SCOTUS Remands Case Of Oregon Baker Who Refused Service To Same-Sex Couple

The Supreme Court declined to rule on the merits in a case dealing with a Oregon baker who refused to bake a cake for a same-sex wedding reception.

The Supreme Court has declined to accept the appeal of an Oregon baker who refused to bake a cake for a same-sex couple’s wedding reception, sending it back to the courts below for reconsideration based on its holding in a similar case from Colorado last year:

WASHINGTON — The Supreme Court on Monday declined to hear an appeal from the owners of an Oregon bakery who were fined for refusing to create a wedding cake for a gay couple. In a brief order, the justices instead returned the case to lower courts in Oregon “for further consideration” in light of a decision last year in which the court ducked a similar issue in a case concerning a baker from Colorado.

The court’s action on Monday left still unresolved the question of whether many kinds of businesses, including florists, photography studios, calligraphers and tattoo artists, may discriminate against same-sex couples on religious grounds.

Lower courts have generally sided with gay and lesbian couples who were refused service, ruling that they are entitled to equal treatment, at least in parts of the country with laws forbidding discrimination based on sexual orientation. The owners of businesses challenging those laws have argued that the government should not force them to choose between the requirements of their faiths and their livelihoods, citing constitutional protections for free speech and religious liberty.

The new case started in 2012 when the owners of a bakery called Sweetcakes by Melissa refused to make a wedding cake for a lesbian couple, Rachel Bowman-Cryer and Laurel Bowman-Cryer. The owners, Melissa Klein and Aaron Klein, said doing so would violate their religious principles.

The state labor bureau ruled against the Kleins, saying they had violated an Oregon law barring discrimination based on sexual orientation and ordering them to pay $135,000 in damages. A state appeals court affirmed the bureau’s decision and rejected arguments from the Kleins that two parts of the First Amendment, its protections of free expression and religious freedom, allowed them to turn the couple away.

The Oregon Supreme Court declined to hear their appeal, and the bakery went out of business.

(…)

In their petition seeking review in the Oregon case, the bakery’s lawyers said hearing their appeal would allow the justices to answer the question left open last year. “It squarely presents the constitutional questions that the court did not answer in Masterpiece Cakeshop,” they wrote.
The state countered that its anti-discrimination law merely “requires petitioners to provide to same-sex couples the same service that petitioners would provide to heterosexual couples — a cake for their wedding.”

The Oregon case was in one way broader than the one from Colorado, as it asked the justices to overrule an important precedent from 1990, Employment Division v. Smith. In a majority opinion written by Justice Antonin Scalia, the Supreme Court ruled that neutral laws of general applicability could not be challenged on the ground that they violated the First Amendment’s protection of the free exercise of religion.

That decision, arising from a case involving the use of peyote in Native American religious ceremonies, is unpopular among conservative Christians, who say it does not offer adequate protection to religion, and with some justices. In January, the court’s four most conservative members — Justices Kavanaugh, Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — signaled that they were open to reconsidering the decision.

This case comes in the wake of the Supreme Court’s ruling last year in a somewhat similar case involving a Colorado baker who also declined to bake a case for a same-sex wedding reception, citing his religious objections as justification. The couple who had placed the order filed a complaint against the baker with the Colorado Civil Rights Commission charging him with violating the state’s law barring discrimination in public accommodations based on a number of criteria including sexual orientation. The commission held a hearing and ruled against the baker, who then appealed to the Colorado Supreme Court, where he also lost. In that case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, the U.S. Supreme Court ruled that the trial court below had failed to give appropriate deference to the arguments that the baker made regarding the role his religious beliefs played in his decisions and remanded the case with instructions regarding the proper procedure for handling those arguments. The Court did not, however, rule on the merits of the baker’s claims nor did it provide an answer to the central question in the case, namely the question of whether religious liberty trumps the state’s interest in enforcing anti-discrimination laws.

The situation in the present case is similar to what unfolded in Colorado, and the Court has essentially handled it in the same manner that it handled Masterpiece Cakeshop. Rather than ruling on the merits, the Court remanded the case in light of the ruling in the Colorado case, asking the trial court and the appellate court to review the case to ensure that the baker’s religious liberty claims were given proper deference. This, of course, raises the probability that the case will end up back before the Supreme Court in a year or two. In the meantime, there are other cases raising this same issue that is likely to make their way to the Justices sooner rather than later.

The most notable of these is the case of a Washington state florist who refused to provide services for a same=sex wedding. That case had previously been before the high court and was remanded after the Colorado case was decided with instructions that the lower courts review the case in light of the ruling in Masterpiece Cakeshop. Just last week, the Washington State Supreme Court issued its second ruling in the case, finding once again for the state and ruling that the case did not suffer from the same defects that had existed in the Masterpiece Cakeshop case. The next step for that case, of course, would be another appeal to the U.S. Supreme Court, meaning that we might just get a definitive ruling on this issue some time in the COurt’s next term.

FILED UNDER: General
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. An Interested Party says:

    If religion can’t be used as an excuse to discriminate on the basis of “race” how can it be used to discriminate on the basis of sexual orientation…

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  2. Kathy says:

    This is me refraining from another punter reference, as two in one day would be too repetitive (which didn’t stop the Court).

  3. @Kathy:

    There’s nothing wrong with remanding a case. It usually means that the Court below didn’t adequately consider a point of law or that the facts of the case were not sufficiently developed for a ruling on the merits by an appellate court.

  4. Cleve Watson says:

    @An Interested Party: That’s not the question. The question is, “Do you have a right to compel my speech or creative expression to produce a message or celebrate something I believe is wrong?”

    In the case of the bakeries under fire, none refused service; they would have been perfectly happy to sell a standard cake off their shelves. What they would not do is custom-make a cake with wording or symbolism that celebrates something they cannot support.

    If you have a legal right to compel my speech, I am your slave. My understanding is that slavery was abolished in 1863 by President Lincoln.

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  5. Jax says:

    @Cleve Watson: What, exactly, is the difference between selling a standard cake (with no writing) off their shelves, that they created themselves, knowing it’s going to a gay couple, and them getting paid extra to do the writing on the cake because some people aren’t good with writing in frosting? “Money in the bank”, I’d say, “how many colors would you like the writing in?” How hard is it for people like you to be happy for other people?

    I mean, the equation with slavery is a bit much, don’t you think? I’m raising a teenager and one of the lessons I find myself repeating often is “Just because you have the freedom of speech does not mean you are free from the consequences of running your mouth.”

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  6. Kylopod says:

    @Cleve Watson:

    That’s not the question. The question is, “Do you have a right to compel my speech or creative expression to produce a message or celebrate something I believe is wrong?”

    So do you hold that bakers have a right to refuse to bake a cake for an interracial couple on the grounds that they believe race-mixing is wrong? Just curious.

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  7. Mister Bluster says:

    How hard is it for people like you to be happy for other people?

    They can not be happy for homosexuals getting married because their religion teaches them that Christian Cake Bakers are morally superior and righteous since they only engage in heterosexual copulation.

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  8. Lynn says:

    @Mister Bluster:

    And only within marriage, and only the procreative sort.

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  9. An Interested Party says:

    My understanding is that slavery was abolished in 1863 by President Lincoln.

    If you are such a student of history, surely you realize that laws protecting minorities were passed in the last century and continue to evolve in this century…if you think that a baker having to bake a cake for a gay couple makes that baker a “slave” I suggest you go back to school so that you can learn the correct meaning of certain words…

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  10. Kathy says:

    Oh, have some pity on the poor, oppressed Christian bakers. After all, consider the long questionnaires they must, perforce, subject their clientele to when they want a wedding cake: have you had premarital sex with your fiance? have you had premarital sex with someone else? are you a virgin? is this your first marriage? what kind of contraceptives do you use? do you support abortion? have you had an abortion? do you mix fabrics? do you eat pork (whoops! wrong era!)?, and I’m sure many, many more.

    Surely they are conscientious about their faith and not just narrow-minded bigots eager to discriminate against same-sex couples only.

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  11. Jax says:

    @Mister Bluster: Somebody’s gotta pay for Trump’s tax cuts, man, you’d think they’d be all over decorating cakes for those “married, filing jointly, no children” tax returns. I have hetero friends who are getting divorced because they’ll pay less in taxes in their state if they “live in sin”.

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  12. Lit3Bolt says:

    @An Interested Party:

    Hence Rod Dreher’s urging for all conservative Christians to Mennonite themselves into obscurity. They know they have no longer have any legal framework to stand on. Good riddance.

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  13. Moosebreath says:

    @Lit3Bolt:

    “Hence Rod Dreher’s urging for all conservative Christians to Mennonite themselves into obscurity.”

    Meh, I wouldn’t mind if they actually acted like Mennonites, living their religious beliefs and keeping quiet when others don’t follow suit. Dreher seems to think that all other groups are second class citizens, and his group’s beliefs should always prevail over everyone else’s.

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  14. MarkedMan says:

    I’m curious about this Cleve character. I notice he didn’t respond to the challenges. Has he ever posted here before? Or is he a one and done? If so, I wonder if he is an actual person as we know this is exactly the type of issues the Russian trolls have been weighing in on, for both sides…

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  15. MarkedMan says:

    @Moosebreath: FWIW, I used to read Dreher for several years until he went so far off the deep end with the fear of gay cooties I just couldn’t take it anymore. That said, I think what really twists his guts is the people who don’t just disagree with him but actually view him as immoral. The disagreements themselves don’t bother him and I think if the left’s reaction was, “Well, Dreher is a very moral guy, but I think he is incorrect in this case”, I think he would still be reasonably sane. (Not that I’m saying this is how people should deal with him.)

  16. Kylopod says:

    @MarkedMan: According to Google, comments by “Cleve Watson” have appeared at OTB three previous times: in 2013, 2015, and 2018. In all three cases he did not return to address any rebuttals.

  17. DrDaveT says:

    @Cleve Watson:

    The question is, “Do you have a right to compel my speech or creative expression to produce a message or celebrate something I believe is wrong?”

    Pro tip: if your argument would work just as well as an objection to Loving v. Virginia, you have a sh!tty argument and need to rethink it.

    Also, note that a cake is not a message, and nobody is asking you to celebrate anything. You are free to be unhappy about the wedding. You are even free to say publicly that you are unhappy about the wedding, though an actual Christian would probably be thinking more along the lines of “love thy neighbor as thyself” and “as ye would that men should do to you, do ye also likewise unto them”, and “let he who is without sin cast the first stone”, etc.

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  18. An Interested Party says:

    …though an actual Christian would probably be thinking more along the lines of “love thy neighbor as thyself” and “as ye would that men should do to you, do ye also likewise unto them”, and “let he who is without sin cast the first stone”, etc.

    So many so-called “Christians” have strayed so far from Christ’s teachings that they should be labeled CINO’s…

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  19. Kylopod says:

    @DrDaveT:

    Also, note that a cake is not a message

    I disagree–slightly. SCOTUS has long held that “symbolic speech” is protected the First Amendment–most famously in Texas v. Johnson, the case establishing a right to burn an American flag. Opponents said “Burning a flag is not speech!” SCOTUS said, yes it is.

    Presumably, symbolic speech would apply to some types of artwork, and I suppose a wedding cake might qualify. Let’s say you’re a baker and what you’re asked to bake is not a wedding cake but a MAGA cake with a model of a smiling Trump sitting on top. If you refused, I think you’d have a case on free-speech grounds.

    The difference between that and a wedding cake isn’t that one is expressing a message and one isn’t. They both are, to some extent. The difference is that refusing to bake a wedding cake for a same-sex couple is a violation of civil rights laws, whereas the other example isn’t.

    Here’s the real problem with the argument of the bakers: The First Amendment doesn’t give people an absolute right to any act of communication if the act in itself interferes with the rights of others. If you give a political speech from loudspeakers at 2AM, it wouldn’t be a violation of your right to free speech if you were arrested for disturbing the peace. It has nothing to do with the content of the speech, it has to do with what you were doing to make it.

    So even if a wedding cake can be said to express a “message,” that doesn’t necessarily mean that being compelled to make it is a violation of one’s right to free speech. In this case, the act of refusing violates someone else’s rights–and that clearly overrides your right not to be compelled to make a cake expressing something you don’t approve of.

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  20. The abyss that is the soul of cracker says:

    @DrDaveT:

    though an actual Christian would probably be thinking more along the lines of “love thy neighbor as thyself” and “as ye would that men should do to you, do ye also likewise unto them”, and “let he who is without sin cast the first stone”, etc.

    Speaking as someone who actually professes to be Christian and strives to live in a manner that speaks well for the theology (and this is hard to do for an abyss), I just don’t count on that happening any more. Many of my “brothers and sisters in the LORD” are closer to the “conquering the world for JESUS” camp (although, I don’t see how their reactions to the topic of question aid in that goal, either).

    (Mostly, I think they’re just “conquering the world for ME!”)

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  21. DrDaveT says:

    @Kylopod:

    I disagree–slightly. SCOTUS has long held that “symbolic speech” is protected the First Amendment–most famously in Texas v. Johnson, the case establishing a right to burn an American flag.

    Sure. But how many people make a living burning flags for hire? We’re talking about a baker who won’t bake a cake for a particular customer. I don’t really see how refraining from baking a cake can be considered “symbolic speech” — it’s a negative act, not a positive one.

    Presumably, symbolic speech would apply to some types of artwork, and I suppose a wedding cake might qualify.

    Maybe, but absence of wedding cake seems like much more of a stretch. How is failing to bake a cake “symbolic speech”?

  22. Kathy says:

    Maybe customs vary, and I’ve never attended a wedding int he US, but I’ve never seen one wedding cake with any writing on it.

    They tend to be multiple layers with elaborate frosting and decorations of all kinds, thoroughly impractical, and difficult to transport. They also have plastic figures representing the couple.

    So I need to ask: what speech?

  23. grumpy realist says:

    @Kathy: That’s why most of the “compelled speech” cases involving patisserie have in fact been non-wedding cakes.

    The trouble comes when the “art” and “compelled behaviour” argument starts getting attached to human services which otherwise aren’t considered “artistic”: can a taxi-cab driver be considered an artist? How about a janitor mopping up after a wedding reception? I grudgingly allow an “artistic exemption” for wedding photographers, in spite of the fact that in most cases the pictures are so ritualistic you might as well get a computer to snap the shots. (Picture of mother of bride with daughter. Picture of couple at altar. Picture of couple cutting cake….)

  24. KM says:

    @Kylopod:

    The difference between that and a wedding cake isn’t that one is expressing a message and one isn’t. They both are, to some extent. The difference is that refusing to bake a wedding cake for a same-sex couple is a violation of civil rights laws, whereas the other example isn’t.

    Except the baker is on record saying that could have a shelf wedding cake and it would be fine to sell that to them. In terms of message and “symbolic speech”, a pre-made wedding cake bares the same exact message as a freshly made cake i.e. it is a cake created to celebrate nuptials and it is deliberately sold for that purpose. The message doesn’t change, it’s recipients do. What difference does the “when” something is made matter unless it’s specifically a rejection of the customer using “speech” as an excuse? What possible difference in “symbolic speech” is there between (1) making a wedding cake for general consumption / shelf, decorating it as normal, selling it to an engaged couple knowing it will be used in their wedding and (b) making a wedding cake on spec, decorating it as such, selling it to an engaged couple knowing it will be used in their wedding other then the details of the cake which are given to you by the customer? The message remains unchanged, the “art” is the same regardless of who’s wedding it is. What moral difference is there other then the timing of the creation of the cake? Is the objection / sin the making, the selling, the usage, the abuse of art or just having the nerve to ask in the first place?

    It’s an incredibly thin argument that can be easily picked apart on any of the above points. It relies heavily on the premise that gay weddings are different somehow and it will affect the quality of the little flowers you garnish the cake with because your morals object. Thus you, tortured artiste, must be allowed to make those same little flowers a few days ahead of time to leave on a shelf so a gay couple can buy stale cake that’s somehow not offensive /participation / condoning behavior to sell to them knowing what’s gonna happen. That’s not “symbolic speech” – that’s being an inconsistent asshat with a poor grasp on logic. I’m all for artists being able to express freely but this is a disintegrating fig leaf they chose to hide behind….

  25. OzarkHillbilly says:

    @Cleve Watson:

    “Do you have a right to compel my speech or creative expression to produce a message or celebrate something I believe is wrong?”

    So in your mind it is perfectly OK for me to deny service to Christians based on my religious belief that they are Stan’s minions?

  26. Moosebreath says:

    @MarkedMan:

    “The disagreements themselves don’t bother him and I think if the left’s reaction was, “Well, Dreher is a very moral guy, but I think he is incorrect in this case”, I think he would still be reasonably sane. (Not that I’m saying this is how people should deal with him.)”

    The problem is that Dreher does not offer the same respect to others. To the contrary, on all points of dispute, he thinks his way is the only moral one, and the rest of the world is wicked beyond redemption.

  27. JohnMcC says:

    @The abyss that is the soul of cracker: As I’m sure you know, you can look up this particular brand of “Christianity” under the letter D. For “Dominionist”.

  28. Just nutha ignint cracker says:

    @DrDaveT: The argument isn’t as much that refusing to bake a cake is symbolic speech as that baking the cake is. That particular logical gymnastic move doesn’t account for why selling a pre-baked cake isn’t symbolic–especially considering that the abyss that lives in my soul would probably probably buy the shelf cake and then publicly thank the bakery for providing it at the reception (and in the newspaper).

  29. The abyss that is the soul of cracker says:

    @JohnMcC: Indeed. Even was one in an earlier version of my abysmality.

  30. MarkedMan says:

    @Just nutha ignint cracker: Wait. Wasn’t the point about pre-baked vs. custom about the words written on the cake and not the cake itself? In other words, the baker objected to being forced to write “Congratulations Jake and Jack” whereas the shelf cake would say either nothing or a generic “Congratulations“.

  31. grumpy realist says:

    @MarkedMan: That’s the hairline that these decisions have come down to: compelled speech is bad, but producing a “generic cake” is ok.

    (Given the angst/artistique that so many cake decorators insist that they have “my cakes are ART!!!” I’m wickedly pleased that up to now the “art == speech” argument has failed.)

  32. DrDaveT says:

    @Just nutha ignint cracker:

    The argument isn’t as much that refusing to bake a cake is symbolic speech as that baking the cake is.

    Yeah, but that’s a very silly argument. Doing the thing you do for cash routinely, day in and day out, is symbolic speech? Speech that can never even be understood by any of the ‘listeners’ until you one day decide to stop speaking, on specific grounds? After all, if all of those cakes had been baked to celebrate long hair, we would never have known until the baker one day refused to bake a cake for a bald couple…

  33. KM says:

    @MarkedMan:
    Not the Masterpiece case, idk about the others. I doubt it thought because who writes on a wedding cake?? You write on shelf-bought crap to make it unique – it’s rarely a custom order in that the cake isn’t a generic size /shape. Weddings cakes tend to be multi-tiered set pieces but writing on them? How can you even guarantee it’s for a gay wedding with something as bland as “Congratulations Jake and Jack” ? Maybe they just opened a business or won a contest or something. Sports would be guess too – what if the baker thought it as a wedding cake and it was for two guys who just won the local bowling tournament??

    If that’s what it hinged on, it’s even flimsier then I thought. One could maybe, MAYBE win with tortured artiste but congrats and two dudes names is a violation of symbolic speech? That’s just straight up ignorance there.

  34. Just nutha ignint cracker says:

    @DrDaveT: Well yes, it is a silly argument. But that’s why my comment noted that I couldn’t see why a “shelf” cake would be any less “speechy.”

  35. DrDaveT says:

    @Just nutha ignint cracker:

    Well yes, it is a silly argument. But that’s why my comment noted that I couldn’t see why a “shelf” cake would be any less “speechy.”

    It has nothing to do with which cake. The idea that doing your everyday job is somehow symbolic speech is the problem. “Symbolic speech” that cannot be heard or interpreted until you stop speaking (and explain why) is not symbolic speech. The explanation is the relevant speech.