Klein v. Oregon Bureau of Labor & Industries

November 26, 2018 • Legal Briefs

Is cake‐​baking art, and if so, can someone be compelled to bake one in violation of his or her religious beliefs? More specifically, can a Christian baker refuse to design a wedding cake for a same‐​sex couple due to her sincere religious objections to same‐​sex marriage?

Wait, didn’t the Supreme Court already resolve these questions in the Masterpiece Cakeshop case earlier this year? Actually no; the Court declined to answer these and related important issues, instead ruling narrowly in the baker’s favor because the state civil rights commission displayed animus toward his religious beliefs. There was even unresolved disagreement over whether the baker refused to sell the couple a custom cake or any cake. In short, the Court’s decisionwas really a minor work, not a masterpiece.

But the Court’s punt, to mix metaphors, didn’t kick the can very far down the road. While the Washington Supreme Court is going through the motions of reconsidering the Arlene’s Flowers case in light of Masterpiece, an Oregon case involving another baker has reached the Supreme Court’s doorstep. Melissa and Aaron Klein are practicing Christians who owned and operated a bakery where they made and sold custom wedding cakes. An administrative law judge fined them $135,000 (!) for refusing to make a wedding cake for a same‐​sex couple, putting them out of business. Even though the Kleins had gladly served the couple in the past, and merely objected to helping celebrate this particular ceremony, Oregon state appellate court upheld the fine.

But freedom of expression, as protected by the First Amendment, doesn’t only secure the ability to say what you wish. It also prevents the government from compelling you to say something you don’t agree with. Cake‐​baking, as anyone who has seen one of countless TV shows can confirm, is an expressive art form. Accordingly, bakers, as artists, cannot be forced to convey messages that violate their beliefs—whether based in religious or secular values. To live according to one’s own conscience is the foundational principle of a free society. If people who agree with same‐​sex marriage are the only ones allowed to operate businesses related to weddings, freedom of expression will become a hollow principle in that regard.

Cato, the only organization in the entire country to have filed Supreme Court briefs supporting same‐​sex couples seeking to get married and vendors who don’t want to participate in those weddings, has now filed a brief supporting the Kleins’ petition to the U.S. Supreme Court. Although quite similar to Masterpiece Cakeshop, the Kleins’ case is neater, with fewer distractions unrelated to the core question of expression. For starters, there is no allegation that the Oregon Bureau of Labor and Industries showed anti‐​religious animus. Moreover, the Kleins did not sell off‐​the‐​shelf cakes to the general public; they created only custom cakes.

The Court should take the case to clarify that the First Amendment protects people from having to convey messages or express support for ceremonies with which they disagree. Klein v. Oregon Bureau of Labor & Industries presents an inquiry into the scope and nature of expression itself—and much like a good cake, we hope that the Court finds these issues too enticing to pass up.

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About the Authors
Ilya Shapiro

Ilya Shapiro is a vice president of the Cato Institute, director of the Robert A. Levy Center for Constitutional Studies, and publisher of the Cato Supreme Court Review.