Oregon Bakers to Court: First Amendment Allows Us to Not Celebrate Same-Sex Weddings

Everton Bailey Jr./The Oregonian via AP
Everton Bailey Jr./The Oregonian via AP

Today, First Liberty Institute and former White House Counsel Boyden Gray filed a brief with the Oregon Court of Appeals on behalf of Aaron and Melissa Klein, the Oregon bakers punished by Oregon officials when the couple declined to customize a wedding cake celebrating same-sex marriage, in a case that could go all the way to the U.S. Supreme Court.

The Kleins’ attorneys argue that the Oregon Bureau of Labor and Industries (BOLI) and BOLI Commissioner Brad Avakian (currently a Democratic candidate for Oregon secretary of state) violated Aaron’s and Melissa’s First Amendment rights to free speech and the free exercise of religion, as well as the Fourteenth Amendment’s Due Process Clause.

As Breitbart News reported, First Liberty and Gray assert that the Free Speech Clause of the First Amendment does not allow the government to punish an American citizen for declining to express a view on same-sex marriage that contradicts that citizen’s religious beliefs, and the First Amendment’s Free Exercise Clause entitles every American to peaceably live out their faith in their daily lives, including running their own private business in a manner that they believe honors God and demonstrates biblical truth to their community.

Aaron and Melissa had previously served homosexual customers without incident, never denying a product or service to anyone on account of sexual orientation. Additionally, the Kleins have declined to design customized cakes in the past for events such as bachelor parties and “divorce parties,” including when the customer simply wanted a cake shaped like certain body parts, or including provocative content. The Kleins have consistently run their business according to their Christian faith and declined to convey any message that they believed did not honor God or reflect biblical teaching.

In their legal brief today, the Kleins’ attorneys also note that before hearing their case, Commissioner Avakian made many public statements to the press and through social media revealing that he had already decided to rule against them. For example, Avakian publicly stated that the Kleins had “disobeyed” the law, and that people like the Kleins needed to be “rehabilitated” by the government.

The Kleins’ local lawyers at the time had asked Avakian to recuse himself from the case because of this clear bias, but he refused, then predictably ruled against the Kleins.

As a consequence, First Liberty and Gray argue that Avakian violated Aaron’s and Melissa’s due-process rights under the Fourteenth Amendment to a fair hearing before an impartial decision-maker.

“In America, you’re innocent until proven guilty,” said Kelly Shackelford, president and CEO of First Liberty Institute. “Commissioner Avakian decided the Kleins were guilty before he even heard their case. This is an egregious violation of the Kleins’ right to due process.”

“The Constitution guarantees the rights of free exercise of religion, free speech, and due process for every American,” said Gray, who is also a former U.S. ambassador to the European Union. “We hope the Oregon Court of Appeals will defend the Kleins’ rights in accordance with state and federal law.”

Avakian further surprised many observers by punishing the Kleins with a crushing $135,000 personal penalty, ordering that the Kleins pay that money to the lesbian couple who had ordered the “wedding” cake. (The cake was not for a real wedding; when this incident occurred on January 17, 2013, Oregon law only recognized marriage between one man and one woman.)

Avakian’s order stated that part of this penalty was for what one of the lesbian’s mothers later told her was a conversation between the mother and Aaron Klein, even though a judge on the case had ruled the mother’s testimony was not credible. He also penalized the Kleins for media interviews that they had done long after the incident in question.

The appeal also challenges a gag order that Avakian imposed on Aaron and Melissa, ordering them not to discuss certain aspects of their religious faith. On one previous occasion, Avakian ruled that the Kleins’ describing on-air how their Christian beliefs on marriage compelled them to decline to bake the cake in 2013 was the equivalent of a business advertising an ongoing intent to violate Oregon law in the future. First Liberty and Boyden Gray are challenging that gag order as a separate and additional violation of Aaron’s and Melissa’s free-speech rights.

The parties will continue filing briefs over the next couple months, and it is expected that the Oregon appellate court will hear oral arguments on this case later this year. From there, the case would go to the Oregon Supreme Court, followed finally by the Supreme Court of the United States.

Court documents and information on the case is available at FirstLiberty.org/Kleins.

Editor’s Note: Breitbart News legal editor Ken Klukowski also practices constitutional law as an attorney with First Liberty Institute—the largest law firm in the United States exclusively dedicated to protecting religious liberty for all Americans—and is one of the lawyers defending the Kleins in this litigation.


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