The U.S. Supreme Court granted a petition for a writ of certiorari in Klein v. Oregon Bureau of Labor and Industries, No. 18-547, on June 17, but at the same time vacated the Oregon Court of Appeals decision in the case, 289 Or. App. 507 (Dec. 28, 2017), and remanded the case to that court for “further consideration” in light of the Court’s decision last year in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018). The Court did not issue any explanation for its ruling, beyond the direction of “further consideration” specifying Masterpiece Cakeshop as the ground for such consideration.
Both cases involved the question whether a baker who refuses to make a wedding cake for a same-sex couple has a federal constitutional defense to a discrimination charge in the state administrative and judicial fora. In both Oregon and Colorado, state law forbids discrimination because of sexual orientation in places of public accommodation, and businesses selling wedding cakes are definitely public accommodations under both laws. Without ruling directly on the question presented in Masterpiece, the Supreme Court last year vacated the Colorado Court of Appeals and Colorado Commission rulings based on the Court’s conclusion that the Commission forum was “hostile to religion” as evidenced by statements by two of the Commissioners and “inconsistent” action on a religious discrimination charge by a provocateur who sought unsuccessfully to order anti-gay cakes from other bakers.
It takes at least four votes on the Supreme Court to grant a writ of certiorari, but it takes at least five votes to vacate and remand a lower court ruling. According to its usual practice, the Court did not specify how many justices voted for the cert grant or the “vacate and remand” order.
The issue on remand for the Oregon Court of Appeals appears to be whether some statements made by Brad Avakian, Commissioner of the Oregon Bureau of Labor and Industry (BOLI), evinced the kind of hostility to religion that the Supreme Court identified as problematic in the Masterpiece case.
When Melissa Klein, proprietor of Sweetcakes by Melissa, rejected a wedding cake order from Rachel and Lauren Bowman-Cryer on religious grounds, the women filed complaints with the Oregon Department of Justice and the Bureau of Labor and Industries. The media found the case newsworthy, resulting in interviews with Melissa Klein and her husband in which they sought to justify their action on religious grounds. Commissioner Avakian reacted to the ensuing controversy by posting a statement to his Facebook page and speaking with The Oregonian, a wide-read newspaper in the state.
Avakian’s Facebook post included a link to a television station’s news story about the refusal of service and a statement: “Everyone has a right to their religious beliefs, but that doesn’t mean they can disobey laws that are already in place. Having one set of rules for everybody ensures that people are treated fairly as they go about their daily lives.” The Oregonian subsequently quoted Avakian as saying that “everyone is entitled to their own beliefs, but that doesn’t mean that folks have the right to discriminate.”
Under BOLI’s procedures, an administrative law judge (ALJ) holds a hearing and issues a “proposed final order,” to which the parties can file “exceptions” as an appeal to the Commissioner. Before the hearing in this case, the Kleins moved to disqualify Commissioner Avakian from taking any role in the case, arguing that his public statements had prejudged the case so he was not neutral. The ALJ denied the motion to disqualify and went on to find that the Kleins had violated the statute by denying services to the couple “on account of” their sexual orientation, as prohibited by the statute. The ALJ rejected the Kleins argument that they had not discriminated because of the women’s sexual orientation, or that their actions were protected by the First Amendment free speech and free exercise of religion provisions. But the ALJ also rejected BOLI’s argument that statements made by Mr. Klein during interviews were communicating a future intent to discriminate, which would itself violate a specific prohibition in the statute. Rather, the ALJ ruled, they were an account of the reasons for their denial of services in this case. The ALJ ordered damages to the couple totaling $135,000, mainly for emotional suffering and having to put up with the media attention.
The Kleins and BOLI both filed exceptions to the ALJ’s proposed order. Commissioner Avakian affirmed the ALJ’s ruling on discrimination, but disagreed with the ruling on statement of future intent to discriminate. Avakian concluded that the record supported the opposite finding, that the interviews and a sign taped to the bakery’s window communicated intent to discriminate on the same basis in the future, but he approved the ALJ’s proposed damage award without adding anything for this additional violation. The Kleins then petitioned for judicial review.
The Oregon Court of Appeals affirmed the ALJ’s decision on discrimination, but rejected Commissioner Avakian’s reversal of the ALJ’s ruling on communicating an intention to discriminate in the future. The court also rejected the Kleins’ argument on appeal that Avakian should have been disqualified from ruling on the case because of his Facebook and Oregonian interview statements. As to another flashpoint in the case, the court deemed the amount of damages awarded appropriate, noting that the amount was in line with damages awarded in other similar cases. The Kleins sought review in the Oregon Supreme Court, but were turned down without comment.
The Kleins’ petition for certiorari to the U.S. Supreme Court mentions the issue of Avakian’s statements and the ALJ and Oregon court’s rejections of disqualification, but it does not focus on that issue in its statement of questions presented, even though the petition was filed months after the Supreme Court’s ruling in Masterpiece Cakeshop made that a potentially viable alternative route to getting the agency’s decision overturned. Counsel for the Kleins, instead, were focused on getting the Supreme Court to reconsider its 1990 ruling, Employment Division v. Smith, 494 U.S. 872, in which the Court abandoned its long-established free exercise clause jurisprudence, substituting a rule that people have to comply with neutral state laws of general application – such as most anti-discrimination laws – even though complying might burden their free exercise of religion. Their second “question presented” asked the Court to overrule Smith, and their third “question presented” asked the Court to “reaffirm” a “hybrid rights doctrine” suggested in dicta in Smith, where there would be more stringent judicial review in cases where other constitutional rights in addition to free exercise of religion were implicated.
The Supreme Court’s decision to vacate the Oregon Court of Appeals decision for “further consideration” by the state court suggests that there are not enough votes on the Court to reconsider Smith as of now, but we can’t know how many votes short the proponents on the Court of reconsidering Smith might be. Smith has long been a controversial precedent. The decision’s cutback on protection for religious objectors led Congress to pass the Religious Freedom Restoration Act and many states to pass their own versions of that law. But Smith has become a bulwark for vindicating the rights of same-sex couples to obtain wedding-related goods and services, as most courts confronted with the issue have concluded that such businesses do not have the right to deny them to same-sex couples.
The Kleins are represented by First Liberty Institute of Plano, Texas, Boyden Gray & Associates of Washington, D.C., and Oregon local counsel Herbert G. Grey. Ten amicus briefs, all urging the Court to grant the petition for certiorari, were filed by conservative and religious litigation and policy groups, many extolling the case as a vehicle for overturning Employment Division v. Smith. Lambda Legal represented Rachel and Laurel Bowman-Cryer with an amicus brief at the Oregon Court of Appeals.