The US Supreme Court acted on June 30 to revive for “further consideration” a case in which the Oregon Court of Appeals ruled that an Oregon bakery violated the state’s civil rights law by refusing to make a wedding cake for a lesbian couple. In a ruling on the court’s “shadow docket,” the Supreme Court voted to “vacate” the state court’s ruling and send the case back to the lower court for reconsideration in light of the Supreme Court’s decision in 303 Creative LLC v. Elenis, announced earlier that day.
In 303 Creative, the court ruled 6-3 that Lorie Smith, a website designer, had a constitutional free speech right to refuse to design websites for same-sex marriages. Justice Neil Gorsuch’s opinion accepted the 10th Circuit Court of Appeals’ characterization of website design as “pure speech,” as well as Smith’s contention that having to design such a website would compel her to speak a message with which she disagreed. She premised her disagreement on her religious beliefs about marriage, but the court dealt with her appeal as a free speech case rather than as free exercise of religion case, although she had raised both issues before the Colorado court. The Supreme Court ruled that the state’s Civil Rights Commission failed to show that Colorado had a compelling interest to override Smith’s free speech right.
Pending before the Supreme Court when it decided 303 Creative was a petition for certiorari by Melissa and Aaron Klein, co-owners of Sweetcakes by Melissa, a Gresham, Oregon, bakery which only produces custom-designed cakes.
More than 10 years ago, in January 2013, Rachel Cryer and Laurel Bowman sought to order a wedding cake, having been very satisfied by a custom cake the bakery had previously made on their order for a straight couple’s wedding. The bakery refused to make a cake for their same-sex wedding, however, citing the Kleins’ religious beliefs. Rachel and Laurel subsequently contracted with a different baker to create their wedding cake, and filed a discrimination complaint with the Oregon Bureau of Labor and Industries, complaining about sexual orientation discrimination by the Kleins. The Oregon courts affirmed an order by the bureau’s commissioner affirming an administrative law judge’s conclusion that the Kleins violated the public accommodations law and imposed a substantial fine on the business.
The Kleins appealed to the Oregon Court of Appeals, which affirmed the commissioner’s ruling. That court specifically rejected the Kleins’ First Amendment defenses. On the religion defense, the court found that the public accommodations law was neutral with regard to religion and generally applicable to businesses in the state, so under US Supreme Court precedents the Kleins could not claim a religious exemption. On the speech front, the court held that this was a commercial business regulation that incidentally affected freedom of speech, and thus was subject only to intermediate scrutiny, which it survived due to the state’s legitimate interest in protecting its residents from discrimination. The Oregon Supreme Court declined to review the case and the Kleins then petitioned the US Supreme Court.
Their petition was pending when the Supreme Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission, ruling in favor of baker Jack Phillips in a strikingly similar case. In that case, however, the Supreme Court concluded that Phillips had not received a neutral forum to consider his First Amendment defense, mainly because of public remarks made by two of the commissioners that the court deemed to show “hostility” to his religion. The court’s opinion reaffirmed the general rule that anti-discrimination laws must be complied with, even by those with religious objections.
The Supreme Court sent the Kleins’ case back to the Oregon courts for reconsideration in light of Masterpiece Cakeshop. The Oregon Court of Appeals reviewed the record of the case and found no reason to change its view, issuing a ruling stating that the Kleins had not been deprived of a neutral forum to consider their claim. The Kleins, insisting that public comments by the commissioner of the Bureau showed similar hostility, petitioned the Supreme Court again.
It takes four votes out of the nine Supreme Court justices to grant a petition for certiorari, but at least five votes to stay a lower court ruling or to render a ruling on the merits of a case. Presumably, it also takes a majority of the court to vacate a lower court decision, because a grant of certiorari does not automatically affect the lower court’s ruling, but the court’s published rules do not specify how many votes it takes to vacate. Thus, it is not clear whether the court’s statement that the Oregon Court of Appeals decision is vacated represents the views of a majority of the court, but that seems likely.
Because the Kleins did raise a freedom of speech defense in the Oregon courts, it is possible that either the Oregon Court of Appeals or the US Supreme Court on further review would extend the rationale of 303 Creative from website design to custom wedding cakes. Cake makers such as Jack Phillips and the Kleins contend that they are “cake artists” whose product has expressive content, at least in the general sense of celebrating a marriage, even if the cake itself does not bear an inscription. Phillips and the Kleins both made a “compelled speech” argument. The US Supreme Court did not address this contention in the Masterpiece Cakeshop decision, although a concurring opinion in that case would have relied on freedom of speech to rule in favor of Phillips.
The 303 Creative case focused specifically on factual stipulations by the parties in that case that emphasized the expressive nature of Lorie Smith’s website design work. In the Kleins’ case, the Oregon Court of Appeals considered any expressive elements in the wedding cake context to be incidental, rather than “pure speech” in the way that term was used in the 303 Creative case. Whether that would make a difference is a matter of speculation.
Now that the case is returned to the Oregon Court of Appeals, that court will call for briefing from the parties about the impact of 303 Creative and will produce a new opinion, which could be appealed to the Oregon Supreme Court. Due the time it would take for briefing, oral argument, and producing a written decision, first at the court of Appeals to which the US Supreme Court specifically remanded the case, and then possibly at the Oregon Supreme Court, it is unlikely that there will be a final decision from the Oregon courts in time for this issue to come back to the US Supreme Court during its October 2023 term, but it might end up back at that court the following term.
The Kleins are represented by Boyden Gray & Associates PLLC, a Washington, D.C., firm that specializes in conservative causes and frequently appears before the Supreme Court.
