When the U.S. Supreme Court on Monday asked Oregon courts to reconsider the question of whether a Gresham cake shop acted illegally by refusing to sell a wedding cake to a lesbian couple, the nation settled in for an even longer wait to resolve the core constitutional issue underlying the case.
The high court yet again held off determining whether a business owner’s First Amendment right to freedom of religion supersedes the rights to service of LGBTQ Americans who are protected in more than 20 states by anti-discrimination laws.
The question has been bubbling up across the country as wedding photographers, invitation printers and private wedding venue owners have refused to do business with same-sex couples.
“I think it’s just been left hanging,” said Carl Tobias, a University of Richmond constitutional law professor. “Sooner or later, they’re going to have to face the issue.”
The U.S. Supreme Court vacated an Oregon Court of Appeals decision in Gresham’s Sweet Cakes by Melissa case and sent it back for review.
By now, the case is well-known to many Oregonians:
Cake makers Melissa and Aaron Klein told lesbian couple Laurel and Rachel Bowman-Cryer in January 2013 that they didn’t do same-sex wedding cakes. In 2015, the Oregon Bureau of Labor and Industries ordered the cake makers to pay the Bowman-Cryers $135,000 in emotional damages. In 2016, the Kleins closed up shop. In 2017, the Oregon Court of Appeals upheld the Labor Bureau’s order. In 2018, the Oregon Supreme Court said it wouldn’t hear the case and as a result, let the order stand. The Kleins appealed to the U.S. Supreme Court, which led to Monday’s action.
Tobias, who has followed the issue closely, suspects the U.S. Supreme Court is reluctant to take on the highly politicized question as the 2020 presidential election approaches.
He believes Chief Justice John Roberts wants to avoid the appearance that his court is influencing campaign issues, especially after President Trump’s conservative nominee Brett Kavanaugh was confirmed in 2018 as a justice.
“They’d like to avoid it, I think, during an election year,” Tobias said.
Nancy Haque, executive director of the LGBTQ advocacy organization Basic Rights Oregon, said she hopes the U.S. Supreme Court doesn’t take up the issue.
“A more conservative court taking on this isn’t a good thing,” Haque said. “I don’t think freedom of religion means freedom to discriminate.”
The reconsideration process in the Sweet Cakes by Melissa case could take months or years, especially if the state Supreme Court decides to review the case after the state Court of Appeals reconsiders it.
And any future landmark ruling might not be based on the case in the end.
The U.S. Supreme Court should soon get another opportunity to take on the question of religious versus LGBTQ rights in a case out of Washington state. Lawyers for Richland, Wash., florist Barronelle Stutzman said earlier this month that they plan to appeal to the U.S. Supreme Court for a second time.
In 2017, the Washington Supreme Court ruled in favor of a gay couple, saying Stutzman’s Arlene’s Flowers illegally refused to sell them a wedding cake. Stutzman appealed to the U.S. Supreme Court, which -- just like in the Sweet Cakes by Melissa case -- told the Washington Supreme Court to reconsider its ruling in light of a June 2018 decision in a similar Colorado case.
In the Colorado case, the U.S. Supreme Court sided with Masterpiece Cakeshop owner Jack Phillips because of what the court saw as anti-religious bias by a civil rights commissioner who said people have historically used freedom of religion to justify discrimination that resulted in slavery and the Holocaust.
The Washington Supreme Court earlier this month reaffirmed its ruling, finding that the state’s court system hadn’t acted with anti-religious prejudice when it ruled against Arlene’s Flowers.
In the Sweet Cakes by Melissa case, lawyers for the Kleins said the U.S. Supreme Court order Monday for Oregon’s courts to search for anti-religious bias in the Gresham case is a victory for their side.
Kelly Shackelford, chief counsel for First Liberty Institute, the Texas law firm representing the Kleins pro bono, said his firm plans to bring forth evidence of what it believes was overt “hostility” toward the Kleins in statements made by former Oregon Labor Commissioner Brad Avakian before his agency heard arguments in the case.
The ruling “is great news for Melissa and Aaron,” Shackelford said. “The decision was vacated, and I think that’s a pretty strong message from the Supreme Court that government hostility against Americans is wrong and unconstitutional.”
The case has dragged on for more than six years. Shackelford said the Kleins “would love to have this over with and determined.”
Supporters of the Bowman-Cryers commended them for taking a stand and said the case also has disrupted the couple’s lives since 2013.
Oregon government officials said their agencies aren’t backing down.
“We look forward to returning to the Oregon Court of Appeals, where we will continue to defend the constitutionality of Oregon’s laws that require bakeries and other places of public accommodation to serve all customers regardless of sexual orientation,” Attorney General Ellen Rosenblum said in a statement.
Labor Commissioner Val Hoyle said she hopes the Oregon Court of Appeals will reaffirm the finding that the Kleins acted unlawfully. Hoyle also said Oregon’s anti-discrimination law is based on “the basic principle of human decency.”
“Every person has the right to enter public places, to shop, to dine, and to move about without fear of discrimination,” she said in a statement.
-- Aimee Green
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