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


The phrase "on account of" in Or. Rev. Stat. § 659A.403 is unambiguous: In ordinary usage, it is synonymous with "by reason of" or "because of." And it has long been understood to carry that meaning in the context of antidiscrimination statutes. Thus, by its plain terms, the statute requires only that the denial of full and equal accommodations be causally connected to the protected characteristic or status.


Melissa and Aaron Klein, the owners of a bakery doing business as Sweetcakes by Melissa (Sweetcakes), seek judicial review of a final order of the Bureau of Labor and Industries (BOLI) finding that the Kleins' refusal to provide a wedding cake to the complainants, a same-sex couple, violated  Or. Rev. Stat. § 659A.403, which prohibits a place of public accommodation from denying "full and equal" service to a person "on account of ... sexual orientation." The order further concluded that the Kleins violated another of Oregon's public accommodations laws, Or. Rev. Stat. § 659A.409, by communicating an intention to unlawfully discriminate in the future. 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 the two Oregon statutes.

In their petition for judicial review, the Kleins argue 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 within the meaning of Or. Rev. Stat. § 659A.403; alternatively, they argue that the application of that statute in this circumstance violates their constitutional rights to free expression and to the free exercise of their religious beliefs. The Kleins also argue that they were denied due process of law because BOLI's commissioner did not recuse himself in this case after making public comments about it, that the damages award is not supported by substantial evidence or substantial reason, and that BOLI erroneously treated the Kleins' public statements about this litigation as conveying an intention to violate public accommodation laws in the future.


Was the denial of service by the cake bakery "on account of" the complainants' sexual orientation for purposes of the Oregon statute?




The court rejected the Kleins' construction of Or. Rev. Stat. § 659A.403 and concluded that their denial of service was "on account of" the complainants' sexual orientation for purposes of that statute. As for their constitutional arguments, the court concluded that the final order did not impermissibly burden the Kleins' right to free expression under the First Amendment to the United States Constitution. The court concluded, under Employment Division, Oregon Department of Human Resources v. Smith, 494 U.S. 872, 110  S Ct 1595, 108 L Ed 2d 876 (1990), the final order does not impermissibly burden the Kleins' right to the free exercise of their religion because it simply requires their compliance with a neutral law of general applicability, and the Kleins have made no showing that the state targeted them for enforcement because of their religious beliefs. For substantially the same reasons for which the court rejected their federal constitutional arguments, the court rejects the Kleins' arguments under the Oregon Constitution. 

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