Lydia Macy, right, of Berkeley, Calif., siding with a same-sex couple, holds a sign outside the Supreme Court where arguments were being on heard on whether a Colorado baker, who refused to make a wedding cake for the couple based on his religious beliefs, is protected by the First Amendment on December 5, 2017.
Tom Williams | CQ-Roll Call Group | Getty Images
The Supreme Court on Monday sent back to a lower court a case involving an Oregon bakery whose owners claim the state drove them out of business after they refused to bake a wedding cake for a lesbian couple.
In an order, the top court scrapped a ruling from the Oregon Court of Appeals in favor of the same-sex couple. The owners of the bakery, which refused the make the cake due to religious beliefs, claimed that state fines pushed them out of business.
The Supreme Court asked the appeals court to reconsider the case in light of a top court holding from last year.
In that case, the Masterpiece Cakeshop case, the court ruled 7-2 in favor of a baker who refused to serve a same-sex couple. The court said at the time that the state of Colorado was impermissibly hostile to the baker’s religious beliefs.
The court in that case did not decide on the underlying question of whether a wedding cake qualifies as the type of artistic expression that is entitled to the Constitution’s most stringent protections under the First Amendment.
By sending the case back to the lower court, the justices handed an incremental win to the owners of the bakery while avoiding hearing the divisive case in the midst of the 2020 election campaign.
The court’s term beginning in October is already expected to be significant for LGBT rights. In April, the court agreed to hear a set of cases that could settle whether federal anti-discrimination laws apply to LGBT employees. An opinion in the case is expected by June 2020, just months before Americans go to the polls in the next presidential election.
The court has now effectively punted twice in two years on the issue of whether a bakery may refuse service to a same-sex couple.
In the Masterpiece case, Justice Anthony Kennedy, who has since retired and has been replaced by Brett Kavanaugh, emphasized the difficulty of deciding the issue. He wrote that a baker’s religious rights “might” be violated by antidiscrimination laws, but noted the difficulty of pinpointing the moment when a customer’s right to not be discriminated against could give way to the business owner’s own First Amendment rights.
“A baker’s refusal to attend the wedding to ensure that the cake is cut the right way, or a refusal to put certain religious words or decorations on the cake, or even a refusal to sell a cake that has been baked for the public generally but includes certain religious words or symbols on it are just three examples of possibilities that seem all but endless,” Kennedy wrote.
Ultimately, Kennedy predicted the issue would be addressed in “some future controversy involving facts similar to these.”
‘These issues matter’
In early 2013, after Rachel Bowman-Cryer and her girlfriend Laurel decided to get married, Rachel went with her mother, Cheryl, to Sweetcakes by Melissa for a wedding cake tasting.
The bakery was operated by Melissa and Aaron Klein, and exclusively made custom cakes. According to attorneys for the Kleins, they “created these cakes, in part, because they wanted to celebrate weddings between one man and one woman.”
After Aaron learned at the tasting that the cake was to be for a same-sex wedding, he declined to make it, citing scripture, according to court documents.
The Bowman-Cryers filed a complaint with the Oregon Bureau of Labor and Industries, which brought charges against the Kleins under a state law that bars discrimination on the basis of sexual orientation.
In Supreme Court briefs, attorneys for the bureau wrote that as a result of being denied a wedding cake, “both Rachel and Laurel experienced emotional distress that affected their relationships with each other and with other family members.”
The Bowman-Cryers won their case, and the Kleins were ordered to pay them $135,000 in damages in part for emotional suffering. That penalty, which the Kleins unsuccessfully appealed to a state court, ultimately forced Sweetcakes by Melissa out of business, they say.
The Kleins argue the penalty was an impermissible breach of their religious freedom. They say that the penalty effectively amounted to an order to create expression with which they disagree.
In asking the top court to review their case, the Kleins argued that it could have ramifications far beyond the cake business.
“These issues matter, not just to religious business owners, but to the population at large, which benefits from robust protections for free speech and free exercise, and from the public exchange of ideas that those freedoms promote,” their attorneys wrote.