Do Christians Even Have a Chance Against Oregon’s Bureaucracy?

On July 2, Brad Avakian, commissioner of Oregon’s Bureau of Labor and Industries (BOLI), ordered Aaron and Melissa Klein to pay $135,000 in damages for “emotional, mental and physical suffering” to a lesbian couple after the Kleins — owners of Sweet Cakes by Melissa — declined to bake a cake celebrating their same-sex wedding. Avakian also ordered the Kleins to “cease and desist” from “publishing, circulating, issuing or displaying, or causing to be published . . . any communication to the effect that any of the accommodations . . . will be refused, withheld from or denied to, or that any discrimination be made against, any person on account of their sexual orientation.”

This gag order explicitly applied not just to formal business communications but also to the Klein’s statements to the press, such as, “This fight is not over. We will continue to stand strong.” (While the order itself is extraordinarily broad and explicitly targets the Kleins’ public comments about their case, BOLI has since put out a contradictory statement to Media Matters that the Kleins can still talk about the case and “their opposition to Oregon anti-discrimination laws.”)

While this ruling has binding legal force, it is critical to understand that it is not the result of a conventional court proceeding. Rather, it is the product of an administrative process that is unrecognizable to those schooled in the rules and procedures of criminal and civil courts. It is a process that is rife with conflicts of interest, ideological from the start, and often insulated from conventional and appropriate judicial review.

In states across the country, discrimination complaints against businesses like the Kleins’ originate not in court but instead in state agencies like BOLI or in various state “human rights commissions.” The agencies and commissions are often led by explicitly ideological politicians who make no pretense of impartiality, instead openly declaring that they’ll aggressively find and punish “discrimination” wherever it’s found. Discrimination complaints are then investigated by agency investigators, tried by agency prosecutors, and decided by agency “judges” — often interpreting and applying rules drafted by the agency itself. Americans have long recognized the inherent bias when one person functions as “judge, jury, and executioner.” In the administrative agencies of the deep state, a single, highly ideological entity can function as rulemaker, investigator, prosecutor, judge, jury, and enforcer.

Melissa and Aaron Klein

The Kleins’ case is no exception. BOLI investigators made an initial finding of “substantial evidence of unlawful discrimination” and ultimately handed the case over to the BOLI “prosecutor,” who tried the case in front of a BOLI administrative law judge in a proceeding that the Kleins’ attorney, Herbert Grey, described as featuring minimal rules of evidence and only the barest protections against hearsay.

The informal nature of the proceedings means that standard judicial ethics and conflict-of-interest rules don’t apply. For example, Commissioner Avakian committed an act that would typically disqualify judges in civil or criminal proceedings by publicly commenting on the Kleins’ case before it came before him. On February 5, 2013, he posted a link to a story of a bakery providing a free wedding cake to the complaining lesbian couple and declared, “Everyone has a right to their religious beliefs, but that doesn’t mean they can disobey laws already in place. Having one set of rules for everybody assures that people are treated fairly as they go about their daily lives. The Oregon Department of Justice is looking into a complaint that a Gresham bakery refused to make a wedding cake for a same-sex marriage. It started when a mother and daughter showed up at Sweet Cakes by Melissa looking for a wedding cake.”

Avakian speaks as a politician while exercising the power of a judge.

In fact, Avakian’s comments ranged far and wide — in public statements and in e-mails to LGBT organizations — not only firmly declaring his “progressive” beliefs but applauding same-sex marriage and LGBT causes more generally. Despite his role as a judge, he also functioned fully as a politician, demonstrating his bias clearly, unequivocally, and repeatedly. Politicians are expected to express their political point of view, including their views of pending cases. Judges, however, have a different obligation. Avakian speaks as a politician while exercising the power of a judge.

While litigants typically have a right to appeal agency rulings to “real” courts, these appeals not only come at the end of an exhausting, expensive, and often years-long administrative process, they’re often extraordinarily limited. In Oregon, for example, according to the Kleins’ counsel, courts are required to grant considerable discretion to BOLI’s ruling, setting aside its legal conclusions only if they’re “clearly erroneous.” Yet even when courts review agency determinations de novo (granting them no legal or factual preference), administrative proceedings can powerfully shape public opinion and drain a litigant’s financial resources.

The Kleins’ case represents the deep state in action, working through administrative agencies the public dimly understands. Core constitutional liberties are adjudicated by bureaucrats who possess minimal constitutional expertise yet operate under clear political and ideological mandates. In such a circumstance, the question isn’t whether litigants like the Kleins will prevail, but whether they ever had a chance.

— David French is an attorney and a staff writer at National Review.

Marriage, as defined by God is a covenant, and thus totally outside of the realm of human government. You must be aware that government has insinuated itself into the institution of marriage for so many generations that many people automatically assume that a marriage must be conducted by someone with a “license”. License is the means of government regulation.

If we have separation of church and state, we must of necessity also have a separation of everything the State may attempt to control that comes from the church. Marriage is the primary instrument in that regard and that is exactly why secular forces in society cheered so loudly when the government seized full control of the definition of “marriage”.

Where government has power over marriage, no “license” can be issued. Just like the Second Amendment.

In legalizing a form of relationship that God calls an abomination, the secular forces have declared that God no longer has control over that aspect of civil life.

To my knowledge, there has been no litigation involving service providers denying service to anyone on the grounds that they were participating in some type of ceremony. The only denials of service have come about when service providers have declined to become an “enabler” of a marriage. Part of the government’s support for any action against such service providers was on the grounds that a protected civil right was violated. In this case, the right was the right to marry.

When the state does not have the power to marry or regulate marriage, it is no longer a civil right that has protected status. If there would be any grounds for litigation, it would have to be on some other basis. At this time, sexual orientation is not a federally protected civil right, although in some lesser jurisdictions it may be.

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