Oregon appeals court upholds discrimination ruling in Sweet Cakes case, but vacates penalties

By Dirk VanderHart (OPB)
Jan. 27, 2022 1:32 a.m.

For a second time, Oregon judges found a former Gresham bakery could not refuse service to a same-sex couple on religious grounds. But the court found problems with a $135,000 ruling against the baker.

Oregon appellate judges have thrown out a $135,000 judgment against Gresham bakery owners who refused to serve a lesbian couple in 2013, finding the penalty showed “subtle” signs of bias against the bakers’ religious beliefs.

But the Oregon Court of Appeals upheld its original finding that the owners of Sweet Cakes By Melissa illegally discriminated against the couple, and could face penalties for the breach.


The opinion issued Wednesday, the latest in a saga that has garnered national headlines, will require the state’s Bureau of Labor and Industry to take a fresh look at the case and reconsider consequences for bakers Aaron and Melissa Klein. Despite that wrinkle, it was heralded as a victory by supporters of the lesbian couple, Rachel and Laurel Bowman-Cryer.

“The court was right five years ago and is still right today,” attorney Jennifer Pizer, who represented the couple, said in a statement. “The Kleins’ faith does not give them a pass to ignore Oregon’s Public Accommodation Law.”

The long-running case stems from January 2013, when Rachel Bowman-Cryer visited Sweet Cakes with her mother to order a cake for her upcoming wedding. After learning that Bowman-Cryer planned to marry another woman, Aaron Klein apologized and refused to take the order, citing his and his wife’s Christian faith.

Bowman-Cryer and her mother left the bakery, then circled back. Bowman-Cryer’s mother, Cheryl McPherson, went in alone to spark a “teaching moment” in which she attempted to explain to Klein how her own outlook on same-sex relationships had changed. Klein responded by citing a Bible passage that says: “You shall not lie with a male as one lies with a female; it is an abomination.”

In McPherson’s re-telling to Bowman-Cryer and her fiancee, Laurel, that message morphed somewhat: She said Klein had called them both “abominations” because they were gay. The couple filed complaints with the state, testifying to the anguish the sentiment had caused.

The Bureau of Labor and Industry found in 2015 that Aaron Klein engaged in illegal discrimination, and ordered him to pay $135,000 in damages – money the Kleins raised handily via a crowdfunding campaign. Two years later, the Oregon Court of Appeals agreed that discrimination had taken place.


Then the U.S. Supreme Court got involved. In a 2018 decision, the court tossed out a Colorado ruling against a baker who refused to serve a gay couple on religious grounds, finding the state had shown bias against his religion while making its decision. The federal justices then ordered the Oregon Court of Appeals to take a fresh look at the Sweet Cakes case, in light of the new opinion.

Most notably, the appeals court’s latest ruling upholds the state’s original finding that religious freedoms do not protect business owners from anti-discrimination laws.

“The court adhered to the position that the Oregon courts had previously taken that nondiscrimination laws can be taken to protect same sex couples, regardless of religious beliefs,” said Jim Oleske, a law professor at Lewis & Clark who has tracked the case. “That’s the big issue.”

But the appeals court also looked more closely at the Bureau of Labor and Industry’s process for assessing damages against Aaron Klein and found cause for concern. The reason lies in the difference between Klein’s citing a Bible passage that includes the word “abomination,” and Bowman-Cryer’s mother telling her Klein had called her and her fiancee abominations.

Then-Labor Commissioner Brad Avakian found the difference didn’t ultimately matter, since the hurt the sentiment caused the couple was the same regardless of what Klein actually said. But the appeals court ruled Wednesday that was incorrect.

“Taking the position that it did not matter factually what Aaron had said tends to suggest hostility or dismissiveness because it is not typical to hold someone liable in damages for something they did not, in fact, say or do,” the court wrote. “There is a significant difference, factually, between a person who quotes a topically relevant Bible passage that contains an inflammatory word ... and a person who calls another person a name using that same inflammatory word.”

The court concluded the Bureau of Labor and Industry had “at least subtly” strayed from its legal requirement, highlighted by the U.S Supreme Court, to be neutral in regard to Klein’s religion. As a result it vacated the award of damages, telling the state agency to consider the matter again.

A spokeswoman for the Bureau of Labor and Industry said Wednesday the agency, now under Commissioner Val Hoyle, was still reviewing the opinion and did not have comment.

Attorney General Ellen Rosenblum, whose agency defended the Bureau of Labor and Industry ruling in court, applauded the decision.

“We are pleased that the court agreed with BOLI’s determination that Sweet Cakes engaged in discrimination against a same-sex couple who wanted what all couples want for their wedding: a beautiful wedding cake!” Rosenblum said in a written statement. “The US Supreme Court—and now the Oregon Court of Appeals—have provided new guidance that BOLI will follow in re-assessing the damages.”

An attorney who represented the Kleins did not respond to a message requesting comment. The couple has moved their bakery to Montana, according to state business registration records.