Written by Don Byrd

This week, an Oregon appeals court ruled in a case that bears a strong resemblance to the Masterpiece Cakeshop case currently before the U.S. Supreme Court. Klein v. Oregon Bureau of Labor and Industries could offer a preview of some of the issues the high court will likely address. 

Like in Masterpiece, the dispute in Klein involves a bakery owner’s refusal to provide a cake for a same-sex wedding celebration despite state law barring public accommodations from discriminating on the basis of sexual orientation. The Kleins (husband and wife owners of the since-closed Sweetcakes by Melissa) argue, among other things, that enforcement of the nondiscrimination law against them violates their religious freedom rights under the First Amendment.

The Oregon Appeals Court, however, sided with the state’s Bureau of Labor and Industries (BOLI) in determining that the Kleins are not entitled to accommodation from the nondiscrimination law. On the Free Exercise claim, the court rejected the argument made by the Kleins that the law was designed to target religion, thus heightening the level of judicial scrutiny required.

On review of the record, we agree with BOLI. The Kleins have directed us to no evidence whatsoever that ORS 659A.403 was enacted for the purpose of singling out religiously motivated action, or that BOLI has selectively targeted religion in its enforcement of the statute. The Kleins likewise fail to support their assertion that BOLI’s final order constitutes a “novel expansion” of the statute, rather than a straightforward application of a facially neutral statute to the facts of this case. For those reasons, the Kleins’ “targeting” argument is meritless.

The court also rejected the theory (which is being pushed by some advocates in the Masterpiece case as well) that heightened scrutiny is appropriate in a Free Exercise case if other rights – like, here, Free Speech – are also implicated. 

The Supreme Court’s decision in Masterpiece Cakeshop, which may shed some important light on the First Amendment issues in cases like this, is expected in 2018. For more on that case, see the BJC’s Masterpiece resource page.