Saturday, July 04, 2015

Melissa's Sweet Cakes' $135,000 Punishment, Religious Liberty and the Declaration of Independence

UPDATE 3: Good for George Rede of the Oregonian for reporting on the First Amendment issue.

UPDATE 2: OregonGuy supplied a link to Avakian's order.

UPDATE: Max Redline comments that Brad Avakian has put a gag order on the Kleins directing them not to talk about their views on gay marriage or face punishment. It reads:
“The Commissioner of the Bureau of Labor and Industries hereby orders [Aaron and Melissa Klein] to cease and desist from publishing, circulating, issuing or displaying, or causing to be published … any communication to the effect that any of the accommodations … will be refused, withheld from or denied to, or that any discrimination be made against, any person on account of their sexual orientation,” Avakian wrote.
If an Oregon judge or Federal judge doesn't overturn this, it means that not only is First Amendment religious freedom no longer protected, but free speech is also gone.

Oregon State Labor Commissioner Brad Avakian confirmed a recommendation by Administrative Law Judge Alan McCullough that Aaron and Melissa Klein pay $135,000 in damages to a same-sex couple they refused to bake a wedding cake for.

The refusal was made more than a year before U.S. District Judge Michael McShane legalized same-sex marriages Oregon so the marriage was not legal under Oregon law at the time, Rachel Cryer and Rachel Bowman, the lesbian couple, were apparently seeking a cake for a "commitment ceremony".

Oregon law allows a religious exemption from non-discrimination for sexual orientation to churches and religious institutions in housing, use of facilities and employment.

What's interesting here is that the argument on the left against the Citizens United v Federal Election Commission decision is that corporations should not enjoy the same First Amendment rights as individuals. Justice Stevens dissents from the Citizens United decision:
In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process.
The same thing can be said of churches and religious institutions.  They cannot "vote or run for office", "may be managed and controlled by nonresidents", "their interests may conflict in fundamental respects with the interests of eligible voters" and their "financial resources, legal structure and instrumental orientation" may raise "legitimate concerns about their role" as regards Constitutional rights.

At the core of the Klein case is whether the First Amendment protection for the "free exercise" of religion is for individuals as well as religious organizations.

Oregon's current position is that religious liberty applies primarily to religious organizations and not to individuals. It's as if when you get enough people together to form an organization they gain more rights than individuals.

In the Burwell v. Hobby Lobby case the court declared that the government must use similar "least-restrictive-means" for closely held corporations as for religious non-profit organizations and no-profit employers. The State of Oregon has not done that. Oregon does not require churches and religious organizations to use their facilities regardless of sexual orientation but does require Melissa's Sweet Cakes to use its facilities irrespective of sexual orientation.

The recent Obergefell v. Hodges decision may bring a clash between the Court's protection of religious freedom for individuals, churches and closely held corporations and its support for equal rights.  Both Chief Justice Roberts* and Justice Thomas** raised concerns in their dissents about a meaningful retention of the First Amendment "free exercise" clause.

Their is no such ambiguity in the Declaration of Independence. Since basic rights come from God and not government, those rights cannot justly be abridged or denied by government.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed . . . ."
*Roberts: "Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. See Tr. of Oral Arg. on Question 1, at 36–38. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

**Thomas: "The majority appears unmoved by that inevitability. It makes only a weak gesture toward religious liberty in a single paragraph, ante, at 27. And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition. Religious liberty is about more than just the protection for "religious organizations and persons . . . as they seek to teach the principles that are so fulfilling and so central to their lives and faiths." Ibid. Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.


MAX Redline said...

Hmm. Well, Brad went a lot further than that, TD:

Two Christian bakers who refused to bake a wedding cake for a lesbian couple had already been ordered to pay $135,000 in emotional damages to the couple, and now they’re being prohibited from speaking out about their opposition to gay marriage as well.

Oregon Labor Commissioner Brad Avakian placed the effective gag order on the Kleins, saying their vocal objection to gay marriage was directly related to their “discrimination” against homosexuals.

“This case is not about a wedding cake or a marriage,” Avakian wrote. “It is about a business’ refusal to serve someone because of their sexual orientation.”

The cease-and-desist order said the Kleins could be prohibited from speaking about their religious views because their former business is a place of “public accommodation.”

There are a few problems with Brad's gag order, among them being the incontrovertible fact that they no longer run a place of "public accommodation"; their bakery is closed. Brad seems to have an issue with the definition of "former" business vs. "current" business. In my view, his gag order is therefore unenforceable because there is no place of "public accommodation" currently being operated by the couple.

In essence, what Brad is now attempting to do seems to involve abrogation of the couple's First Amendment Right, among other Rights. He's telling them to "shut up or I'll have you arrested". That may fly in, say, North Korea, but it is presently still illegal in this country.

If he wants to push this, Brad's going to lose.

I think he also just dashed any hope of becoming Secretary of State, which he's been reportedly considering taking a run at.

T. D. said...

Thanks, Max! I was not aware of this. It's like what they have been doing in Canada which does not have a right to freedom of religion or speech.

I think at this point there is no way it will fly in the U.S. Even in the Obergefell case, the majority noted that there is a right to hold and argue contrary opinions. However, things change fast. Less than 7 years ago Barack Obama was against gay marriage.

I hope it does derail Avakian's further ambitions. It should, but then this is Oregon which re-elected Kitzhaber despite his obvious moral, political and economic failings.

MAX Redline said...

You made some great points, TD; I was simply adding that Brad went well beyond inflicting financial damage with his recent gag order. He serves as an example of Tolerance™ as employed in Oregon.

T. D. said...

I'm going to do an update of the post with this information. So, I'm thankful you let me know.

If political retaliation goes on at this level, the legal/philosophical points I noted are way too fine to be of any use. If an Oregon judge doesn't stop this, free speech is a dead letter only given at whim.

OregonGuy said...

You can read the decision here:


T. D. said...

Thanks for the link, OG!