Oregon Labor Commissioner Brad Avakian finalized a preliminary ruling today ordering Aaron and Melissa Klein, the bakers who refused to make a cake for a same-sex wedding, to pay $135,000 in emotional damages to the couple they denied service.
“This case is not about a wedding cake or a marriage,” Avakian wrote. “It is about a business’s refusal to serve someone because of their sexual orientation. Under Oregon law, that is illegal.”
In the ruling, Avakian placed an effective gag order on the Kleins, ordering them to “cease and desist” from speaking publicly about not wanting to bake cakes for same-sex weddings based on their Christian beliefs.
“This effectively strips us of all our First Amendment rights,” the Kleins, owners of Sweet Cakes by Melissa, which has since closed, wrote on their Facebook page. “According to the state of Oregon we neither have freedom of religion or freedom of speech.” Link
What would the Founders think of this arrangement – you are required by law to do business with people you do not wish to do business with and if you say no, you are fined more than 5 times your neighbors’ average annual income. That $135,000 is for hurt feelings!
This is really about the right to freedom of association. That right was extended to all until 1964. When the Civil Rights Act of 1964 was passed, the right to freedom of association was removed from any place that could be described as a “public accommodation”, for certain factors of discrimination. The term basically meant a place that was open to the public to engage in commerce. So any hotel, restaurant, bakery, etc., was banned from discriminating against people on the basis of race, color, religion or national origin.
The 1964 measure, and the legacy of Supreme Court decisions legitimizing it rested their authority on the commerce clause interpretation that meant the federal government could regulate anything with a connection to interstate commerce. While many constitutional scholars believe that interpretation is incorrect, states need not even reach that hurdle.
The federal government is limited in lawmaking by the enumerated powers the Constitution grants it. States however have general lawmaking authority, and many states have their own versions of legislation banning discrimination in public accommodations on the basis of different protected classes such as race or sex. All they then have to do is add a new classification and the same rules apply.
Are such distinctions between acts with economic impact and those with none sufficient to squelch free speech or free exercise of religion concerns? Are they consistent with the principles of ordered liberty the republic is based upon? What about the ban on how the Kleins talk about the case itself – does that represent sound policy that advances fundamental rights?