Klein v. BOLI

Content neutral regulations that have incidental effects on expression are permissible regulations of public accommodation services rather than regulations directed at expression or regulations of speech. Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 US 47, 62, 126 S Ct 1297 (2006). If cake-making involves both expressive and non-expressive components and Oregon’s interest in enforcing the statute is unrelated to the content of the expressive components, then the government’s action is subject to intermediate scrutiny. United States v. O’Brien, 391 US 367, 376 (1968).

Sweetcakes appealed the Bureau of Labor and Industries’ (BOLI) finding that Sweetcakes violated ORS 659A.403 by refusing to provide a wedding cake to Complainants. Sweetcakes assigned error to BOLI’s conclusion that its refusal to provide a cake for a same-sex wedding was a denial of service “on account of” sexual orientation within the meaning of ORS 659A.403. On appeal, Sweetcakes argued that ORS 659A.403 does not apply to its refusal to provide a cake for a same-sex wedding. Based on principles of statutory construction, the Court of Appeals found that “on account of” is synonymous with “because of,” meaning only a causal connection is required between sexual orientation and the discrimination. The Court held that Sweetcakes’ denial of service was “on account of” the complainants’ sexual orientation because the text, context, and history of ORS 659A.403 does not reflect a distinction between same-sex couples (status) and same-sex weddings (conduct) that would permit discrimination here.

Alternatively, Sweetcakes argued that ORS 659A.403 infringed on its rights to freedom of expression and free exercise of religion under both the federal and state constitutions. Content neutral regulations that have incidental effects on expression are permissible regulations of public accommodation services rather than regulations directed at expression or regulations of speech. Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 US 47, 62, 126 S Ct 1297 (2006). If cake-making involves both expressive and non-expressive components and Oregon’s interest in enforcing the statute is unrelated to the content of the expressive components, then the government’s action is subject to intermediate scrutiny. United States v. O’Brien, 391 US 367, 376 (1968). The Court found that Sweetcakes is not entitled to the same level of constitutional protection as traditional forms of artistic expression because Sweetcakes failed to show that their cakes are “inherently art” so that the design elements of their products are/will be interpreted as an expression of its own beliefs. The Court rejected Sweetcakes argument that BOLI’s order compels it to “host or accommodate another speaker’s message” because Sweetcakes refused service entirely, and were not compelled by BOLI to incorporate a specific message on the cake that Sweetcakes finds contrary to its religious beliefs. Applying the O’Brien standard, the Court determined that Oregon’s interest in preventing harms that result from discrimination is distinct from the viewpoint from which the discrimination derives, and the incidental burden on Sweetcakes is no greater than necessary to further that interest. The Court held that “BOLI’s order furthers an important or substantial governmental interest.”

Sweetcakes further argued that BOLI’s order impermissibly targets religion and it should be granted an exemption to ORS 659A.403 on religious grounds. “The right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes/prescribes conduct that his religion prescribes/proscribes.’” Employment Division v. Smith, 494 US 872, 879, 110 S Ct 1595 (1990). The Court determined Sweetcakes presented no evidence that ORS 659A.403 targets religiously motivated conduct or that BOLI targeted religion in its enforcement against Sweetcakes. The Court held that ORS 659A.403 is not discriminatory on its face or as applied. Reversed as to BOLI’s conclusion that Sweetcakes violated ORS 659A.409 and the related grant of injunctive relief; otherwise affirmed.