The Volokh Conspiracy
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[UPDATE: For more on the Oregon order itself, see this post (about the lack of liability for public reaction to the bakers' publicizing the complaint).]
I blogged Monday about the Oregon commissioner of the Bureau of Labor and Industries decision that fined a bakery $135,000 because its owners (1) refused to sell a wedding cake for a same-sex commitment ceremony and (2) allegedly stated that they would similarly refuse such customer requests in the future. The decision also (3) barred the bakery from publishing "any communication … to the effect that any of the accommodations, advantages, facilities, services or privileges of a place of public accommodation will be refused … any person on account of sexual orientation." My post explained why such no-statements-that-you-will-refuse-service orders are constitutional.
There is a separate but related question in play here, though: Was the commissioner right to conclude that the bakers did indeed state that they would refuse such requests for cakes for same-sex weddings (that's conclusion 2 above)? Even if the bakers didn't so state, the First Amendment still doesn't bar the bureau from barring such statements in the future, for reasons I gave in the earlier post. And in any event, even if the bakers didn't so state, it does look like they refused to make a particular cake, and (if the commissioner was right that such refusals violate state law) they could be held liable for that. Still, it matters whether the commissioner was right in the conclusion about the statement-of-intent-to-discriminate violation.
A few thoughts about that (setting aside, as in the earlier post, various other questions, such as whether the fine is excessive, whether such laws are a good idea and whether discrimination against same-sex ceremonies should be viewed as discrimination against a person based on sexual orientation):
1. It's pretty clear that some statements to the media, including political statements, can violate the statement-of-intent-to-discriminate law. "Don't bother coming to our restaurant if you're a Mormon; we won't let you in" is a classic example, whether it's said in an advertisement or a news interview. Likewise for "We don't serve Jews" or "We think antidiscrimination laws are wrong, and we refuse to serve blacks." As I mentioned in my earlier post, they are statements that threaten illegal discrimination and have much the same effect as a specific denial of service to someone who physically shows up, since they inform people that they shouldn't even bother showing up.
2. It's also clear that some statements to the media, even ones that customers in certain groups may find alienating or offensive and that may lead them to stay away, are constitutionally protected (and aren't covered by the statement-of-intent-to-discriminate law in the first place). Saying in a media interview "I think Catholicism is a false and evil religion," "I think most Muslims are terrorists," "I don't think blacks should marry whites," "I support David Duke for president," or "I think antidiscrimination laws intrude on our liberty, especially when it comes to forcing me to serve Jews" is constitutionally protected. Sure, it may lead some Catholics/Muslims/Jews/blacks/whites/etc. to not want to come, and may lead others to suspect that they might be treated badly if they come. But these are not themselves true threats of illegal discrimination and don't fall within any other First Amendment exception.
3. Of course, much speech—including threats—can be ambiguous. Whether "This building looks like a fire trap; would you like to buy fire insurance?" sounds like a helpful offer or a true threat of arson depends on the context. The same is true with statements that might or might not be true threats of denial of service. How about "I'm not sure whether gays will feel welcome in my store"? That could be a literally true statement (you really aren't sure about that). But it could also be a pretty clear implicit threat that you'll make gays feel unwelcome.
4. On then to the Oregon bakery case. Here are the facts on which the commissioner relied (emphasis added to indicate the passages that the commissioner or the administrative law judge below referred to):
The full text of the relevant part of the CBN broadcast is reprinted below:
A. Klein: 'I didn't want to be a part of her marriage, which I think is wrong.'
M. Klein: 'I am who I am and I want to live my life the way I want to live my life and, you know, I choose to serve God.'
A. Klein: 'It's one of those things where you never want to see something you've put so much work into go belly up, but on the other hand, um, I have faith in the Lord and he's taken care of us up to this point and I'm sure he will in the future.'
The agency's cross-motion for summary judgment also singles out the text on a handwritten sign that was shown taped to the inside of Sweetcakes' front window during the CBN broadcast:
"Closed but still in business. You can reach me by email or facebook. www.sweetcakesweb.com or Sweetcakes by Melissa facebook page. New phone number will be provided on my website and facebook. This fight is not over. We will continue to stand strong. Your religious freedom is becoming not free anymore. This is ridiculous that we cannot practice our faith. The LORD is good and we will continue to serve HIM with all our heart. [heart symbol]"
The full text of the relevant part of the Perkins' broadcast is reprinted below:
Perkins: '… Tell us how this unfolded and your reaction to that.'
Klein: 'Well, as far as how it unfolded, it was just, you know, business as usual. We had a bride come in. She wanted to try some wedding cake. Return customer. Came in, sat down. I simply asked the bride and groom's first name and date of the wedding. She kind of giggled and informed me it was two brides. At that point, I apologized. I said 'I'm very sorry, I feel like you may have wasted your time. You know we don't do same-sex marriage, same-sex wedding cakes." And she got upset, noticeably, and I understand that. Got up, walked out, and you know, that was, I figured the end of it.'
Perkins: 'Aaron, let me stop you for a moment. Had you and your wife, had you talked about this before; is this something that you had discussed? Did you think, you know, this might occur and had you thought through how you might respond or did this kind of catch you off guard?'
Klein: 'You know, it was something I had a feeling was going to become an issue and I discussed it with my wife when the state of Washington, which is right across the river from us, legalized same-sex marriage and we watched Masterpiece Bakery going through the same issue that we ended up going through. But, you know, it was one of those situations where we said "well I can see it is going to become an issue but we have to stand firm. It's our belief and we have a right to it, you know." I could totally understand the backlash from the gay and lesbian community. I could see that; what I don't understand is the government sponsorship of religious persecution. That is something that just kind of boggles my mind as to how a government that is under the jurisdiction of the Constitution can decide, you know, that these people's rights overtake these people's rights or even opinion, that this person's opinion is more valid than this person's; it kind of blows my mind.'
The administrative law judge, whose decision the commissioner was reviewing, thought these statements did not convey an intent to refuse service in the future:
Whatever Respondents' post-January 2013 intentions may have been or may still be with regard to providing wedding cake services for same-sex weddings, the forum finds that A. Klein's above-quoted statements, evaluated both for text and context, are properly construed as the recounting of past events that led to the present Charges being filed. In other words, these statements described what occurred on January 17, 2013, and thoughts and discussions the Kleins had before January 2013, not what the Kleins intended to do in the future. ^#91;Footnote: In contrast, had A. Klein told Perkins "I said 'I'm very sorry … You know we don't do same-sex marriage, same-sex wedding cakes' and we take the same stand today," the forum's ruling would be different, assuming the Agency had plead a violation of ORS 659A.409 by A. Klein.] To arrive at the conclusion sought by the Agency requires drawing an inference of future intent from the Kleins's statements of religious belief that the forum is not willing to draw. Accordingly, the forum concludes that A. Klein's communication did not violate ORS 659A.409.
But the commissioner disagreed (paragraph breaks added):
Whatever Respondents' intentions may have been or may still be with regard to providing wedding cake services for same-sex weddings, the Commissioner finds that AK's above-quoted statements, evaluated both for text and context, are properly construed as the recounting of past events that led to the present Charges being filed. In addition, they also constitute notice that discrimination will be made in the future by refusing such services.
In the Perkins' interview, AK stated " … We don't do same-sex marriage, same-sex wedding cakes …. " He continued that in discussing Washington's same-sex marriage law with MK, "we can see this becoming an issue and we have to stand firm." The note similarly said " … This fight is not over. We will continue to stand strong …. " On their face, these statements are not constrained to a singular incident or time. They reference past, present and future conduct.
AK did not say only that he would not do complainants' specific marriage and cake but, that respondents "don't do" same-sex marriage and cakes. Respondents' joint statement that they will "continue" to stand strong relates to their denial of service and is prospective in nature. The statements, therefore, indicate Respondents' clear intent to discriminate in the future just as they had done with Complainants.
I think that, on their face, the individual statements do seem to be about the past, or are at most ambiguous. The CBN statement talks about what happened in the past: "I didn't want to be a part of her marriage, which I think is wrong." Part of the Perkins statement also seems to say what happened in the past: "Well, as far as how it unfolded … At that point, I apologized. I said … 'we don't do same-sex marriage, same-sex wedding cakes.' And she got upset, noticeably, and I understand that. Got up, walked out, and you know, that was, I figured the end of it."
And the "it was one of those situations where we said 'well I can see it is going to become an issue but we have to stand firm'" / '[i]t's our belief and we have a right to it, you know'" statement seems ambiguous: Is Klein saying that he and his wife have to stand firm in fighting the agency action, or in continuing to discriminate?
At the same time, I can also see the commissioner's position, though I tend to lean against it. It looks like Klein is saying that he thinks some action is against God's will. He is talking about "stand[ing] firm" and "stand[ing] strong." The Kleins still appear to be baking cakes, and the note looks like it's an attempt to do so off the grid. The statements could be read as implying that the Kleins are going to keep doing what they did before—refusing to bake cakes for same-sex weddings—because they think doing the contrary is wrong, and not just that they are going to keep fighting the agency action while complying with the law.
So I think that Walter Olson (Ricochet), who is a supporter of same-sex marriage, and Ken White (Popehat) are right to criticize this part of the commissioner's ruling. As I noted in my post, the ruling doesn't ban the bakers for speaking out against same-sex marriage, or against public accommodation law. The bakers may rightly worry that, given the commissioner's relatively broad understanding of what constitutes a statement of intent to discriminate, the commissioner (and the courts) will read his order equally broadly. But if they are worried, simply saying that they will comply with the law but they think it's wrong would suffice to put their statements clearly outside the commissioner's order. Nonetheless, it seems that here the ambiguity and uncertainty should have been decided in favor of the speaker.