The Volokh Conspiracy
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Besides being ordered to pay $135,000 in damages for refusing to make a cake for a same-sex wedding, the Kleins—owners of Sweetcakes by Melissa—were also found to have violated Oregon's ban on announcing an intention to discriminate in the future. That statute, ORS 659A.409, provides,
it is an unlawful practice for any person acting on behalf of any place of public accommodation … to publish, circulate, issue or display, or cause to be published, circulated, issue or displayed, any communication, notice, advertisement or sign of any kind to the effect that any of the accommodations, advantages, facilities, services or privileges of the place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of race, color, religion, sex, sexual orientation, national origin, marital status or age ….
In the Oregon Court of Appeals' words, "the statute makes it unlawful to threaten to commit unlawful discrimination," and the Oregon Bureau of Labor & Industries concluded that the Kleins violated the statute by making three statements:
- "[I]n the February 2014 interview with Tony Perkins, Aaron described his brief conversation with Rachel at Sweetcakes that led to him telling her, '[W]e don't do same-sex marriage, same-sex wedding cakes.'"
- In the same interview, "Aaron related an earlier conversation that he had had with Melissa regarding the prospect of legalized same-sex marriage; in that conversation, according to Aaron, he and Melissa agreed that they could 'see it is going to become an issue but we have to stand firm.'"
- A handwritten sign "was taped to the inside of Sweetcakes' front window, which read, in part, 'Closed but still in business…. 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.'"
The court noted that a ban on threats of discrimination is constitutional: The Supreme Court's decision in Rumsfeld v. FAIR (2006) noted that "Congress may, for example, require employers to 'take down a sign reading 'White Applicants Only."" But the court concluded that these three statements did not amount to punishable (or enjoinable) threats of discrimination:
In the final order, BOLI reasoned that the above statements, considered in "text and context," were properly construed as "the recounting of past events," but also "constitute notice that discrimination will be made in the future by refusing such services." As a result, BOLI's final order included language ordering the Kleins "to cease and desist" from making any communication "to the effect that" they would discriminate in the future "on account of sexual orientation." The language in the order precisely tracks the statutory language in ORS 659A.409, quoted above….
Aaron's statements in the February 2014 interview[, however,] can be reasonably understood only one way: as describing past events. BOLI's order states that Aaron "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." But regardless of whether his words can be understood to refer generally to same-sex marriage and cakes, BOLI ignores the context in which he made that remark during the interview. Aaron was asked by the interviewer, "Tell us how this unfolded and your reaction to that." He responded by describing what had happened on the day of the refusal, including, "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." Viewed in that context, Aaron's recounting of those historical events cannot be understood as a statement that he would deny service in the future.
Likewise, Aaron's recounting, during the interview, of past conversations that he and Melissa had engaged in before the denial of service cannot reasonably be understood as an assertion of their plans to discriminate in the future. Aaron was asked by the interviewer whether the controversy with the complainants had caught him off guard, and he responded, "[I]t 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.' " That statement plainly recounted his past thinking and cannot reasonably be construed as the kind of threat of prospective discrimination that ORS 659A.409 prohibits.
That leaves the note taped to the Sweetcakes window …: "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]."
BOLI concedes that the statement could refer to their intention to stand strong in their legal fight, but argues that it "also could refer to the denial of services to same-sex couples." We are not persuaded that, given the ambiguity in the note, it can serve as an independent basis for BOLI's determination that the Kleins violated ORS 659A.409—and, indeed, BOLI did not purport to rely on the note alone. As explained above, in overturning the ALJ's determination regarding ORS 659A.409, BOLI relied heavily on statements in the Perkins interview—taken out of context—to conclude that the Kleins had communicated an intention to discriminate in the future. When those statements and the note are viewed in their proper context, the record does not support BOLI's conclusion that the Kleins violated ORS 659A.409. We therefore reverse that part of BOLI's order.