cheryl returned to the car, she told Rachel that Aaron had called her "an abomination," which further upset Rachel. Rachel later said that "[i]t made me feel like they were saying God made a mistake when he made me, that I wasn't supposed to be, that I wasn't supposed to love or be loved or have a family or live a good life and one day go to heaven."
When Rachel and Cheryl arrived home, Cheryl told Laurel what had happened. Laurel, who had been raised
In addition to the DOJ complaint, Laurel eventually filed a complaint with BOLI, as did Rachel, alleging that the Kleins had refused to make them a wedding cake because of their sexual orientation. BOLI initiated an investigation.
Meanwhile, the controversy had become the subject of significant media attention. The Kleins were interviewed by, among others, the Christian Broadcast Network (CBN) and later by a radio talk show host, Tony Perkins. In the CBN interview, which was broadcast in September 2013, the Kleins explained that they did not want to participate in celebrating a same-sex marriage, wanted to live their lives in the service of God, and that, although they did not want to see their bakery business go "belly up," they had "faith in the Lord and he's taken care of us up to this point and I'm sure he will in the future." The CBN broadcast also showed a handwritten sign, taped to the inside of the bakery's front window, which stated:
"Closed but still in business. You can reach me by email or facebook. www.sweetcakesweb.com or Sweetcakes by Melissa facebook page. New phone number will be provided on my website and facebook. This fight is not over. We will continue to stand strong. Your religious freedom is becoming not free anymore. This is ridiculous that we cannot practice our faith. The LORD is good and we will continue to serve HIM with all our heart [heart symbol]."
(Uppercase and underscoring in original; spacing altered).
In the Perkins interview, which occurred in February 2014, Aaron explained that he and Melissa "had a feeling that [requests for same-sex wedding cakes were] going to become an issue" and that they had discussed the issue. During the interview, Aaron stated that "it was one of those situations where we said 'well I can see it is going to become an issue but we have to stand firm. It's our belief and we have a right to it, you know.' "
After the issuance of formal charges, BOLI designated an ALJ to handle the contested case proceedings, and the Kleins and BOLI engaged in extensive motions practice before the ALJ. Among those motions, the Kleins sought to disqualify BOLI's commissioner, Brad Avakian, on the ground that he was biased against them, as evidenced by his public statements about the cake controversy. In a Facebook post shortly after Laurel filed the DOJ complaint, Avakian had provided a link to a story on www.kgw.com related to the refusal of service; in that post, he wrote, "Everyone has a right to their religious beliefs, but that doesn't mean they can disobey laws that are already in place. Having one set of rules for everybody ensures that people are treated fairly as they go about their daily lives." Later, shortly after the first of the BOLI complaints was filed, an article in The Oregonian quoted Avakian as saying that "[e]veryone is entitled to their own beliefs, but that doesn't mean that folks have the right to discriminate." According to the Kleins, those statements and others indicated that Avakian had prejudged their case before the hearing. The ALJ disagreed and denied the motion to disqualify.
After the ALJ's rulings on the various motions, only the issue of damages remained to be decided at a hearing. BOLI alleged that each complainant was claiming damages of "at least $75,000," and it adduced evidence at the hearing-through testimony of the complainants and others-concerning emotional harm that the complainants suffered in the wake of the Kleins' refusal to make their wedding cake. During closing arguments, BOLI also asked
After six days of testimony and argument regarding the damages issue, the ALJ issued a proposed final order that encompassed his earlier summary judgment and procedural rulings and also addressed the question of damages. With respect to damages, the ALJ found that Rachel had testified credibly about her emotional distress, but that Laurel had not been present at the cake refusal and had, in some respects, exaggerated the extent and severity of her emotional suffering. The ALJ concluded that there was no basis in law for awarding damages to the complainants for their emotional suffering caused by media and social-media attention. Ultimately, the ALJ determined that $75,000 was an appropriate award to compensate Rachel for her suffering as a result of the denial of service, and that a lesser amount, $60,000, was appropriate to compensate Laurel.
Both the Kleins and the agency filed exceptions to the ALJ's proposed final order. BOLI, through its commissioner, Avakian, then issued its final order that, for the most part, was consistent with the ALJ's reasoning in his proposed order. Specifically, BOLI's final order affirmed the ALJ's determinations that the Kleins violated ORS 659A.403, it affirmed the ALJ's conclusion that application of that statute did not violate the Kleins' constitutional rights, and it affirmed the damages awards. However, the final order departed from the ALJ's determination in one respect: whether the Kleins had violated ORS 659A.409 by conveying an intention to discriminate in the future. On that question, the final order determined that, based on Aaron's statements during the CBN and Perkins interviews, and the handwritten sign taped to the bakery's window (stating
II. ANALYSIS
In their petition, the Kleins raise four assignments of error. In their first assignment, they argue that BOLI erred by applying ORS 659A.403 to their refusal to make the wedding cake. Within that assignment, they argue that BOLI misinterpreted the statute to apply to the refusal; alternatively, they argue that, as applied under these circumstances, the statute abridges their rights to freedom of expression and religious exercise under the federal and state constitutions. In their second assignment, the Kleins argue that their due process rights were violated by the commissioner's failure to recuse himself. The Kleins' third assignment asserts that BOLI's damages award is not supported by substantial evidence or substantial reason. And, in their fourth assignment, they argue that BOLI erred by applying ORS 659A.409 because their statements after the refusal did not communicate an intention to discriminate in the future. We address each assignment of error in turn.
A. First Assignment: Interpretation and Application of ORS 659A.403
1. Meaning and scope of ORS 659A.403
In their first assignment of error, the Kleins argue that BOLI misinterpreted ORS 659A.403 -specifically, what it means to deny equal service "on account of" sexual orientation. According to the Kleins, 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
The text of ORS 659A.403(1) leaves little doubt as to its breadth and operation. It provides, in full:
"(1) Except as provided in subsection (2) of this section, all persons within the jurisdiction of this state are 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 of race, color, religion, sex, sexual orientation , national origin, marital status or age if the individual is of age, as described in this section, or older."
(Emphases added.) The phrase "on account of" is unambiguous: In ordinary usage, it is synonymous with "by reason of" or "because of." Webster's Third New Int'l Dictionary 13 (unabridged ed. 2002);
Thus, by its plain terms, the statute requires only that the denial of full and equal accommodations be causally connected to the protected characteristic or status-in this case, "sexual orientation," which is defined to mean "an individual's actual or perceived heterosexuality, homosexuality, bisexuality or gender identity, regardless of whether the individual's gender identity, appearance, expression or behavior differs from that traditionally associated with the individual's sex at birth." Former ORS 174.100(6) (2013), renumbered as ORS 174.100(7) (2015).
In this case, Sweetcakes provides a service-making wedding cakes-to heterosexual couples who intend to wed, but it denies the service to same-sex couples who likewise intend to wed. Under any plausible construction of the plain text of ORS 659A.403, that denial of equal service is "on account of," or causally connected to, the sexual orientation of the couple seeking to purchase the Kleins' wedding-cake service.
The Kleins do not point to any text in the statute or provide any context or legislative history suggesting that we should depart from the ordinary meaning of those words. What they argue instead is that the statute is silent as to
We see no evidence that the drafters of Oregon's public accommodations laws intended that type of distinction between status and conduct. First, there is no reason to believe that the legislature intended a "status/conduct" distinction specifically with regard to the subject of "sexual orientation." When the legislature in 2007 added "sexual orientation" to the list of protected characteristics in ORS 659A.403, Or. Laws 2007, ch. 100, § 5, it was unquestionably aware of the unequal treatment that gays and lesbians faced in securing the same rights and benefits as heterosexual couples in committed relationships. During the same session that the legislature amended ORS 659A.403 (and other antidiscrimination statutes) to include "sexual orientation," it adopted the Oregon Family Fairness Act, which recognized the "numerous obstacles" that gay and lesbian couples faced and was intended to "extend[ ] benefits, protections and responsibilities to committed same-sex partners and their children that are comparable to those provided to married individuals and their children by the laws of this state." Or. Laws 2007, ch. 99, §§ 2(3), (5). To that end, section 9 of that law provided:
"Any privilege, immunity, right or benefit granted by statute, administrative or court rule, policy, common law or any other law to an individual because the individual is or was married, or because the individual is or was an in-law in a specified way to another individual, is granted on equivalent terms, substantive and procedural, to an individual because the individual is or was in a domestic partnership or because the individual is or was, based on a domestic partnership, related in a specified way to another individual."
Nor does the Kleins' proposed distinction find support in the context or history of ORS 659A.403 more generally. As originally enacted in 1953, the statute (then numbered ORS 30.670 ) prohibited "any distinction, discrimination or restriction on account of race, religion, color or national origin." Or. Laws 1953, ch. 495, § 1. One of the purposes of the statute, the Supreme Court has observed, was "to prevent 'operators and owners of businesses catering to the general public to subject Negroes to oppression and humiliation.' " Schwenk v. Boy Scouts of America ,
Tellingly, the Kleins' argument for distinguishing between "gay conduct" and sexual orientation is rooted in principles that they derive from United States Supreme Court cases rather than anything in the text, context, or history of ORS 659A.403. Specifically, the Kleins draw heavily on the Supreme Court's reasoning in Bray v. Alexandria Women's Health Clinic ,
In rejecting that theory of ipso facto discrimination, the Court observed:
"Some activities may be such an irrational object of disfavor that, if they are targeted, and if they also happen to be engaged in exclusively or predominantly by a particular class of people, an intent to disfavor that class can readily be presumed. A tax on wearing yarmulkes is a tax on Jews. But opposition to voluntary abortion cannot possibly be considered such an irrational surrogate for opposition to (or paternalism towards) women. Whatever one thinks of abortion, it cannot be denied that there are common and respectable reasons for opposing it, other than hatred of, or condescension toward (or indeed any view at all concerning), women as a class-as is evident from the fact that men and women are on both sides of the issue, just as men and women are on both sides of petitioners' unlawful demonstrations."
Bray , which involved a federal statute, does not inform the question of what the Oregon legislature intended when it enacted ORS 659A.403. But beyond that, Bray does not articulate a relevant test for analyzing the issue presented in this case. Bray addressed the inferences that could be drawn from opposition to abortion as a "surrogate" for sex-based animus, and it was in that context that the Supreme Court described "irrational object[s] of disfavor" that "happen to be engaged in exclusively or predominantly by a particular class of people,"
Here, by contrast, there is no surrogate. The Kleins refused to make a wedding cake for the complainants precisely and expressly because of the relationship between sexual orientation and the conduct at issue (a wedding). And, where a close relationship between status and conduct exists, the Supreme Court has repeatedly rejected the type of distinction urged by the Kleins. See Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez ,
The reasons for the Kleins' discrimination on account of sexual orientation-regardless of whether they are "common and respectable" within the meaning of Bray - raise questions of constitutional law, not statutory interpretation. The Kleins, in the remainder of their argument concerning the construction of ORS 659A.403, urge us to consider those constitutional questions and to interpret the statute in a way that avoids running afoul of the "Speech and Religion Clauses of the Oregon and United States constitutions." See generally State v. McNally ,
2. Constitutional challenges to ORS 659A.403
The Kleins invoke both the United States and the Oregon constitutions in arguing that the final order violates their rights to free expression and the free exercise of their religion. Oregon courts generally seek to resolve arguments under the state constitution before turning to the federal constitution. See State v. Babson ,
a. Free expression
The Kleins argue that BOLI's final order violates their First Amendment right to freedom of speech. BOLI argues that the order simply enforces ORS 659A.403, a content-neutral regulation of conduct that does not implicate the First Amendment at all. And each side argues that United States Supreme Court precedent is decisively in its favor.
The issues before us arise at the intersection of two competing principles: the government's interest in promoting full access to
In the discussion that follows, we conclude that the Kleins have not demonstrated that their wedding cakes invariably constitute fully protected speech, art, or other expression, and we therefore reject the Kleins' position that we must subject BOLI's order to strict scrutiny under the First Amendment. At most, the Kleins have shown that their cake-making business includes some arguably expressive elements as well as non-expressive elements, so as to trigger intermediate scrutiny. We assume (without deciding) that that is true, and then conclude that BOLI's order nonetheless survives intermediate scrutiny because any burden on the Kleins' expressive activities is no greater than is essential to further Oregon's substantial interest in promoting the ability of its citizens to participate equally in the marketplace without regard to sexual orientation.
(1) "Public accommodations" and the First Amendment
Oregon enacted its Public Accommodation Act in 1953. See Or. Laws 1953, ch. 495. The original act guaranteed the provision of "full and equal accommodations, advantages, facilities and privileges * * * without any distinction,
First Amendment challenges to the application of public-accommodations laws-and other forms of anti-discrimination laws-have been mostly unsuccessful. See, e.g. , Roberts ,
However, as states adopted more expansive definitions of "places of public accommodation," their anti-discrimination statutes began to reach entities that were
First, in Hurley , the court held that Massachusetts's public accommodations law could not be applied to require a St. Patrick's Day parade organizer to include a gay-rights group in its parade.
Following Hurley , the Court decided Boy Scouts of America v. Dale ,
In this case, the Kleins concede that Sweetcakes is a "place of public accommodation" under Oregon law because it is a retail bakery open to the public. But the Kleins contend that, as in Hurley and Dale , application of ORS 659A.403 in this case violates their First Amendment rights.
(2) First Amendment precedent
BOLI and the Kleins offer competing United States Supreme Court precedent that, they argue, clearly requires a result in their respective favors. We begin our analysis by explaining why we do not regard the authorities cited by the parties as controlling.
The Kleins argue that the effect of BOLI's final order is to compel them to express a message-a celebration of same-sex marriage-with which they disagree. They primarily draw on two interrelated lines of First Amendment cases that, they contend, preclude the application of ORS 659A.403 here.
First, the Kleins rely on cases holding that the government may not compel a person to speak or promote a government message with which the speaker does not agree. See, e.g. , Board of Education v. Barnette ,
Second, the Kleins rely heavily on Hurley and Dale , which, as discussed above, invalidated the application of public accommodations statutes in "peculiar" circumstances outside of the usual commercial context. The difficulty with that analogy is that this case does involve the usual commercial context; Sweetcakes is not a private parade or membership organization, and it is hardly "peculiar," as that term was used in Hurley , to apply ORS 659A.403 to a retail bakery like Sweetcakes that is open to the public and that exists for the purpose of engaging in commercial transactions. Indeed, the Kleins accept the premise that Sweetcakes is a place of public accommodation under Oregon law, and that, as such, it must generally open its doors to customers of all sexual orientations, regardless of the Kleins' religious views about homosexuality. Thus, if the Kleins are to succeed in avoiding compliance with the statute, it cannot be because
In BOLI's view, on the other hand, the Kleins' arguments are disposed of by the United States Supreme Court's decision in FAIR . In that case, an association of law schools and law faculty (FAIR) sought to enjoin the enforcement of the Solomon Amendment, a federal law that requires higher-education institutions, as a condition for receiving federal funds, to provide military recruiters with the same access to their campuses as non-military recruiters.
The Court rejected FAIR's compelled-speech argument, reasoning that the Solomon Amendment "neither limits what law schools may say nor requires them to say anything," and, therefore, the law was a "far cry" from the compulsions at issue in Barnette and Wooley .
In BOLI's view, this case is like FAIR because ORS 659A.403 does not directly compel any speech; even if one considers the Kleins' cake-making to involve some element of expression, the law only compels the Kleins to engage in that expression for same-sex couples "if, and to the extent" that the Kleins do so for the general public.
Here, unlike in FAIR , the Kleins very much do object to the substantive content of the expression that they believe would be compelled. They argue that their wedding cakes are works of art that express a celebratory message about the wedding for which they are intended, and that the Kleins cannot be compelled to create that art for a wedding that they do not believe should be celebrated. And there is evidentiary support for the Kleins' view, at least insofar as every wedding cake that they create partially reflects their own creative and aesthetic judgment. Whether that is sufficient to make their cakes "art," the creation of which the government may not compel, is a question to which we will turn below, but even the Kleins' subjective belief that BOLI's order compels them to express a specific message that they ideologically oppose makes this case different from FAIR .
That fact is also what makes this case difficult to compare to other public accommodations cases that the United States Supreme Court has decided. It appears that the Supreme Court has never decided a free-speech challenge to the application of a public accommodations law to a retail establishment selling highly customized, creative goods and services that arguably are in the nature of art or other expression.
We believe, moreover, that it is plausible that the United States Supreme Court would hold the First Amendment to be implicated by applying a public accommodations law to require the creation of pure speech or art. If BOLI's order can be understood to compel the Kleins to create pure "expression" that they would not otherwise create, it is possible that the Court would regard BOLI's order as a regulation of content, thus subject to strict scrutiny, the test for regulating fully protected expression. See Hurley ,
Although the Court has not clearly articulated the extent to which the First Amendment protects visual art
In short, although ORS 659A.403 is a content-neutral regulation that is not directed at expression, the Kleins' arguments cannot be dismissed on that ground alone. Rather, we must decide whether the Kleins' cake-making activity is sufficiently expressive, communicative, or artistic so as to implicate the First Amendment, and, if
(3) Whether these cakes implicate the First Amendment
If, as BOLI argues, the Kleins' wedding cakes are just "food" with no meaningful artistic or communicative component, then, as the foregoing discussion illustrates, BOLI's final order does not implicate the First Amendment; the Kleins' objection to having to "speak" as a result of ORS 659A.403 is no more powerful than it would be coming from the seller of a ham sandwich. On the other hand, if and to the extent that the Kleins' wedding cakes constitute artistic or communicative expression, then the First Amendment is implicated by BOLI's final order. In short, we must decide whether the act that the Kleins refused to perform-to design and create a wedding cake-is "sufficiently imbued with elements of communication" so as to "fall within the scope" of the First Amendment. Spence v. Washington ,
On this point, BOLI makes a threshold argument that we must address, which is that, because the Kleins refused service to Rachel and Laurel before even finding out what kind of cake the couple wanted, there is no basis for assessing the "artistic" component of whatever cake might have resulted. For all we know, BOLI reasons, Rachel and Laurel might have wanted a standardized cake that would not have involved any meaningful expressive activity on the part of the Kleins. However, we believe the fair interpretation of this record is that the Kleins do not offer such "standardized" or "off the shelf" wedding cakes; they testified that their practice for creating wedding cakes includes a collaborative and customized design process that is individual to the customer. According to the Kleins, they intend-and their "clients expect"-that "each cake will be uniquely crafted to be a statement of each customer's personality, physical tastes, theme and desires, as well as their palate." According to Melissa, she "almost never make[s] a cake without creating a unique
Consequently, the question is whether that customary practice, and its end product, are in the nature of "art." As noted above, if the ultimate effect of BOLI's order is to compel the Kleins to create something akin to pure speech, then BOLI's order may be subject to strict scrutiny. If, on the other hand, the Kleins' cake-making retail business involves, at most, both expressive and non-expressive components, and if Oregon's interest in enforcing ORS 659A.403 is unrelated to the content of the expressive components of a wedding cake, then BOLI's order need only survive intermediate scrutiny to comport with the First Amendment. See United States v. O'Brien ,
The record reflects that the Kleins' wedding cakes follow a collaborative design process through which Melissa uses her customers' preferences to develop a custom design, including choices as to "color," "style," and "other decorative detail." Melissa shows customers previous designs "as inspiration," and she then draws "various designs on sheets of paper" as part of a dialogue with the customer. From that dialogue, Melissa "conceives" and customizes "a variety of decorating suggestions" as she ultimately finalizes the design. Thus, the process does not simply involve the Kleins executing precise instructions from their customers; instead, it is clear that Melissa uses her own design skills and aesthetic judgments.
Although the Kleins' wedding cakes involve aesthetic judgments and have decorative elements, the Kleins have not demonstrated that their cakes are inherently "art," like sculptures, paintings, musical compositions, and other works that are both intended to be and are experienced predominantly as expression. Rather, their cakes, even when custom-designed for a ceremonial occasion,
We also reject the Kleins' argument that, under the facts of this case, BOLI's order compels them to "host or accommodate another speaker's message" in a manner that the Supreme Court has deemed to be a violation of the First Amendment. See FAIR ,
The Kleins' additional concern, as we understand it, is that a wedding cake communicates a "celebratory message" about the wedding for which it is intended, and the Kleins do not wish to "host" the message that same-sex weddings should be celebrated. But, unlike in Hurley , the Kleins have not raised a nonspeculative possibility that anyone attending the wedding will impute that message to the Kleins. We think it more likely that wedding attendees understand that various commercial vendors involved with the event are there for commercial rather than ideological purposes. Moreover, to the extent that the Kleins subjectively feel that they are being "associated" with the idea that same-sex marriage is worthy of celebration, the Kleins are free to engage in their own speech that disclaims such support. Cf. FAIR ,
In short, we disagree that the Kleins' wedding cakes are invariably in the nature of fully protected speech or artistic expression,
As noted above, however, BOLI's order is still arguably subject to intermediate First Amendment scrutiny if the Kleins' cake-making activity involves both expressive and non-expressive elements. O'Brien ,
Ultimately, however, we need not resolve whether that argument is correct. That is because, even assuming (without deciding) that the Kleins' cake-making business involves aspects that may be deemed "expressive" for purposes of the First Amendment, BOLI's order is subject, at most, to intermediate scrutiny, and it survives such scrutiny, as explained below.
(4) BOLI's final order survives First Amendment scrutiny
Neither ORS 659A.403 nor BOLI's order is directed toward the expressive content of the Kleins' business. When a content-neutral regulation indirectly imposes a burden on protected expression, it will be sustained 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. ,
We first address the state's interest in enforcing its public-accommodations law. As noted above, the United States Supreme Court has consistently acknowledged that states have a compelling interest both in ensuring equal access to publicly available goods and services and in
Furthermore, Oregon's interest is in no way related to the suppression of free expression. Rather, Oregon has an interest in preventing the harms that result from invidious discrimination that is "wholly apart from the point of view such conduct may transmit." Roberts ,
Finally, we conclude that any burden imposed on the Kleins' expression is no greater than essential to further the state's
(5) Oregon Constitution, Article I, section 8
The Kleins assert that BOLI's final order also violates their rights under Article I, section 8, of the Oregon Constitution, which provides that "[n]o law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever[.]" The Kleins' argument is limited to the observation that Article I, section 8, has been held to establish broader protection for speech than the First Amendment, a premise from which they conclude that, "since BOLI's Final Order violates the federal Constitution's Speech Clause, it also violates the Oregon Constitution's broader counterpart a fortiori ." We have rejected the First Amendment predicate for that derivative argument, and the Kleins do not offer any separate analysis under the state constitution. Accordingly, we reject their argument under Article I, section 8, without further discussion. See, e.g. , State v. Dawson ,
b. Free exercise of religion
We turn to the Kleins' contention that BOLI's order violates their constitutional right to the free exercise of their religion. The Kleins advance two arguments under the United States Constitution: (1) BOLI's final order is not merely the application of a "neutral and generally applicable" law because it impermissibly "targets" religion, and (2) the order implicates the Kleins' "hybrid rights," subjecting it to heightened scrutiny that it cannot survive. The Kleins also invoke the Oregon Constitution's free-exercise clauses in Article I, sections 2 and 3, contending that: (1) as under the federal constitution, the final order impermissibly targets religion, and (2) even if the final order does not impermissibly target religion, they should be granted an exemption to ORS 659A.403 on religious grounds. For the reasons explained below, we reject the Kleins' arguments.
The answer begins with Employment Division, Oregon Department of Human Resources v. Smith , in which the United States Supreme Court held that "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes ( or proscribes).' "
To determine whether a law is "neutral," courts first ask whether "the object of [the] law is to infringe upon or restrict practices because of their religious motivation."
Nothing in the text of ORS 659A.403 or BOLI's final order is facially discriminatory towards the exercise of religious beliefs. Rather, the statute prohibits any "place
A law that is written in neutral terms may still violate the Free Exercise Clause, however. In Church of Lukumi Babalu Aye, Inc. , the Court concluded that the city ordinances in question-which prohibited certain animal slaughtering for "ritual[s]" and "sacrifice"-were not neutral because some important terms, as the ordinances defined them, targeted the Santeria religion's practice of ritualistic animal sacrifice while exempting other secular and religious practices like hunting and kosher slaughter.
Here, the Kleins advance a similar argument that BOLI's order violates the Free Exercise Clause because it applies ORS 659A.403 in a way that impermissibly "targets" religion for disfavored treatment. They contend that the final order was a "novel expansion" of ORS 659A.403 that "was, at best, discretionary and done for the specific purpose of forcing business owners with moral reservations about same-sex marriage to either violate their consciences or go out of business." (Emphasis removed.) BOLI responds that no evidence exists to support the Kleins' assertions, which are "pure speculation and utterly without merit."
On review of the record, we agree with BOLI. The Kleins have directed us to no evidence whatsoever that ORS 659A.403 was enacted for the purpose of singling out religiously motivated action, or that BOLI has selectively targeted religion in its enforcement of the statute. The Kleins likewise fail to support their assertion that BOLI's final order constitutes a "novel expansion" of the statute, rather than a straightforward application of a facially neutral statute to
The Kleins' second argument under the federal Free Exercise Clause is that the final order burdens their "hybrid rights." That is, the final order burdens both Free Exercise rights and other constitutional rights, a combination that purportedly triggers an exception to Smith and subjects even neutral laws of general applicability to strict scrutiny. The Kleins' argument relies on the following passage from Smith :
"The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause inconjunction with other constitutional protections, such as freedom of speech ***. ***
"The present case does not present such a hybrid situation, but a free exercise claim unconnected with any communicative activity ***."
We have previously expressed skepticism about whether a "hybrid-rights "doctrine" exists, and, to the extent it does, how it could be properly applied. In Church at 295 S. 18th Street, St. Helens , we referred to the Smith passage as "dictum ," observing that it merely "noted-without reference to any particular standard-that, in the past, the Court had struck down neutral, generally applicable laws when a case 'involved' both the Free Exercise Clause and some other constitutional protection."
"Why the addition of another constitutional claim would affect the standard of review of a free exercise claim is not immediately obvious. Indeed, if the mere allegation of an additional constitutional claim has the effect of altering the standard articulated in Smith , then the 'hybrid' exception likely would swallow the Smith rule; free exercise claims will frequently also pose at least a colorable free speech claim. On the other hand, if the Court meant that strict scrutiny pertains only when an additional constitutionalclaim is successfully asserted, then the rule of Smith becomes mere surplusage, as the church already would win under the alternate constitutional theory."
Other courts have similarly called the Smith passage dictum and have declined to follow it. See, e.g. , Combs v. Homer-Ctr. Sch. Dist. ,
The intervening years have given us no reason to reconsider our view that the Smith passage was dictum . Despite the considerable doubts about the "hybrid-rights doctrine" that have been expressed in case law and academic commentary,
As noted, the Kleins also invoke Article I, sections 2 and 3, of the Oregon Constitution
The Kleins' first argument is that the statute and final order are not neutral toward religion because they "target" the Kleins' religious practice. In support of that contention, the Kleins essentially incorporate their arguments under the federal Free Exercise Clause; they do not contend that the analysis meaningfully differs under the state constitution, and we therefore reject that argument for the same reasons discussed above.
Second, the Kleins argue that, even in the absence of impermissible targeting, they should be granted a religious exemption from compliance with ORS 659A.403. They rely on two cases- Hickman and Cooper v. Eugene Sch. Dist. ,
In short, although the Kleins argue that the Oregon Constitution requires that they be granted an exemption on religious grounds to an otherwise neutral law, the cases on which they rely did not impose such a requirement, but merely acknowledged an abstract possibility that it could happen in a future case. The Kleins have not offered a focused argument for why the Oregon Constitution requires an exemption in this case, under the methodology for interpreting our constitution. See, e.g. , Priest v. Pearce ,
Moreover, it is far from clear that a religious exemption as proposed by the Kleins would have only a "minimal" effect on the state's antidiscrimination objectives. The Kleins seek an exemption based on their sincere religious
For the foregoing reasons, we reject the Kleins' arguments that BOLI's final order violates the federal Free Exercise Clause or Article I, sections 2 and 3, of the Oregon Constitution.
B. Second Assignment: Commissioner's Failure to Recuse Himself
In their second assignment of error, the Kleins assert that BOLI's commissioner, Avakian, "the ultimate decision[ ]maker in this case, violated the Kleins' [d]ue [p]rocess rights by failing to recuse himself despite numerous public comments revealing his intent to rule against them." Specifically, they argue that Avakian's comments about the cake controversy in a Facebook post and in an article that appeared in The Oregonian show that he judged the Kleins' case before giving them an opportunity to present their version of the facts and the law. We agree with BOLI that Avakian's comments reflect, at most, his general views about the law and public policy, and therefore are not the kind of comments that require disqualification.
To establish a due-process violation, "[o]ne claiming that a decision [ ]maker is biased has the burden of showing
Importantly, in assessing bias, courts have long distinguished between a decision-maker's prejudgment of facts as opposed to preconceptions about law or policy, particularly in the context of quasi-judicial decisions. See 1000 Friends of Oregon v. Wasco Co. Court ,
"[No previous] decision of this Court would require us to hold that it would be a violation of procedural due process for a judge to sit in a case after he had expressed an opinion as to whether certain types of conduct were prohibited by law.
In fact, judges frequently try the same case more than once and decide identical issues each time, although these issues involved questions both of law and fact. Certainly, the Federal Trade Commission cannot possibly be under stronger constitutional compulsions in this respect than a court."
Accordingly, public comments that convey preconceptions about law or policy related to a dispute do not automatically disqualify a decision-maker from judging that controversy. As Judge Jerome Frank succinctly observed in In re J.P. Linahan, Inc. ,
In assessing a decision-maker's capability in that regard, we presume that public officials will perform their duties lawfully. Gilmore v. Board of Psychologist Examiners ,
In this case, Avakian's comments on Facebook and in the The Oregonian fall short of the kinds of statements that reflect prejudgment of the facts or an impermissibly closed-minded view of law or policy so as to indicate that he, as a decision maker, cannot be impartial. On Facebook, before a BOLI complaint had been filed, Avakian posted:
"Everyone has a right to their religious beliefs, but that doesn't mean they can disobey laws that are already in place. Having one set of rules for everybody ensures that people are treated fairly as they go about their daily lives."
Below that paragraph, Avakian provided a link to " 'Ace of Cakes' [
"The Oregon Department of Justice is looking into a complaint that a Gresham bakery refused to make a wedding cake for a same sex marriage. *** It started when a mother and daughter showed up at Sweet Cakes by Melissa looking for a wedding cake."
Viewed in context with the rest of the post, Avakian's statements that "[e]veryone has a right to their religious beliefs, but that doesn't mean they can disobey laws that are already in place," and that "[h]aving one set of rules for everybody ensures that people are treated fairly as they go about their daily lives," are comments about the controversy between the Kleins and the complainants. However, they do not describe particular
Avakian's statements in The Oregonian article likewise fail to demonstrate that he was incapable of fairly
The full quotations from that article, viewed in context, present a different picture. The article states, " 'Everybody is entitled to their own beliefs, but that doesn't mean that folks have the right to discriminate,' Avakian said, speaking generally ." (Emphasis added.) That sentence follows a paragraph in which the author describes the antidiscrimination law generally. Given that context, and the author's express qualification that Avakian was "speaking generally," there is no basis on which to conclude that Avakian was commenting specifically on the merits of the Kleins' case.
Similarly, and contrary to the Kleins' suggestion, the article does not quote Avakian as saying that the Kleins must be "rehabilitated." Rather, the article quotes Avakian concerning a more general proposition: " 'The goal is never to shut down a business. The goal is to rehabilitate,' Avakian said. 'For those who do violate the law, we want them to learn from that experience and have a good, successful business in Oregon.' " Again, nothing in that quote suggests that Avakian was responding to a question about the Kleins in particular, as opposed to BOLI investigations in general. Indeed, the context again suggests the latter. The next sentence in the article states, "The bureau's civil rights division conducts about 2,200 investigations a year on all types of discrimination, Avakian said."
There is, in fact, only one quote attributed to Avakian in The Oregonian article that appears to relate specifically to the Kleins' case-one that they do not mention. With regard to BOLI's investigation of the complaint against the Kleins, Avakian is quoted as saying, " 'We are committed
In sum, the public comments on which the Kleins rely do not demonstrate anything more than Avakian's general views about law and policy related to antidiscrimination statutes.
C. Third Assignment: Damages Award
In their third assignment of error, the Kleins argue that BOLI's damages award of $75,000 and $60,000 to Rachel and Laurel, respectively, is not supported by substantial evidence or substantial reason. See ORS 183.482 (8)(c) ("The court shall set aside or remand the order if the court finds that the order is not supported by substantial evidence in the record."); Hamilton v. Pacific Skyline, Inc. ,
To better frame the arguments, we provide additional context for the damages award. Under ORS 659A.850(4)(a)(B), BOLI is authorized to "[e]liminate the effects of the unlawful practice that the respondent is found to have engaged in, including but not limited to paying an award of actual damages suffered by the complainant and complying with injunctive or other equitable relief[.]" In this case,
At the hearing on damages, BOLI offered evidence of the emotional distress that the complainants suffered as a result of the Kleins' denial of service, including testimony from Rachel and Laurel. The Kleins offered evidence to rebut BOLI's evidence that the refusal of service was the source of the complainants' distress, including evidence that, during the relevant time period, the complainants were engaged in a custody dispute for their two foster children. They also elicited testimony from Rachel's brother to support their theory that the complainants were pursuing the case for political reasons rather than to remedy emotional distress.
During closing arguments, BOLI's prosecutor explained that the agency was seeking damages related to two different causes:
"There are two distinct causes of emotional distress damages in this case. The first is the damage that's based on the refusal itself, and for that the Agency is seeking $75,000 for each Complainant. There is also the damages that resulted from the media scrutiny of this case, and for that amount we would defer to the forum's discretion."
BOLI's prosecutor then proceeded to argue the two causes separately, first recounting testimony about the feelings of embarrassment, depression, sadness, and anger that Rachel and Laurel experienced around the time of the refusal and thereafter, including the strain that it put on their relationship and their relationships with others. The prosecutor then argued that "[t]he second cause of emotional distress is this media scrutiny." She contended that the media coverage had made Rachel and Laurel fearful for their lives, afraid for the safety of their foster children, and anxious that it would jeopardize their then-pending efforts to adopt the children.
Anticipating a challenge to the amount of the damages sought, BOLI's prosecutor argued that emotional distress damages are "very fact specific," and that "$75,000 for the refusal itself is very well within the parameters of what's appropriate." (Emphasis added.)
In rebuttal, BOLI's prosecutor emphasized that whether Aaron called the complainants "an abomination" or quoted a Bible verse using that word was "beside the point": "[H]ow it was couched doesn't really matter; the word is what resonated with the Complainants."
In his proposed final order, the ALJ set forth extensive factual findings, including express credibility determinations regarding the witnesses at the hearing. The ALJ found that Rachel, despite being an "extremely emotional witness," had "answered questions directly in a forthright manner" and "did not try to minimize the effect of media exposure on her emotional state as compared to how
The ALJ then set forth his reasoning regarding a damages award, describing specific aspects of each complainant's emotional suffering and distinguished "suffering from the cake refusal" from "suffering from publicity about the case." With regard to the latter, the ALJ ultimately concluded that, as a factual matter, the Kleins were "responsible" for at least some of the publicity that had followed the initial refusal, but that "there is no basis in law for awarding damages to Complainants for their emotional suffering caused by media and social media attention related to this case."
The ALJ's proposed final order then set forth his conclusion on the amount of damages related to the initial refusal:
"In this case, the forum concludes that $75,000 and $60,000, are appropriate awards to compensate Complainants [Rachel] and [Laurel], respectively, for the emotional suffering they experienced from Respondents' cake refusal. [Laurel] is awarded the lesser amount because she was not present at the cake refusal and the forum found her testimony about the extent and severity of her emotional suffering to be exaggerated in some respects."
BOLI, in its final order, largely adopted the reasoning and conclusions proposed by the ALJ, including his credibility determinations. BOLI, like the ALJ, separately discussed the emotional suffering of each complainant with regard to the denial of service and from publicity. And, like the ALJ, BOLI concluded that damages for emotional suffering caused by media attention were not recoverable.
BOLI's final order also adopted the ALJ's analysis of the amount of damages to each complainant. The order states:
"In this case, the ALJ proposed that $75,000 and $60,000, are appropriate awards to compensate [Rachel and Laurel], respectively, for the emotional suffering they experienced from Respondents' denial of service. The proposal for [Laurel] is less because she was not present at the denial and the ALJ found her testimony about the extent and severity of her emotional suffering to be exaggerated in some respects. In this particular case, the demeanor of the witnesses was critical in determining both the sincerityand extent of the harm that was felt by [Rachel and Laurel]. As such, the Commissioner defers to the ALJ's perception of the witnesses and evidence presented at hearing and adopts the noneconomic award as proposed, finding also that this noneconomic award is consistent with the forum's prior orders."
In a footnote to that paragraph, the order cites specific BOLI cases in which damages were awarded, in amounts ranging from $50,000 to $350,000 per complainant.
With that background, we return to the issues presented by the Kleins' third assignment of error.
1. Countervailing evidence
The Kleins assert that BOLI's order "is inconsistent with its credibility determinations"-specifically, BOLI's findings regarding what Aaron actually said to Cheryl when she returned to Sweetcakes after the initial refusal of service. According to the Kleins, BOLI found as fact that Aaron did not actually refer to Rachel as an "abomination" but had only quoted a verse from the Book of Leviticus, stating, "You shall not lie with a
We do not read BOLI's order to rest on a finding that Aaron specifically called the complainants "an abomination" as opposed to quoting a biblical verse. As described above, BOLI argued during the damages hearing that exactly how the word was "couched" was beside the point. BOLI's final order likewise reflects a focus on the effect of the word "abomination" on the complainants, including their recognition of that biblical reference and their associations with the reference. For instance, the order states that Rachel, who was brought up as a Southern Baptist, "interpreted [Aaron's] use of the word 'abomination' [to] mean that God made a mistake when he made her, that she wasn't supposed to exist, and that she had no right to love or be loved [.]" Similarly, the order states that Laurel recognized the statement as a reference from Leviticus and, based on her religious background, "understood the term 'abomination' to mean 'this is a creature not created
Viewing the final order as a whole, we see no inconsistency. BOLI found that Aaron used the term "abomination" in the course of explaining why he was denying service to the complainants on account of their sexual orientation, and further found that the complainants experienced emotional distress based on the use of that term. It is that nexus that underlies BOLI's damages award.
The Kleins also argue that the final order does not account for certain evidence that undermined the damages case, including evidence that the complainants were pursuing the case out of a desire for political change and that they were experiencing stress from their custody dispute at the time. The Kleins also argue that the final order fails to account for ways in which the complainants frustrated the Kleins efforts to "discover the true extent of their alleged emotional harm." According to the Kleins, the final order therefore lacks substantial reason.
The Kleins' argument in that regard "misconceives the nature of the substantial reason requirement." Jenkins v. Board of Parole ,
In this case, BOLI's order includes extensive factual findings regarding the emotional suffering that the complainants experienced and it connects the amount of damages to that suffering. That is sufficient to satisfy the substantial reason requirement, and we decline to reweigh, under the guise of substantial
2. Damages from publicity and media attention
Next, the Kleins argue that the damages award is internally inconsistent in its treatment of harm caused by media attention from the case. According to the Kleins, BOLI's formal charges "sought $150,000 in total damages based on alleged emotional suffering stemming from the denial of service and subsequent media exposure." (Emphases by the Kleins.) But then, despite concluding that the complainants were not entitled to recover for harm attributable to media exposure, the final order awards an amount close to the prayer.
The Kleins' argument proceeds from a mistaken premise. BOLI's formal charges did not seek "$150,000 in total damages based on alleged emotional suffering stemming from the denial of service and subsequent media exposure." (Emphases by the Kleins.) Rather, the formal charges sought damages in "the amount of at least $75,000 " for each
The Kleins' alternative contention regarding publicity damages is based on a statement that BOLI made in the context of denying recovery for those damages. In that part of the order, BOLI concluded that "complainants' emotional harm related to the denial of service continued throughout the period of media attention and that the facts related solely to emotional harm resulting from media attention do not adequately support an award of damages." (Emphases added.) According to the Kleins, that emphasized text reflects that BOLI "awarded damages for harm lasting over twenty-six months" related solely to the initial denial of service, yet the proposed final order and final order "note a near total lack of any such evidence" regarding persistent harm from the initial refusal.
The Kleins' mischaracterize the relevant orders. In his proposed final order, the ALJ distinguished testimony about specific incidents involving emotional suffering from testimony about emotional suffering more generally. The
"Without giving any specific examples, [Rachel] credibly testified that, in a general sense, the cake refusal has caused her continued emotional suffering up to the time of hearing . Other than that, she did not testify as to any specific suffering she experienced after February 1 that was directly attributable to the cake refusal."
(Emphasis added; footnote omitted.)
In adopting the ALJ's reasoning, BOLI's final order similarly distinguished between generalized testimony and testimony about specific instances of suffering, and it repeated the ALJ's findings in that regard.
Viewed in context, BOLI's findings and conclusions demonstrate that it credited Laurel's and Rachel's testimony that, at the time of the hearing, they continued to experience some degree of emotional suffering from the initial refusal, but the final order also reflects that BOLI understood that evidence to be generalized and limited. Nothing in the final order indicates that BOLI gave that evidence more weight than it could bear, or suggests that the agency relied on evidence that was not substantial when determining damages. Rather, the complainants' generalized evidence of continued suffering until the time of the hearing is one among the many facts on which the agency relied to support the damages award in the final order. See Edwards ,
Finally, the Kleins argue that BOLI's award lacks substantial reason because it is "out of line with comparable cases." The Kleins contend, as they did below, that the complainants' suffering relates to a single, discrete incident, whereas past BOLI cases with such significant damages awards involved ongoing harassment and typically involved emotional suffering so severe that it required medical treatment.
Fact-matching, when considering emotional distress damages, is of limited value. As we explained in Edwards , BOLI must consider "the type of discriminatory conduct, and the duration, frequency, and severity of the conduct. It also considers the type and duration of the mental distress and the vulnerability of the [c]omplainant."
As BOLI notes in its final order, the agency has awarded far greater damages than $75,000 and $60,000 to a complainant in cases involving invidious discrimination. E.g. , In the Matter of Andrew W. Engel, DMD , 32 BOLI 94, 114, 140-41 (2012) (awarding $325,000 in damages for "emotional, mental, and physical suffering" to a complainant subjected to harassment for religious beliefs, which resulted in anxiety, stress, insomnia, gastrointestinal problems and weight loss requiring medical treatment); In the Matter of From the Wilderness, Inc. , 30 BOLI 227, 284-85, 292-93 (2009) (awarding $125,000 in damages for "mental and emotional suffering" to a complainant subjected to verbal and physical sexual harassment for more than two months before being fired and then retaliated against, and who then suffered panic attacks requiring medical treatment). BOLI has also awarded lesser amounts in cases involving significant trauma, e.g. , In the Matter of Charles Edward Minor , 31 BOLI 88, 99, 104-05 (2010) (awarding $50,000 in damages for "emotional, mental, and physical suffering" to a complainant subjected to verbal and physical sexual harassment, with the abuse culminating in the respondent striking her in the head with his fist, and the abuse caused anxiety,
For the foregoing reasons, we reject the third assignment of error and affirm the damages award.
D. Fourth Assignment: Application of ORS 659A.409
In their fourth assignment of error, the Kleins contend that BOLI erred in concluding that they violated ORS 659A.409. That statute provides, as pertinent here, that
"it is an unlawful practice for any person acting on behalf of any place of public accommodation as defined in ORS 659A.400 to publish, circulate, issue or display, or cause to be published, circulated, issue 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 race, color, religion, sex, sexual orientation, national origin, marital status or age ***."
ORS 659A.409. In essence, the statute makes it unlawful to threaten to commit unlawful discrimination. In its final order, BOLI concluded that the Kleins did so through several statements, as discussed below, and enjoined them from committing further violations.
The final order describes three discrete statements attributed to the Kleins. First, in the February 2014 interview with Tony Perkins, Aaron described his brief conversation with Rachel at Sweetcakes that led to him telling her, "[W]e don't do same-sex marriage, same-sex wedding cakes." Second, at a different point in that same interview, Aaron related an earlier conversation that he had had with Melissa regarding the prospect of legalized same-sex marriage; in that conversation, according to Aaron, he and Melissa agreed that they could "see it is going to become an issue but we have to stand firm." Third, BOLI relied on the handwritten sign that was taped to the inside of Sweetcakes' front window, which read, in part, "Closed but still in business. * * * This fight is not over. We will continue to stand strong. Your religious freedom is becoming not free anymore. This is ridiculous that we cannot practice our faith. The LORD is good and we will continue to serve HIM with all our heart."
In the final order, BOLI reasoned that the above statements, considered in "text and context," were properly construed as "the recounting of past events," but also "constitute notice that discrimination will be made in the future by refusing such services." As a result, BOLI's final order included language ordering the Kleins "to cease and desist" from making any communication "to the effect that" they would discriminate in the future "on account of sexual orientation." The language in the order precisely tracks the statutory language in ORS 659A.409, quoted above.
On judicial review, the Kleins essentially make two arguments. First, they argue that BOLI erred in concluding
We agree with the Kleins' first point. Aaron's statements in the February 2014 interview can be reasonably understood only one way: as describing past events. BOLI's order states that Aaron "did not say only that he would not do complainants' specific marriage and cake but, that respondents 'don't do' same-sex marriage and cakes." But regardless of whether his words can be understood to refer generally to same-sex marriage and cakes, BOLI ignores the context in which he made that remark during the interview. Aaron was asked by the interviewer, "Tell us how this unfolded and your reaction to that." He responded by describing what had happened on the day of the refusal , including, "I said , 'I'm very sorry, I feel like you may have wasted your time. You know we don't do same-sex marriage, same-sex wedding cakes.' And she got upset, noticeably, and I understand that." (Emphasis added.) Viewed in that context, Aaron's recounting of those historical events cannot be understood as a statement that he would deny service in the future.
Likewise, Aaron's recounting, during the interview, of past conversations that he and Melissa had engaged in before the denial of service cannot reasonably be understood as an assertion of their plans to discriminate in the future. Aaron was asked by the interviewer whether the controversy with the complainants had caught him off guard, and he responded, "[I]t was one of those situations where we said 'well I can see it is going to become an issue but we have to stand firm.' " That statement plainly recounted his past thinking and cannot reasonably be construed as the kind of threat of prospective discrimination that ORS 659A.409 prohibits.
That leaves the note taped to the Sweetcakes window. Again, that note read:
"Closed but still in business. You can reach me by email or facebook. www.sweetcakesweb.com or Sweetcakes by Melissa facebook page. New phone number will be provided on my website and facebook. This fight is not over. We will continue to stand strong. Your religious freedom is becoming not free anymore. This is ridiculous that we cannot practice our faith. The LORD is good and we will continue to serve HIM with all our heart [heart symbol]."
(Uppercase and underscoring in original; spacing altered.) BOLI concedes that the statement could refer to their intention to stand strong in their legal fight, but argues that it "also could refer to the denial of services to same-sex couples."
We are not persuaded that, given the ambiguity in the note, it can serve as an independent basis for BOLI's determination that the Kleins violated ORS 659A.409 -and, indeed, BOLI did not purport to rely on the note alone. As explained above, in overturning the ALJ's determination regarding ORS 659A.409, BOLI relied heavily on statements in the Perkins interview-taken out of context-to conclude that the Kleins had communicated an intention to discriminate in the future. When those statements and the note are viewed in their proper context, the record does not support BOLI's conclusion that the Kleins violated ORS 659A.409. We therefore reverse that part of BOLI's order.
Reversed as to BOLI's conclusion that the Kleins violated ORS 659A.409 and the related grant of injunctive relief; otherwise affirmed.
Notes
Because the Kleins do not challenge BOLI's findings of historical fact, we take those facts-as described here and within particular assignments of error-from the findings set forth in BOLI's final order. Meltebeke v. Bureau of Labor and Industries ,
Because multiple parties and witnesses share the same last names, we at times use first names throughout this opinion for clarity and readability.
The formal charges had alleged that Melissa and Aaron each violated ORS 659A.403, and that Aaron had aided and abetted Melissa's violation. See ORS 659A.406 (making it an unlawful practice for any person to aid or abet unlawful discrimination by any place of public accommodation). The ALJ granted the Kleins' motion for summary judgment on the allegations that Melissa had violated ORS 659A.403, and on the allegations that Aaron had aided and abetted her in violation of ORS 659A.406. However, the ALJ, and later BOLI, concluded that the Kleins were jointly and severally liable for Aaron's violation of ORS 659A.403, and the parties have not distinguished between Aaron's and Melissa's liability for purposes of judicial review. For readability, we likewise discuss the Kleins' liability jointly and do not further discuss theories of aiding and abetting, which are not at issue before us.
On judicial review, the Kleins do not dispute that Sweetcakes is a "place of public accommodation" within the meaning of ORS 659A.403. See ORS 659A.400 (defining "a place of public accommodation" for purposes of ORS chapter 659A).
At the time that the Oregon Family Fairness Act was enacted, Article XV, section 5a, of the Oregon Constitution defined "marriage" to be limited to the union of one man and one woman, and the Oregon Family Fairness Act expressly states that it "cannot bestow the status of marriage on partners in a domestic partnership." Or. Laws 2007, ch. 99, § 2(7). Nonetheless, the act contemplated, but did not require, the performance of "solemnization ceremony[ies]" and left it to the "dictates and conscience of partners entering into a domestic partnership to determine whether to seek a ceremony or blessing over the domestic partnership." Or. Laws 2007, ch. 99, § 2(8). Thus, the legislature was aware that same-sex couples would be participating in wedding ceremonies, and when it simultaneously chose to extend the protections of ORS 659A.403 to cover sexual orientation, there is no reason to believe that it intended to exempt places of public accommodation-such as cake shops, dress shops, or flower shops-so as to permit them to discriminate with regard to services related to those anticipated ceremonies.
In doing so, we join other courts that have declined to draw a "status/ conduct" distinction similar to that urged by the Kleins. See, e.g. , State v. Arlene's Flowers, Inc. ,
The issue is currently before the Supreme Court in a case involving a Colorado bakery that similarly refused to make a wedding cake for a same-sex couple. Craig v. Masterpiece Cakeshop, Inc. ,
The First Amendment's protection of artwork is distinct from the protections that extend to so-called "expressive conduct." Expressive conduct involves conduct that may be undertaken for any number of reasons but, in the relevant instance, is undertaken for the specific purpose of conveying a message. See, e.g. , Texas v. Johnson ,
To be clear, we do not foreclose the possibility that, on a different factual record, a baker (or chef) could make a showing that a particular cake (or other food) would be objectively experienced predominantly as art-especially when created at the baker's or chef's own initiative and for her own purposes. But, as we have already explained, the Kleins never reached the point of discussing what a particular cake for Rachel and Laurel would look like; they refused to make any wedding cake for the couple. Therefore, in order to prevail, the Kleins (as they implicitly acknowledge) must demonstrate that any cake that they make through their customary practice constitutes their own speech or art. They have not done so.
See, e.g. , Church of Lukumi Babalu Aye, Inc. ,
Article I, sections 2 and 3, provide:
"Section 2. Freedom of worship. All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their own consciences.
"Section 3. Freedom of religious opinion . No law shall in any case whatever control the free exercise, and enjoyment of religeous [sic ] opinions, or interfere with the rights of conscience."
Former ORS 342.650 (1965), repealed by Or. Laws 2010, ch. 105, § 3 (spec. sess.), provided:
"No teacher in any public school shall wear any religious dress while engaged in the performance of his duties as a teacher."
"Ace of Cakes" refers to a television show, the host of which provided the complainants with a free wedding cake.
The Kleins' opening brief appears to include, by way of an appendix, material that was not part of the administrative record. We have confined our review to public comments by Avakian that were raised in the Kleins' motion to disqualify and that were before the ALJ and BOLI in the proceedings below.
The ALJ's order states, "The Formal Charges seek damages for emotional, mental and physical suffering in the amount of 'at least $75,000' for each Complainant. In addition to any emotional suffering experienced by Complainants as a direct result of Sweetcakes' refusal to bake them a cake ('cake refusal'), the Agency also seeks damages for suffering caused to Complainants by media publicity and social media responses to this case."
The final order likewise explains that the formal charges sought "at least $75,000" for each complainant and, "[i]n addition to any emotional suffering experienced by Complainants as a direct result of Sweetcakes' refusal to bake them a cake ('denial of service'), the Agency also seeks damages for suffering caused to Complainants by media publicity and social media responses to this case."
BOLI expressly declined to award damages based on the violation of ORS 659A.409, so our decision affects only the part of BOLI's order that grants injunctive relief.