Klein v. Or. Bureau of Labor and Indus.

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.

Petitioners refused to bake a custom-designed wedding cake for Complainants’ lesbian wedding, citing religious belief. Complainants filed grievances with the Bureau of Labor and Industries (BOLI), alleging refusal of service based on sexual orientation. BOLI ruled Petitioners had violated Oregon’s public accommodations statute, ordering compensatory damages. The Oregon Court of Appeals affirmed the award. The court held that wedding cakes are not “entitled to the same level of constitutional protection” and the order only needed to survive deferential intermediate scrutiny. Petitioners argue this goes against Supreme Court precedent in Employment Division v. Smith, 494 U.S. 872 (1990), which held neutral laws to strict scrutiny when burdening both free exercise and other fundamental constitutional rights. Petitioners argue the decision conflicts with compelled speech jurisprudence, which applies to nongovernmental messages, justifying a more searching standard. The court below applied an audience-response theory, reasoning artistic expression is subservient to customer preferences. Petitioners argue that this conflicts with expressive conduct jurisprudence, because this Court has never looked to audience perceptions to gauge protected expression and asks the Court to clarify that the relevant state interests identified below still triggered strict scrutiny. Certiorari is granted, judgment is vacated and remanded to the Oregon Court of Appeals for consideration in light of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n, 138 S.Ct. 1719 (2018).