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In Gay Couple's Wedding Cake Lawsuit, Ore. Bakery Loses Again

By Mark Wilson, Esq. | Last updated on

Sweet Cakes by Melissa isn't so sweet, after all. Last year, the Oregon bakery got into trouble with the state's Bureau of Labor and Industries for violating a state law prohibiting sexual-orientation discrimination in places of public accommodation.

Aaron and Melissa Klein, the owners of the bakery, refused to bake a wedding cake for a same-sex couple, citing their religious beliefs. After an investigation, the Bureau determined that their business had violated the law.

Last week, the Kleins suffered another legal setback.

A Bakery, Not a Church

An administrative law judge ruled against the Kleins' motion to dismiss the case on the ground the Kleins were exercising their freedom of religious expression, The Oregonian reports. Oregon's law does allow exceptions for religious institutions, the Bureau's spokesman Charlie Burr said, but "[t]he bakery is not a religious institution under the law."

Oregon, like many other states, including New Mexico (where a wedding photographer ran afoul of the law by refusing to photograph a same-sex wedding), prohibits many kinds of discrimination in places of public accommodation; that is, private businesses that make their services available to the general public.

In Oregon, a business can't refuse to provide service to a person based on that person's "race, color, religion, sex, sexual orientation, national origin, marital status or age." Oregon's law makes exceptions for entities like churches and religious schools, but not for individual beliefs of business owners.

The Right to Disapprove

Opponents of anti-discrimination laws like Oregon's argue that the laws restrict freedom of religious expression for business owners whose beliefs require them to disapprove of gay people and same-sex marriage.

"The Bible forbids us from proclaiming messages or participating in activities contrary to Biblical principles, including celebrations or ceremonies for uniting same-sex couples," the Kleins said in an affidavit. No court, however, has ever said that a state law prohibiting same-sex discrimination violates the First Amendment.

In any of the other 29 states that don't prohibit same-sex discrimination in places of public accommodation, however, a business owner would be free to choose not to serve a person based on his or her sexual orientation. Federal law doesn't prohibit discrimination on the basis of sexual orientation, either. Business owners need to carefully decide not only whether their state forbids certain types of discrimination, but also whether discrimination is in their best interest.

Aside from not being very nice, it could lead to a sudden decline in business, which happened to Sweet Cakes. The Kleins were forced to close up shop when the orders stopped coming in and they stopped getting referrals. The next stop for the Kleins is a hearing set for March 10.

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