Free to Shut Up
The collision of religious liberty and gay rights in Oregon
"They have good days and bad days, but I will tell you they are resolute,” attorney Herb Grey says of his clients, Aaron and Melissa Klein, two bakers from Portland who are facing a $135,000 fine from the state of Oregon for refusing to bake a cake for a lesbian commitment ceremony in January 2013. “They know that today it’s them, but that there’s nothing they can do to escape from it, and they’re willing to stand up, knowing what the potential implications are for other people.”
Melissa Klein chats with a customer prior to her bakery’s closure, February 5,
It’s safe to say that July 2 was not one of the Kleins’ better days. Brad Avakian, a commissioner with the state Bureau of Labor and Industries (BOLI), issued a ruling that upheld the $135,000 fine for violating state public accommodation laws suggested by an administrative judge in April. The couple were told to pay the fine by July 13 or the state would place a lien on their home. Not only that, but Avakian added an astonishing wrinkle. He issued a gag order that effectively prevents the couple from saying much of anything about the case: “The Commissioner of the Bureau of Labor and Industries hereby orders Respondents 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 will be made against, any person on account of their sexual orientation.”
The state insists that this is not a gag order, that it narrowly restricts what the Kleins may say about who they will serve. (Their bakery, Sweetcakes By Melissa, was shuttered in 2013 thanks to negative publicity surrounding the case, though the couple are trying to keep their business alive online.) But according to Grey, who is one of three lawyers working with the Christian legal group Alliance Defending Freedom to represent the Kleins, the couple have never stated an intention to discriminate, only stated why they took the stand they did in the instance that got them into trouble. Besides, the Kleins have no problem serving gay customers. They had previously served the lesbian woman who filed the complaint against them. They simply decline to make cakes for same-sex weddings, since to do so, in their view, would betray their Christian conscience.
This didn’t stop Avakian, in the July 2 ruling, from citing the following statements by the Kleins as proclaiming their intention to discriminate:
I didn’t want to be a part of her marriage, which I think is wrong.
I am who I am and I want to live my life the way I want to live my life and, you know, I choose to serve God.
It’s one of those things where you never want to see something you’ve put so much work into go belly up, but on the other hand, I have faith in the Lord and he’s taken care of us up to this point and I’m sure he will in the future.
We will continue to stand strong. Your religious freedom is becoming not free anymore. This is ridiculous that we cannot practice our faith. The Lord is good and we will continue to serve Him with all our heart.
Another statement that Avakian singles out seems more clear cut: “We don’t do same-sex marriage, same-sex wedding cakes.” Yet even here, Avakian is being willfully obtuse. The transcript of the radio interview in which Aaron Klein said this shows that he was merely recounting what he told the customer at the time he declined to bake her cake, not announcing his future intentions.
“The way we look at it, and if you put it in First Amendment terms, if you don’t know where the line is drawn, you don’t know how close you can get to it, which means that you tend to engage in less speech to try to stay away from going over the line,” says Grey. “Our perception was that it was in fact a gag order that basically limited us from talking about the case really at all. . . . [The Kleins] don’t know what might trigger a future violation and further complaints and further action by the commissioner.”
The hefty fine and the gag order are hardly the only outrageous things about Avakian’s decree. On page 34, the ruling reads, “In addition to any emotional suffering experienced by Complainants as a direct result of Sweetcakes’ refusal to bake them a cake (‘denial of service’), the agency also seeks damages for suffering caused to the Complainants by media publicity and social media response to this case.”
The state ultimately rejected the idea of additional damages for suffering caused by negative publicity, but its raising the possibility is cause for alarm. The state is essentially saying that if it charges you with violating the law, you can’t speak out against what’s happening to you without potentially subjecting yourself to increasingly harsh penalties—never mind that the Kleins are the ones who seem to have suffered the most from the attendant publicity. Their once-thriving bakery is closed, and Aaron Klein is trying to make ends meet and take care of their children by working as a trash collector.
What’s more, the ruling leaves little doubt that Avakian is not just determined to punish the Kleins—he’s hostile to Christian morality writ large. Consider this passage:
In addition to other emotional responses, [complainant Rachel Bowman-Cryer] described that being raised a Christian in the Southern Baptist Church, Respondent’s denial of service made her feel as if God made a mistake when he made her, that she wasn’t supposed to be, that she wasn’t supposed to love or be loved, have a family, or go to heaven. [Laurel Bowman-Cryer], who was raised Catholic, interpreted the denial to represent that she was not a creature created by god, not created with a soul and unworthy of holy love and life. . . . These are the reasonable and very real responses to not being allowed to participate in society like everyone else.
In other words, the fact that the Kleins justify their actions as fidelity to beliefs that are far from atypical in a country that is nominally 70 percent Christian only meant that they were inflicting additional pain on the complainants. But there is nothing reasonable about citing the lesbian couple’s own religious baggage to reinforce their claim to emotional damages against an ignorant third party. Under this logic, had they been denied a cake for secular reasons, the damage would have been less and the fine accordingly lower. It’s hard not to conclude that Avakian is punishing the Kleins for their Christian beliefs.
This is just what can be concluded from the state’s public pronouncements in the case. But there are a number of circumstantial and political factors that make what is going on more suspect.
For the Kleins, the process is the punishment. So far, all of the actions against them have been taken not by any court of law but as a result of administrative hearings by BOLI, the state labor bureau, which has both prosecuted the complaint and sat in judgment. What’s more, the Kleins and the complainants disagree sharply about what was said when one of the complainants and her mother were told the bakery could not provide the cake. The complainant’s mother says that Aaron Klein called the lesbian couple’s children an “abomination,” whereas Klein insists he did nothing more than quote Scripture to her when she tried to argue with him that the Bible doesn’t condemn homosexuality. The labor department saw fit to take the complainant’s version of events as fact when it is pure hearsay.
In addition to the absence of any respectable evidentiary rules, the standards for determining damages are ridiculous. The 178 claims of emotional damage quoted are so vague and unprovable as to be absurd: One complainant “felt mentally raped, dirty and shameful” and “pale and sick at home after work.” Some complaints consist of isolated words: “shock,” “stunned,” “surprise,” “uncertainty,” “torture.” According to Grey, there’s a reason the complaints sound fishy: “BOLI actually had a list of symptoms which they gave to the complainants, and the complainants checked the ones that they thought applied to them.”
As if that weren’t bad enough, both the findings of the Kleins’ legal team and reports in local newspapers point to questionable ties between state officials and gay rights advocates.
According to Herb Grey, his team’s efforts to do discovery in the case were hampered by the state, but some startling information came out at a hearing. The brother of one of the complainants, Aaron Cryer, on cross examination was asked about a conversation he had had with his sister. “And he said, completely unsolicited—this is a BOLI witness—he said something to the effect of, well, what we were talking about because we had met with BOLI and with [the gay advocacy group] Basic Rights Oregon, and we were working really hard on marriage equality, we were trying to figure out how best to use this case basically to advance the agenda.” This, Grey explained, “was totally different from anything we’d heard in deposition testimony or anything else. We moved to reopen the record to be allowed to inquire further into that, which was denied.”
Meanwhile, a story in the Oregonian last summer reported allegations that Avakian should not be prosecuting the case as he had cheered gay rights advances on his Facebook page and had been quoted in the Oregonian saying, “The goal is never to shut down a business. The goal is to rehabilitate.” Then this June, the Daily Signal obtained emails from a public records request showing that Avakian had met and communicated regularly with Basic Rights Oregon and had purchased tickets at a cost of hundreds of dollars to attend Basic Rights Oregon’s galas and events, even as he was prosecuting the Kleins. (Also notable: Earlier this year the Kleins had an Internet crowdfunding effort to help pay their fine shut down by an online campaign pressuring the website GoFundMe.com to drop them. This campaign was led by the owner of Cupcake Jones, a competing bakery that has won awards from and is an ardent supporter of Basic Rights Oregon.)
Avakian and the labor bureau may or may not have colluded with gay marriage activists, but it’s a matter of public record that Oregon’s attorney general declined to defend the state’s ban on gay marriage—and her senior staff helped draft the complaint that eventually overturned the ban. As a consequence of the Supreme Court’s Hollingsworth v. Perry ruling that overturned California’s Proposition 8 banning gay marriage, only state governments have standing to defend gay marriage bans. By not intervening, Oregon in effect overturned the ban by default.
It seems that government authorities in Oregon have no desire to be impartial in clashes over gay rights. In 2009, the mayor of Portland, Sam Adams, admitted he had lied about sleeping with a teenage boy when he was a 41-year-old city council member. Adams, who had been seeing the boy since he was 17, claimed that they hadn’t become physically intimate until the boy’s 18th birthday—when a sexual relationship would have been legal. The state government’s progressive image, however, was heavily invested in Adams as the first openly gay mayor of a major city. So the state attorney general conducted a brief investigation in which no witnesses were placed under oath, and no charges were filed. Adams survived two recall attempts and served out his term as mayor. That the state would only casually investigate statutory rape charges against a prominent gay politician—but spend years and considerable resources throwing the book at a small business for refusing to bake a cake—is telling.
In Oregon, it seems there is little price to be paid for the appearance of collusion when it means advancing the state’s popular progressive causes. On the contrary, it’s smart politics. So far, the only statement the labor bureau has given to the press about Avakian’s ruling was to Media Matters, a discredited left-wing website dedicated to attacking conservative media. According to Portland’s alt-weekly Willamette Week, Avakian is rumored to be running for secretary of state next year, and prosecuting the Kleins has likely elevated his profile with all the right organizations in the state.
The Supreme Court’s Obergefell decision legalized gay marriage across the country, and many in the gay community are likely content with the victory and happy to coexist with peaceful Christians who still regard homosexual conduct as sinful. The continuing persecution of people like the Kleins, however, suggests that gay marriage is not the endgame for many gay activists.
In the wake of Obergefell, the journalist Jonathan Rauch, a prominent advocate of same-sex marriage, called the new right a “vaccine against homosexual self-hatred.” And same-sex marriage supporters pilloried Supreme Court justice Clarence Thomas for his Obergefell dissent, in which he said that the state can neither confer “dignity” upon individuals nor deprive them of it. Thomas quoted Frederick Douglass to the effect that even those trapped in American slavery possessed dignity. For merely expressing the American creed that our rights and worth as individuals are innate and independ-ent of government, Thomas was called “vile” by Salon and, by Star Trek actor and gay activist George Takei, “a clown in blackface.”
Popular support for gay marriage has increased rapidly in recent years in no small part because it was seen as an expansion of freedom with no real consequences for the existing order. If the gay rights movement now seeks to use the force of law to insulate gay people from opinions that allegedly encourage “self-hatred”—if the legalization of gay marriage comes to mean that disagreeable personal judgments about others’ behavior are an affront to some state-enforced notion of “dignity”—then the coming political battles are going to be ugly. A number of prominent gay activists are being quite public about their intentions. After a blog post on the Alliance Defending Freedom’s website asked, “Are we supposed to accept the idea that, for Christians in America, we must divorce our belief from our actions?” Zack Ford—who writes about gay issues for the in-house publication of the Center for American Progress, arguably the most influential think tank with the Obama administration—replied simply, “Yes.”
It’s hard to see how such attitudes won’t result in a parade of First Amendment horribles. Already, the clients of the Alliance Defending Freedom include a host of ordinary Americans who have run afoul of such ominously expansive views of gay rights:
* On July 7, Jack Phillips, another baker, this time in Colorado, appealed the state civil rights commission’s ruling against him for refusing to serve a same-sex couple. The pair wanted a rainbow-themed cake. Phillips argued he could not be forced to make a cake that communicated a message he did not agree with. A Colorado civil rights commissioner compared Phillips’s argument to those employed by Nazis and slave owners.
* In Washington state, the attorney general is suing florist Barronelle Stutzman, 70, for refusing to provide flowers for a same-sex wedding. The gay would-be customer was a longtime friend with whom she had done business for nine years. Stutzman and the customer were so close they hugged each other after she informed him she couldn’t make a cake for his wedding. The customer did not initially press charges, and the state attorney general initiated the case on his own after hearing about it on social media. One of Stutzman’s former employees, who is gay and a same-sex marriage supporter, has filed an affadavit on her behalf. But now the ACLU and national gay rights organizations have taken up the case against her. The state attorney general and the aggrieved customer are not just suing her business, but going after her personal assets.
* Hands On Originals, a printer in Kentucky, ran afoul of a local human rights commission for refusing to print T-shirts for a gay organization. He was told that he had to use his printing press to print messages he disagreed with. After years of administrative proceedings, a state court ruled in the printer’s favor in April: “It is clear beyond dispute that [Hands On Originals] and its owners declined to print the T-shirts in question because of the message advocating sexual activity outside of a marriage between one man and one woman.” That ruling is being appealed to a higher court.
* In Atlanta, the city’s African-American fire chief Kelvin Cochran was summarily fired after he published a book about helping Christian men avoid sexual temptation. The 162-page book scarcely mentioned homosexual activity but did include it in a list of sexual sins. Cochran’s job record is spotless; he was previously the top fire-fighting appointee in the Obama administration and was named Fire Chief of the Year in 2012. But tolerance has its limits. Atlanta city council member Alex Wan explained, “I respect each individual’s right to have their own thoughts, beliefs, and opinions, but when you’re a city employee and those thoughts, beliefs, and opinions are different from the city’s, you have to check them at the door.” The Alliance Defending Freedom filed a federal lawsuit earlier this year to get Cochran reinstated.
If cases like these come to define the post-Obergefell gay rights movement, it’s hard to imagine there won’t be a backlash. In the meantime, rooting out and punishing small-business owners and public employees with retrograde ideas about sex and morality seems to be an increasingly common and acceptable tactic.
But those on the extreme end of the gay rights movement shouldn’t expect this to be an easy fight. For now, the Kleins have vowed not to let the threat of the state’s gag order stop them from calling attention to their plight. And even Barronnelle Stutzman, a soft-spoken grandmother of 23, is calling on others to join the fray. “I get a lot of notes that say, ‘I stand behind you,’ ” she says. “But I don’t want you standing behind me. I want you standing beside me. I’m just one voice. I can’t do this alone.”
Mark Hemingway is a senior writer at The Weekly Standard."
Monday, July 13, 2015
A Portrait of Social Justice in Action
This is an individual case, one of many now being prosecuted across the USA.