Both Sides Find Signs Of Victory In Gresham Bakery Supreme Court Decision

By Amelia Templeton (OPB)
Portland, Ore. June 18, 2019 1:47 a.m.

The U.S. Supreme Court Monday threw out an Oregon court ruling that fined the Christian owners of a Gresham bakery $135,000 for refusing to make a wedding cake for a gay couple.


But the court again chose to sidestep the issue of what protection the Constitution’s guarantee of religious freedom gives business owners charged with discrimination for refusing service to same-sex couples.

Instead, the highest court has placed another, narrower question front and center in the case: whether the state of Oregon was biased in its treatment of the bakers in the case, Aaron and Melissa Klein.

The Supreme Court has sent the Kleins’ case back to the Oregon Court of Appeals and asked the lower court to reconsider it, in light of a new Supreme Court decision last year in a similar case, Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission.

Related: Appeals Court Upholds Fine Against Bakery That Refused To Make Cake For Gay Couple

Legal experts say the court reached a decision that gives partial victories to both conservative advocates of religious freedom and left-leaning defenders of LGBTQ civil rights.

“The fact that the court sent the Klein case back signals that the Supreme Court is not really ready to issue a broad re-thinking of First Amendment religious liberty rights,” said Katherine Franke, Director of the Center for Gender and Sexuality Law at Columbia University.

“This is a case where the Supreme Court has split the difference.”

Franke sees the decision as reflecting Chief Justice John Roberts’ attempts to repair the court’s reputation after the polarizing confirmation hearings for Justice Brett Kavanaugh by avoiding most cases that address hot-button issues this year.

Attorneys on both sides of the case say they are looking forward to the opportunity to argue it again before the Oregon Court of Appeals.


The Supreme court had yet to decide the Masterpiece Cakeshop case when the Oregon Appeals court upheld $135,000 in damages against the bakers after the Oregon Bureau of Labor and industries found the Kleins had violated the state’s public accommodations law.

The bakers paid the fine and closed their business, Sweetcakes by Melissa. But the money remains in an escrow account. The lesbian couple who were refused a cake and brought the case against the Kleins has yet to receive their damages award, as the case winds its way through the courts.

In the related Colorado case, the high court overturned a similar decision on the narrow grounds that members of the state civil rights commission made statements that showed hostility toward the bakers’ religious beliefs.

Attorneys for the Kleins say they believe a similar pattern of bias is a factor in their case.

“Since that decision dealt so straightly with religious hostility by the government toward an individual citizen, I can only think that the Supreme Court had that in mind,” said Jeremy Dys, the deputy counsel for First Liberty, one of the groups representing the Kleins.

“The state of Oregon probably engaged in some religious hostility here that the Oregon Court of Appeals failed to take into consideration.”

Dys suggested the amount of the damages award and statements made by Brad Avakian, the Labor Commissioner at the time, could be evidence of state hostility toward the Klein’s beliefs.

Oregon’s Attorney General also claimed a partial victory. In its briefs, the state had argued that the case posed no constitutional issues the Supreme Court needed to address.

Attorneys for the Kleins by contrast had argued that the Supreme Court should take the case as an opportunity to reconsider a 1990 decision that narrowed the scope of religious freedom claims. The high court declined to do that.

“We are pleased that the U.S. Supreme Court chose to send this case back to the state courts,” said Attorney General Ellen Rosenblum in a brief statement. “We look forward to returning to the Oregon Court of Appeals, where we will continue to defend the constitutionality of Oregon's laws that require bakeries and other places of public accommodation to serve all customers regardless of sexual orientation.”

Franke, the Columbia legal expert, says that while conservative religious liberty groups may not have won the constitutional argument they were hoping to make, the Klein case is still a significant political win.

“The right wing has tried to frame these issues as Christians being persecuted for their beliefs, when they are brought before human rights commissions for discriminating against gay people,” she said.

“In some ways, the court’s decision today and in the Masterpiece cake shop case marks a victory for that view, that enforcing human rights laws that protect gay people amounts to a form of persecution of Christians.”

Editor's note: This article has been updated to reflect the correct first name for Katherine Franke.