Months after the U.S. Supreme Court in the Masterpiece Cakeshop case issued a narrow ruling in favor of a Colorado baker who refused to make a custom-made wedding cake for a same-sex couple, anti-LGBT legal groups are before justices again seeking a more expansive decision allowing refusal of service to LGBT people.
As reported SCOTUSblog on Monday, the Texas-based law firm First Liberty has filed before the Supreme Court a petition on behalf of Aaron and Melissa Kline of Sweetcakes in Gresham, Ore., asserting a First Amendment right to decline wedding-related services to same-sex couples.
“Certiorari is warranted to clarify the interaction of the First Amendment with state public accommodations laws,” the petition says. “Hearing this case would allow the court to resolve disagreements in the lower courts about the kinds of expression that merit First Amendment protection, and the precedential status of this court’s hybrid rights doctrine, which applies strict scrutiny in the case of free exercise claims that implicate other fundamental rights.”
In 2013, a female same-sex couple, Rachel and Laurel Bowman-Cryer, came to Sweetcakes and, after an initial tasting, requested a wedding cake for a commitment ceremony. (Oregon hadn’t yet legalized same-sex marriage.) Melissa Kline refused them the service on the basis that baking a wedding cake would be inconsistent with her religious beliefs.
The couple filed a complaint with the Oregon Bureau of Labor & Industries asserting Sweetcakes had violated Oregon’s human rights law, which bars anti-gay discrimination in public accommodations. The bureau fined the couple $135,000, which the petition says forced Sweetcakes out of business. (According to the Washington Times, the couple raised $352,500 through crowd-sourcing as a result of donations from religious sympathizers.)
The Oregon Court of Appeals upheld the decision from the Oregon Bureau of Labor & Industries. Earlier this year, the Oregon Supreme Court declined to review the petition.
But that was before the U.S. Supreme Court issued its decision in favor of Colorado baker Jack Phillips in Masterpiece Cakeshop. Although Phillips was seeking a First Amendment right based on freedom of speech and religion to decline service to same-sex couples, the court instead ruled in his favor based on the facts of the lawsuit, finding the Colorado Civil Rights Commission had an anti-religion bias in adjudicating his case.
Because the U.S. Supreme Court declined to rule on the merits in the Masterpiece Cakeshop case, the First Liberty petition asserts a new opportunity to definitively state whether the Kleins have a First Amendment right to refuse service to LGBT people.
“The factual uncertainties in Masterpiece Cakeshop also presented ‘difficulties…in determining whether a baker has a valid free exercise claim,” the petition says. “Those difficulties are not present in the Kleins’ case. Because they sold only custom wedding cakes, there is no possibility that the Kleins ‘refus[ed] to sell a cake that has been baked for the public generally,’ id., and the record is clear about the Kleins’ process of designing, creating, delivering, and assembling their cakes — a process that the Oregon Court of Appeals held the Kleins must perform on a “full and equal” basis for same-sex weddings.”
It takes a vote of four justices to decide to take up a case, although certiorari is granted in a rare number of cases and the vote tally isn’t made public.
The U.S. Supreme Court may decline to take up the Klein petition, but also vacate the decisions from Oregon state courts with orders to reconsider in the aftermath of Masterpiece Cakeshop. That would be consistent with the U.S. Supreme Court’s action in the Arlene’s Flowers case in which a Washington State florist sought a First Amendment right to refuse floral arrangements for same-sex weddings.
But things might be different now that U.S. Associate Justice Brett Kavanaugh has been seated and replaced former U.S. Associate Justice Anthony Kennedy, a moderate justice who was sympathetic to LGBT rights. Kavanaugh may deem the Klein case worthy of consideration, be the deciding vote to take up the case and possibly the deciding vote on whether the Kleins have a First Amendment right to refuse service to same-sex couples.
The Klein petition joins other petitions pending before the Supreme Court seeking clarification on whether laws prohibiting “sex” discrimination inherently bar anti-LGBT discrimination. Anti-LGBT lawsuits were also filed on the day Kavanaugh was confirmed seeking a religious freedom right to discriminate against LGBT people despite civil rights measures.
According to SCOTUSblog, Oregon now has about a month to respond to the Klein petition, although the state could seek a 30-day extension. Depending on the timing for the briefing, if the court grants review, justices could hear oral arguments in the case and deliver a ruling before the end of June 2019.