Sweet Cakes by Melissa Discriminated Unlawfully Against Lesbian Couple, Says Interim Order

The gears of justice grind slowly. But administrative law judge Alan McCullough made an interim determination that Gresham bakery Sweet Cakes by Melissa discriminated unlawfully when they refused to serve a lesbian couple in January 2013.

Sweet Cakes owner Aaron Klein denied a wedding cake to the couple in January 2013, after learning that the cake would be eaten at a same-sex wedding. The couple filed a complaint, and in January 2014, the Oregon Bureau of Labor and Industries found "substantial evidence" that Sweet Cakes wasn't within their rights to deny service. 

A hearing on March 10 will determine whether the bakery owes the couple damages.

Sweet Melissa owners Aaron and Melissa Klein filed for a summary dismissal of the complaint, citing religious freedoms. They also attempted to retrieve $200,000 in damages and legal fees from the couple. 

This didn't remotely fly. Quoth BOLI:

Which is to say—as already enshrined in Oregon state law—you can't refuse to serve someone just because they're gay.

Willamette Week tested the religious argument back in May 2013 by calling Sweet Cakes by Melissa and asking them for cakes commemorating activities prohibited by the Bible or by some Christian groups, including a cake offering congratulations for stem-cell research. All requests were greeted in the affirmative.

The Kleins had apparently baked a prior cake for one member of the couple—for her mother's wedding—which the Kleins used as evidence they weren't discriminatory. But the BOLI order remains pretty skeptical on this point, too.

Sweet Cakes by Melissa closed up their storefront in January 2014, but the website taking cake orders by mail remains active. The full text of the press release from BOLI is below.

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BOLI Interim Order: Sweet Cakes discriminated against same-sex couple in bakery civil rights case

Hearing will focus on damages for unlawful discrimination based on sexual orientation

Portland, OR—A Gresham bakery unlawfully discriminated against a same-sex couple by denying them full and equal access to a place of public accommodations, a BOLI Interim Order has found. 

The ruling comes after both the agency's Administrative Prosecution Unit and the respondents, Aaron and Melissa Klein, sought summary judgment in the dispute. 

The Interim Order finds that the undisputed material facts support charges of unlawful discrimination under the Oregon Equality Act. An administrative hearing scheduled for March will focus on damages for the same-sex couple.

Under Oregon law, Oregonians may not be denied service based on sexual orientation or gender identity. The law provides an exemption for religious organizations and schools, but does not allow private businesses to discriminate based on sexual orientation, just as they cannot legally deny service based on race, sex, age, disability or religion. The bakery is not a religious institution under law.

The Kleins argued against a connection between the same-sex couple's sexual orientation and respondents' alleged discriminatory action. The BOLI Interim Order rejects the argument:

Respondents’ attempt to divorce their refusal to provide a cake for Complainants’ same-sex wedding from Complainants’ sexual orientation is neither novel nor supported by case law.  As the Agency argues in support of its cross-motion, “[t]here is simply no reason to distinguish between services for a wedding ceremony between two persons of the same sex and the sexual orientation of that couple. The conduct, a marriage ceremony, is inextricably linked to a person’s sexual orientation.”

Respondents also contended that a prior sale of a wedding cake to one of the complainants for her mother's wedding proves their lack of animus towards complainants' sexual orientation. The ruling fails to find the argument persuasive:

Respondents' first argument fails for the reason that there is no evidence in the record that A. Klein, the person who refused to make a cake for Complainants while acting on Sweetcakes' behalf, had any knowledge of Complainants' sexual orientation in November 2010 when Cryer purchased a cake for her mother's wedding.  Even if A. Klein was aware of Cryer's sexual orientation in November 2010, not discriminating on one occasion does not inevitably lead to the conclusion that A. Klein did not discriminate on a subsequent occasion.

The agency's Administrative Prosecution Unit also brought charges that the Kleins unlawfully communicated a future intention to discriminate based on sexual orientation on September 2, 2013 and February 13, 2014 while appearing on television and radio interviews with Tony Perkins and the Christian Broadcasting Network (CBN). However, the BOLI Interim Order rules in favor of the respondents and rejects the agency's argument that Aaron Klein's statements represent a prospective communication in violation of ORS 659A.409.

Public accommodations complaints under the Equality Act are rare. In every year since the law's passage, public accommodations complaints based on sexual orientation and gender identity have represented less than one percent of all discrimination complaints received by the agency.

BOLI protects all Oregonians from unlawful discrimination, investigating allegations of civil rights violations in workplaces, career schools, housing and public accommodations.

Copies of the Interim Order can be found on the agency's website here. For more information about BOLI's efforts to protect workplaces and support Oregon employers, visit http://www.oregon.gov/BOLI.

WWeek 2015