Lawsplainer: So Are Those Christian Cake-Bakers In Oregon Unconstitutionally Gagged, Or Not?

tldr: yes with an if, or no with a but.

By now you've heard about how an Oregon Labor Commissioner ordered the former owners of a bakery to pay $135,000 for refusing to bake a wedding cake for a same-sex couple. That order was widely reported as "gagging" the bakers and preventing them from expressing their opposition to same-sex marriage. My initial conclusion was that this spin was clearly wrong. People I respect — including my co-blogger Patrick — suggested that I should take a more careful look, and I have. My modified conclusion is that the Oregon Labor Commissioner's order is very troubling in light of the facts of the case because it's not clear what it bans. Based on the evidence before the Commissioner, the order may or may not purport to ban the Kleins from saying that they intend to continue to litigate the issue or that they believe that the order is unconstitutional.

This isn't a post about same-sex marriage, or about anti-discrimination laws, or religious freedom. It's not a post about most of the merits of the case. I'm rudely and defiantly not talking about the things you want to talk about, and talking about a very narrow issue instead: did Oregon Labor Commissioner Brad Avakian violate the First Amendment rights of Aaron and Melissa Klein of Sweet Cakes by Melissa through an order prohibiting them from expressing defiance of state anti-discrimination laws?

What Did the Labor Commissioner Order About Speech?

Any story about what happened in Oregon should start with the text of the Labor Commissioner's order. Too many journalists paraphrased it and didn't attach it. That's lousy practice. Here is the order.

The order describes Commissioner Avakian's factual findings in great detail. The core of it is this: a same-sex couple wanted a wedding cake from Sweet Cakes by Melissa, but the bakery refused on religious grounds. Commissioner Avakian found that the Kleins, in the course of the case, had violated Oregon Revised Statute 659A.409, which forbids a business from announcing that it won't serve people based on prohibited characteristics:

659A.409 Notice that discrimination will be made in place of public accommodation prohibited; age exceptions. Except as provided by laws governing the consumption of alcoholic beverages by minors and the frequenting by minors of places of public accommodation where alcoholic beverages are served, and except for special rates or services offered to persons 50 years of age or older, 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, issued or displayed, any communication, notice, advertisement or sign of any kind to the effect that any of the accommodations, advantages, facilities, services or privileges of the place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older.

Commissioner Avakian ordered the Kleins not to do that:

the Commissioner of the Bureau of Labor and Industries hereby orders Respondents Aaron Klein and Melissa Klein to cease and desist from publishing, circulating, issuing, or displaying, or causing to be published, circulated, issued, or displayed, any communication, notice, advertisement, or sign of any kind to the effect that any of the accommodations, advantages, facilities, services, or privileges of a place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of sexual orientation.

That's the language that led me to conclude, initially, that the Oregon Labor Commission did not "gag" the bakers unconstitutionally.

Does the First Amendment Give A Business The Right To Say "No [Group] Served Here"?

Can the government constitutionally prohibit a business from saying (for instance) "no gays served here" or "whites only"?

Probably yes. On this I defer to Eugene Volokh's explanation. Prof. Volokh is the Superman of First Amendment analysis. I am, at best, that stupid monkey that the Wonder Twins kept around until it bit Apache Chief and gave him rabies.

Volokh rejects the standard explanation that a "whites only" sign is "conduct" or an "act" rather than speech, but sees it as a true threat of illegal conduct, namely discrimination:

Assume that it is indeed against the law to refuse to serve someone based on race, religion, sexual orientation, and so on — and, in particular, to refuse to provide a cake for a same-sex commitment ceremony. Then, saying we “will … refuse[]” to provide a cake is essentially a true threat of illegal conduct.

To be sure, it is not a threat of violence, or even a threat to commit a crime, but it is a threat to act illegally (by violating the anti-discrimination statute). And it is a threat that would have much the same effect as an outright refusal to provide a cake to someone who shows up and asks for it, because it tells people that it’s futile to even ask.

This seems to me implicit in determining that conduct can be prohibited. Courts have consistently found that laws prohibiting discrimination in public accommodations don't violate free speech or free association rights. Courts have also found that speech that is "integral" to lawfully prohibited conduct can be punished. As Volokh points out elsewhere, the boundaries of that doctrine aren't perfectly clear, but the heartland is. We punish antitrust violations, and repudiations of contracts, and breaches of confidentiality agreements, even though they are accomplished by speech. If the First Amendment protected saying — for instance — "no blacks served here" and "we won't serve people like you, get out," then anti-discrimination laws are unworkable.1

So: it's likely that the government can punish a business owner for saying "we won't serve gays" or "whites only" or the like.2

Volokh sounds an appropriate note of caution, however:

Note, by the way, that simply saying “we disapprove of the Oregon decision,” or “we disapprove of same-sex marriages,” is not a constitutionally unprotected threat of denial of service — which is why the text of the order, properly read, does not prohibit such statements.

I agree that's how the order should be read if we presume the Oregon Labor Commission only means to prohibit unprotected speech.

But the facts of the case make that unclear.

What Kind Of Speech Generated This Order, And What Kind of Speech Does The Order Contemplate?

So: Commissioner Avakian doesn't violate the First Amendment by telling a business not to say "we don't serve gays."

But is that what he's saying? The facts of the case suggest that Avakian is punishing — and therefore, arguably, prohibiting — expressing opinions about the law or expressing an intent to litigate constitutional rights.

Commissioner Avakian disclaimed any intent to punish opinions, saying the law "does not cover expressions of personal opinion, political commentary, or other privileged communications unrelated to the business of a place of public accommodation . . ." and that it only prohibits statements of intent on behalf of a public accommodation. But this disclaimer is not entirely convincing in light of the speech Avakian found to be a violation.

Commissioner Avakian found that the Klein's comments on CBN television were a violation:

A. Klein: "I didn't want to be part of her marriage, which I think is wrong."

M. Klein: "I am who I am and I want to live my life the way I want to live my life and, you know, I choose to serve God."

A. Klein: "It's one of those things where you never want to see something you've put so much work into go belly up, but on the other hand, um, I have faith in the Lord and he's taken care of us up to this point and I'm sure he will in the future.3

The order also cites a sign the Kleins left in the bakery's window:

Closed but still in business. You can reach me by email or facebook. or Sweetcakes by Melissa facebook page. New phone number will be provided on my website and facebook. The 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.

Finally, the order cites a radio interview.

Perkins: Tell us how this unfolded and your reaction to that.

Klein: 'Well, as far as how it unfolded, it was just, you know, business as usual. We had a bride come in. She wanted to try some wedding cake. Return customer. Came in, sat down. I simply asked the bride and groom's first name and date of the wedding. She kind of giggled and informed me it was two brides. At that point, I apologized. 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. Got up, walked out, and you know, that was, I figured the end of it.

Perkins: 'Aaron, let me stop you for a moment. Had you and your wife, had you talked about this before; is this something that you had discussed? Did you think, you know, this might occur and had you thought through how you might respond or did this kind of catch you off guard?'

Klein: 'You know, it was something I had a feeling was going to become an issue and I discussed it with my wife when the state of Washington, which is right
across the river from us, legalized same-sex marriage and we watched Masterpiece Bakery going through the same issue that we ended up going through. But, you know, 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." I could totally understand the backlash from the gay and lesbian community. I could see that; what I don't understand is the government sponsorship of religious persecution. That is something that just kind of boggles my mind as to how a government that is under the jurisdiction of the Constitution can decide, you know, that these people's rights overtake these people's rights or even opinion, that this person's opinion is more valid than this person's; it kind of blows my mind.' (February 13, 2014, Perkins' interview)

Commissioner Avakian found that these statements constituted a pronouncement that the bakery would continue to refuse to bake cakes for gay weddings despite the law:

In addition, they also constitute notice that discrimination will be made in the future by refusing such services. In the Perkins' interview, AK stated " … We don't do same-sex marriage, same-sex wedding cakes …. " He continued that in discussing Washington's same-sex marriage law with MK, "we can see this becoming an issue and we have to stand firm." The note similarly said " … This fight is not over. We will continue to stand strong .. ,," On their face, these statements are not constrained to a singular incident or time. They reference past, present and future conduct. AK 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. Respondents' joint statement that they will "continue" to stand strong relates to their denial of service and is prospective in nature. The statements, therefore, indicate Respondents' clear intent to discriminate in the future just as they had done with Complainants.

I think that's a very suspect reading of the comments. They strike me as a description of what happened, a statement of the Kleins' beliefs, and an ambiguous statement that probably indicates intent to litigate to promote their legal position. The "don't do" comment relates what they said in the past, the "stand strong" comment may well refer to litigation, and Commissioner Avakian's finding to the contrary is profoundly chilling of any dialogue about such laws or such a proceeding. It's clear that Avakian cannot, constitutionally, prohibit the Kleins from saying "this law is wrong" or "our First Amendment rights should allow us to refuse to make a cake that violates our religious beliefs" or "we don't agree with gay marriage" or "we will continue to fight for our rights." But Avakian's order strongly suggests that he — and the Labor Commission — may treat such statements as a violation. That means that the Kleins, even if they are eventually vindicated in a real court, will have to expend tens or hundreds of thousands of dollars defending their free speech, and in the meantime will be subject to ruinous sanctions.

Taken in the abstract, Commissioner Avakian's prohibition isn't a problem. But in the context of his factual findings and the facts of this case, it is vague and ambiguous, and suggests that the government seeks to punish statements disagreeing with Oregon's anti-discrimination laws.

Consider an analogy. If I call Commissioner Avakian a petty tyrant, an upjumped clerk, a talentless grasping bureaucrat, the spavined chief kangaroo of a parody of a court, those statements are classic opinion protected by the First Amendment, and aren't defamatory. But imagine that I said such things, and he sued, and some court issued an order prohibiting me from making "false statements of fact" about Avakian. Can I call him a scrofulous taint-snorting twatwaffle now? The law says I can — it's pure hyperbole and opinion, and can't be read as an assertion fact. But so were the things I said before, and those things inspired a court to forbid "false statements of fact." What the hell can I say about Avakian now? What the hell can you say about him? Do you want to gamble your life savings to find out?

In public statements, the Oregon Labor Commission has denied that this is a "gag order," and the usual suspects have asserted that critics are engaged in inaccurate political propaganda. But the order part of the ruling doesn't exist in a vacuum; it's issued in the context of the facts of the case and the Commissioner's other findings of law. If I were the Kleins, or their lawyer, I would be very uncertain what I could say without the Commission claiming a violation of the order.

So: I was right to criticize coverage that described this without details or the text of the order as a "gag order." But I too quickly dismissed all criticism of the order. Its vagueness and potential scope are quite troubling.

Others on this point: Daily Signal, David French, Walter Olson.

  1. The tension between anti-discrimination laws and the First Amendment is beyond the scope of this post.  
  2. Whether "we won't make a cake for a gay wedding" is the legal equivalent of "we won't serve gays" is also beyond the scope of this post. Everything you want to argue is beyond the scope of this post. Deal.  
  3. Failure to capitalize He in original  

Last 5 posts by Ken White


  1. Wyrm says

    Well, as long as the "gag order" only covers expression on intent to exclude homosexuals, then that seems to match Volokh's explanation.
    Also, the "we don't do same-sex marriages" does sound to me like a statement that they "did not and still don't" do same-sex marriages, hence that the discrimination is still ongoing.
    (It would be easy to test: just go to them and order a wedding cake for two brides or two grooms, and see the result.)
    As long as they can express their opposition, but don't actually discriminate when the law clearly states that same-sex marriages are legal, then all should be fine.
    If they express their opposition, and also state that their opposition translates into factual discrimination, then it can be censored… at least according to "the superman of first amendment".
    I assume we'll have to see how the order is enforced in the long run.

  2. ScooterComputer says

    This is going to sound completely trite and from left field, Ken, but please bear with me.
    In my initial readings of the case, I was under the impression that the buyer (bride) wanted a wedding cake decorated and all the assorted wedding kerfuffle (which, being unmarried but having attending a lot of marriages, amounts in my mind to being designing, baking, putting frosting on, putting those toppers on, decorating, delivering to the event with a pretty cutting utensil, etc). But the paragraph you quoted makes it sound that she merely arrived asking for a cake to be made, no particular kerfuffle.
    My approach to this WHOLE shebang has been from a perspective of the difference between the difference of work done for "public accommodation" and that done as "a work for hire". If I go to a restaurant, I'm asking for the same food everyone else gets, pretty much (say, except hold the mayo). Whereas when you get more into the creative side of things, more is done as a "work for hire", which would encompass catering. Asking a bakery to make a cake, even to ice it, and then put your own topper of two beautiful brides on the top seems to be work of public accommodation. Asking them to do all kinds of creative specialty stuff for a cause they disagree with, a work for hire.
    And in my line, IT work, I see a parallel. Completely removing the ideological encumbrance, at what point am I, as a "contractor", allowed to discriminate as to the type of work I WANT or DO NOT WANT to do? I'm an Apple man, but if I am approached by a potential client who is all-Microsoft all the time, am I now forced to take that client? Even if I'm imminently qualified, even if I've done Windows support before, I loathe doing it. It is a waste of my talents, burns on my conscience, and overall I'd rather endure a root canal. Sure, I'm atheist, so the gay marriage thing doesn't affect me; but man, when it comes to shitty computers and operating systems, I have found religion. I pretty much hold the view that I, as a "work for hire", can discriminate against anyone based on the system they've decided to use (and I don't care how they came to use that system), as long as I'm not discriminating against THEM.
    So, how is the bakery thing different? If the baker had offered to MAKE the cake, but say "I can make you a lovely tasty cake but I'm sorry I cannot deliver it to your ceremony, you'll need to make your own arrangements" (which is something that just happens in wedding cakes I know anyhow), would that have significantly changed the issue?

    [Edit: can we throw in the infamous 'Clerks' Death Star contractors conversation?]

  3. Aaron says

    Hmm…very interesting analysis, thank you. I very much enjoy the Lawsplainers, and appreciate you sticking to the legal facts & facts on the order. I suspect that the intent of the order was intended to keep them from saying "You know we don't do same-sex marriage, same-sex wedding cakes." in the store window, talking to a customer, or what not. To keep them from saying that as part of an interview is insane. They were specifically talking about the past, giving the facts of what happened.

    Unfortunately I think this guy is going to double-down rather than do the right thing and modify the order. I hope you keep us up to date on legal bits of this case, as I agree the broader implications could be troublesome.

  4. burningtrees says

    Does that mean that all those "we reserve the right to refuse service to anyone" signs have to come down?

  5. says

    I was hoping you'd weigh in on this, and particularly on the narrow issue you've focused on. I was a little surprised and perplexed by Volokh's argument that this principally came under the rubric of "true threat," which I'd thought applied principally to threats of violence. Also, I'd thought we had a First Amendment right, under Brandenburg v. Ohio, to advocate breaking the law, and even to say that we ourselves intend to engage in civil disobedience, so long as it doesn't amount to inciting or soliciting or promising imminent lawless conduct. Walter Olson posted an article just a few minutes after yours that overlaps yours. He suggests (or I'm inferring) a distinction between a sign in a storefront window and statements made to the media. (Although I agree with you that the statements made to the media in this case do not signal an intent to break the law in the future.) It seems to me that that distinction is pertinent. A statement made to the media that if push comes to shove one will break the law seems to lack the imminence and immediacy that the sign in the store front would have. The sign in the storefront does seem to promise discrimination that is so imminent that it indeed amounts to conduct. I wonder if the same could be said for statements to the media, even if they had gone further toward expressing a readiness to break the law than the statements made by the bakers in this case in fact went.

  6. PonyAdvocate says

    I'm with you on the Kleins' comments to the media, less so regarding the sign in their store. The sign ("The fight is not over. We will continue to stand strong.", as well as their closing the store so that they can conduct business electronically and, away from prying eyes, practice illegal bigotry more freely) can, I think, be read as continued defiance of the anti-discrimination statute. Such an interpretation of the sign is not as much of a slam dunk as, say, WMDs in Iraq, but it's certainly reasonable.

  7. Roland says

    The sign is clearly part of the business, as it is in the window. Ms. Klein went on TV & radio as the owner of the business, not simply as a private citizen. If a relative or friend not associated with the biz went on TV & said the same, no problem. But a person with a biz license represents that biz. She can say what she pleases without fear of jail. But free speech often has consequences. Violating a gag order has consequence: jail for contempt. That's not present here. The worst the state can do is take away the biz license & levy a fine.

  8. widget says

    It doesn't strike me as implausible that the Commissioner was correct that, in context, "we don't do same sex marriages" was intended to have its literal meaning (i.e., "we don't do [i.e., bake cakes for] same sex marriage," rather than "we will do [i.e., bake cakes for] same sex marriages, but we believe we shouldn't have to, and we will litigate to preserve our rights not to have to do so"). "Stand firm" and "stand strong" are more ambiguous, I concede, though maybe still a finding that an agency could reasonably make. Also, the finding appears to have been made in response to a (somewhat implausible, to my mind) argument by the Kleins that they had not declared any future intention to deny service on a prohibited basis.

    If I were advising them, I would (do some research first and then probably) tell them that they can criticize the order or the Commission as much as they like but that to be safe they should either include a disclaimer with the criticism or post a sign that they were challenging the Commission's order but would comply with it in the interim. That would prevent any ambiguity. It is true that the need to include a disclaimer is itself somewhat chilling, and I don't think one should (or would) ordinarily be required. But if we assume the constitutionality of the state law, and we further assume the correctness of the factual finding that they violated it, I don't think the practical requirement that in the future they make clear to potential customers that they intend to comply with the law is all that great a burden on their speech.

  9. Matt W says

    I'm an Apple man, but if I am approached by a potential client who is all-Microsoft all the time, am I now forced to take that client?

    The law doesn't prohibit discrimination on the basis of operating system preference.

  10. Matt W says

    What I don't understand is that they explicitly did deny service to this couple based on their sexual orientation. It wasn't a threat to deny service — they actually did. How does the statute not apply there? When the couple filed a complaint to the Oregon DOJ, which was forwarded to the business with a request to contact the complainants to resolve the issue, the bakery owners posted the DOJ's letter to Facebook with the comment: "This is what happens when you tell gay people you won't do their wedding cake." It seems like their intent was pretty clear.

  11. says

    Matt W, when you say the Oregon DOJ forwarded the complaint to the business "with a request to contact the complainants to resolve the issue," I suspect you might be relying on some slanted reporting I also came across on Facebook, which suggested everything was all touchy-feely and could have been resolved amicably just by talking things out, until the bakery overreacted by posting the complaint on Facebook. Generally, by the time an agency like this sends you a complaint, things are already serious. The agency expects you to justify yourself to the agency, not to the complainants.

  12. widget says

    Matt W – It appears from the agency's order that there were several charges against the respondents and that a lack of any "statement of future intention" to deny service on a prohibited basis would have been a defense to at least one of the charges (or their lawyers argued that it would have been a defense, anyway). The relevant discussion is at pages 25 and 26 of the order.

  13. Matt W says

    @John. Here's the notice the DOJ sent out after it received the complaint, copied (damn documents that are images instead of text!) from the order posted by Ken on page 11:

    We have received the enclosed consumer complaint about your business. We understand that there are often two sides to a problem, and we would appreciate your prompt review of this matter.

    We do not represent the compainant. We do, however, review all complaints to determine whether grounds exist to warrant action by us. Your response to the allegations in the complaint would help us to make that determination.

    In the interest of efficiency, we prefer that you respond directly to the complainant and e-mail copy of the response to our office. Please include the file number shown above on the subject line of your e-mail. Alternatively, you may respond to us by regular mail.

  14. Matt W says

    @widget Thanks for that. I know that this kind of ruling hinges on semantics, but the Commissioner is ruling on intent to discriminate. I just don't see how a reasonable person could not interpret the Respondents actions and words as anything but an intent to discriminate. The waffling about the "future intent" implied by "it is an unlawful practice . . . to publish . . . any communication . . . to the effect that any of the accommodations . . . will be refused" (emphasis added) is grammatical semantics. The sentence is clearly in the subjunctive — not future — tense which, crazily, matters for its proper interpretation. Doesn't it seem odd that actually refusing service for clearly stated discriminatory reasons wouldn't violate the statute?

  15. says

    My understanding of the Civil Rights Act is that it justified its constitutional authority under the Commerce Clause by findings that blacks were effectively unable to travel through parts of the country because they were unable to get accommodation and meals. I doubt that (at least in most parts of the country, and certainly not in Oregon) there is any shortage of bakers willing to bake gay wedding cakes without the need for government compulsion. Isn't that better, people getting all the cakes they want without anyone being forced to do anything they don't want to do?

    I think the country would be a happier place if anti-discrimination laws focused on making sure that discrete groups had access to the services they needed and otherwise let people go to hell or not as they wished.

  16. Matt W says

    I think the country would be a happier place if anti-discrimination laws focused on making sure that discrete groups had access to the services they needed and otherwise let people go to hell or not as they wished.

    Anti-discrimination through law creates all sorts of vagueness and corner cases and difficult-to-interpret problems no matter which way you slice it. That's not to say I don't think it's a good thing for the law to attempt, but if you tried to make it ensure that people had services: what if there are two cake bakers in your town, but both of them want nothing to do with gay weddings. Which one would the law compel to provide services? What counts as a service? Is it ok if gays can only buy cakes at the most expensive baker in town, or the lowest quality one, but all others refuse them?

  17. Regan says

    I have a hypothetical question that has been bugging me for a while. I'm sure someone here will be able to educate me.

    What about private clubs? The statute prohibits discrimination in places of "public accommodation." What if the bakery set up a club type of system wherein only members could shop, like Sam's Club or Costco? Would that not distinguish them from other bakeries that accommodate the public?

    I'm sure that this idea has come up before and been shot down but I was just wondering since Title II of the CRA exempts some private clubs from the prohibition of discrimination could a similar exemption exist here?

  18. widget says

    Matt W – I think the idea is that actually refusing service violates a different part of the statute (specifically, ORS 659A.403(3), which declares that it is "an unlawful practice for any person to deny full and equal accommodations, advantages, facilities and privileges of any place of public accommodation in violation of this section," which includes denial on the basis of sexual orientation), and that the prohibition in ORS 659A.409 is just meant to cover prospective statements of intent to deny service on a prohibited basis. That does not seem crazy to me. But I am not licensed in Oregon and haven't looked into this issue in any detail, so take all this for what it's worth.

  19. En Passant says

    Roscoe July 8, 2015 at 1:05 pm:

    … Isn't that better, people getting all the cakes they want without anyone being forced to do anything they don't want to do?

    I think the country would be a happier place if anti-discrimination laws focused on making sure that discrete groups had access to the services they needed and otherwise let people go to hell or not as they wished.

    Separate but equal much?

  20. joshuaism says

    I think the country would be a happier place if anti-discrimination laws focused on making sure that discrete groups had access to the services they needed and otherwise let people go to hell or not as they wished.

    @Roscoe Then couldn't the Civil Rights Act have been avoided and congress could have just content itself by creating a government published "Negro Motorist Green Book"? Is the solution here for someone to start publishing a big gay rainbow colored directory? Is this the solution to keeping the yellow pages in business? I think we're all better off when nobody has to be concerned if they will be provided services as requested and paid for and the miserable little shits that wish to discriminate feel like miserable shit.

  21. Michael says

    [crying] I am just SO confused.

    Luke 6:37
    "Do not judge, and you will not be judged. Do not condemn, and you will not be condemned. Forgive, and you will be forgiven.

    Romans 14:10
    You, then, why do you judge your brother or sister? Or why do you treat them with contempt? For we will all stand before God's judgment seat.

    John 8:7
    When they kept on questioning him, he straightened up and said to them, "Let any one of you who is without sin be the first to throw a stone at her.

    1 Corinthians 4:5
    Therefore judge nothing before the appointed time; wait until the Lord comes. He will bring to light what is hidden in darkness and will expose the motives of the heart. At that time each will receive their praise from God.

    James 5:9
    Do not complain, brethren, against one another, so that you yourselves may not be judged; behold, the Judge is standing right at the door.

  22. joshuaism says

    What about private clubs?

    @Regan I was thinking of this same thing. I'd imagine Boy Scouts of America v. Dale would apply. I imagine any day now we will be seeing a new baking movement led by the Christian Cake Club of America or something of the like. They would have to exclude certain people from membership of course, because everyone knows that the presence of homosexuals would totally gay up any nearby baked goods and significantly diminish the group's ability to advocate public or private viewpoints on moral baking practices.

  23. Regan says

    They would have to exclude certain people from membership, of course

    I was thinking someone may have a problem with exclusion but that's the very definition of a private club, right?

    I don't like to see people discriminate for any reason but I really don't like when the government comes on private property and compels business owners to act in ways they ordinarily would not.

  24. Malc says

    Personally, I think it a great stretch to conclude that, in the context of totality of their remarks, that the "stand firm" might only refer to the legal challenge; surely if that was the intent, the language would be forward looking/active ("fight on") rather than backward looking/passive ("stand"). The final sentence of that notice, again in context, is pretty unambiguous: they "will continue to serve him" clearly indicates that they will continue to follow their religious beliefs, and their religious beliefs are their stated reason for failing to comply with the anti-discrimination law, so what rational analysis would conclude that, as a whole, the sign says anything different from "we will continue to act in the same way as we did when this whole mess started". Which would seem to be reasonable grounds for consequences.

    Surely any sort of judicial finding that identifies wrongdoing, even if the wrongdoer disagrees that the doings were wrong, should have some mechanism for the judicial finders to be able to react to that wrongdoer asserting that they will continue to do wrong? If, for example, Apple announced that they were going to continue to work with publishers to undermine Amazon, then it doesn't seem unreasonable that Apple might get penalized. Of course, that's not the same as Apple announcing that they believe the framework/thinking under which they were found culpable was bogus as a three dollar bill…

  25. says

    Matt W Says

    Anti-discrimination through law creates all sorts of vagueness and corner cases and difficult-to-interpret problems no matter which way you slice it. That's not to say I don't think it's a good thing for the law to attempt, but if you tried to make it ensure that people had services: what if there are two cake bakers in your town, but both of them want nothing to do with gay weddings. Which one would the law compel to provide services? What counts as a service? Is it ok if gays can only buy cakes at the most expensive baker in town, or the lowest quality one, but all others refuse them?

    I think that if there is any burden at all on people's ability to get some goods or services the law has a right (in fact a duty) to step in. But there is no evidence at all that there aren't lots of people in Oregon happy to bake these cakes. And I just don't see the point to forcing some people to do something that a lot of people would be more than willing to do (unless, of course, you just like forcing people to do stuff, which unfortunately a lot of people like to do).

    And Joshuaism, you and I are just going to have to agree to disagree. I want to live in a free country, and that means that I have to put up with people acting like miserable little shits. And if you want to live in a country where the state has to power to make people toe the line, keep in mind that tomorrow it may be someone else's ox getting gored.

  26. SlimTim says

    @Malac They can legally "stand firm" without violating the anti-discrimination law by not doing any wedding cakes until their case is resolved.

  27. FitzJames says

    While ScooterComputer's example is not completely analogous, his question does go to the point that I and at least some of my friends worry about. I am an artist, I do commission artwork on occasion at what point do I have the right to refuse to do a piece because I find the subject displeasing or aesthetically objectionable. If my potential client is part of some protected class do I open up myself for litigation or governmental sanction for exercising creative control.
    I am generally against slippery slope type arguments, but even though I support gay marriage the start of lawsuits against Christian bakers makes me nervous.

  28. Vince Clortho says

    @FitzJames – As an attorney who does lots of employment discrimination defense (which has similar standards), I would say you have the right to refuse to perform work for ANY reason that isn't an illegally discriminatory reason. In other words, "I won't paint your portrait because you are ugly, fat, a fan of Nickleback, a pony lover, etc." is not illegal. It might make you a twatwaffle, but it's not illegal. "I won't paint you because you are black, Jewish, gay, Mexican, etc." is illegal. You can discriminate, you just can't discriminate based on a protected class.

    As for whether you "open yourself up for litigation," I'm sure Ken will tell you that anyone can be sued for anything at anytime. The question is whether they would be successful. There must be some evidence of illegal discrimination on your part. Here, these bakers made it clear the reason they were discriminating. They were discriminating based on a protected class, which is illegal in Oregon. If this were an employment case, it wouldn't even be close.

  29. albert says


    'Creative control' as discrimination? What's a 'Christian baker'? Is that a baker that only does business with 'Christians'? Do they discriminate against Atheists, Muslims, Hindus? Or are they just homophobes who are taking a stand against people they have judged to be sinners, because those people don't swallow the same irrational bullshit they do. This shit happens because the Super Righteous continue to try to force their beliefs on everyone else. Yeah, they can have their 'religion', but just shut up about it.
    Most so called 'Christians' have no understanding of the Bible. They merely parrot what their 'religious leaders' tell 'em. The passages you quote are written to congregations of 'brothers', not to the non-believers, and they hit the nail right on the head. Brothers were judging brothers. Jesus was saying you cannot judge anyone, brother, or non-believer.

  30. T S says

    @ FitzJames: The creative decisions are always protected by free speech. If you find the subject displeasing or aesthetically objectionable, you can always refuse. You can always say "I don't like to add flowers to my art," or (real cases) "I won't make a pro-gay T-shirt" or "I won't bake a cake with writing on it that I find offensive (pro-gay or pro-hitler) but I will sell you the cake without the writing and let you write it yourself." You simply can't say "I won't provide you with a service that I provide to other members of the public because you are gay/black/Mormon/other specific protected class."

  31. Burton says

    So, quick summary – do I have this right? (And no, I'm not saying LBGTQ is – yet – a protected class) (substitute the race of Martians if desired)

    I can choose not to bake the cake, based on my right to refuse service
    I can't SAY I'm choosing not to bake the cake because you are ?

    So when does the refusal become discrimination against ????

  32. Quiet Lurcker says

    Ken, I find a flaw, in your reasoning and in the opinion and order. The bakery refused the order *on religious grounds*. The owners were citing to their views of how they should practice their faith and (presumably) religion.
    Neither you nor the order take that into account, *as must be done*.
    Here, the order is blatantly unconstitutional – it infringes the couple's right to practice their religion and faith, acts which are strictly prohibited.

  33. widget says

    What if we want to argue about whether what we want to argue about is within the scope of the post?

  34. e4tmyl33t says

    Seriously, how hard is it to understand the concept of "Yes, you have the freedom to practice whatever religion you want, as long as you keep it to yourself and don't infringe on anyone else's rights"? The instant you start infringing on someone else's right to not be discriminated against (as per the legal definitions of discrimination), your freedom of religion ceases to matter.

  35. mud man says

    OK!! A. Klein found guilty of an act of discrimination, actually refusing to bake the cake. M. Klein did not so act, and so was let off on paragraph 403. We can't have that! So they used 409 to hang both of them for an extra $60k, at least. The sign on the door looks suspicious, but I might guess the intent is to withdraw as a "public accommodation": they only bake cakes for people who contact them personally. Valid? IANL.

    So indeed bad prosecutorial discretion. Took me my whole second cup of coffee to figure this shit out.

  36. Thom says

    @Chris, Gay people only seem anti-christian because Christians (in America) are the ones who fight the hardest against their policy goals, such as marriage equality, adoption rights and status as a protected class. Your video of someone pretending to be gay and being refused service doesn't really prove anything besides that Muslims are equally as capable of being dicks as Christians, which I think we all already know.

  37. David C says

    e4tmyl33t, the concept is easy to understand, but I reject it. How about the concept of "religion is more than just holding a belief and going to church once a week"? Because that concept seems to be more than some people can handle these days.

    I feel like you're saying this: "Seriously, how hard is it to understand the concept of 'Yes, you have the right to freedom of speech, as long as you keep it to yourself and don't infringe on anyone else's rights'? The instant you start infringing on someone else's right to not be insulted (as per the legal definitions of insulted), your freedom of speech ceases to matter."

    Or "Yes, you have the freedom of the press, so long as you don't infringe upon someone else's right to be mentioned in the paper upon demand."

  38. Jon Marcus says

    @Burton: The Oregon statute Ken quote makes clear that sexual orientation is a protected class. "…it is an unlawful practice…that any discrimination will be made against, any person on account…sexual orientation…" (Lotsa ellision there, but I don't think it changes the meaning.)

    So you can "choose not to serve" people no problem. If you loudly announce that you aren't serving a same sex couple, it's a problem. Beyond that, it becomes a judgment call.

    And yes, this may just drive discrimination underground. Many view that as a feature rather than a bug: It makes discrimination something shameful that must be done out of sight of upstanding people.

    @Widget: Arguing about arguing is my religion. STOP OPPRESSING MY RELIGIOUS BELIEFS!!11!

  39. e4tmyl33t says

    @David C,
    That would be a valid argument, if you indeed had a right not to be insulted or a right to not be mentioned. However, you don't, so your examples are invalid. Here, we DO have a right not to be discriminated against, and a list of what constitutes discrimination. You're still free to believe whatever you want to believe IN PRIVATE, nobody's going to stop you. It's when you start trying to use that as a club against other people that it becomes a problem.

    And feel free to reject what I mentioned re: religion, that's your right, but you have NO right whatsoever to try and force your religious beliefs upon anyone else. If you feel it would be against your beliefs to do X, don't be in a situation where you might have to do X. It's that simple. Once again, your religion should begin and end with you unless specifically invited or asked by another party.

  40. WhangoTango says

    @ FitzJames: If what you want is a way to Not Get Sued, stop looking, because that's not a thing that can exist. I can walk into a tire shop, ask for a cake, and then sue them claiming that they wouldn't give me a cake because I was gay.

    Now, that tire shop owner or his representation will probably file a motion to dismiss based on the claim, but they'd still have to file that motion. They've still been sued. And, if the judge somehow denied the motion, then I'd get a chance to show a jury that there was a preponderance of evidence that the reason I didn't get cake is that the shop owner thought I was gay.

    This example is obviously stupid, but that's done to illustrate the point: A public-facing business can *always* be sued. There's no such thing as Too Small To Sue. There's no claim so obviously ludicrous that you can't file a lawsuit over it.

  41. TiredOfTheConversation says

    All this mental and legal gerrymandering to parse out some valid thesis with the clear intent to rationalize/justify/validate an untenable position.
    As a business, operating under the rules and regulations of the appropriate authorities, you *cannot* discriminate for *any* reason. Conversely, as a private citizen you can be as outspoken about your lascivious or conservative beliefs as you please.

    Why is this even a topic of conversation? It's very straightforward:
    1) If you want to run a business, you've got to follow the rules.
    2) If you can't follow the rules, don't go into business.
    3) If you don't like the rules, try and change them.


  42. perlchpr says

    Here, we DO have a right not to be discriminated against

    Ah, the eternal struggle of positive versus negative rights.

  43. Chris says

    I missed the part in "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…" where it says IN PRIVATE.

  44. perlchpr says

    Ugh. I hadn't realised that this case is as stupid as the New Mexico photography one. It takes absolute fucking brass balls for a state to punish a business owner for refusing to bake a wedding cake or take wedding photographs for a wedding that can't actually be a wedding because the state itself forbids marriage between homosexuals. (At the time of the incident, of course.) Not that that's particularly relevant to my POV, but it's just extra galling.

  45. David C says

    e4tmyl33t, the "right" to be free from wedding cake discrimination is not in the Constitution. It's just a law. So presumably a state could pass a law giving people one of those other "rights".

    You're still free to believe whatever you want to believe IN PRIVATE

    Believing something in private and freely exercising my religion are not synonymous. Not even close.

    It's when you start trying to use that as a club against other people that it becomes a problem.

    Who is wielding the club here? I would say it's the side levying the $135,000 fine. That's a pretty large club.

    but you have NO right whatsoever to try and force your religious beliefs upon anyone else.

    If anything, YOU are doing that. YOU are imposing your beliefs – the belief that gay marriage is OK, and the meta-belief that beliefs should be private for some reason – on people, to force them to act against their religion. The baker can't force the couple to not get married, after all.

    The gay couple, and you, are free to believe in private or public that gay marriage is morally right, and try to buy a cake. The baker and I should have the right to disagree and the right to not participate, directly or indirectly, in something we think is morally wrong.

    If you feel it would be against your beliefs to do X, don't be in a situation where you might have to do X. It's that simple

    They were baking before the law was passed. Were they supposed to be psychic? And this isn't even a clear violation of the law, since it's the wedding and not the orientation of the people purchasing the cake that they objected to, and when this started gay marriage wasn't even legal yet in Oregon. Not that all of this is really important. The law shouldn't be putting people in this position in the first place.

    Once again, your religion should begin and end with you unless specifically invited or asked by another party.

    Once again: No, I reject this. Religion is not something to be hidden away. It's a way of life. "You are the light of the world. A town built on a hill cannot be hidden. Neither do people light a lamp and put it under a bowl. Instead they put it on its stand, and it gives light to everyone in the house." – Matthew 5:14-15. You're demanding that every religious person put their lamps under the metaphorical bowl. You simply don't have the right to demand that.

  46. David C says

    As a business, operating under the rules and regulations of the appropriate authorities, you *cannot* discriminate for *any* reason.

    Untrue. Businesses discriminate all the time. A bar discriminates based on age. Amusement park rides discriminate based on height. Gun dealers discriminate based on both age and criminal record. And it's not just the mandatory stuff; a hall would be free to tell the KKK to take a hike instead of allowing them to rent the place. A coffee shop could offer a senior citizen discount. A sports team could offer discounted tickets to people living in surrounding counties. Pretty much everything not expressly forbidden is allowed.

    And the government can't just pass any rules it likes on businesses just because they're businesses. Otherwise the government could tell the New York Times, which is a corporation, what they could and could not publish. The government must follow the Constitution, including the First Amendment.

    Why is this even a topic of conversation?

    Many reasons, including the excessive fine based on apparently unverified claims of severe emotional distress including contradictory symptoms, having an "administrative law judge" decide this instead of a real judge and jury, the topic of "can someone really force someone else to bake for them", the topic of "is discrimination based on whether a gay wedding is happening the same as discrimination based on whether the customer is gay", and, of course, the "gag order", which may or may not be unconstitutional depending on what was meant by it but was probably intended to chill legal speech.

  47. cpast says

    Last I checked, "it's against my religion" doesn't actually let you ignore any law you want, particularly in a state that doesn't have a Religious Freedom Restoration Act.

  48. Daniel Hazelton says

    Ken, I think you've made a minor mistake in interpreting the facts here, however…
    As there was no actual audio recording of the original conversation between the business owner and the plaintiff in the case, we cannot be sure that what has been reported as the exchange between the two in this case is the actual reality. But the fact remains that the interview given by the business owner/defendant states that they turned away a customer because of the customers sexual orientation.
    That is a fact that is not disputed in this case. Further, in the interview you list, (which, I believe, would be treated as "the truth and part of the public record") the defendant states that he (and the company of which he is at least part owner) will not provide services for others that have sexual orientations they do not agree with. Though this is framed as a matter of religious freedom, it doesn't actually matter. In making such a statement they are stating, plainly, that they will ignore what anti-discrimination statutes might exist and continue to break the law. This is not something that can be disputed – they claim that they have a right, simply because it is part of their "religious freedom" to discriminate and that they will continue to fight for this.
    According to the US Constitution the law must be applied evenly and equally to everyone. As a matter of pure theory as regards the law and the concept of justice, not doing so would violate the spirit in which the laws are written and be a basis of injustice. Since the US Constitution also allows everyone freedom of speech, freedom of religion and numerous other freedoms then there must be a balance struck between where one persons freedom ends and another persons begins. For instance, my freedom of speech would end the second it would cause someone else to commit a crime and my freedom of religion would end the second it would impinge, directly, on any legal right or freedom of another person.
    In the case in question here the defendants are trying to claim that they can freely discriminate against anyone they choose, so long as they can find some way to justify it as part of their religion. That would be like an Islamic Extremist claiming that he could murder whoever he wanted, as long as they were not Islamic, because "Death to the Infidel" is part of his religion. In both cases there is no true religious freedom involved – instead the supposed "religious freedom" is intended as an excuse and way in which to break the law or infringe on the rights and freedoms of others without consequence. Remember – Your right to freely throw a punch ends at the tip of my nose. (or any other limit of my body)

  49. GuestPoster says

    Interesting, and I have to agree. It seems like the right ruling, but for too many of the wrong reasons. There has to be a way to gripe about the law, and say that you don't agree, even, or especially, if it impacts you in what you consider a negative manner. There has to be a difference between an interview and an advertisement (even if one becomes the other all too often).

    Here: what he did was clearly illegal, refusing to provide a service by discriminating against one of the explicitly defined protected classes. If he'd put a sign in the window saying that he wouldn't provide that service, explicitly, that would be a clear violation. If he'd said so in a TV or radio or newspaper advertisement, that would be a clear violation. But saying what he believes to be the case in an interview? That's not saying that he won't provide service, even if you read between the lines. It's saying that he doesn't WANT so, sure – but not a promise that he won't.

    It's very wrong of him to deny service. It's very wrong of the judge to order him not to complain about wanting to refuse service. And context matters – or it should matter.

    Said another way: he has a right to be a jerk. I can see how promising to break the law is not protected speech, but saying that he WANTS to break the law should not be – even if it should make us wary of actually helping him to stay in business.

  50. TiredOfTheConversation says

    @David C, sorry, the "Legal" discrimination you speak of is clearly allowed. OLCC laws discriminate against those under 21, height restrictions are born by safety concerns discriminate against small children on rides, and of course prior convicted criminal activity "discriminates" against you for firearms purchases.

    If you operate"For-Profit" (and many not/non-profit) businesses, there is no "Personal Belief" exemption from any rule.

    Again, Simple. To promote anything else is a fools errand.

  51. Bloviator says


    Does that mean that all those "we reserve the right to refuse service to anyone" signs have to come down?

    If I'm interpreting things right, the statement is too broad to divine a true threat of illegality. If I say that I can toss anyone out for any reason, then how could someone say they were being discriminated against, without proving some pettern of behavior?

    Kinda like the Soup Nazi in Seinfeld.

  52. GuestPoster says

    Also, @Scooter, @Fitz:

    I think you both have better arguments that Mr. Cake here. The key difference really isn't work for hire vs. public accomodation (what's even the difference there? You're always doing work for hire AS a public accomodation, after all). The difference is: the menu.

    Mr. Cake HAD wedding cakes on his menu. He offered them. He offered them, presumably, with delivery, and frosting, and toppers, and fancy knives. He MIGHT have been able to make a point that he doesn't carry Wilton topper model GAYZ, and as such they'd have to put it on themselves, because it's just too hard to pick one up at the supply store next time he drops by. But EVERYTHING ELSE is already on his menu – he already offers it for sale to anybody else who offers. The ONLY difference here is who was doing the asking. Otherwise, they were asking for the same sort of cake as the shop has already sold, numerous times, to other people, and which was, clearly, still being offered at that time.

    In the case of Scooter: you, presumably, offer services on Mac computers only. Microsoft computers are not on your menu of services. Sure, you might agree to help a friend, but it's not part of your business. Somebody can't demand that you do that work any more than that you fix their car. It's simply not a service you offer to ANYBODY.

    Similarly, to Fitz, you're clearly in a somewhat different arena, being all utterly novel stuff, but I bet there's still trends. You can probably quite reasonably make the argument that, say, none of your work even vaguely resembles a scene in which naked antropomorphic pony jellybeans are razing a village of smurfs. So if somebody asks for that, they're out of luck – it's not something you do. But if somebody asks for, say, a picture much in the same vein as lots of other work you've done, you would have a harder argument to make that you don't provide that service normally.

    It's sort of like the now-old cannard about how we should be able to force a Jewish deli to serve ham sandwiches. Which, we SHOULD be able to – if it serves such sandwiches to other customers. But if it simply doesn't carry them? Then it's no different than demanding that McDonalds serve such a sandwich, or that Pfizer serve one, or Citibank. It's not on their menu of services, so it's not discrimination to not provide it – it's simply not something they sell.

  53. David C says

    @David C, sorry, the "Legal" discrimination you speak of is clearly allowed.

    Um, yes, that's why I said it was allowed. Why are you sorry? And why did you ignore my non-mandatory examples?

    If you operate"For-Profit" (and many not/non-profit) businesses, there is no "Personal Belief" exemption from any rule.

    Your categorical statement is untrue. The Hobby Lobby case is the most recent example, but that's not the first case of a religious exemption. During Prohibition there was an exemption for communion wine. You could call that a non-profit example… except someone had to manufacture and sell the wine to them, and THEY were for-profit.

    The ONLY difference here is who was doing the asking.

    Actually, no. If they were looking for a non-wedding cake he would have served them despite their orientation, and if one of the lesbians was getting married to a gay man for some reason he probably would have served them, and if a heterosexual relative had come in asking for a cake for that wedding with 2 females he would have refused them. The difference was not the orientation of the customer (or even, directly, the orientation of the people getting married), but that the cake would be used for a "wedding" of 2 women (at a time when those were not even legal in Oregon.) Discrimination was based on an action, not on orientation. You could make a case for gender discrimination (really, it was the gender, not the orientation, of the people getting married that he objected to), but it was a type of discrimination that the state itself was participating in at the time.

  54. ehud gavron says

    Look – you!

    Stop trying to detract from the real topic at hand!

    The "monkey" with the Wonder Twins was called Gleek.
    Don't you be d'minishin' his xistenz.


  55. TiredOfTheConversation says

    @David C Hobby Lobby was about denying birth control to *all* of their staff on the basis of religious belief. In other words an internal benefit (not an external service) was being withheld. Alternatively, if Hobby Lobby had refused to conduct business with individuals based upon their sexual orientation I would imagine the SCOTUS decision would have been different. Looking on the evolution of their recent decisions, I suspect that history will view Burwell v. Hobby Lobby with the same cultural disdain as the Three Fifths compromise…but I digress…

    It is and remains a fools errand to support the notion that operating as a for-profit business (or many non/not-for-profit business) you have any exemption from the rules under any pretext.

    With that as the backdrop, there are only 3 outcomes:
    1) Quixotically defy the rules and suffer the consequences
    2) Work to change the laws
    3) Follow the rules

    With forethought and consideration the Kleins have selected #1. Let their actions have their natural consequences and serve as a guide for others maintaining similar belief restrictions and contemplating similar departures from the rules.

  56. 205guy says

    Near as I can tell, this is a business issue. The state can regulate business and set rules for what businesses must do and must not do. "Render unto Caesar" and all that, if they need to hear it from the bible. Freedom of religion has not been affected, they are still free in their religion. They are not free to inject their religion into the marketplace, otherwise everyone would and then chaos (or something).

    Essentially, if you want a wedding cake business in Oregon (and hopefully everywhere in the nation), you cannot refuse to make a gay wedding cake. Privately, you can say whatever you want, but your business (you and your practices in the business setting) cannot. The government is not limiting what these people are saying as private parties, it is limiting what the business can do and what they as owners can say that affects the business.

    I agree with all the comments that are saying the owners were quite clearly implying their business would continue to discriminate. You can dissect the words, but the overall intent was clear and rightly picked up by the commission imposing the penatly. I mean, if you want to nitpick what they said, the only person that they said they would serve is the lord. So I had to wonder if the lord was getting a wedding cake and thus being married, and to whom? Also, since they are so privileged to take the lord's order, I wonder if they actually let him pay on credit (all others pay cash).

    The only solution I see was proposed by SlimTim @3:07pm: don't make any wedding cakes until their case is resolved. They could keep their doors open, but publicly state they won't make any wedding cakes through their business. I suspect they'll have to adopt this measure permanently if they want to stay in the bakery business without changing their stated beliefs. Now if a friend or a church member were to ask them to make a cake, I wouldn't come down on them too hard if they got paid for that, but this business could not advertise or display any wedding activity.

    PS: scribd is holding your documents hostage and won't let me see them until I install their app (I'm on an iPad), which is ludicrous.

  57. Mike Schilling says

    We had a bride come in. She wanted to try some wedding cake. Return customer.

    Does that mean she used them last time she got married?

  58. GuestPoster says

    re: Return customers

    In general (GENERAL, not every single case that anyone would care to mention), wedding shopping BEGINS with samples. The bride goes to multiple stores to try on multiple dresses. The couple go to multiple venues to inspect multiple halls, and taste multiple meal portions. And they go to multiple bakeries and try one or more flavors of cake at each. Many/most businesses charge a fee for these moments, so they make some money even when they don't win the full contract.

    So she was a return customer in the sense that she bought the taste testing, then came back in the door to actually buy a whole cake. That would be my assumption, anyways.

  59. rxc says

    With the protected class designations seemingly blossoming, and the recent decision of the Supreme Court on disparate impact, how long will it take before all service providers are required to take a count of the various protected classes represented by each of their customers, to be submitted to the government for disparate-impact analysis to determine whether the business has been discriminating?

  60. perlchpr says

    GuestPoster: I believe the "return customer" line refers to CM and RBC having previously bought a cake there. Page 4, subheading #6.

  61. perlchpr says

    @TiredOfTheConversation: I don't think anyone here is even attempting to argue that the law doesn't exist. That would be an astonishingly boring conversation.

    However, many people question whether or not such a law should exist, which is far more interesting of a question.

  62. EPR says

    Hello, im not a lawyer , and his may be a stupid question but in the article you used "we do not serve blacks" as a comparison. We know race and sexual orientation is protected by Oregon's civil rights laws. However, the bakers refusal of service wasnt technically based on sexual orientation but on participation in a ceremony that goes against their beleifs.
    To my knowledge i dont believe they said they would simply refuse gays, but rather the particioation in a gay wedding cereminy.
    Clearly someones race and sexual orientation is something that is beyond their control which justifies the protection of civil rights.
    However, having a wedding is a decision based on a choice.
    Do the civil rights laws on sexual orientation in Oregon also proect them from having someone refuse to participate in a cermony that they chose to have?

  63. Matt W says

    @EPR This was addressed in the January 15th interim order on page 78 of the document Ken linked:

    Respondents' attempt to divorce their refusal to provide a cake for Complainants' same-sex wedding from Complainants' sexual orientation is neither novel nor supported by case law. As the Agency argues in support of its cross-motion, '[t]here is simply no reason to distinguish between services for a wedding ceremony between two persons of the same sex and the sexual orientation of that couple. The conduct, a marriage ceremony, is inextricably linked to a person's sexual orientation.'

    The U.S. Supreme Court has rejected similar attempts to distinguish between a protected status and conduct closely correlated with that status…

  64. Mikee says


    The only baker I've ever known at the many weddings I've attended was when it was a family member that had my mom bake the cake (she's not a professional baker, but no professional baker can beat her cakes.) Maybe some people announce who baked the cake, but is the free advertising to potential customers really a bad thing for, you know, a business? One that isn't violating the law by discriminating against a protected class, anyhow.

    Baking a cake for a wedding is no more participating in the wedding than Mt. Dew participating in my video game playing and reading Popehat, or the Dominos delivery guy participating in multiple Super Bowl parties just because he delivered pizzas to multiple houses during the game. Did multiple car companies, gas stations, and oil refineries participate in my road trips just because I purchased their cars and gas?

    Money making ventures operating in the public sphere don't get to boycott protected segments of the population in the same way that customers are allowed to boycott businesses. Since there are still plenty of places left in America where discrimination based on sexual orientation is still legal, the bakers are free to move their business to a more hospitable population (though that's unlikely to last forever.)

  65. CatholicSpice says


    Did multiple car companies, gas stations, and oil refineries participate in my road trips just because I purchased their cars and gas?

    Money making ventures operating in the public sphere don't get to boycott protected segments of the population in the same way that customers are allowed to boycott businesses

    I ask you to think about those two statements together. Three years ago the public learned that the owners of Chick-Fil-A used some of its profits to oppose same-sex marriage. Those who took part in the ensuing boycott understood that when they handed over $5 for a chicken sandwich, a fraction of that money would go to support a cause they opposed. Those people knew that by eating at Chick-Fil-A and not a more progressive alternative, they were enabling someone to do something immoral.

    Baking a cake for a wedding is no less participatory. I'm certainly open to the argument that refusing to buy a sandwich is different enough from refusing to sell a sandwich that the law should treat the two acts differently. But if you're bothered by the idea that you're helping to support the anti-SSM cause when you buy a sandwich, you should understand why a baker thinks that he's supporting the celebration of something immoral when he bakes a cake for a wedding.

    The other parts of your post deal insufficiently with the degree of participation. a wedding cake isn't Mountain Dew. Selling an unadorned cake is probably similar, but once the baker is asked to decorate it with a particular customer's wishes in mind, or write "Congrats Adam & Steve," the baker is participating in the event more than Pepsico is by placing a bottle of carbonated sugar water in the stream of commerce.

    Suppose a customer tells a black baker that he wants a cake adorned with Confederate flags to celebrate the birthday of Nathan Forrest. Is the baker wrong for concluding that he is – in a small way – "participating" in that celebration? Perhaps there are good reasons to treat a "Happy Birthday Nathan Forrest" cake differently from a "Congrats Adam & Steve" cake, but you should be able to see why the baker in each scenario believes that he's participating in the event.

  66. Mikee says

    RE: CatholicSpice

    Not sure what I said that can be misinterpreted, businesses are prevented by law (in areas that have such laws) from discriminating against protected classes. People, as citizens, are not prevented by law from discriminating against businesses because no business falls under a protected class.

    On an unrelated topic:

    Dear Lawsplainer:

    As much as I detest the Westboro Baptist Church, would it be possible for you to splain the law behind the Supreme Court decision that says their activities are protected? Maybe Governor Jindal missed that decision, because he's threatening to arrest WBC members that protest in his state.