Free Speech

Bakers Lose in Oregon Case, But Wedding Singers / Painters / Photographers Might Win

The Oregon Court of Appeals upholds a $135,000 damages award imposed on Sweetcakes by Melissa for its owners' refusal to make a cake for a same-sex wedding.


Today's Klein v. Oregon Bureau of Labor & Industries upholds a $135,000 damages award imposed on Melissa & Aaron Klein (owners of Sweetcakes by Melissa) for refusing to make a wedding cake for a same-sex ceremony. The court acknowledged that people who create or perform First-Amendment-protected expression (such as singers, composers, painters, or sculptors, and I would add photographers to that list) might have a First Amendment not to create such expression that they find objectionable, even when they hire themselves to the public:

[T]he services of a singer, composer, or painter … [might] fit the definition of a "place of public accommodation" under ORS 659A.400. One can imagine, for example, a person whose business is writing commissioned music or poetry for weddings, or producing a sculpture or portrait of the couple kissing at an altar. One can also imagine such a person who advertises and is willing to sell those services to the general public, but who holds strong religious convictions against same-sex marriage and would feel her "freedom of mind" violated if she were compelled to produce her art for such an occasion. For the Kleins, this is that case. BOLI disagrees that a wedding cake is factually like those other examples, but the legal point that those examples illustrate is that existing public accommodations case law is awkwardly applied to a person whose "business" is artistic expression. The [Supreme] Court has not told us how to apply a requirement of nondiscrimination to an artist.

We believe, moreover, that it is plausible that the United States Supreme Court would hold the First Amendment to be implicated by applying a public accommodations law to require the creation of pure speech or art. If BOLI's order can be understood to compel the Kleins to create pure "expression" that they would not otherwise create, it is possible that the Court would regard BOLI's order as a regulation of content, thus subject to strict scrutiny, the test for regulating fully protected expression. See Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (1995) (application of public accommodations statute violated the First Amendment where it "had the effect of declaring the sponsors' speech itself to be the public accommodation," thus infringing on parade organizers' "autonomy to choose the content of [their] own message"); see also Riley v. National Federation of the Blind (1988) (explaining that "[m]andating speech that a speaker would not otherwise make necessarily alters the content of the speech," and subjecting such regulation to "exacting First Amendment scrutiny")….

But the court concluded that even customized wedding cakes aren't inherently covered by the First Amendment speech compulsion doctrine:

[T]he question is whether that customary practice, and its end product, are in the nature of "art." As noted above, if the ultimate effect of BOLI's order is to compel the Kleins to create something akin to pure speech, then BOLI's order may be subject to strict scrutiny. If, on the other hand, the Kleins' cake-making retail business involves, at most, both expressive and non-expressive components, and if Oregon's interest in enforcing ORS 659A.403 is unrelated to the content of the expressive components of a wedding cake, then BOLI's order need only survive intermediate scrutiny to comport with the First Amendment. See United States v. O'Brien (1968) ("[W]hen 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.").

[T]he Kleins' argument that their products entail artistic expression is entitled to be taken seriously. That being said, we are not persuaded that the Kleins' wedding cakes are entitled to the same level of constitutional protection as pure speech or traditional forms of artistic expression. In order to establish that their wedding cakes are fundamentally pieces of art, it is not enough that the Kleins believe them to be pieces of art. See Nevada Comm'n on Ethics v. Carrigan (2011) ("[T]he fact that a nonsymbolic act is the product of deeply held personal belief—even if the actor would like to convey his deeply held personal belief—does not transform action into First Amendment speech."). For First Amendment purposes, the expressive character of a thing must turn not only on how it is subjectively perceived by its maker, but also on how it will be perceived and experienced by others. Here, although we accept that the Kleins imbue each wedding cake with their own aesthetic choices, they have made no showing that other people will necessarily experience any wedding cake that the Kleins create predominantly as "expression" rather than as food.

Although the Kleins' wedding cakes involve aesthetic judgments and have decorative elements, the Kleins have not demonstrated that their cakes are inherently "art," like sculptures, paintings, musical compositions, and other works that are both intended to be and are experienced predominantly as expression. Rather, their cakes, even when custom-designed for a ceremonial occasion, are still cakes made to be eaten. Although the Kleins themselves may place more importance on the communicative aspect of one of their cakes, there is no information in this record that would permit an inference that the same is true in all cases for the Kleins' customers and the people who attend the weddings for which the cakes are created. Moreover, to the extent that the cakes are expressive, they do not reflect only the Kleins' expression. Rather, they are products of a collaborative process in which Melissa's artistic execution is subservient to a customer's wishes and preferences. For those reasons, we do not agree that the Kleins' cakes can be understood to fundamentally and inherently embody the Kleins' expression, for purposes of the First Amendment.

We also reject the Kleins' argument that, under the facts of this case, BOLI's order compels them to "host or accommodate another speaker's message" in a manner that the Supreme Court has deemed to be a violation of the First Amendment. In the only such case that involved the enforcement of a content-neutral public accommodations law, Hurley, the problem was that the speaker's autonomy was affected by the forced intermingling of messages, with consequences for how others would perceive the content of the expression. Hurley (reasoning that parades, unlike cable operators, are not "understood to be so neutrally presented or selectively viewed," and "the parade's overall message is distilled from the individual presentations along the way, and each unit's expression is perceived by spectators as part of the whole"). Here, because the Kleins refused to provide their wedding-cake service to Rachel and Laurel altogether, this is not a situation where the Kleins were asked to articulate, host, or accommodate a specific message that they found offensive. It would be a different case if BOLI's order had awarded damages against the Kleins for refusing to decorate a cake with a specific message requested by a customer ("God Bless This Marriage," for example) that they found offensive or contrary to their beliefs….

In short, we disagree that the Kleins' wedding cakes are invariably in the nature of fully protected speech or artistic expression, and we further disagree that BOLI's order forces the Kleins to host, accommodate, or associate with anyone else's particular message. Thus, because we conclude that BOLI's order does not have the effect of compelling fully protected expression, it does not trigger strict scrutiny under the First Amendment.

The court concluded that the order was therefore only subject to (at most) intermediate scrutiny under the First Amendment—a relatively government-friendly test—and it passed such scrutiny because of the government interest in "prevent[ing] the dignitary harms that result from the unequal treatment of same-sex couples who choose to exercise their fundamental right to marry." But the court again noted that the analysis might be different for professionals who are asked to create First-Amendment-protected expression:

Again, it is significant that BOLI's order does not compel the Kleins to express an articulable message with which they disagree; rather, their objection is to being compelled to engage in any conduct that they regard as expressive.

And earlier, it noted that this may extend even to bakers, if they were baking something that would be understood as art by viewers:

To be clear, we do not foreclose the possibility that, on a different factual record, a baker (or chef) could make a showing that a particular cake (or other food) would be objectively experienced predominantly as art—especially when created at the baker's or chef's own initiative and for her own purposes. But, as we have already explained, the Kleins never reached the point of discussing what a particular cake for Rachel and Laurel would look like; they refused to make any wedding cake for the couple. Therefore, in order to prevail, the Kleins … must demonstrate that any cake that they make through their customary practice constitutes their own speech or art. They have not done so.

That would extend, I think, to the bakers' refusing to write particular text on the cake, as one of the earlier quotes notes ("because the Kleins refused to provide their wedding-cake service to Rachel and Laurel altogether, this is not a situation where the Kleins were asked to articulate, host, or accommodate a specific message that they found offensive").

I think this analysis is generally right, though I might quibble with a few details in the long opinion (available in full here). Whatever you think about such applications of antidiscrimination law (or about the particular damages award in this case) as a matter of policy, or of broader conceptions of liberty, the First Amendment bars compulsion of speech, not of all conduct. And while "speech" for First Amendment purposes has long included symbolic as well as verbal expression, it doesn't include all human behavior, even human behavior that can be seen as "artistic"—for more on that, see Dale Carpenter's and my Masterpiece Cakeshop amicus brief.

The court also rejected the Kleins' religious exemption claim, holding that under Employment Division v. Smith (1990) the Free Exercise Clause doesn't require such exemptions from generally applicable laws. (The Oregon Constitution's religious freedom provision has been interpreted the same way, and Oregon doesn't have a Religious Freedom Restoration Act.) It did hold for the Kleins on a somewhat different (but related) matter, which I discuss in a separate post.

NEXT: Seattle Bans Landlords From Screening "Qualified" Tenants

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  1. Your view on this issue is very disappointing.

    1. Yup. Even if baking a cake is not expressive, a wedding celebration certainly is, and people ought to have the right not to participate.

      1. No one buys into the argument that baking a cake is participation. Who is a participant? The driver who delivers rented chairs? The participation model suggest complicity in something that someone disapproves of. That is precisely why nondiscrimination laws apply to public accommodations in the first place.

        Approval is neither solicited nor required. Suppose, for example, that someone objected to a Jewish man marrying a Christian woman or an African-American man marrying a white woman? Does the same thing apply?

        1. Could the government ban baking cakes for gay weddings? For all weddings? Could it ban delivering chairs to any event because they disprove of the message of that event? And yes, no one should have to participate in a wedding ceremony, or other event, with which they disprove.

        2. “Suppose, for example, that someone objected to a Jewish man marrying a Christian woman or an African-American man marrying a white woman? Does the same thing apply?”

          Yes. Freedom of speech applies even to views we disagree with. Actually especially so.

          “Jewish man marrying a Christian woman”

          Many, many Jews would still object to this because it cuts off Jewish descent.

        3. Nobody buys into that argument, except everybody who does. Which is an awful lot of people.

        4. DCH: “No one buys into the argument that baking a cake is participation.”

          But many of us “buy into” the argument that requiring the creation of a one-of-a-kind product, to be used in a celebration of which one disapproves, is /compelled speech/ (moreover fining $135,000 [!] for refusing to take part in the celebration).

          This should be anathema to anyone who cares for freedom of speech. And it should hold whether or not one concedes that cake-making is “artistic” (which the state Supreme Court waves its hands about) and whether or not there is a religious basis for the disapproval.

          And about your other examples: yes one should not have to take part in those celebrations either! My wife and I can get along just fine without those hypothetical cake bakers.

          1. if they could only sell to people who shared their beliefs they won’t have advertised to the public, a group that each member has a constitutional right to their own beliefs and a civil right to be able to have ‘full enjoyment of any’ service the business offers to the public without discrimination of creed or religion.

            If a business can’t serve me because they say they are an Baptist I’ll just reply “Why did you invite Lutherans like me to come and buy then?”

            1. Where do you see in the Constitution a “right” to be served by any business that offers to the pbulic?

              1. Why in the 9th and 10th amendments of the federal Constitution which allows states to enumerate rights not stated directly in the federal Constitution which Oregon has done:

                “(2) The opportunity to obtain employment or housing or to use and enjoy places of public accommodation without unlawful discrimination because of race, color, religion, sex, sexual orientation, national origin, marital status, age or disability hereby is recognized as and declared to be a civil right.” 2015 ORS 659A.006 (2)

                Similar in Colorado, Washington, and other states with civil rights laws.

                1. I didn’t say that the states don’t have the right to enact such laws. You stated that the Constitution (which implies federal if you don’t qualify it with “state”) gives people the right to be served at someone else’s business. Where do you see that?

                  1. No, scroll up. I said they had a constitutional right to their own beliefs (both federal and state), nothing more. I then went on to mention civil rights where are here ones recognized by the state of Oregon. It is these recognized rights that say that a business making offers to the public can not discriminate in the process by religion, sex, etc.

                    Since the business freely admitted they were engaging in discrimination because of belief (their’s), sexual orientation, and even sex (no one of the marrying couple isn’t the wrong sex) they are violating the customer’s civil rights to be free from such discrimination.

                    If they can’t sell to the public while respecting their civil rights why are they making invitations to the public in the first place? If they can only sell something to certain people then a private membership organization is the way to go.

                2. But the states have no right to infringe on the first amendment this way. Regardless of what some sellout prog judge has to say.

      2. As Eugene argued in his Masterpiece brief, your “objection to providing cakes for the weddings of same-sex couples cannot be limited (1) to cakes, (2) to weddings, or (3) to same-sex couples.” For example, a chef would be able to refuse serving a black couple celebrating their anniversary in his restaurant. That result would go a long way to gutting anti-discrimination law.

        1. Gutting anti-discrimination law is an aspiration among a substantial (but dwindling) element of American society.

          Except discrimination against religious claimants, however. People who are skeptical about public accommodation laws tend to favor expansive, if not limitless, special privilege for religious claimants.

          1. not all religious claimants though. only the super oppressed christian ones.

            1. Naturally.

              Or, as they prefer, supernaturally.

  2. So since the act of cutting meat isn’t expressive, I can force a Muslim butcher into cutting pork? I don’t get how you can separate the two cases. Catholics and other Christian’s believe marriage to be a sacramental, one of the prime ones from God. Just because you or others do not does not mean it has no expressive religious context. We wouldn’t force a Catholic wine maker to sell wine to a devil cult practicing a black mass. It is idiotic we try to enforce behavior on this arena.

    Public accommodation needs to be reigned in under the right to assembly and association. There is no security need for a baker. Nobody had a right to dignity (this is as ludicrous as believing one can sue over hurt feelings). Can we stop babying certain political groups?

    1. JesseAz: 1. There’s certainly no Free Speech Clause right not to cut pork. Cutting or not cutting pork isn’t a free speech matter. Likewise, there’s no Free Speech Clause right to smoke marijuana, consume peyote, refuse to pay your taxes; any religious practice might have an “expressive religious context” in a broad sense, but that doesn’t mean that the Free Speech Clause covers all such behavior.

      2. Whether religious objectors should have a presumptive Free Exercise Clause right to an exemption from generally applicable laws is a separate question; the Supreme Court in Employment Division v. Smith said no. Some state courts have interpreted their state constitutions’ religious freedom clauses as saying yes (but Oregon courts have said no), and some legislatures have enacted Religious Freedom Restoration Acts that secures such a right (but the Oregon Legislature hasn’t).

      For more on why I think the Smith decision is right as a matter of federal constitutional law, but state RFRAs are also generally a good idea (though I quibble with their wording), see my A Common-Law Model for Religious Exemptions.

      1. The problem here is that we’re analyzing as a free speech issue what ought to be analyzed as a involuntary servitude issue. That’s where the whole thing goes wrong, just blowing off the horror and unconstitutionality of compelled labor.

        1. Where were you in the Heart of Atlanta Motel’s moment of need?

          Let me guess — ‘running the local libertarian organization.’

    2. No. The Muslim butcher is not going to have pork on the menu. Ergo he is not obligated to serve it.

      1. David Cary Hart: I took the question to assume (1) a butcher who’ll cut up meat that you bring in — there seem to be some such butchers, who usually specially in cutting up game for hunters, e.g.,…..rocessing/ and (2) a law that requires such butchers to take all requests (not quite a traditional antidiscrimination law, but more like the rules applicable to some utilities, common carriers, and in the past to some inns).

        In you go with your pig, or perhaps your wild boar (as best I can tell, Muslims object to wild boar as well as to pigs). I refuse, says the butcher. The question, then, is: Does the butcher have a constitutional right to be exempted from the law requiring him to butcher whatever is brought to him?

        1. Does the butcher have the right to be sued out of running their own business because a bitter person files suit against a Halal butcher for not processing their pig because the butcher didn’t write their menu with a lawyer standing next to them?

          Looks like a yes.

          1. Under current law, of course, the law would be unconstitutional if the butcher could show that the law was passed with animus against Halal butchers, and not just with indifference to Halal butchers. But I’m not sure why this distinction matters to the butcher, whose religion doesn’t care why the legislators passed the law.

        2. Its the business with the responsibility, not any particular employee. If one employee requests religious accommodation, that doesn’t free the business from respecting the customer’s civil rights. Let someone else cut the meat, hire a temp, 3rd party contract the job out.

          Though this is hypothetical, even if a business did butcher meat brought in to them they could refuse pork just because they wanted their business environment to remain kosher or halal compliant.

          This just dances around the fact that Sweetcakes made the design of wedding cakes the customer actually did want to buy,

    3. “Catholics and other Christian’s believe marriage to be a sacramental, one of the prime ones from God. ”

      That would explain why conservative leaders and Republican officials such as Donald Trump, Newt Gingrich, Steve Mnuchin, Wilbur Ross, Rush Limbaugh, Steve Bannon, and Rudy Guilani get married so often! It’s honoring their God and traditional values!

      Why do none of these ostensibly religious claimants object to adulterers, the gluttonous, the greedy, the divorced? One could reasonably conclude they are using religion as a convenient cloak for pedestrian-class, old-timey bigotry.

      1. It is a common fallacy of framing that the objection is to the individuals. This fallacy works very well for those who wish to cast the issue as one of hatred of individuals.

        The objection is to the behavior, and a gay wedding celebrates a homosexual sexual union.

        If an adulterer were to hold a party celebrating adultery, a Catholic would certainly object. But if an adulterer is getting married, that symbolizes ending adultery, which is not a problem.

      2. Arthur is using his comment to cloak his anti conservative, anti-Christian progressive bigotry.

    4. Catholics and other Christian’s believe marriage to be a sacramental, one of the prime ones from God

      I’m curious to see the form that the Kliens ask customers when they try to order a cake:

      Sample questions one might find on it:
      a) Do you believe in Jesus Christ our lord and savior?
      b) Have you or your future spouse had pre-marital sex?
      c) Have you have had unclean thoughts?
      d) Have you ever masturbated?
      f) Do you wear clothes made of blended fabrics?

      Wait – they don’t ask those questions? Then the Kleins are raving hypocrites.

      1. Wait – they don’t ask those questions? Then the Kleins are raving hypocrites.

        But the Kleins are being asked to facilitate and join in the celebration of a wedding, not join in the celebration of any of these other activities. Nor does a wedding publicly imply approval of any of these other activities.

    5. “Catholics and other Christian’s believe marriage to be a sacramental” Protestants do not. And just as the customer of a Kosher deli can use their purchase in non-kosher ways, so can the person buying wine, wedding cakes or what have you in ways that are consistent with their own beliefs, not the business owners.

      If the business wanted to ‘assemble and associate’ with a subset of the public they wouldn’t be making general advertisements to the public. Run a private membership business, have at it, but there is no right to invite everyone to come buy and then tell a responding customer ‘Oh, we didn’t mean you.”

    6. if he cuts pork for everyone else, then yes, you can.

  3. The $135,00 fine, being much higher than usual criminal penalties, is punitive, and the Kleins should have been afforded rights in a criminal case such as retirement of proof beyond a reasonable doubt and the right to a jury trial.

    1. Attorney Alan: 1. The court concluded that the $135,000 damages award was within the range of emotional distress damages in such cases. Maybe it was mistaken, but do you have any thoughts on why exactly its analysis was unsound? (Note that compensatory damages awards, including emotional distress awards, are routinely higher than criminal fines — that doesn’t by itself make them punitive.)

      2. Even if the fine is viewed as a form of punitive damages award, aren’t those routinely entered without proof beyond a reasonable doubt? (Many states require clear and convincing evidence for punitive damages awards — but not for emotional distress damages as such — but that’s not proof beyond a reasonable doubt, and I don’t know of any cases that hold that this heightened evidence requirement is constitutionally mandated.)

      1. Eugene: I know you’re focused on the First Amendment implications of this ruling, but the damages issue seems unusual to me. [Admittedly, I’m not terribly familiar with administrative procedures adjudicating non-economic damages as BOLI did here. Perhaps it is common and I’m just ignorant.] It makes sense for an administrative agency to address economic harm (e.g., registrar of contractors resolving harm caused by a contractor when work must be repaired). But this case involved the complainants’ emotional harm caused by the bakers’ actions and the accompanying media coverage. This seems most akin to intentional infliction of emotional distress, which requires an “extraordinary transgression of the bounds of socially tolerable conduct.” It generally doesn’t include mere indignities, insults, or annoyances. And the defendants’ conduct must be malicious and intentional. When a plaintiff brings an IIED claim, the defendant usually gets fulsome discovery about anything that might have affected that plaintiff’s emotional health (including mental health records). I’m curious if the BOLI process allowed that discovery, how it measured the bakers’ conduct compared to what IIED requires, etc. It is just curious to me that we’re using these types of administrative proceedings to resolve purely non-economic damages claims.

      2. I cannot believe that someone suffers $135,000 of emotional damages for failing to have a cake baked. Oregon uses contested case procedures, where the initial hearing–very informal–is before an agency employee. From there the appeal–not de novo–goes tio the Oregon Court of Appeals. The usual rules of evidence were never employed in this case.

        There is an Oregon Supreme Court case that does hold that if a fine is in the range of a typical criminal fine, or beyond, criminal case protections are required.

        1. I cannot believe that someone suffers $135,000 of emotional damages for failing to have a cake baked.

          It is especially difficult to imagine when the person went out of his way to locate a baker who would refuse him.

          1. Considering these were women and returning customers just shows you don’t even know what this case is about.

            1. Considering these were women and returning customers just shows you don’t even know what this case is about.

              I actually had Masterpiece Cakeshop in mind. It does seem that many of these cases are brought by predatory activists. In this case the complainants said that they felt “shame and anger” when a prohibition from the Bible was quoted to them. But if the Bible means nothing to them why should they feel shame and anger, any more than they would feel shame and anger if the Quran were quoted to them to criticize their failure to wear a hajib?

              1. Actually I don’t know of a one that was brought by ‘predatory activists’. Do you have an example?

                And why do you assume the Bible meant ‘nothing to them’? Many Christians support marriage equality and something said as a condemnation is still such regardless of what superstition it is based on.

                1. They objected to a direct quote from the Bible. Are people to be fined for quoting the Bible? Remember what the Supreme Court said in Obergefell about those who oppose same-sex marriage:

                  Marriage, in their view, is by its nature a gender-differentiated union of man and woman. This view long has been held and continues to be held in good faith by reasonable and sincere people here and throughout the world. ?

                  Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.

                  These people are trying to live by their religious principles. The lgbt group originally claimed that all they asked for was to live and let live. Now it seems that they are doing everything they can do to “out” those who disagree with them, subject them to massive public opprobrium, and drive them out of business. They have become the bullies, and will not be satisfied until those who disagree with them are utterly destroyed.

                  Why can’t they just accept that some “religious and sincere people” view the matter differently and just try to live and let live? If a baker were to tell me that I am immoral because I don’t follow the Quran I would not be insulted. Would you?

                  1. It doesn’t matter where insults come from, people can still be offended.

                    And if the business owner fells they can’t sell to people of all beliefs they are free to have a private membership businesss of the ‘right people’ and make the offer of sale to just that membership.

                    What they obviously can’t do is make a general invitation to the public and then reject the invited customers that don’t share the owner’s beliefs.

                    Announcing their need to religiously discriminate has to happen before the invitation, not after. And that would be a self correcting problem anyway. Masterpiece Cakeshop only grossed $5000 a year on wedding cakes for a two location business. But they have lost 40% of their sales. Similarly Sweetcakes closed their storefront before the state had even made a decision. It’s not odd to find out that customers don’t want to buy baked goods of any stripe from those that don’t respect civil rights.

                    1. It’s not odd to find out that customers don’t want to buy baked goods of any stripe from those that don’t respect civil rights.

                      Yes, this is definitely the strategy. Anybody who doesn’t agree with them is to be driven out of business. And anybody who dares to be a customer of such a pariah is to receive the same treatment. This regimen of terror has proved most effective, replacing live and let live just as soon as they got the upper hand. The tables have turned 180 degrees and they are now the bullies, showing no compassion for the views “held in good faith by reasonable and sincere people.” And people wonder how somebody as flawed as Trump was able to beat Clinton.

                    2. And people who don’t respect the law and rights of others really have no one to blame but themselves. I don’t buy from businesses whose owners are reprehensible people. I’d never stay in a Trump hotel, I don’t buy from businesses that discriminate against civil rights.

                      Again, this is the business owner’s choice, they are the one with the need to discriminate against customers, its up to them to figure out a way to do it without driving themselves out of business.

                2. In the Elaine Photography case, based on the accounts I’ve read, they contacted multiple photographers, asking each if they were willing to photograph a SSM ceremony, and only settled on Elaine as their choice of wedding photographer *after* confirming she wasn’t willing to do the job.

                  They were actively looking for somebody who’d refuse.

                  1. Doing a scan of stories and the court records I can’t find any such claim. Now it might be in some letter page where people make up all sorts of things like they do with this case e.g. it was about the design of the cake, they wanted names on the cake, etc, but that’s just wishful thinking.

                    And if you have to go that far back in time then the use of the term ‘many’ in the phrase “It does seem that many of these cases are brought by predatory activists” is a bit hyperbolic.

    2. Oregon has high fines, just a year earlier the same head of BOLI handed a $348,000 fine against an business owner who had committed civil rights discrimination against a Christian.

  4. Attorney Alan: As to jury trial rights, punitive damages are also not governed by the Sixth Amendment criminal jury trial right, which applies to states as well as the federal government. The Seventh Amendment civil jury trial right doesn’t apply to states.

    The Oregon Constitution does secure a right to trial by jury in civil cases: “In all civil cases the right of Trial by Jury shall remain inviolate.” Oregon courts have read the “shall remain” language as applying only to “common-law claims and defenses that customarily were tried to a jury when Oregon adopted its constitution in 1857, as well as those claims and defenses that are of like nature,” and not covering completely new kinds of claims. Based on this, Oregon courts seem to have concluded that Bureau of Labor & Industries antidiscrimination decisions — including damages awards — can be rendered without juries; but of course one can argue that the state constitutional provision should be read more broadly than that.

    1. ” The Seventh Amendment civil jury trial right doesn’t apply to states.”

      I have never seen a sensible explanation for why the 6th amendment would apply to the states, but not the 7th. It’s just arbitrary jurisprudence, treating the bill of rights like a Chinese menu. “I’ll have a double helping of the 1st, hold the 7th.”

  5. The court’s First Amendment analysis rests heavily on its decision to treat “cake-making” as a single activity — which inevitably leads to the conclusion that it is only partly expression, and thus regulating cake sales is only subject to intermediate scrutiny. This strikes me as a rather malleable and problematic standard.

    For example, could the Kleins simply reorganize their menu so they sold (i) un-decorated cakes at a specified fee for anyone, including for gay weddings; and (ii) artistic cake decoration services for a separate fee, but not for gay weddings? Cake-making as a whole may not be “predominantly expressive,” but artistic cake decoration as a standalone service arguably would be.

    1. You wouldn’t even need to disclose the fact that you’d only decorate a heterosexual marriage. You simply decorate the cake with inedible elements that the wedding party remove. But your suggestion strikes me as workable as well. Since a Halal butcher won’t have cuts which violate their religious beliefs and therefore can’t be compelled to sell them it only makes sense for a Christian baker simply specify their cakes are for heterosexual weddings.

    2. For example, could the Kleins simply reorganize their menu so they sold (i) un-decorated cakes at a specified fee for anyone, including for gay weddings; and (ii) artistic cake decoration services for a separate fee

      There has already been an incident in Colorado where an a church group attempted to get a an anti-gay message written on a cake. The shop baked them a cake and gave them the tools to write the message themselves. That group filed a complaint and lost.

      The Kleins are simply refusing to offer a service they offer to anyone else (which I assume also means those that are getting remarried after a divorce, non-christians, etc). and are excluding one specific group.

  6. The root problem is this flawed implementation of the concept of public accommodations clashing with the freedom of speech and association we claim to prize in the rest of our law. Either we choose one or the other. Do you like keeping your freedom to run your business and life as you choose or would you rather the 1/1000 cake shops in the world that don’t bake ssm wedding cakes fall in line? Personally I pick the former since the latter, not only is a questionable goal in itself, but is so vague it could begin justifying things like racial quotas for friends or rape of prostitutes. Even the left flouts the spirit of the concept themselves all the time with public institutions doling out goodies based on sex and race.

    1. These are only in tension if you assume that who you serve is an element of expression.

      Which is sounding more and more to me more like trying to pick a new door to your desired discrimination after the previous one didn’t avail.

      1. No, they’re in tension if you assume that who you serve is an element of individual liberty.

        1. Liberty? Is that in the penumbras and emanations?

          1. Liberty? Is that in the penumbras and emanations?

            No need to go to the penumbras.

            nor shall any state deprive any person of life, liberty, or property, without due process of law

            Unless your claim is that ‘liberty’ here refers simply to whether a person is imprisoned or not.

            1. So it IS substantive due process!
              I never realized you were such a Justice Douglas fan.

              Seriously though, right to association is center-mass what you’re talking about here; it’s just that the Court has held that yields to equal protection.

              From an ‘is’ point of view, I don’t see how any other clause, whether Speech, Servitude, or SDP/Liberty, would work any better. From an ‘ought’ point of view, just go with association and don’t twist yourself into legalistic knots.

              1. “it’s just that the Court has held that yields to equal protection.”

                But this isn’t an equal protection (of the law) case. “Equal protection” is about the government, if it’s going to prohibit murder, must equally prohibit murders of any group, rather than just prohibiting murders of a favored group, and ignoring murders of other groups. It’s about not making some group “outlaw”, outside the protection of the law.

                Equal protection doesn’t speak to what sort of protection is offered, only that it must be equal.

      2. If you make somebody bake a cake they don’t want to thats decreasing their freedom to associate and freedom to not perform an action they don’t want to perform (speech). It doesn’t magically become not so because you think the end goal is noble. This isn’t exactly rocket science.

        1. I wasn’t around for most of the ’60s, but I’ll bet the voices of intolerance and backwardness were just as attractive then.

        2. That’s not speech. Hasn’t been speech for years.

          You’re making my point for me.

          1. So, what’s the situation you’re aiming for here? People can be forced to pick cotton, because picking cotton isn’t “expressive”, but they’re allowed to badmouth their masters while they do so, because the badmouthing IS speech?

            What we’ve got going on here is the classic “dragon hunter becomes a dragon” scenario; The civil rights community started out fighting to rescue the liberty of the oppressed, and then kept going by increments until they were doing the oppressing. And never noticed they’d made the transition from saving former slaves to enslaving.

            Goldwater was right about the 1964 Civil rights act. They meant well by it, but it was a horrible, horrible mistake.

            1. So you are responding to the point that this isn’t a First Amendment situation by bringing in the Thirteenth. Which tells a lot about how the arguments here are in service of an agenda.

              Personally, I’m pretty comfortable with the line between antidiscrimination laws and slavery. More so because that exact argument was used about race back in the day and our society pretty clearly became on a whole more free because of the impositions on freedom of association.

              You don’t even argue it wasn’t. Instead what you’ve got going is a slippery slope argument where unless we let you discriminate all us whites will be slaves. Which is…bad logic and is getting dangerously near a white victimization narrative of the sort I see coming from folks a lot less savory than you.

              1. This particular slippery slope is one we’re halfway down, and accelerating fast.

            2. no one is forced to do anything other than treat customers equally. you can sell cakes, or you can refuse to sell cakes; but you cant sell cakes and refuse black customers. your analogy would only make sense if someone ran a cotton picking business but refused to supply clothing companies headed by certain races, etc.

      3. Sarcast0: “These are only in tension if you assume that who you serve is an element of expression.”

        Let’s take out AmosArch’s association issue (sorry Amos — you can bring it back in later). What you has is the issue of free expression vs. non-discrimination. The free expression issue comes down to /not/ whom you will serve but /what kind of expression/ the customer can reasonably demand.

        An off-the-shelf cake is a content-neutral product. It’s in. A full-blown, one-of-a-kind, wedding cake celebrating George and Steve’s wedding, Ebony and Connor’s vows, or Madonna and Moishe’s nuptials requires special scrutiny.

        As to whether some bigots take advantage — sometimes you just have to let them have the same rights as actual, good people. You know — let a certain number of criminals go free rather than jail one innocent guy.

        1. I don’t disagree with anything you say. Neither does the court:

          “we do not foreclose the possibility that, on a different factual record, a baker (or chef) could make a showing that a particular cake (or other food) would be objectively experienced predominantly as art — especially when created at the baker’s or chef’s own initiative and for her own purposes.”

          1. Pox’s position mimics that of the the petitioners in Masterpiece (only off-the shelf cakes are not to be considered art), and I don’t think the Oregon court agreed with Pox that a “full-blown, one-of-a-kind wedding cake” automatically should be considered art.

            In particular, the Oregon court said (as noted above by Eugene), “because the Kleins refused to provide their wedding-cake service to Rachel and Laurel altogether, this is not a situation where the Kleins were asked to articulate, host, or accommodate a specific message that they found offensive.” Note that the service the Kleins refused to provide was cake customization, and thus the court does not agree that customization should be automatically considered as art.

            1. Agreed. The key word being automatically. The case-by-case likely turning on Pox’s content-neutral detail.

              1. I’m pretty certain Pox argued that every customized cake is not content neutral, but perhaps he can clarify for us.

        2. “A full-blown, one-of-a-kind, wedding cake celebrating George and Steve’s wedding, Ebony and Connor’s vows, or Madonna and Moishe’s nuptials requires special scrutiny.”

          no, it doesnt. if you had sent a straight white couple to buy in place of George and Steve/Ebony and Connor/Madonna and Moishe, there would be no problem.

      4. Sarcastr0, not all arguments about liberty are of necessity limited to existing constitutional jurisprudence. Or any constitutional jurisprudence.

        1. Fair enough.
          Except AA invokes freedom of speech and association as the interest opposing public accommodations. That’s a tellingly strained association whose only utility is legal.

          1. Its only utility is legal if you don’t much value liberty itself.

  7. So what everyone has learned from this is not to disclose one’s prejudices which has some possibility for civilized discussion. Instead bakers and the rest will simply become too “busy” to take on some work.

    1. Its not enough to say you didn’t hire women because there weren’t enough qualified around, its not enough to say wearing hijabs at a clothing story for beach bum American teens interferes with duties. ‘Unconscious bias’ is the new boogeyman which is being hunted down. What makes you think when the time comes they will be satisfied with just your word in this particular area?

      1. That’s probably true.

    2. On a social level, this didn’t work in the past with those who wanted to continue with racial discrimination, what makes you think it will work now?

      1. They have faith, Sarcastro.

        1. Faith? It’s a considered possibility. Not a good one.

      2. Quite right it didn’t work.

        1. Oy, when only ALK gets your meaning…

          I was trying to say that the attempt to use pretext in order to discriminate didn’t work back then; I don’t see it working now either.

  8. Is anyone else bothered that this decision wasn’t held waiting for Masterpiece Cakeshop? Seems silly to announce a decision when SCOTUS is dealing with a case that is exactly on-point.

    1. Not if you’re trying to influence the Supreme court by creating facts on the ground they’d have to reverse.

      1. I’ll take Masterpiece Cakeshop only if you give me really good odds. Say 3-1. Those were my odds (one-to-three) at another site, about Doug Jones’ chances. He won that one. I don’t though, expect there to be yet another upset in the making.

  9. Seems to me some of the profs and commentators are under the unspoken assumption that eliminating discrimination is something the government should pursue as a goal unto itself. Perhaps its a laudable goal but isn’t it just another step to saying government should pursue ‘secular christian values’ or respect for the politburo as a goal unto itself? Aside from the elimination of discrimination being impossible and something even the left doesn’t respect when it comes to its own purposes. Is blowing trillions of dollars trying to make the last 1/1000th cake shops serve SSMs and ensure that the respect of John Q for all races, genders, and identities is identical down to the femtometer across the board really still serving a practical purpose? I thought the MSM said we all agreed that morality was something the government should stay out of, after the decline of the christian right.

    1. Do you similarly oppose special privileges than benefit religious claimants?

      Or are you another fan of the ‘heads we win/tails you lose’ approach (religious claimants can discriminate against others/others can’t discriminate against religious claimants)?

    2. Civil rights means Communism, AA? You truly are a blast from the past.

      1. That just garden variety Volokh Conspiracy commenting, Sarcastro.

    3. Well said, AmosArch. Laws enacted to end truly vile and widespread discrimination are now being used to club anyone who objects to choosing whom they work for. This is a typical progression by progressives – start with something that is pretty good, and then run it to an insane and quite vile extreme. It is an example of why government should not get out of its constitutionally constrained role, and why judges should not twist the Constitution to where it offers government too much power at the (inevitable) expense of liberty.

  10. I doubt this one decision will “creat[e] facts on the ground” that the Justices would be reluctant to reverse. If Justices are open to reversing a Colorado decision, I doubt they’d be much moved by having to reverse both the Colorado decision and an Oregon decision. Justices may be reluctant to overturn, say, 20 years’ worth of caselaw produced by dozens of courts, but this one decision isn’t going to make much of a difference.

    But the Oregon judges might think that their opinion will help influence the Court because of its reasoning — I expect that the clerks and maybe even the Justices will read it and see how persuasive the argument might be. Even if it doesn’t alter the Supreme Court’s bottom line, it may affect the analysis.

    1. Sorry, I’m not buying that at this point the justices are still open to persuasion (assuming they were to begin with), they might well pick something to bolster what they were already going to say but I don’t see minds being changed – in either direction.

      1. justices = Tony Kennedy

      2. Don’t you think that Kennedy is being pulled in two different directions by this case?

  11. A couple of thoughts
    You might want to be nice to those who handle your food. Otherwise you might get Jesse Jacksoned

    And when the law forces someone to perform a service they don’t want to do, don’t be surprised if the results are less than what you expected

    1. And the law has a way to deal with that as well.

      Arguing that the best strategy in dealing with bigots is to let them bigot themselves out is not borne out historically.

      1. “Bigots”

        The cake makers share the same views that Obama and Clinton “say” they held in 2012.

        1. It’s not the viewpoint, it’s the discrimination.

          You can be against gay marriage and not be a bigot (YMMV on this academic point; I find when pressed, hostility to homosexuality invariably presents itself).

          You cannot discriminate against gay people in your business, though.

          1. They were not discriminating against gay people. They were discriminating against material participation in a gay wedding. They had happily served those same gay people for years, until asked to provide their work for that particular ceremony.

      2. Historically, we weren’t in the information age.

        1. I don’t think relying on the social media mob mentality is a formula for justice being served.

  12. Ok, serious question: What is the principled difference between forcing a baker to sell a cake to somebody they don’t want to sell it to, and forcing a couple to buy a wedding cake from somebody they don’t want to buy it from?

    Now that we’ve apparently abandoned the idea that transactions need to be voluntary on both ends, what stands in the way of making them involuntary on both ends?

    Could, (Assuming some state decided to enact such a law.) a straight couple be forced to buy their cake from a ‘gay’ baker?

    And, if not, why not?

    1. Not a bad twist.
      Is there a Constitutional problem? I don’t see on at first glance. But, of course, not all bad policies are unconstitutional.

      Lets look at the policy aspect through a functional-historical lens. When we first got into public accommodations, why didn’t we require people to buy from black business owners eve as we required business owners to sell to black customers?
      Because of the differences in the supply-side. There are lots more customers than businesses. So there is no practical upside to infringing on customers’ liberty.

      If you want to posit a town where most of the people are against buying from some subgroup, you can see the balance of liberty looks pretty similar with the parties flipped.

      1. Of course there’s a constitutional problem. As I keep pointing out, the 13th amendment prohibits both slavery AND involuntary servitude in the US.

        Baking a cake is a service. You can’t, constitutionally, make providing a service involuntary. That’s why specific performance isn’t a remedy in cases of personal service! But, what’s the difference between demanding specific performance of a personal service, and levying a huge fine if it isn’t delivered? None, really.

        Now, the courts don’t see things this way, but the courts turned the 14th amendment into a nullity for most of a century, so it’s not like they have a good track record at enforcing constitutional rights that they find inconvenient. It wouldn’t be unprecedented that they’re now gradually rendering the 13th a nulity.

        It will be protested, of course, that the baker volunteered to be a baker, and so voluntarily subjected himself to the public accommodation laws. To which I respond, maybe nobody has to be a baker, but everybody has to be something.

    2. I don’t see a difference from the perspective of what the Constitution forbids. So likely yes, a state could enforce a law that forbids customers from refusing to do business because the owner is black. However, the fact the states have chosen not to pass such laws is a big difference. Sometimes, we leave the distinction between “right” and “wrong” to the will of the majority.

    3. BB, the answer is simple. Because the perception of power is more important than the reality. Government likes to try and help out what it assumes is the downtrodden side of various transactions without really analyzing which side that is or even just how “downtrodden” they really are, or how that dynamic changes over time while laws remain stagnant.

      1. Underlying this comment is a paeon to white straight males being oppressed.

        It’s still freaking awesome to be male and white and straight compared to the alternatives. It is slightly less so than in the past, relatively speaking. This is not the same as who is downtrodden changing.

        1. But, what about Christian white straight males? They have had to endure an over 10 year war on Christmas. On the other hand, perhaps the recent victory (thank you, Trump) puts them back into the favored class.

          1. Endure the war on Christmas?
            Do you mean demanding Starbucks have a Christmas cup and the like? And now Trump tweets out Christmas a couple of times and you are no longer oppressed?
            Because if that’s what you mean, martyrdom ain’t what it used to be.

            I’m a Christian myself, and never really had any trouble with my festivities being warred upon.

            1. And, Happy Holidays to you too.

              1. Dumb that Merry Christmas/Happy Holidays have begun to become tribal shibboleths.

        2. “Underlying this comment is a paeon to white straight males being oppressed.”

          Yeah, over $100K for not baking a cake worth of oppressed, in this case.

    4. the bakers operating a business open to the public. close your business to the public, and you can sell to only those you want to. there is no forcing.

      1. Your standard conscripts anyone who is in business into the service of the state. I realize that public accommodation law has achieved just this, but that does not make it correct.

        Do you make your income from a business that is not open to the public? If so, how do you do that without running afoul of discrimination laws?

        It is pretty hard to make a living without being part of a business open to the public!

  13. Why did the Oregon Court of Appealls decide a matter that is pending before the US Supreme Court? Why didn’t it wait for the Supreme Court’s decision?

    I understand the bakers can appeal to the Oregon Supreme Court if the US Supreme Court decides in their favor, and the Oregon Court of Appeals gets to put their two cents in and possibly influence the US Supreme Court with their opinion, maybe even virtue-signal with it.

    But it seems like the court is rushing in, a haste that risks signaling bias.

    1. These are state law cases and while there might be similarities between the two, the one before the federal court involves the laws of Colorado, and this is Oregon.

      For all we know the court might rule on some aspect of the Colorado statutes that isn’t even part of the case in Oregon.

      Delaying the timely due process for the citizens of Oregon would not be something they should do.

  14. This decision is absurd. People buy wedding cakes as an expression of the wedding celebration. In American culture, they are a symbol and icon of celebration of a wedding. If all you want is a cake, a sheet cake would do as well.

    Most people, if they see a three-tiered, frosted cake think, “Someone is celebrating a wedding.”

    Query: can the government bank tiered wedding cakes?

    And as I said in a different post, context matters. If a baker sells a thousand cakes that say, “Happy Birthday,” and then someone comes in an orders a cake with the same message for Hitler’s birthday, that is, contextually a different message than the last 1000 customers. He can refused that even if he baked the prior 1000.

    1. “ban,” not “bank”

      1. What if the baker refuses to make a cake that says “Happy Birthday” for any black customer? Is that speech because he favors genocide against blacks?

    2. You focus on the buyer, not the seller.

      The court recognizes that context matters as well, it just draws the line differently from your ‘Happy Birthday’ but-it-is-really-celebrating-Hitler hypo.
      In general, if you’re going to declare a court’s opinion absurd, you may not be relying on your legal analysis skills. Though there are exceptions, of course.

      Some of my favorites I still like to call absurd (presented to show how partisan and thus contentless an appeal to absurdity is):

      *Johnson v. M’Intosh
      *Bush v. Gore
      *Nix v. Williams
      *San Antonio School District v. Rodriguez

      1. The absurdity here is factual. What is the meaning of a wedding cake in 21st century America. On that, if you took an unbiased poll, most people would agree with me, I believe.

        (I would concede that other things are different. A caterer asked to serve filet mignon is, IMO, in a different boat than the wedding cake baker. Filet mignon does not express anything, other than a big bill to come. Yes, people like that at weddings, but they also like lamb chops, or chicken or whatever. Looking at a cooked fillet mignon with two side dishes, I don’t think “wedding celebration.”)

        1. I don’t think it is absurd to believe that wedding cakes specifically don’t get special treatment under the law.

          I also don’t think selling a wedding cake is participating in a wedding. I suspect polling would agree with me, but who knows and who cares; an appeal to populism is as empty as an appeal to incredulity.
          So we are now reduced to arguing over the framing. Which is gone over quite ably by the rest of the thread.

          1. The opinion drew a distinction between products that are generally recognized to be expressive and those that are not. It implied that, for example, a professional speech write for weddings would indeed have First Amendment protection.

            Assuming that that line is properly drawn, as a factual matter wedding cakes fall on the expressive side of the line, IMO. Filet mignon does not.

            1. To be clear, your current thesis is that wedding cakes are all expressive, and it is absurd to think otherwise?

              1. And I mean expressive by the wedding cake provider, of course.

              2. My current thesis is that in American culture of the early 21st century, wedding cakes are commissioned as a symbol of a celebration of a wedding, and are viewed and recognized as such by those who order it, and those who attend the wedding. It goes beyond mere dessert. To compare it to, say, a baked apple or a poached pear is sticking your head in the sand.

                Thought experiment: the caterer in a pre-wedding conversation says: “Wedding cakes don’t really taste that good. No one likes them, and they are expensive. How about we served poached pears and petit fours, they are much nicer and people will enjoy them.”

                Maybe some people would go for that. But most would say, it is a wedding tradition in America, and it is expected to be part of the ritual.

                Saying a wedding cake is not expressive is like saying the American flag is just a piece of cloth on a stick. It is either absurd, obtuse or intellectually dishonest.

            2. as a factual matter wedding cakes fall on the expressive side of the line, IMO

              At least you qualified the “factual matter” as being your opinion.

              1. You don’t think that factual matters, particularly about general public perception, can be a matter of opinion?

                Take a different legal issue. The Trademark Act protects certain trademarks against “dilution” (which does not require a showing of likelihood of confusion.) But the marks must be “famous.” Which Congress amended the statute to mean, generally known throughout America.

                In my opinion, Coca-Cola is a famous trademark that would qualify for that protection. How do I know that? Because I have been hooked into the American culture for nearly my entire life, and in my opinion, virtually everyone recognizes that trademark. In a litigation, I might commission a survey to prove the point, but frankly I think most federal judges would concede the point without a survey.

                1. Coca Cola is not a trademark because, in your opinion, it’s a trademark. It’s a trademark as a matter of law.

  15. This is how you get more Trump. Self-righteous fascists who think that they can outlaw thought-crime.

    1. Yeah, Trump’s sure gonna take California now!

      1. He doesn’t need to take California. And that, of course, is your goal. Fill America up with enough Hispanics that Republicans can’t win.

  16. Modern “progressivism” is fascism under another name. This type of case proves it.

  17. I don’t understand the emphasis on art. It seems to me that text (on a cake) is far more relevant to speech than ‘art’ in general. Which is these is more ‘speechy’ – writing ‘Happy Gay Marriage’ or taking your clothes off in a strip club. Getting naked is protected speech, but writing words on food isn’t?

    I’m a gay marriage fan, but I don’t get the art thing.

  18. I thought the couple traveled a relatively long distance and by-passed dozens of other bakers in order to engage with the Kleins. If the couple wasn’t going out of its way to inflame and court controversy with a family business that touted its ‘Christian values’, then why travel 50 miles (give or take a few) and by-pass dozens of other closer and more convenient bakers?

    Because the Kleins possessed a special talent for making exquisite wedding cakes…at least this was according to the gay couple.

    But now we find, NO! The Kleins are ‘merely bakers’. OK, then.

    I’m beginning to think that the gay couple is really a little troupe of artists themselves: Performance Artists.

    1. Like I said above, it isn’t a big deal being refused service by one of hundreds of interchangeable vendors, but the power to bankrupt any vendor who dares to cross you is very valuable to the intolerant.

      1. Totally agree, the problem is actually caused by the egregious intolerance by the gay couple, their refusal to acknowledge the religious and Constitutional rights of the cake baker…

  19. Most if not all of the reasons given for finding against a cake baker’s right to refuse to bake a cake against his religion scruples are because he runs a business. The solution is obvious, to stop equating a business with a person working in that business.

    A business needs to serve all customers while a person can decline. Then any individual within a business still enjoys the legal right to follow his conscience/religious scruples. This protects individuals in a business as well as their customers and ensures the business itself follows the law.

    The 1st amendment is about freedom of expression for “people”, but says nothing about freedom of expression for businesses which is why anti-discrimination laws should apply to businesses but not to people working in them.

    Furthermore, if there’s no one within the business willing to bake such a cake, there are always other cake-making businesses who will. So any government interest in making sure that customers of a business have access to cakes enthusiastically supporting gay marriages is fulfilled equally well through other businesses, just not this one. This also protects the choice of prostitutes but not bordellos. This ensures the individual rights of individuals as well as the lack of a general right of association under current constitutional law are both upheld.

    I’m surprised that this crucial distinction seems to have been ignored for so long.. .

    1. Alas, tax breaks trump “religion scruple” every time.

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