Sweet Cakes owners, now backed by George H.W. Bush's lawyer, file appeal

OregonLive ^ | April 27, 2016 | Casey Parks

[Rio]

The Gresham bakers who made national headlines after refusing to bake a cake for a same-sex wedding are fighting back against Oregon regulators.

In a brief filed in the Oregon Court of Appeals this week, Aaron and Melissa Klein say the Oregon Bureau of Labor and Industries violated state and federal laws by forcing them to pay $135,000 in damages to the lesbian couple.

The legal team behind Sweet Cakes by Melissa argues the labor bureau violated the Kleins' rights as artists to free speech, their rights as Oregonians to religious freedom and their rights as defendants to a due process.

They also argue the fine was excessive and that Labor Commissioner Brad Avakian, who praised an LGBTQ advocacy group on Facebook the year before the hearing, should have recused himself.

"There is little to be said for [the bureau's] interpretation" of the law, the Kleins' attorneys wrote in a 615-page brief. "It lacks support in statute or precedent, equates being gay with a celebration rejected by many gay people, and forces people to convey messages against their will and religious beliefs — all while, at a minimum, raising serious constitutional questions."

And the Kleins' court fight, though based in Oregon, could have national implications. At a time when North Carolina and Mississippi have passed laws allowing businesses to refuse service to lesbian, gay, bisexual and transgender customers, the Kleins have challenged a decade-old Oregon law that prevents that kind of discrimination.

That means whatever happens to the Kleins here could ultimately shape what happens to florists, photographers and bakers across the country.

"This case gives us pause, as does what we see happening across the country," said Jeanna Frazzini, co-director of LGBTQ advocacy group Basic Rights Oregon. "It's really been striking the way the Kleins have become poster children for this movement across the country that aims to undermine the very basic civil rights and human dignity of LGBT people."

The controversy began three years ago when Rachel Bowman-Cryer and her mother, Cheryl McPherson, visited the bakery to test cakes for Bowman-Cryer's upcoming wedding.

Bowman-Cryer had purchased a cake from Sweet Cakes by Melissa before, but this time, Aaron Klein turned her away. Klein said his company didn't bake cakes for same-sex weddings.

Rachel Bowman-Cryer said during the BOLI hearing that the experience left her "humiliated and ashamed and destroyed and questioning — questioning whether anybody or not would accept us as a married couple."

She and her wife, Laurel Bowman-Cryer, filed complaints with Oregon's Bureau of Labor and Industries.

An administrative judge ruled the Kleins had violated an Oregon law that bans discrimination against gay, lesbian, bisexual and transgender people in jobs and in places that serve the public.

Labor Commissioner Brad Avakian ordered the Kleins last year to pay the Bowman-Cryer's damages for emotional and mental suffering.

"This case is not about a wedding cake or a wedding," Avakian, now a candidate for Oregon secretary of state, wrote in his final order. "It is about a business's refusal to serve someone because of their sexual orientation. Under Oregon law, that is illegal. Within Oregon's public accommodations law is the basic principle of human decency that any person, regardless of their sexual orientation, has the freedom to fully participate in society."

The Kleins have said all along they planned to appeal. And the brief repeats many of the arguments the Kleins made earlier in the case. It focuses on big ideas — such as the freedom of religion — as much as it does on small details, including posts on Avakian's Facebook page.

The appeal "continues to drag out a case that has been extremely painful for the (lesbian) couple involved," Frazzini said.

The Sweet Cakes case was one of several religious freedom disputes tried last year as part of a national debate that's intensified since a June 2015 U.S. Supreme Court decision established same-sex marriage as a constitutional right.

Last month, the Washington State Supreme Court agreed to hear the case of florist Barronelle Stutzman, a Richmond, Wash. woman who refused to provide flowers for a longtime customer's same-sex ceremony.

And on Monday, the Colorado Supreme Court declined to take an appeal from a Denver-area "cake artist" who'd been ordered to make desserts for same-sex weddings.

But few defendants have attracted as much notoriety as the Kleins. Donors from across the country have contributed more than half a million dollars to the Gresham couple. And in February, a former lawyer for President George H.W. Bush, took over their case. C. Boyden Gray, working with nonprofit law firm First Liberty, will represent the Kleins at no cost.

First Liberty senior counsel Ken Klukowski said the Kleins asked his Plano, Texas, firm to take on their case. He agreed because he believes theirs "is an issue of paramount importance for the nation."

"This is one of the most important cases in the country regarding how religious liberty is going to coexist in our society with new attitudes regarding marriage," Klukowski told The Oregonian/OregonLive in February. "The first amendment guarantees every person fundamental right to free speech and the free exercise of religion, how you act out your faith -- not just the words you say."

[wardaddy]

We relinquished the right to refuse service long ago

[Mr. K]

AND this ruling the opposite of other rulings where muslims were ALLOWED to refuse to do work based on their religious beliefs

(i.e. muslims who were fired for refusing to deliver beer were awarded tens of thousands of dollars upholding their right to religious belief)

I AM SO GLAD THEY APEALED THIS

[Mr. K]

"They want to “victimidate” society into a corner."

oooh that's good - I am using it

[falcon99]

Not really, they had been selling them cakes and other goodies so it wasn’t just because they were gay. If it were, they wouldn’t have been selling them anything. It was because the wedding was against their religious values. Big difference.

[Yardstick]

I don’t know...a baptism, a confirmation? The comparisons are easy.

The point is that baking a cake for someone who happens to be Jewish or Christian is different than baking a cake to be used in a Jewish or Christian religious ceremony.