Despite a state agency's final order in the case of a shuttered Oregon bakery that discriminated against a lesbian couple, the dispute is a long way from being settled - legally or in the court of public opinion.
Far from putting matters to rest, Labor Commissioner Brad Avakian's July 2 order directing the owners of Sweet Cakes by Melissa to pay the women $135,000 in damages for denial of service unleashed yet another wave of questions and acrimonious commentary on social media and online news sites.
The newest bone of contention is whether Avakian, as head of the state Bureau of Labor and Industries, placed a "gag order" on Christian bakery owners Aaron and Melissa Klein in ordering them to "cease and desist" from discriminating against future customers.
We'll get into that and other issues below, but not without first noting that the Kleins' refusal to bake a cake for a same-sex wedding has put them front and center of a rancorous national debate over religious liberty and anti-discrimination laws.
The Oregon couple are among a group of bakers, florists and photographers who've been either condemned or praised for citing their religious beliefs in refusing to offer wedding-related services to same-sex couples.
- Sweet Cakes: State orders Oregon bakery owners to pay $135,000 for denying service to same-sex couple
- Former Oregon bakery owners must pay $135,000 for denying lesbians wedding cake
1. What's all this about a gag order?
In addition to awarding damages, the final order directs the Kleins to cease and desist from discriminating in violation of Oregon law.
"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," Avakian wrote.
It's common in civil rights cases to include such language directed at business owners, said Charlie Burr, a spokesman for BOLI. "That's what this order says."
"The Kleins are free to voice their disagreement with the ruling or Oregon's anti-discrimination laws in general," he added. "The cease and desist order means that they should refrain from discriminating against future customers."
Anna Harmon, a lawyer for the Kleins, sharply disagreed.
" BOLI has issued a cease and desist order which is effectively a gag order keeping the Kleins from talking with the media and expressing their personal beliefs and opinions about this case," she said in an emailed statement to reporters that was picked up by The Daily Signal and other conservative publications.
"Brad Avakian has been outspoken throughout this case about his intent to 'rehabilitate' those whose beliefs do not conform to the state's ideas...This is a brazen attack on every American's right to freely speak, and it imposes government orthodoxy on those who do not agree with government sanctioned ideas."
Avakian cited a September 2013 interview on the Christian Broadcasting Network, during which Aaron Klein said, "We don't do same-sex marriage, same-sex wedding cakes," as well as a handwritten sign that was shown taped to the inside of Sweet Cakes' front window during the broadcast proclaiming, "This fight is not over. We will continue to stand strong."
In another CBN interview in February 2014, after Washington state had legalized same-sex marriage, Aaron Klein said he anticipated that Sweet Cakes would face the same issue "but we have to stand firm. It's our belief and we have a right to it, you know."
Lawyers for the Kleins argued that these were simple statements of fact about what happened that day in the bakery and about the couple's personal resolve to stay true to their faith. But Avakian interpreted them as declarations that the business would refuse to serve gay and lesbian customers as a matter of policy.
Burr said BOLI has issued similar cease and desist orders to a business that posted signs saying black customers were not allowed and to another business that left a voice mail for a group of transgender patrons asking them not to return to the establishment.
Steven Green, director of Willamette University's Center for Religion, Law & Democracy, said Monday after reviewing the final order that it appears to leave room for argument.
"If the order is interpreted and applied narrowly to prohibit any communication indicating an intent to discriminate against gays in the operation of their business, then it would likely not violate the owners' free expression rights," he said.
"It would be more problematic, however, if the order would prevent (the Kleins) from publicly stating their disagreement with the ruling, that they intend to fight the ruling, or that believe that gay marriage is sinful."
Courts commonly issue injunctions ordering people to desist from certain conduct, Green said. Though BOLI is a state agency and has the authority to do the same, it is not a court, he noted.
"As a First Amendment scholar," he added, "I find the declaration requirements more troubling than I do the fine."
2. What's next on the legal front?
The Kleins have 60 days to file a petition for judicial review with the Oregon Court of Appeals and a request for a stay of enforcement with the Bureau of Labor and Industries.
The couple vowed last week to appeal the final order. Assuming the appeal is accepted, it could be months or even years before it reaches the appellate court. A similar case involving a North Portland bar that discriminated against transgender customers began with a 2013 finding against the business and took until April 2015 for oral arguments to be heard. A decision is still pending.
3. How did the state arrive at $135,000 in damages?
The damages award was based on two factors, following a four-day hearing in March.
An administrative law judge for BOLI awarded $75,000 to Rachel Cryer-Bowman and $60,000 to Laurel Bowman-Cryer in compensatory damages for "emotional suffering" they experienced from the "cake refusal." The judge denied any award for damages "caused by media and social media attention to this case."
Bureau prosecutors sought $75,000 for each woman following the judge's earlier finding that the bakers had discriminated against the women by refusing service on account of their sexual orientation.
The judge awarded Laurel Bowman-Cryer a lesser amount because she wasn't present when Rachel and her mother were turned away at the bakery and because he found some of her testimony exaggerated her emotional suffering.
4. Were the Kleins set up? Many readers have accused the Bowman-Cryers of planning a confrontation, intending to seek damages afterward.
According to findings of fact in the case, based on affidavits from the Kleins and later bolstered in oral testimony:
The Kleins had earlier made a wedding cake for Rachel Bowman-Cryer's mother in the fall of 2010.
In January 2013, Rachel and her mother, Cheryl McPherson, attended a bridal show in Portland, where Melissa Klein had a booth advertising Sweet Cakes. The women told Melissa they wanted to order a cake from her and Rachel later emailed to set up a cake-tasting appointment on Jan. 17, 2013. Melissa stayed home that day, so her husband alone was in the shop.
When Aaron told the women the business did not make cakes for same-sex weddings, Rachel began crying, then left with her mother. McPherson drove a short distance, then returned to Sweet Cakes and entered alone to talk to Aaron Klein.
McPherson told Klein that she used to think like him, but her "truth had changed" as a result of having two gay children. Klein quoted Leviticus 18:22 to McPherson, saying "You shall not lie with a male as one lies with a female; it is an abomination." McPherson then left Sweet Cakes.
In August 2013, the women filed the first of two complaints with BOLI alleging they had been denied service because of their sexual orientation.
5. What's the status of fundraising for the Kleins?
Three crowdfunding efforts have met with varying degrees of success.
A GoFundMe account brought in more than $100,000 in less than a day but the account was closed in late April because the campaign violated the terms of service for the crowdfunding web site.
Mark D. Kost, a family friend who set up the account, said the Kleins received an amount "way below six figures" after GoFundMe released the funds, less 8 percent for itself.
Samaritan's Purse, a Christian nonprofit founded by Franklin Graham, eldest son of the Rev. Billy Graham, is accepting donations for the Kleins as part of a fund created "to help persecuted Christians in the U.S."
"For the safety and privacy of the Kleins, the organization is not releasing details on the funds raised," Kelly Wells, a spokeswoman for Samaritan;s Purse, said in a email to The Oregonian/OregonLive.
Continue to Give, a faith-based nonprofit in Wisconsin, also set up a crowdfunding page for the couple with a goal of $150,000.
As of 7 p.m. Monday, the site reported surpassing the goal with 118 percent raised - meaning about $177,000.
The couple closed their Gresham storefront shop in September 2013 and now operate the business out of their home in Sandy.
-- George Rede
grede@oregonian.com
503-294-4004
@georgerede