The Kleins must feel like they’re trapped in a recurring nightmare, like the one in the movie Groundhog Day. They finally get their case before the supreme Court, only to have it sent back to be heard again by the Court of Appeals of Oregon. The legal questions placed before the court seem simple enough, but the underlying question for all of us is: Can government force you to create something against your will or conscience?
The Case
For those of you unfamiliar with the case, I quote from the petition to the supreme Court:
Melissa and Aaron Klein owned a bakery, which they operated in accord with their religious convictions. They designed and created custom cakes—only custom cakes. And they did so without regard to the sexual orientation of their customers, including the complainants in this case, who had commissioned a wedding cake from the Kleins for a traditional wedding just two years before setting this litigation in motion. What the Kleins could not do in good conscience was to design and create a custom wedding cake to celebrate a wedding ceremony that contravened their religious belief that marriage is the union of one man and one woman. When the Kleins declined to contribute their art to a same-sex wedding ritual, the Oregon Bureau of Labor and Industries (“BOLI”) found that they had violated Oregon’s public accommodations law. BOLI ordered the Kleins to pay the complainants $135,000 in damages. Sweetcakes by Melissa went out of business. The Oregon Court of Appeals affirmed BOLI’s order, rejecting the Kleins’ constitutional defenses. The Oregon Supreme Court denied review.
Supreme Court On Petition for Writ of Certiorari to the Oregon Court of Appeals
According to the Klein’s petition, they served anyone, regardless of sexual orientation, including the couple that filed the complaint against them. While they would serve anyone, their conscience would not allow them to make just any cake. Among those cakes that the Kleins decline to make are same-sex wedding cakes. For this, they were fined $135,000 by the State of Oregon and put out of business.
The first question put before the court, and the one I want to deal with here, is:
Whether Oregon violated the Free Speech and Free Exercise Clauses of the First Amendment by compelling the Kleins to design and create a custom wedding cake to celebrate a same-sex wedding ritual, in violation of their sincerely held religious beliefs.
Supreme Court On Petition for Writ of Certiorari to the Oregon Court of Appeals
The Problem
This is obviously a violation of both the free speech and the free exercise of religion of the Kleins’ rights. It is not, however, a violation of their First Amendment rights, but of their Freedom of Religious Opinion rights in Article I, Section 3 of the Constitution of the State of Oregon.
U.S. Constitution
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech,
The First Amendment specifically says “Congress shall make no law…”. Since the Kleins were not charged with violating a federal law, it is not one that Congress passed. Since Congress did not pass a law that violated the Klein’s rights, at least not in this case, there is no First Amendment violation.
Oregon Constitution
Freedom of religious opinion. No law shall in any case whatever control the free exercise, and enjoyment of religeous [sic] opinions, or interfere with the rights of conscience.
The State of Oregon not only protects their citizens right to freely exercise their religion, but also specifically their rights of conscience. By punishing the Kleins for not acting in a way that violates their conscience, both the Oregon legislative and judicial branches have violated the constitution they swore to uphold.
The Solution
Since the rights of the Kleins have been repeatedly violated by both the legislature and the judiciary of the State of Oregon, there are three possible solutions:
Removal
Removal, suspension or censure of judges. (1) In the manner provided by law, and notwithstanding section 1 of this Article, a judge of any court may be removed or suspended from his judicial office by the Supreme Court, or censured by the Supreme Court, for:
…
(b) Wilful misconduct in a judicial office where such misconduct bears a demonstrable relationship to the effective performance of judicial duties;
I believe by willfully ignoring both the Constitution of the State of Oregon and their oath to support it, the misconduct of the judges that have heard this case demonstrably impacted their duties as officers of the court. Since the Supreme Court of Oregon did not accept the case, they should be free to censure the judges in the Court of Appeals without any conflict of interest.
Elections
Not only are the legislators and the governor who signed this atrocious bill elected by the people, but the justices of their Supreme Court are as well. That means the citizens of the State of Oregon can censure the justices that refused to get justice for the Kleins by refusing to re-elect them. If the citizens of Oregon, like those of most states, pay little if any attention to the election of judges, it is their fault when one of their own cannot get justice from the branch whose sole purpose is to ensure it.
And speaking of legislators, do the citizens of Oregon really believe the state has the authority to force them to work for others? Sure, you may not bake cakes, but can you be forced, against your will, to fix a car, take a plumbing or construction job, or do any of the other myriad tasks we do everyday? I know most Americans just want people to be treated fairly, but are you willing to give up your freedom and pursuit of happiness in order to allow others to decide what should and should not be allowed? If the citizens of Oregon think Bureau of Labor and Industries (BOLI) went too far, it’s up to them to hire representatives that will rein them in.
14th Amendment
While what BOLI did was not a violation of the U.S. Constitution’s First Amendment, a case could be made that Oregon has violated the 14th Amendment.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The State of Oregon has made and enforced a law that abridged the immunities of citizens of the United States: Conscience rights protected by their own Constitution. The courts have allowed property, both money and their business, to be taken from them with a process that was not due, since it did not protect the rights of the Kleins. In addition, I believe both the BOLI and the Oregon courts have denied the equal protection of laws to the Kleins, since any protection against discriminatory practices has been applied to only one side of this case. No thought seemed to be given to the discrimination against the Kleins for their religious beliefs and conscience. Neither was the discriminatory acts of the couple that filed a complaint against the Kleins considered. They were not forced to buy their cake only from the Kleins. They were perfectly free to take this request and all of their business elsewhere. Rather, in what appears to be an attempt to suppress a belief they disagree with, this couple has used the State of Oregon to discriminate against a viewpoint, speech, and religious activity with which they disagree. In other words, they have weaponized the State of Oregon to discriminate against those they disagree with.
Conclusion
Yes, what has been happening to the Kleins is a travesty of justice. Not only have their lives and livelihood been destroyed, but the concept of justice and equal protections for all has been trampled. While I feel for the plight of the Kleins, and want them to get justice, I believe taking this to the supreme Court under the pretense of the First Amendment does more harm than good in the long run. Should this case come back to the federal courts, any decision would set a dangerous precedent; the federal courts rule over not only the state courts, but the states themselves. (The precedent that the Constitution doesn’t mean what it says already has a long history in federal courts.) I urge the citizens of the State of Oregon to retake control of their government and seek justice, not only for the Kleins, but for themselves.
