Gay Marriage

Oregon Agency Inadvertently Admits Rules Used to Fine Bakers Are Unneeded, Mostly Unused

Yes, actually, it is about a wedding cake.


The cake is not a lie, but claims of possible widespread discrimination are.
Credit: Pixelbrat |

Oregon's Bureau of Labor and Industries (BOLI) wants to make it clear to everybody that when it ordered Aaron and Melissa Klein to pay $135,000 to a lesbian couple for refusing to bake them a wedding cake, that this money did not constitute "fines or civil penalties which are punitive in nature." It is just the state of Oregon ordering the Kleins to give their money to somebody else on the threat of having a lien placed on their home. That is apparently something completely different.

While the couple works out an appeal, take note of a press release BOLI sent out to announce its order. I blogged about the order last week and didn't even notice the release. Cato Senior Fellow (and Reason Contributing Editor) Walter Olson pointed out the release on Twitter, noting that it's trying to defend this decision by comparing it to a case where they found that a Christian had been discriminated against on the basis of her beliefs. The release did not actually ask, "Where was the outrage then?" but it is clearly mentioned as a way to show that BOLI also defends the rights of Christians when they've been discriminated against.

The case is significantly different though—about a Christian employee of a dental facility whose employer was a Scientologist who apparently attempted to require her to attend some sort of Scientology management training seminar. Even if I conceded that a Scientologist dentist does not have the right to employ like-minded associates (I am not making such a concession), this is a situation where the person being punished by BOLI attempted to coerce somebody into doing something she didn't want to do because she felt it violated her religious beliefs. See the comparison? BOLI was on the complete other side in this case but doesn't even realize the difference, because all it can see are its non-discrimination regulations and who is allowed to do what, not any sort of consistent philosophy. BOLI does not realize or care that it is now the entity engaging in coercion and threatening the livelihoods of others. They can do that because they're the government, not a bakery or a dentist.

Even more absurd in this release is that it openly admits that the law being used to punish (sorry—"require money from") the Kleins has accomplished very little and that, in fact, there are very few instances of anti-gay discrimination in public accommodations even being reported to the state of Oregon:

"Complaints under the Oregon Equality Act of 2007 are rare. In fact, the agency has found substantial evidence of violations in only seven investigations of Equality Act accommodations complaints in the seven years since the law took effect. In each civil rights investigation, the Bureau of Labor and Industries approaches the complaint not with a bias for or against the Complainant, but with a duty to determine the unique set of facts.

In the vast majority of all employment, housing and public accommodations complaints filed under the Oregon Equality Act of 2007, BOLI investigators have found that no substantial evidence exists to support charges of discrimination based on sexual orientation or gender identity."

A "vast majority" of the complaints turn out to be unsupportable. This is BOLI's own admission that discrimination (or provable discrimination) against gays, lesbians, and transgender people in Oregon is rare.

Let's say we were to take a nuanced approach to the concept of freedom of association and discrimination laws. Let's say that we would accept laws against discrimination if it were shown that enough business collusion and government involvement had taken place so that a class of disfavored people truly had extreme challenges in just living a normal, everyday life. Historically, this is what actually happened to African-American citizens. The discrimination was real and significant.

But under no reasonable analysis of widespread discrimination would Oregon's law hold up. There is no collusion between businesses and bigots in the government to keep gay people from having jobs and buying things—not these days. There is no evidence of any sort of "redlining," where industries like banks or insurers conspire to refuse services to gay people.

Proponents of punishing people like the Kleins know full well that there is no widespread threat of anti-gay discrimination. So when it's pointed out that it is utterly absurd to use the force of the state to go after a couple of bakers over something so non-essential to as a wedding cake, they insist: "It's not about a wedding cake." BOLI says exactly this. They insist the ruling is about not allowing any sort of discrimination. But they then also acknowledge that there actually is no widespread amount of discrimination that would interfere in the lives of the lesbian couple in the center of this case. There was one incident. They have to insist that it's "not about the cake" because if it is about the cake, it means the state is threatening to destroy people's lives over something exceedingly superficial. The problem, though, is that they've admitted that Oregon has very little anti-gay discrimination to speak of. Which means, actually, it is about a stupid wedding cake and an extremely retributive process for punishing a handful of people whose discriminatory behavior actually has very little impact on the public or the intended targets.

In another matter related to the ruling, soon after it was released, some outlets reported that BOLI had "gagged" the Kleins and ordered them not to talk about the case. This is a misreading of the order, but not actually a huge misread. Oregon has a law that prohibits operators of public accommodations from declaring an "intent" to discriminate against protected classes. It determined the Kleins had violated this rule but did not punish them for it in the final order (the agency actually wanted to, though). The "gag" essentially orders the Kleins not to continue saying that they will refuse to make wedding cakes for gay couples, but since their bakery is no longer open, it doesn't really matter. They are no longer providing any "public accommodations" under Oregon law. It does not prohibit the Kleins from talking about the case.

But that doesn't mean there aren't still problems with such an order and a troubling vagueness in the ruling. Ken "Popehat" White explains the subtleties here. While it is not a gag order, White does worry that the ruling makes it unclear what, exactly, the Kleins may say.