Why We All Should Care about an Oregon Bakery

This past week (March 2, 2017), Aaron and Melissa Klein finally had their first day in court.

Here are the facts of the case. On January 17, 2013, a repeart customer of Sweet Cakes by Melissa, in Gresham, Oregon, entered the shop and asked the co-owner, Aaron Klein, to create a wedding cake for the occasion of her same sex wedding. Considering the biblical teaching on marriage (Genesis 2:24), he declined to create the requested cake.

At the time of the incident, the State of Oregon itself did not recognize same sex marriages. Nevertheless, in February 2013, civil enforcement officers from the state’s office of Attorney General, opened an investigation to see if Aaron had violated Oregon Equality Act passed in 2007.

Activists began to harass and threaten their suppliers into breaking business ties with Sweet Cakes. Physical damage was done to their delivery truck, and death threats were delivered to the Kleins. By September, they were forced to close the shop and work out of their home.

More than two years after the incident, in April 2015, an administrative court awarded $135,000 in damages to the customer. Then, in July of that year, the Oregon Bureau of Labor and Industries (BOLI) made it final. The Kleins asked for a reduction of the amount since it would lead to their financial ruin. Brad Avakian, the Commissioner of BOLI denied their request.

They objected that they should not have to pay the penalty until their case was heard by a court of law. But weeks before Christmas, the state of Oregon emptied their bank accounts of nearly $7,000. Then, December 28, 2015, they were forced to pay an additional $136,927 to cover not only the penalty, but interest accrued.

In April 2016 they filed suit with the Oregon Court of Appeals. By September 2016, they announced that even the business that they had moved to their home was now closed down. Last week, on March 2, 2017, they finally had their first hearing before an actual court of law. The three judge panel heard their case but likely will not rule for several months.

These are the facts of the case, as neutrally as I can report them. Now it is time for some comments on its substance.

First, it is always troubling when the law is a moving target. At the time this case began, the State of Oregon itself did not recognize a same sex marriage as legitimate. The Oregon Equality Act had been on the books for five years and had never been used to prosecute the state’s own position. How, then, could anybody anticipate that an agency of the state, could penalize a citizen for its own position?

Since Hammurabi’s Code (1754 BC), one of the basic principles of law is that it is equally applied to citizen and king alike. In keeping with that, the law must be understandable and predictable. How are we to live equally under the law if nobody knows what the law says until some bureaucrat decides what it says?

Second, we should all be alarmed when judicial authority is usurped by the executive branch. Brad Avakian is the Commissioner of the Oregon Bureau of Labor and Industry, an executive agency. He, and the administrative courts of his agency have acted as judge, jury, and executioner from 2013 until now.

Within months of the initial investigation, Avakian declared that his goal was to “rehabilitate” the Kleins. A year later, their appeal for a more reasonable penalty had to go directly through him. A year after that, he authorized the seizing of their bank accounts – all before the judicial branch even heard the case. I don’t care where you stand on the right or wrong of the Klein’s case. Everybody should be alarmed at the power of a single bureaucrat to destroy a private citizen.

Third, justice delayed is justice denied. It would be bad enough if one government functionary had such discretionary power for even a month. But Brad Avakian has effectively controlled the finances of the Klein family for over four years. Even now that the case has finally been heard by an appeals court, it will be months before they have a chance to regain the money and assets that have been taken from them.

There is a reason that our courts treat people as innocent until proven guilty. To deprive people of money, property, and good name – even for a short while – has permanent consequences. Even should the matter finally be resolved in the Klein’s favor, they can never regain their business or undo the years of damage this has cost them.

Fourth, the Constitution was intended as a preventative, not as a last ditch correction. It is simply ludicrous that the words of the Constitution cannot even be considered until every bureaucrat has had his say. But that is what has happened here.

Aaron Klein explains, “Every time we tried to make a constitutional argument it was stomped on, because it was administrative law… But now we’re finally in a courtroom where the Constitution and due process can be argued on a level we haven’t seen before. I’m looking forward to seeing the outcome.” We see this same pattern happening in our own state with the prosecution of Judge Ruth Neely.

I recently reviewed the oral arguments of her case before the Commission on Judicial Conduct and Ethics (CJCE). Time and time again, when Neely’s defense attorneys would bring up statements in the Wyoming and U.S. Constitutions which should protect her from the actions of the CJCE, the attorney for the CJCE would blandly reply that such questions will have to wait for the Supreme Court to decide, “I don’t believe it is the prerogative of this panel or the full commission to decide and rule on constitutional issues.”

Fifth, justice involves proportionality. Even if you judge the Kleins to be in the wrong, consider the hugely disproportionate effects on the two parties. On the one side, a woman was upset by the treatment she received at the bakery, and verbal harassment from others when her case became public. She lost no money, was not physically assaulted, was not vandalized, or run out of business. On the other side, the Kleins have been vandalized, run out of business, treated as criminals by the state, and forced to give over $140,000 to an escrow account for the offended woman.

Would anybody call it just if a jay-walker were fined a year’s wages? Or, if pulling hair were punishable by death? I just watched a powerful movie called, Sophie Scholl: The Final Days. In it several college students were guillotined for passing out anti-government pamphlets. Disproportionality is the very definition of tyranny.

Sixth, and finally, the charge itself is obviously false. The person requesting the cake was a repeat customer. That means they had already proven they do not refuse service based on sexual orientation. It’s about what they were asked to say, not who they were dealing with. Is the creation of art free speech, or not?

Are cake-decorating, photography, and flower-arranging artistic performances protected by the First Amendment? Or can the government mandate what these artists must, or must not say? Be careful how you answer, or you too will soon be forced to dance to the government’s tune.

These are the questions raised by the case of an Oregon bakery. Although they are happening two states away, they hit very close to home. Every Wyomingite should care, because if Oregon prevails, we will all be served the same cake that Oregon is baking.