Klein v. Or. Bureau of Labor & Indus.
| Citation | 317 Or.App. 138,506 P.3d 1108 |
| Decision Date | 26 January 2022 |
| Docket Number | A159899 |
| Parties | Melissa Elaine KLEIN, dba Sweetcakes by Melissa; and Aaron Wayne Klein, dba Sweetcakes by Melissa, and, in the alternative, individually as an aider and abettor under ORS 659A.406, Petitioners, v. OREGON BUREAU OF LABOR AND INDUSTRIES, Respondent. |
| Court | Court of Appeals of Oregon |
Adam R.F. Gustafson, Washington, DC, argued the cause for petitioners. Also on the opening and reply briefs were Tyler Smith, Anna Harmon, and Tyler Smith & Associates; Herbert G. Grey ; C. Boyden Gray, Derek S. Lyons, and Boyden Gray & Associates, Washington, DC; and Matthew J. Kacsmaryk, Kenneth A. Klukowski, Cleve W. Doty, and First Liberty Institute, Texas. Also on the supplemental opening brief were Herbert G. Grey ; C. Boyden Gray, James R. Conde, and Boyden Gray & Associates, Washington, DC; and Kelly J. Shackelford, Hiram S. Sasser, III, Kenneth A. Klukowski, Michael D. Berry, Stephanie N. Taub, and First Liberty Institute, Texas. Also on the supplemental reply brief were Herbert G. Grey ; C. Boyden Gray, James R. Conde, and Boyden Gray & Associates, Washington, DC; and Kelly J. Shackelford, Hiram S. Sasser, III, Michael D. Berry, Stephanie N. Taub, and First Liberty Institute, Texas.
Carson L. Whitehead, Assistant Attorney General, argued the cause for respondent. Also on the answering brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Leigh A. Salmon, Assistant Attorney General. Also on the supplemental brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Stefan C. Johnson, Jennifer C. Pizer, and Lambda Legal Defense and Education Fund, Inc., California; and Paul A. Thompson filed the brief amicus curiae for Rachel Bowman-Cryer, Laurel Bowman-Cryer, and Lambda Legal Defense and Education Fund, Inc.
P. K. Runkles-Pearson and Miller Nash Graham & Dunn LLP; and Kelly K. Simon and ACLU of Oregon, Inc., filed the brief amicus curiae for ACLU Foundation of Oregon, Inc.
Before James, Presiding Judge, and Lagesen, Chief Judge, and DeVore, Senior Judge.
This case is on remand to us from the United States Supreme Court. The Court vacated and remanded our previous decision, Klein v. BOLI , 289 Or. App. 507, 410 P.3d 1051 (2017), rev. den. , 363 Or. 224, 434 P.3d 25 (2018) ( Klein I ), "for further consideration in light of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n , 584 U.S. ––––, 138 S. Ct. 1719, 201 L. Ed. 2d 35 (2018)." Klein v. Oregon Bureau of Labor and Industries , ––– U.S. ––––, 139 S. Ct. 2713, 2713, 204 L. Ed. 2d 1107 (2019) ( Klein II ). It subsequently decided Fulton v. Philadelphia , ––– U.S. ––––, 141 S. Ct. 1868, 210 L. Ed. 2d 137 (2021), and petitioners argue that Fulton too requires reconsideration of our prior analysis.
Given this procedural history, the particular issue before us is whether the Supreme Court's approach to the Free Exercise Clause of the First Amendment to the United States Constitution in Fulton and Masterpiece Cakeshop calls into question our previous determinations that (1) petitioner Aaron Klein, who operates a bakery, unlawfully discriminated against complainants Rachel and Laurel Bowman-Cryer based on their sexual orientation, in violation of ORS 659A.403, when he refused to provide them with a wedding cake because of his religious beliefs about marriage of couples of the same sex; (2) the Free Exercise Clause does not bar the enforcement of that statute against Aaron; and (3) the Bureau of Labor and Industries (BOLI) permissibly awarded noneconomic damages to Rachel and Laurel based in part on a conversation about faith between Aaron and Rachel's mother, Cheryl McPherson, that, according to BOLI's factual findings, Cheryl recounted inaccurately to Rachel and Laurel.1
Ultimately, we reaffirm our prior decision except insofar as it upheld the damages award. Specifically, we adhere to our prior decision upholding BOLI's determinations that Aaron unlawfully discriminated against the Bowman-Cryers based on sexual orientation, in violation of ORS 659A.403, and concluding that neither the state constitution nor the federal constitution precludes the enforcement of the statute against Aaron, even though the enforcement of the statute burdens Aaron's practice of his faith. We reach a different conclusion with respect to our prior affirmance of BOLI's noneconomic damages award.
In so doing, we conclude that Fulton does not displace our previous conclusion that ORS 659A.403 is a generally applicable and neutral law and, consequently, that, under Employment Div., Dept. of Human Resources of Ore. v. Smith , 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990), the Free Exercise Clause does not preclude its enforcement even where, as here, a person's failure to comply with the law stems from the person's adherence to faith obligations. We conclude further, though, that, when viewed in the light of Masterpiece Cakeshop , BOLI's handling of the damages portion of the case does not reflect the neutrality toward religion required by the Free Exercise Clause. We therefore set aside the damages portion of the order and remand for further proceedings related to remedy.
The first time it was before us, this case required us to resolve a range of issues. Now, the procedural history has landed our focus on a narrower question: whether the agency order on review comports with the Free Exercise Clause, in view of the Supreme Court's later decisions in Fulton and Masterpiece Cakeshop .
To provide context for our analysis, we set forth the substantive and procedural facts relevant to that question. As is our usual practice, we draw the substantive facts from the unchallenged factual findings in the order on review, "together with facts in the record consistent with those findings." OROSHA v. United Parcel Service, Inc. , 312 Or. App 424, 425 n. 2, 494 P3d 959 (2021) ; see Klein I , 289 Or. App. at 511 n. 1, 410 P.3d 1051 (). When drawing facts from the testimony at the damages hearing, some of which was conflicting, we do so in a manner that resolves conflicts in accordance with the express credibility findings contained in the order on review.
This matter arose after petitioners Melissa and Aaron Klein, doing business as a bakery called Sweetcakes by Melissa, declined to provide a wedding cake to the Bowman-Cryers. The Kleins did so in accordance with their religious beliefs, which do not recognize marriages between two persons of the same sex and treat the celebration of marriages between two persons of the same sex as sinful.
The Bowman-Cryers met in college in 2004 and soon became a couple. In 2011, they became foster parents to two children and, in 2012, they decided to get married. Excited about getting married, they began to plan their wedding. Sometime after getting engaged, Rachel and her mother, Cheryl, attended a bridal show in Portland. Melissa had a booth for Sweetcakes by Melissa, advertising the bakery's wedding cakes. Two years earlier, Sweetcakes by Melissa had made the wedding cake for Cheryl's wedding; Rachel liked the cake. Rachel told Melissa that she wanted to order a wedding cake from her and, following the show, made an appointment for a cake tasting at Sweetcakes by Melissa. Both Rachel and Laurel were excited about getting a cake from Sweetcakes by Melissa because of how much they liked the cake that the bakery had made for Cheryl's wedding.
On the scheduled date, Rachel and Cheryl went to Sweetcakes by Melissa for the tasting. At the time, Aaron and Melissa had infant twins and, that day, had arranged for Aaron to handle the cake tasting while Melissa cared for the twins at home. During the tasting, Aaron asked for the names of the bride and the groom. Rachel responded that there would be two brides and their names were "Rachel and Laurel."
Upon hearing that, Aaron, because of his religious beliefs, apologized and stated that they "do not do cakes for same-sex weddings." Rachel started to cry. She felt that she had humiliated her mother, and worried that her mother was ashamed of her, because Cheryl had believed that being gay was wrong until a few years earlier. Cheryl took Rachel by the arm and walked her to the car; Rachel remained distraught and kept apologizing to her mother. Once in the car, Cheryl hugged Rachel and told her that they would find someone to make a wedding cake. They drove a short distance away, but then Cheryl decided she wanted to return to the bakery to talk to Aaron about the change in her own religious perspective. Although Rachel did not want her to do so, Cheryl wanted to make it, in her words, a "teaching moment" because "but for the grace of God, that was me just a few years ago."
On returning to the bakery, Cheryl went in by herself while Rachel remained in the car. Cheryl explained to Aaron that she used to share his views, but that her truth had changed when God gave her two gay children. In response, Aaron asked about what the Bible said on the topic and then quoted Leviticus 18:22 to Cheryl: "You shall not lie with a male as one lies with a female; it is an abomination."
Recognizing that Aaron was "not ready to hear [her] truth," Cheryl left the bakery. She returned to the car and reported to Rachel that Aaron had said that "her children were an abomination unto God."
Hearing that Aaron had called her "an abomination," Rachel cried harder. Rachel, who had been raised Southern Baptist, felt "like they were saying God made a mistake when he made me, that I wasn't supposed to be, that I wasn't supposed to love or be loved or have a family or live a good life and one day go to heaven."
Rachel and Cheryl returned home, where Rachel immediately went to her bedroom crying. Cheryl told Laurel what had happened, including that...
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