Aug 30, 2016

The Oregon Court of Appeals has been asked to decide whether the First Amendment gives businesses the right to discriminate against customers. In a friend-of-the-court brief filed yesterday, Americans United explained that the First Amendment does no such thing.  

Three years ago, Aaron Klein— who co-owns, along with his wife, the bakery Sweetcakes by Melissa— told Rachel Bowman-Cryer that he wouldn’t serve her kind of people; moments later, after she had left the store weeping, Klein told Bowman-Cryer’s mother that her child is an “abomination.”  

Bowman-Cryer had just told Klein that she was marrying a woman.  

Now Klein and his wife, Melissa, are in the Oregon Court of Appeals arguing that the First Amendment’s Free Speech Clause and Free Exercise Clause protect their right to refuse to serve same-sex couples who want to purchase a product that they routinely sell: wedding cakes. The Kleins are fighting charges brought by Oregon’s Bureau of Labor and Industries, the agency that enforces Oregon’s non-discrimination statutes. The Kleins have already lost the case before an administrative judge, who ordered them to pay $135,000 in damages for violating Oregon’s civil-rights laws, and are now seeking to have that ruling overturned.  

In place since 1953, Oregon’s non-discrimination statute bears many similarities to its federal counterpart, the 1964 Civil Rights Act—which was passed after lunch-counter sit-ins and other protests famously highlighted the injustice of the Jim Crow-dominated South. Like the federal non-discrimination law, Oregon’s law forbids denying service in places of public accommodation based on a customer’s race, national origin, sex, or religion. Unlike its federal counterpart, Oregon’s law also forbids discrimination based on sexual orientation.  

The Kleins are seeking a broad exception to this non-discrimination statute: they argue that because wedding cakes require time, skill, and creativity to make, they are First Amendment-protected art. Therefore, the Kleins contend that they cannot be compelled to make wedding cakes for any customer whom they don’t wish to serve, because forcing them to create art is the same as forcing them to speak, which, they say, violates the Free Speech Clause’s prohibition against compelled expression. This prohibition against compelled expression was most famously described in West Virginia v. Barnette,the 1943 case in which the U.S. Supreme Court ruled that schoolchildren cannot be forced to say the Pledge of Allegiance.  

Were the Oregon court to accept this argument, any businesses in the state that claimed to sell artistic products or services could discriminate as they please, a result that would overturn sixty years’ worth of civil-rights law. A caterer who dislikes interracial couples could refuse to cater their weddings; a dressmaker who disapproves of Muslims could turn them away from her shop; a nativist hair stylist could refuse customers born in Mexico. Signs asserting that some were unwelcome could once more return to store windows.  

As Americans United explains in its friend-of-the-court brief, the Kleins’ attempt to recast non-discrimination laws as speech restrictions is simply wrong. Non-discrimination laws don’t force anyone to speak; they simply require that when businesses open themselves to the public, they must perform certain conduct—namely, serve all comers. And conduct restrictions about how a business is to operate—like wage-and-hour laws, consumer-protection laws, building-code provisions, and health-and-safety ordinances—don’t violate free-speech rights.  

The Kleins’ religious-exercise argument is similarly wrong. The Kleins argue that, by requiring them to sell wedding cakes to same-sex couples in the same way that they sell wedding cases to different-sex couples, Oregon has violated their right to follow their religious beliefs. But non-discrimination laws apply equally to all; they are by no means an attempt to target religious persons or ostracize religious belief. They are religiously neutral provisions, versions of which have been adopted by the federal government, all fifty states, and the District of Columbia as a means to protect people. They don’t violate the First Amendment’s Free Exercise Clause because the right to believe in and obey the tenets of one’s faith does not include the right to ignore laws that protect people from harm. Indeed, were it otherwise—were the Kleins correct that religious beliefs can trump non-discrimination laws—those whose racial prejudice is rooted in religious belief would have a constitutional right to reinstall segregation, an argument that the U.S. Supreme Court has already called “patently frivolous.”  

The Kleins are seeking to change a basic tenet of U.S. law. Businesses do not get to tell customers, “We don’t serve your kind here.” If the Kleins win, not only will LGBT persons suffer the repercussions, but so will persons of color, the foreign born, women, and religious minorities, all of whom rely on the non-discrimination statutes that have been protecting Americans for generations.  

Americans United stands committed to protecting actual religious liberty by stopping erosion of our civil rights. If you or someone you know was denied service because of a business owner’s religious beliefs, contact Americans United at

Follow Carmen Green online at @CNGinDC