The Supreme Court Won't Review the Oregon Gay Wedding Cake Case

The case has reinvigorated a heated debate about anti-discrimination, freedom of religion, and First Amendment speech rights.
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A same-sex marriage supporter waves a rainbow pride flag near the Supreme Court, on April 28th, 2015, in Washington, D.C., just days before the Supreme Court heard arguments on same-sex marriage.

A same-sex marriage supporter waves a rainbow pride flag near the Supreme Court, on April 28th, 2015, in Washington, D.C., just days before the Supreme Court heard arguments on same-sex marriage.

The Supreme Court on Monday chose not to review whether a baker's refusal to create a wedding cake for a gay couple on the grounds of religious objections violated Oregon state law prohibiting discrimination based on sexual orientation.

Melissa and Aaron Klein, owners of Sweet Cakes by Melissa, a bakery in Portland that has since closed, were hit with a $135,000 fine after refusing to make a wedding cake for a lesbian couple in 2013.

The case has reinvigorated a heated debate about anti-discrimination, freedom of religion, and First Amendment speech rights. Here's some key context for understanding what this case is about, why the court declined to hear it, and what's ahead.

Religious Objections as 'Protected Views'

That debate came to a head after a similar case caught national attention last term: A Colorado baker had refused to make a cake for the wedding reception of a gay couple, which the couple argued was a violation of the state's anti-discrimination laws. The Colorado Civil Rights Commission concluded that the baker had, in fact, violated state anti-discrimination rules, a decision which was later affirmed by state courts. The ruling was then overturned 7–2 by the Supreme Court on the basis that the commission was not religiously neutral in its decision. But the court refrained from tackling the larger issues at play in the case: discrimination based on sexual orientation, free exercise of religion, and freedom of speech.

Justice Anthony M. Kennedy, writing for the court majority in the Colorado case, said that the "religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression." But he also noted that gay people and same-sex couples can't be "treated as social outcasts or as inferior in dignity and worth."

Is Cake Considered Art?

In Klein v. Oregon Bureau of Labor and Industries, a major point of contention has been whether the cake can be classified as art. The Kleins have argued that artists cannot be forced to make art that violates their religious beliefs under the First Amendment. The Oregon Court of Appeals ruled in favor of the couple, finding that the Kleins had violated the state's anti-discrimination law by denying them a service on the basis of sexual orientation.

In the Colorado case, too, it became difficult for the court to discern what exactly qualified as art, and what that meant for First Amendment protections: "[T]he oral arguments in the Masterpiece Cakeshop case revealed a number of justices to be troubled by the line-drawing that would be required to decide which wedding-related commerce is sufficiently expressive to be protected by the First Amendment," Cruz says.

In the Oregon case, however, the lower court decided that the bakery's cakes should not be given the same protections afforded to speech or "traditional forms of artistic expression."

Why Did the Supreme Court Decline to Hear the Case?

The Supreme Court sent the case back to a lower court for review, directing the appellate judges to review their previous ruling.

Sending the case back to a lower court for review "expresses no view on the merits of the lower court decision the court is sending back," according to David Cruz, a constitutional law professor at the University of Southern California Gould School of Law with a focus on civil rights and equality issues, including discrimination law and the rights of LGBTQ people. In fact, he says, it's common for the court to do this in order to clear its docket because it only hears roughly 1 percent (or less) of the cases presented every year.

But the court does appear to be proceeding with at least some caution, Cruz notes: "Many constitutional scholars think that the Supreme Court is not eager to broadly settle all issues about what applications of anti-discrimination law would and would not violate constitutional rights such as freedom of speech," he says. "[It] often lets issues percolate in the lower courts and even tolerates disagreements among them, at least when a federal law is not at issue."

Anti-Discrimination Protections—and How the Court Might Rule in the Future

Currently, anti-discrimination protections for the LGBTQ community vary across the country: 21 states (including Colorado and Oregon) currently have anti-discrimination laws protecting people based on sexual orientation and gender identity, according to the Movement Advancement Project, a non-profit think tank.

Even if the Supreme Court were to hear the case, however, its ruling likely wouldn't have a "direct effect on state laws about sexual orientation discrimination," Cruz says. If the Supreme Court had rejected the baker's First Amendment claim, that wouldn't mean that other states without anti-discrimination laws would now have to adopt them. "A Supreme Court decision upholding Oregon's law could have made it clear that state laws against sexual orientation discrimination do not have to have carve-outs for people who object to them on religious grounds," Cruz explains. "But it would still be possible for states to make decisions about what kind of statutory exceptions they might voluntarily want to adopt in a new law against sexual-orientation discrimination."

Another relevant case may be on its way to the Supreme Court after Washington State's Supreme Court ruled against a florist who refused to provide flowers for a same-sex ceremony. The court stated that the florist's refusal was "no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches."

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