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HASSO HERING

A perspective from Oregon’s mid-Willamette Valley

Wedding cakes and free speech

Written July 6th, 2015 by Hasso Hering
The First Amendment was mentioned by the Supreme Court but not by BOLI , the Oregon Bureau of Labor and Industry.

The First Amendment was mentioned by the Supreme Court but not by BOLI , the Oregon Bureau of Labor and Industry.

Oregon law, according to Labor Commissioner Brad Avakian, says that if you make cakes as a business, you must make one for a gay wedding even if you oppose gay weddings. But you don’t have to be quiet about it. The First Amendment protects your right to speak out, as affirmed in the same-sex marriage ruling the Supreme Court delivered last week.

On July 2, Avakian ordered a former Gresham bakery, Sweet Cakes by Melissa, to pay a lesbian couple $135,000 for declining to bake them a cake for their wedding in 2013. The money is to compensate the women for emotional suffering.

“This case is not about a wedding or a marriage,” Avakian claimed in his order. “It is about a business’ refusal to serve someone because of their sexual orientation. Under Oregon law that is illegal.” But Avakian is wrong about the nature of the case. It is about a cake for a wedding, nothing else. If the women had ordered a birthday cake, Sweet Cakes would have made them one regardless of their sexual orientation. What the husband-and-wife shop declined to do was to make a cake for a same-sex wedding, which at the time was not even recognized in Oregon.

Avakian also ordered Aaron and Melissa Klein to refrain from future violations by “communicating” that they would not make gay-wedding cakes. Some took this as a gag order against the Kleins. As for that, the Supreme Court opinion comes in handy as a guide.

Writing for the five-judge majority that discovered a constitutional right to same-sex marriage in the 14th Amendment, Justice Anthony Kennedy also wrote: “Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons.”

Setting aside Kennedy’s overwrought language, it’s safe to say that the First Amendment overrides whatever the Oregon labor commissioner decides citizens can “communicate” about their beliefs. So what might bakers opposed to same-sex marriage do to stay within the law? They could put up a sign: “Cakes for any occasion you want. But just so you know, we oppose gay weddings as a matter of principle, which is our right. The Supreme Court just said so.”

With a sign like that, how many orders for gay-wedding cakes would they get? (hh)



15 responses to “Wedding cakes and free speech”

  1. Ray Kopczynski submitted this reaction by email:

    “It is about a cake for a wedding, nothing else. If the women had ordered a birthday cake, Sweet Cakes would have made them one regardless of their sexual orientation. What the husband-and-wife shop declined to do was to make a cake for a same-sex wedding, which at the time was not even recognized in Oregon.”

    That’s also quite a “tortured” interpretation Hasso. Avakians’ statement is correct. (The amount of the fine is over the top though.) Once a business owner invites someone into their establishment with the intent to exchange services for compensation, they are then bound to follow the law. These folks did not do so.

    “They could put up a sign: ‘Cakes for any occasion you want. But just so you know, we oppose gay weddings as a matter of principle, which is our right. The Supreme Court just said so.'”

    Yes they probably could. However, substitute different words for “gay weddings.” Such as Blacks, Jews, Mexicans, Homosexuals, Baptists, Muslims, etc… Yes – you can do that. Get away with it? I seriously doubt it. The 1st amendment has never been 100% protected.

    “With a sign like that, how many orders for gay-wedding cakes would they get?”

    I would hope at least one couple would test their adherence to the law – regardless of what their sign says. If you are going to rub your “religion” in my face, then quid pro quo…

    • Kennedy’s opinion specifically recognized that people have the right to hold and express opinions opposed to gay marriage, and that’s what this is about. It’s not about Baptists or Muslims or any other group or issue. So your suggestion for substitution — to illustrate how offensive that would be — is not really on point. (hh)

      • Ray Kopczynski says:

        I believe it is very directly “on point.” I think the real point of contention here is primarily where does the line get drawn in any of these issues/cases — and more importantly — who gets to decide…

        • James Carrick says:

          Ray, You objected so strenuously to the “hate flyers” posted on windshields during last fall’s Vetran’s Day Parade. I defended their right to free speech and you squawked like a big rooster!

          How would like to be FORCED (or fined for refusing) to accomodate those people in whatever way they demanded of you? Just asking.

          • Ray Kopczynski says:

            “How would like to be FORCED (or fined for refusing) to accomodate those people in whatever way they demanded of you? Just asking.”

            Bleating hate messages deserves the retort[s] given. That is fundamental free speech. To me, it crosses the line when you open a business and then refuse to follow the existing law. You do have every right to state your beliefs. That’s a given. In doing so however, you need be mindful the consequences of doing so.

    • Debbie Swenson says:

      Hasso is correct. Christians should not be forced to go against their beliefs. Nor should a Black baker be forced to make a cake for the KKK or a Muslim baker have to depict Muhammad on a cake, or a Jewish baker have to do an ISIS flag cake. All businesses should have the right to refuse business to anyone who expects you to go against your religion or are offensive in any way, like penis and breasts cakes.. The law currently picks and chooses which people to prosecute/persecute. Many people are still turned away for things like, no shirt, no shoes, no service. This isn’t a good law or it is being interpreted badly by Mr. Avakian who has his own personal agenda.

  2. Jim Engel says:

    What was the Bureau of Labor doing making a fine in the first place? Shouldn’t this be a civil case? This uber-correctness is going too far!

    It’s also about time to make the Supreme Court an elected position with say a 7 year term limit. They want to make legislative decisions then we get to elect them out.

  3. rich Kellum says:

    So tell me Ray, at what point does a business owner have the responsibility to give a service for something that is not recognized as legal in the jurisdiction that they are in?? Funny, hetrosexual bakers have a responsibility to homosexual people to make a cake that they find objectionable but when heterosexuals go into a bakery and ask for a cake with the inscription of LEV 18 it is somehow not important to Brad Avakian. If we are to have this politically correct set of rules, they should at least apply to everyone… if you are going to rub your sexuality into someone elses face you should also be given the opportunity to feel what it is like to have it happen to you.

    • Ray Kopczynski says:

      “…if you are going to rub your sexuality into someone elses face you should also be given the opportunity to feel what it is like to have it happen to you.”

      Reading the language (as shown below by Gordon), exactly how did that occur? The folks simply asked for a wedding cake. At that point, the Kleins said no — and thereby “…refused, withheld from or denied to, or that any discrimination be made against, any person on account of their sexual orientation.” Sure seems awfully black & white to me…

  4. Gordon L. Shadle says:

    Here is what Avakian’s gag order said:

    “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.”

    Hasso is correct. Avakian’s intent is to “rehabilitate” anyone who does not conform to his speech code.

    • James Carrick says:

      I spoke to this before so I will only touch on it, but I feel this is the key element.

      For a bakery to plan and bake a “wedding” cake, it involves a level of PARTICIPATION in that wedding. Period. Nothing more or less. What about their right to free exercise of their religious beleifs? Hell, at the time, same sex weddings weren’t even legal in Oregon!

      The bakery owners in this case are being denied their right to beleive, and act on those beleifs they hold that are supposedly protected. Do the words “free exercise of” have any meaning any more?

  5. tom cordier says:

    Since Ray actually ran and was elected to Council–the real Ray has come out. He needs rehab. His character is right out of “Animal Farm”. e.g. all animals are equal except some animals are more equal than others.

  6. James Carrick says:

    I’m getting sick and tired of these “which ever way the wind blows liberals” and their shifting winds.

    Morals aren’t relative…they’re absololute!

 

 
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