What Do You Get When Rights Only Go One Way? Intolerance!

Attorneys for an Oregon couple who were punished by a state bureaucrat over a wedding cake are reviewing a federal appeals court decision.

The Associated Press (AP) reported December 28th that the Oregon Court of Appeals upheld a decision by the Oregon Bureau of Labor and Industries that resulted in a $135,000 penalty against Aaron and Melissa Klein, who owned the bakery Sweetcakes by Melissa, located in Gresham.  The Kleins refused to take an order for a same-sex wedding cake and the legal battle that ensued marked one of the country’s first cases that pitted a business owner’s religious views against non-discrimination laws that include homosexuals and lesbians.

The Kleins argued that a liberal labor commissioner, Brad Avakian, violated their religious rights and free speech rights when he imposed the staggering fine for causing emotional distress to the lesbian couple.  Avakian garnered national attention for issuing a gag order to silence the Kleins and even demanding that they pay the fine using personal assets and not their business, The Washington Times has reported. 

Avakian was also known for advocating for homosexual rights, and the Kleins argued that he should have stepped away from their case after he issued a 122-page order that claimed the lesbians suffered 80 symptoms -- resuming smoking habits, weight gain, doubt, and worry -- from the incident that they described as “mental rape.”  Yet the Kleins failed to prove their case against Avakian, the AP story reported; and Avakian proclaimed the court ruling shows Oregon is “open to all.”

The decision against the Kleins comes just weeks after the U.S. Supreme Court heard oral arguments in the case of Colorado baker Jack Phillips.  That decision is expected in June 2018.  Writing about that pending decision at National Review, Kevin Williamson warned about the legal consequences if Christians are forced by “government bayonets” to perform a duty they are morally opposed to.  He wrote: Telling a black man that he may not work in your bank because he is black is in reality a very different thing from telling a gay couple that you’d be happy to sell them cupcakes or cookies or pecan pies but you do not bake cakes for same-sex weddings — however much the principle of the thing may seem superficially similar.  If the public sphere is infinite, then the private sphere does not exist, and neither does private life.

“Obviously this is a blow for the Constitution and the rule of law in this country, and I think it’s a sad day in this country when people can be punished for their religious beliefs,” says Mike Berry, the attorney at First Liberty (FL) who represents the Kleins.

When asked about the Phillips’ case, Berry says it’s too early to know how that outcome will affect the Kleins.  “It would really depend,” he says, “on how broad or narrow of a ruling the Supreme Court issues in that case.”

Firsthand observers of the Phillips’ oral arguments left the courtroom predicting that Justice Anthony Kennedy, known as a swing vote, could side with Jack Phillips.  FL, in fact, is seeking what Justice Kennedy pointed out during the oral arguments.  “Tolerance is really a two-way street in this country,” says Berry, “and if we truly are going to be a nation that values diversity of all points of view and all beliefs, then tolerance really does have to run both ways.”

Rev. Dr. Kenneth L. Beale, Jr.

Chaplain (Colonel-Ret), U.S. Army

Pastor, Ft. Snelling Memorial Chapel