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Law School Case Brief

Klein v. Or. Bureau of Labor & Indus. - 289 Or. App. 507, 410 P.3d 1051 (2017)


To determine whether a law is "neutral," courts first ask whether the object of the law is to infringe upon or restrict practices because of their religious motivation. To determine a law's object, a court begins with the text, as the minimum requirement of neutrality is that a law not discriminate on its face. A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernible from the language or context. Apart from the text, the effect of a law in its real operation is strong evidence of its object. Additionally, whether a law is "generally applicable" depends on whether the government selectively seeks to advance its interests "only against conduct with a religious motivation.


Complainants Rachel Bowman-Cryer and Laurel Bowman-Cryer, met in 2004 and had long considered themselves a couple. In 2012, they decided to marry. They wanted their wedding cake done by Sweetcakes bakery shop. During the tasting, Rachel and Laurel were informed by petitioner owners (the Kleins) that Sweetcakes did not make wedding cakes for same-sex ceremonies because of the owners' religious convictions. Laurel and Rachel eventually filed a complaint with respondent Oregon Bureau of Labor and Industries (BOLI), alleging that the Kleins had refused to make complainants a wedding cake because of their sexual orientation. BOLI's order awarded damages to the complainants for their emotional and mental suffering from the denial of service and enjoined the Kleins from further violating ORS 659A.403 and ORS 659A.409. In their petition for judicial review, the Kleins argued that BOLI erroneously concluded that their refusal to supply a cake for a same-sex wedding was a denial of service "on account of" sexual orientation. They argued that the application of that statute in this circumstance violated their constitutional rights to free expression and to the free exercise of their religious beliefs. 


Was the award of damages and the grant of an injunction by the Oregon Bureau of Labor and Industries (BOLI) to a same-sex couple, to whom the owners of a bakery refused to provide a wedding cake, proper, as a violation of Oregon law that prohibited a place of public accommodation from discriminating on the basis of sexual orientation?




The Court of Appeals of Oregon held that a bakery’s refusal to supply a cake for a same-sex wedding was a denial of service "on account of" sexual orientation for purposes of Or. Rev. Stat. § 659A.403. By its plain terms, the statute required only that the denial of full and equal accommodations be causally connected to the protected characteristic or status. Moreover, requiring a bakery to stop violating § 659A.403 by refusing to supply a cake did not violate the owners' First Amendment right to free expression, despite the asserted artistic element of the business. Nor did the BOLI order violate the owners’ right to free exercise of religion because it simply required compliance with a neutral law of general applicability. Thus, the complainant customers were properly awarded damages based in part on emotional distress from the bakery owner's use of the term "an abomination" in the course of explaining why he was denying services. The Court reversed as to BOLI's conclusion that the Kleins violated § 659A.409 and the related grant of injunctive relief; the decision was otherwise affirmed. Noting that the owners had not disputed that the bakery was a "place of public accommodation within the meaning  659A.403, the Court explained that it reviewed BOLI's interpretation of that statute for legal error, without deference to the agency's construction of the statute.

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