IN THE SUPREME COURT OF THE STATE OF OREGON MELISSA ELAINE KLEIN, dba Sweetcakes by Melissa; and AARON CA A159899 WAYNE KLEIN, dba Sweetcakes Bureau of Labor and Industries by Melissa, Agency Nos. 44-14, 45-14 Petitioners Supreme Court No. Petitioners on Review, v. OREGON BUREAU OF LABOR AND INDUSTRIES, Respondent Respondent on Review. PETITION FOR REVIEW OF MELISSA & AARON KLEIN Petition for Review of the Decision of the Court of Appeals on Petition from a Final Order of the Oregon Bureau of Labor and Industries Petition Includes Constitutional Challenges to the Application of ORS 659A.403 Opinion Filed: December 28, 2017 Author of Opinion: Garrett, Judge Before: DeVore, Presiding Judge, Garrett, Judge, and James, Judge PETITIONERS INTEND TO FILE A BRIEF ON THE MERITS TYLER SMITH OSB No. 075287 TYLER SMITH & ASSOCIATES 181 N. Grant St. Suite 212 Canby, OR 97013 Telephone: 503.266.5590 Email: Tyler@ruralbusinessattorneys.com Attorneys for Petitioners HERBERT G. GREY OSB No. 810250 4800 SW Griffith Dr., Suite 320 Beaverton, OR 97005 Telephone: 503.641.4908 Email: Herb@greylaw.org Attorney for Petitioners C. BOYDEN GRAY* ADAM R.F. GUSTAFSON* BOYDEN GRAY & ASSOCIATES 801 17th Street, NW, Suite 350 Washington, DC 20006 Telephone: 202.955.0620 Email: gustafson@boydengrayassociates.com Attorneys for Petitioners HIRAM S. SASSER, III* KENNETH A. KLUKOWSKI* STEPHANIE N. TAUB* FIRST LIBERTY INSTITUTE 2001 West Plano Pkwy, Suite 1600 Plano, TX 75075 Telephone: 972.941.4444 Email: Kklukowski@firstliberty.org Attorneys for Petitioners *Admitted pro hac vice Leigh A. Salmon Carson Whitehead Office of the Attorney General 1162 Court Street NE Salem, Oregon 97301-4096 Email: leigh.a.salmon@doj.state.or.us Attorneys for Respondent March 1, 2018 TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................... i TABLE OF AUTHORITIES ............................................................................ ii PETITION FOR REVIEW ................................................................................1 STATEMENT OF HISTORICAL AND PROCEDURAL FACTS ....................2 QUESTIONS PRESENTED ON REVIEW .......................................................2 PROPOSED RULES OF LAW ..........................................................................3 REASONS THIS COURT SHOULD ALLOW REVIEW .................................6 ARGUMENT...................................................................................................10 I. The Kleins’ Custom Wedding Cakes Are Fully Protected by the Free Speech Clauses of the United States and Oregon Constitutions. .............10 II. This Court Should Grant a Religious Exemption Under the Oregon Constitution’s Free Exercise Clauses and Smith. ....................................14 III. BOLI’s Order Was Motivated by Religious Targeting in Violation of the Establishment Clause. ......................................................................16 IV. The BOLI Commissioner’s Bias and His Prejudgment of the Kleins’ Claims Violates Due Process. ................................................................18 V. ORS 659A.403 Prohibits Discrimination on Account of Sexual Orientation; It Does Not Compel Participation in Same-Sex Weddings. 19 CONCLUSION................................................................................................22 TABLE OF AUTHORITIES CASES Bernstein Bros. v. Dept. of Rev., 294 Or 614 (1983) ..................................................................................... 20 Bray v Alexandria Women’s Health Clinic, 506 US 263 (1993) ..................................................................................6, 22 Caperton v A.T. Massey Coal Co., 556 US 868 (2009) ..................................................................................5, 18 Christian Legal Soc'y Chapter of Univ. of Cal., Hastings College of Law v Martinez, 561 US 661 (2010) ................................................................21, 22 Church at 295 S. 18th St., St. Helens v Employment Dep't, 175 Or App 114 (2001) ...........................................................................4, 15 Church of Lukumi Babalu Aye v City of Hialeah, 508 US 520 (1993) ..................................................................................5, 16 Clark v Cmty. for Creative Non-Violence, 468 US 288 (1984) ..................................................................................... 12 Cooper v Eugene Sch. Dist. No. 4J, 301 Or App 358, (2015). .........................................................................4, 14 Employment Division v Smith, 494 US 872 (1990) .............................................................................. 1, 4, 15 Hardie v Legacy Health Sys., 167 Or App 425 (2000) ....................................................................... 5, 9, 21 Hurley v Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 US 557 (1995) ................................................................................12, 13 Lacasse v Owen, 278 Or App 24 (2016) .............................................................................5, 21 Lawrence v Texas, 539 US 558 (2003) ..................................................................................6, 22 Nevada Comm’n on Ethics v Carrigan, 564 US 117 (2011) ..................................................................................... 12 Obergefell v Hodges, 135 S Ct 2584 (2015) ..............................................................................6, 22 Price Waterhouse v Hopkins, 490 US 228 (1989) ..................................................................................... 21 Rippo v Baker, 137 S. Ct. 905 (2017) ................................................................................... 5 Smith v Employment Division, 301 Or App 209 (1986) .............................................................................. 15 Spence v Washington, 418 US 405 (1974) ..................................................................................... 12 State v Brumwell, 350 Or App 93 (2011) ................................................................................ 15 State v Hickman, 358 Or App 1 (2015) ...............................................................................4, 14 CONSTITUTION Oregon Constitution, art. I §§ 2–3 ................................................................4, 15 STATUTES ORS 659A.403 ......................................................................... 2, 3, 4, 5, 6, 7, 16 RULES ORAP 9.07 .......................................................................................... 6, 8, 9, 10 PETITION FOR REVIEW This case presents a question of first impression in this State—whether the Bureau of Labor and Industries (BOLI) can force a baker who designs and creates custom wedding cakes to choose between closing her business and participating in a same-sex wedding ritual in violation of her sincere religious belief that marriage can exist only between a man and a woman. The United States Supreme Court is considering an analogous case in Masterpiece Cakeshop, Ltd. v Colorado Civil Rights Commission, No. 16-111 (argued Dec. 15, 2017). Even if the United States Supreme Court were to resolve both the free speech and free exercise claims in that case, Masterpiece would not answer several additional questions of exceptional importance raised here under Oregon and United States law. Only this Court can authoritatively interpret the Oregon non-discrimination statute. Likewise, only this Court can interpret the Oregon Constitution to correct the Court of Appeals’ misapplication of the Conscience Clause. Because that Clause requires courts to decide whether to grant a religious exemption from laws like Oregon’s nondiscrimination statute, under Employment Division v Smith, 494 US 872, 884 (1990), the Free Exercise claim in this case is on a stronger footing than in Masterpiece. Finally, BOLI’s order violates due process because of the 2 Commissioner’s bias and prejudgment—an issue that is not present in Masterpiece. STATEMENT OF HISTORICAL AND PROCEDURAL FACTS The relevant historical and procedural facts in the opinion of the Court of Appeals are correct. QUESTIONS PRESENTED ON REVIEW The questions presented are: A. Whether compelling Aaron and Melissa Klein to design and create custom wedding cakes to celebrate marriage rituals that are incompatible with their sincerely held religious beliefs violates the Free Speech Clauses of the United States and Oregon Constitution. B. Whether entrepreneurs whose sincerely held religious beliefs prevent them from designing and creating custom wedding cakes to celebrate same-sex marriage rituals are entitled to a religious exemption under the Free Exercise Clauses of the Oregon Constitution. C. Whether compelling a business to design and create custom wedding cakes to celebrate marriage rituals that are incompatible with the proprietors’ sincerely held religious beliefs violates the Free Exercise Clause of the First Amendment to the United States Constitution. D. Whether BOLI enforcement of ORS 659A.403 involved religious targeting in violation of the Free Exercise Clause of the First Amendment. 3 E. Whether the Kleins were deprived of liberty and property without due process, because the BOLI Commissioner’s public statements that no religious exemption is available gave rise to “an unconstitutional potential for bias” and for prejudgment of the Kleins’ request for a religious exemption under the Oregon Constitution’s Conscience Clause. F. Whether the Kleins’ conscientious objection to creating custom wedding cakes that celebrate same-sex marriage, without regard to the customer’s sexual orientation, violates ORS 659A.403, which prohibits discrimination “on account of . . . sexual orientation.” PROPOSED RULES OF LAW A. Aaron and Melissa Kleins’ custom wedding cakes are pure expression that is fully protected by the Free Speech Clauses of the United States and Oregon Constitutions. Forcing artists to design and create custom wedding cakes to celebrate marriage rituals that are incompatible with the artists’ sincerely held religious beliefs abridges the freedom of speech and association protected by the First Amendment. Even if custom wedding cakes represent mere “expressive conduct” protected only by intermediate scrutiny, BOLI’s application of ORS 659A.403 is not narrowly tailored to serve a substantial government interest. B. The Oregon Constitution’s Conscience Clause provides that “[n]o law shall . . . control the free exercise and enjoyment of religious opinions or 4 interfere with the rights of conscience.” Or Const, Art I, § 3. On its plain terms, this prohibits the application of ORS 659A.403 to compel participation in a same-sex wedding against one’s religious and conscientious objections. At the very least, this Court must decide whether to grant “an individual claim to exemption on religious grounds.” State v Hickman, 358 Or 1, 15-16 (2015) (quoting Cooper v Eugene Sch. Dist. No. 4J, 301 Or 358, 368–69 (1986)). A religious exemption is warranted in this case because the Kleins’ religious beliefs are sincere and rational, not invidious; and an exemption would be narrowly tailored to avoid compelling creative entrepreneurs to participate in same-sex marriage rituals. C. Where the State has the authority to create “ad hoc, individualized exemptions”—as this Court has held it does under Oregon’s Conscience Clause—the State is “required” by the United States Constitution’s Free Exercise Clause “to extend an exemption for ‘religious hardship’ in the absence of a compelling reason not to do so.” Church at 295 S. 18th St., St. Helens v Employment Dep’t, 175 Or App 114, 126 (2001) (quoting Employment Division v Smith, 494 US 872, 884 (1990)). Oregon has no compelling reason to deny an exemption for wedding cake artists, especially where customers have ready access to alternative custom bakeries. D. BOLI’s order reflects the kind of “subtle departures from neutrality” and “covert suppression of particular religious beliefs” that the Free 5 Exercise Clause forbids. Church of Lukumi Babalu Aye v City of Hialeah, 508 US 520, 534 (1993). This is evident in the Commissioner’s repeated public statements about the Kleins’ “religious beliefs”; the magnitude of the damages award, which is far out of line with prior cases; and BOLI’s express decision to award damages for harm attributable to Aaron Klein’s quotation of the Bible in a conversation initiated by a third party. E. Due process is unconstitutionally denied where the adjudicator confronts “a serious, objective risk of actual bias” or “prejudgment.” Caperton v A.T. Massey Coal Co., 556 US 868, 883–84 (2009). “The inquiry is an objective one”; it does “not require proof of actual bias.” Id. “[C]onsidering all the circumstances alleged,” including the BOLI Commissioner’s premature and categorical exclusion of a religious exemption in public statements about this case, “the risk of bias was too high to be constitutionally tolerable.” Rippo v Baker, 137 S Ct 905, 907 (2017). F. To establish that a business owner’s refusal to celebrate a same-sex wedding is “on account of . . . sexual orientation” in violation of ORS 659A.403, the customer’s sexual orientation must be the “but-for” cause of the business owner’s decision. See Hardie v Legacy Health Sys., 167 Or App 425, 435–36 (2000), cited in Lacasse v Owen, 278 Or App 24, 33 (2016). A bakery owner who serves all customers, regardless of sexual orientation, does not violate ORS 659A.403 when she chooses, based on sincerely held religious 6 beliefs, to sell custom wedding cakes that celebrate only traditional marriage. Unlike homosexual conduct, same-sex marriage is not a proxy for sexual orientation, because there are rational, non-invidious reasons for opposing same-sex marriage, see Bray v Alexandria Women’s Health Clinic, 506 US 263, 270 (1993); Obergefell v Hodges, 135 S Ct 2584, 2602 (2015), and because same-sex marriage is not so closely correlated with being gay that they are equivalent under the statute, cf. Lawrence v Texas, 539 US 558, 583 (2003) (O’Connor, J., concurring). REASONS THIS COURT SHOULD ALLOW REVIEW This Court should exercise its discretion to review this case, because its outcome will determine whether entrepreneurs in Oregon can exercise their freedoms of speech, religious exercise, and conscience; and whether due process will protect them against bias and prejudgment by ideologically motivated adjudicators. This case satisfies many of this Court’s criteria governing discretionary review. 1. This case presents several “significant issue[s] of law” that merit this Court’s review. ORAP 9.07(1). Among these are “[t]he interpretation of [] constitutional provision[s],” including the Oregon Constitution’s Free Exercise Clauses, and “[t]he interpretation of a statute,” namely Oregon’s antidiscrimination law—ORS 659A.403. ORAP 9.07(1)(a), (b). 7 If the decision below is allowed to stand, its effects will extend far beyond same-sex marriage. Under the reasoning of the Court of Appeals, any “public accommodation,” broadly defined, is compelled by ORS 659A.403 to contribute its services to promote any conduct, so long as there is a “close relationship” between that conduct and a protected status. ER-17. According to the opinion below, this compulsion is in force, even for entrepreneurs who offer custom-designed products and imbue each product “with their own aesthetic choices,” unless those products meet the Court of Appeals’ ill-defined and subjective test for what is “inherently ‘art.’” ER-32. On this logic, a Muslim videographer can be compelled to document a Wiccan ritual, because there is a “close relationship” between Wiccan rituals (the conduct) and Wiccans (a protected class). A feminist caterer can be compelled to serve a fraternity initiation, because there is a close relationship between fraternities and men. A black T-shirt printer can be compelled to design shirts for a Ku Klux Klan rally, because there is a close relationship between Klan rallies and “the white race.” These legal issues are significant to the entrepreneurs who will be compelled to abandon their businesses, as the Kleins did, or to compromise their religious faith and conscience. But they are also significant to the population at large, which benefits from robust protections for free speech and 8 free exercise, and from the public exchange of ideas that those freedoms promote. 2. “[S]imilar issue[s will] arise often,” as creative businesses throughout the State are compelled by the Court of Appeals’ interpretation of ORS 659A.403 to participate in same-sex marriage rituals that violate their sincerely held religious beliefs. ORAP 9.07(2). If it is allowed to stand, the decision below will chill creative entrepreneurs throughout the State and enlarge BOLI’s power to force unwilling participants to participate in celebrations and promote ideologies of all kinds that violate their creeds and their consciences. 3. “[M]any people are affected by the decision in the case,” and the consequence of the decision is important to the public,” as indicated by the significant press attention this and similar cases have generated. ORAP 9.07(3). 4. The case includes “an issue of state law,” as it involves the interpretation of the Oregon Constitution and statutes. ORAP 9.07(4). 5. “[T]he issue is one of first impression for the Supreme Court.” ORAP 9.07(5); see ER-27 (“It appears that the Supreme Court has never decided a free-speech challenge to the application of a public accommodations law to a retail establishment selling highly customized, creative goods and services that arguably are in the nature of art or other expression.”). 9 6. The issues in this case are not currently pending before this Court. ORAP 9.07(6). 7. The legal issues are properly preserved, as reflected in the Court of Appeals’ lengthy opinion, and “the case is free from factual disputes or procedural obstacles that might prevent the Supreme Court from reaching the legal issue[s].” ORAP 9.07(7). 8. “[T]he record does, in fact, present the desired issue.” ORAP 9.07(8). 9. Court of Appeals cases are inconsistent with regard to the proper interpretation of the phrase “because of . . . sexual orientation” in ORS 659A.403. See ORAP 9.07(9). Compare ER-12, 13, with Hardie v Legacy Health Sys., 167 Or App 425, 435–36 (2000) (establishing a “but-for” standard); see infra at 21. 10. BOLI is inconsistent in the magnitude of its damages awards to complainants who allege discrimination because of sexual orientation and those who allege discrimination because of membership in other protected classes. See ORAP 9.07(10); infra at 17. 11. The Court of Appeals published a 62-page written opinion. See ORAP 9.07(11). 14. The errors in the Court of Appeals’ decision “result[] in a serious or irreversible injustice” for the Kleins, who have been forced to abandon their 10 business and to pay damages of $135,000 for declining to celebrate a wedding ceremony that violates their sincere religious beliefs about the nature of marriage. ORAP 9.07(14). The error also results “in a distortion or misapplication of a legal principle” that cannot be corrected by another branch of government, since it involves misinterpretation of the Oregon and United States Constitutions. Id. 15. The issues are well presented in the briefs of both parties before the Court of Appeals, and petitioners intend to file a brief on the merits before this Court to address the errors in the Court of Appeals’ decision. 16. Twenty-three individuals and organizations filed four separate briefs as amici curiae in the Court of Appeals. Petitioners anticipate that even more amici will be available to advise this Court. ARGUMENT I. The Kleins’ Custom Wedding Cakes Are Fully Protected by the Free Speech Clauses of the United States and Oregon Constitutions. The Court of Appeals’ ruling on the Kleins’ compelled speech claim under the First Amendment turned on the court’s unfounded speculation that at least some of the Kleins’ custom wedding cakes may not rise to the level of art. Acknowledging a long line of precedents, the Court of Appeals admitted that “it is plausible that the United States Supreme Court would hold the First Amendment to be implicated by applying a public accommodations law to 11 require the creation of pure speech or art.” ER-28. But the court found that “the Kleins have not demonstrated that their wedding cakes invariably constitute fully protected speech, art, or other expression,” and therefore declined to “subject BOLI’s order to strict scrutiny under the First Amendment.” ER-20. The court acknowledged that “every wedding cake that [the Kleins] create partially reflects their own creative and aesthetic judgment” and that “the Kleins do not offer . . . ‘standardized’ or ‘off the shelf’ wedding cakes.” ER-30. Instead, “their practice for creating wedding cakes includes a collaborative and customized design process that is individual to the customer” and relies on Melissa’s “own design skills and aesthetic judgments.” ER-30, 31. And the court concluded that “any cake that the Kleins made for [Complainants] Rachel and Laurel would have followed the Kleins’ customary practice.” ER-31. In light of all these facts, the Court of Appeals admitted that “the Kleins’ argument that their products entail artistic expression is entitled to be taken seriously.” ER-32. Yet the court determined that the Kleins’ wedding cakes are not “entitled to the same level of constitutional protection as pure speech or traditional forms of artistic expression.” Id. The court reasoned that the Kleins’ cakes may not be art, because “they have made no showing that other people will necessarily experience any wedding cake that the Kleins create predominantly as ‘expression’ rather than as food.” ER-32 (emphasis added). 12 The Court of Appeals’ subjective, audience-response theory of artistic expression finds no basis in First Amendment jurisprudence. Setting aside the difficulty of proving how “other people” will interpret a piece of art, that has never been the test for whether art is fully protected by the First Amendment. The Supreme Court did not ask whether “other people” experience Jackson Pollock paintings and twelve-tone music as art before declaring them to be “unquestionably shielded” expression. See Hurley v Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 US 557, 571–72 (1995). To support its novel conclusion that “the expressive character of a thing must turn . . . on how it will be perceived and experienced by others,” the Court of Appeals cites only cases dealing with “expressive conduct,” not art.1 These cases have no bearing on First Amendment protection for art and other pure expression, which simply does not depend on how the audience interprets it. The Court of Appeals’ speculation about how the Kleins’ art is received by its audience is puzzling, because the court elsewhere acknowledges that “creation of artwork and other inherently expressive acts are unquestionably 1 ER-32 (citing Spence v Washington, 418 US 405, 409 (1974) (invalidating conviction for flag misuse where the State’s asserted interest was related to expression and was not impaired by the expressive conduct); Clark v Cmty. for Creative Non-Violence, 468 US 288, 293 (1984) (assuming overnight sleeping in connection with a demonstration to be “expressive conduct”); Nevada Comm’n on Ethics v Carrigan, 564 US 117, 127 (2011) (holding that a legislator’s vote is a nonsymbolic act rather than expressive conduct)). 13 undertaken for an expressive purpose, they need not express an articulable message to enjoy First Amendment protection.” ER-29 n 8; accord Hurley, 515 US at 569. In any event, the record is replete with evidence that the Kleins’ customers and their wedding guests do experience custom wedding cakes predominantly as art, not mere food. Melissa Klein explained that “[o]ur clients expect, and we intend, that each cake will be uniquely crafted to be a statement of each customer’s personality, physical tastes, theme and desires.” ER-186. Each custom cake is the “centerpiece” of a ritual in which “the bride and groom stand in front of their guests” and feed each other. ER-203. BOLI’s expert witness, who created a cake for Complainants’ ceremony, explained that custom wedding cakes are “artistic creations,” expressive of married couples’ identity, beliefs, and relationship. ER-198, 199, 200, 201. She considers herself to be “an artist” and her wedding cakes to be “artistic expression[s]” that she wants to “share” with “the public and the community.” ER-198, 199, 193. She called the cake she made for Complainants’ wedding an “artistic creatio[n],” and recounted how it made her “proud that [it would] be part of [the] celebration.” ER-198. Indeed, Complainants discussed their own wedding cakes—one depicting a three-dimensional peacock, the other a fairy tree—in aesthetic and expressive, rather than culinary, terms. See ER-196 (describing the design of each cake “on display at the wedding,” including one that 14 reflected Complainant Laurel Bowman-Cryer’s Irish heritage “because . . . my grandmother was going to be watching from Ireland”). II. This Court Should Grant a Religious Exemption Under the Oregon Constitution’s Free Exercise Clauses and Smith. The Court of Appeals did not dispute that the Oregon Constitution’s Worship and Conscience Clauses empower courts to create exemptions to generally applicable and neutral laws that otherwise must survive only rational basis review to be constitutional. See State v Hickman, 358 Or 1, 16 (2015) (noting that courts must consider whether to “grant ‘an individual claim to exemption on religious grounds’” when applying generally applicable and neutral laws (quoting Cooper v Eugene Sch Dist, 301 Or 358, 368-69 (1986))). The Court of Appeals denied the requested exemption for no other reason than that the Kleins allegedly did not offer “solid constitutional ground in which to root an individual exemption to a valid and neutral statute.” ER-43. But see Opening Brief 55–56 (explaining why “a judicially created exemption would further the goals of Oregon’s Worship and Conscience Clauses without unduly interfering with the goals of Oregon’s validly enacted laws”). The sweeping promise of Oregon’s Free Exercise Clauses themselves is all the constitutional ground that is needed. Together they “secure” the “Natural right[] to worship Almighty God according to the dictates” of one’s own “conscienc[e]” and prohibit all laws that “in any case whatever control the free exercise[] and 15 enjoyment of [religious] opinions or interfere with the rights of conscience.” Or Const, Art I, §§ 2-3 (emphasis added). The Court of Appeals’ ruling impermissibly shifted to the Kleins the burden of showing that they merit the protection of these Free Exercise Clauses. In so holding, the court inverted its prior holding that “the state [is] required to extend an exemption for ‘religious hardship’ in the absence of a compelling reason not to do so.” Church at 295 S. 18th St., St. Helens v Employment Dep’t, 175 Or App 114, 125 (2001) (emphasis added). Under this Court’s opinions in Hickman and Cooper, the only question to ask is whether the Court “should craft an exception for religiously motivated” violations of the statute. State v Brumwell, 350 Or App 93, 109 (2011). And under the United States Supreme Court’s jurisprudence, the answer is yes. In Employment Division v Smith, 494 US 872, 884 (1990), the United States Supreme Court held that where the State has the authority to create ad hoc, individualized religious exemptions—as this Court has held it does under Oregon’s Conscience Clause—the State “may not refuse to extend” such an exemption “to cases of ‘religious hardship’ without compelling reason.” Id. at 884.2 Oregon has no compelling reason to deny an exemption for wedding cake 2 In Smith v Employment Division, 301 Or 209 (1986), this Court held that the Oregon Free Exercise Clauses did not require the State to create a 16 artists, especially where, as here, customers have their choice of willing alternative bakeries. See ER-73, 74. III. BOLI’s Order Was Motivated by Religious Targeting in Violation of the Establishment Clause. Even if the State were not required to grant a religious exemption, BOLI’s conduct in this case demonstrates that it committed the kind of “subtle departure[] from neutrality” and “covert suppression of particular religious beliefs” that the United States Constitution’s Free Exercise Clause forbids. Church of Lukumi Babalu Aye v City of Hialeah, 508 US 520, 534 (1993). BOLI awarded damages of $135,000 to Complainants in part to compensate for harm attributable to Aaron Kleins’ quotation of the Bible. As BOLI found, after Rachel Bowman-Cryer’s mother returned to the Kleins’ store alone and volunteered that her “truth had changed’ as a result of having ‘two gay children,’” Aaron Klein quoted Leviticus 18:22: “You shall not lie with a male as one lies with a female; it is an abomination.” ER-68. Rachel’s mother religious exemption to its neutral application of the unemployment compensation statute’s misconduct exception. But that was because the State’s application of the law was not the source of any interference with the claimant’s rights of conscience: “If claimant’s freedom to worship has been interfered with, that interference was committed by his employer, not by the unemployment statute.” 301 Or at 216. And the claimant did not challenge his termination. Id. at 215. Here, by contrast, BOLI’s application of ORS 659A.403 directly interferes with the Kleins’ rights under the Oregon Free Exercise Clauses, and that is the state action the Kleins challenge. 17 later misreported to her daughter that Aaron Klein had called Rachel “an abomination.” ER-68. BOLI awarded damages for the “shame” and other harms that Complainants alleged as a result of this garbled communication of competing religious views about a subject of public controversy. ER-97, 100. If the First Amendment protects any speech at all, it protects an invocation of the Bible in a conversation about “my truth” initiated by a third party. Yet the Court of Appeals specifically upheld BOLI’s decision to award damages based on Aaron Klein’s “quoting a biblical verse” and on Complainants’ own religionspecific interpretation (not shared by the Kleins themselves) of a particular word in that verse. See ER-53 (“BOLI’s final order likewise reflects a focus on the effect of the word ‘abomination’ on the complainants, including their recognition of that biblical reference and their associations with the reference.”); ER-95. By punishing the Kleins for invoking Scripture, BOLI was applying ORS 659A.403 to suppress religion in violation of the Free Exercise Clause. BOLI’s “departures from neutrality” are also evident in the shocking and disproportionate magnitude of the $135,000 damage award and in the Commission’s repeated public statements about the Kleins’ “religious beliefs,” discussed below. 18 IV. The BOLI Commissioner’s Bias and His Prejudgment of the Kleins’ Claims Violates Due Process. The Commissioner who issued BOLI’s final order should have been disqualified by public statements he made about the case before the evidence and arguments were presented to him. Among other examples, Commissioner Avakian published a Facebook post after Laurel Bowman-Cryer filed her complaint with the Oregon Department of Justice and before Complainants filed their complaints with BOLI. Referring specifically to the Kleins’ refusal to design a cake for Complainants’ wedding, the Commissioner wrote that “religious beliefs” do not “mean that [people] can disobey laws already in place,” because there is “one set of rules for everybody.” ER-47, 113. Thus, the Commissioner prejudged the Kleins’ claim for a religious exemption, by announcing that it must necessarily fail. In rejecting the Kleins’ Due Process claim, the Court of Appeals applied an “actual bias” standard that was repudiated by the United States Supreme Court in Caperton v A.T. Massey Coal Co., 556 US 868 (2009), and subsequent cases. ER-44–46. In Caperton, the United States Supreme Court held that the relevant inquiry is not the subjective question whether the adjudicator in fact harbored actual bias against a party before him, but the objective question “whether the average judge in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’ ” Id. at 881. The United States 19 Supreme Court explained why the “actual bias” standard employed by the Court of Appeals in this case falls short: “The difficulties of inquiring into actual bias, and the fact that the inquiry is often a private one, simply underscore the need for objective rules. Otherwise there may be no adequate protection against a judge who simply misreads or misapprehends the real motives at work in deciding the case.” Id. at 883. The Court of Appeals also reasoned that the Commissioner was not disqualified because his public statements concerned only “law and policy,” not facts. ER-47. But the question whether to grant a religious exemption from a generally applicable law under the Oregon Free Exercise Clauses is a mixed question of law and fact. And the evidence shows that the Commissioner made his comments in reference to the facts of this very case. See, e.g., ER-113. The Commissioner’s statements betray prejudgment and bias under any standard. That bias was confirmed by his award of grossly excessive damages based on Aaron Klein’s quotation of Scripture. V. ORS 659A.403 Prohibits Discrimination on Account of Sexual Orientation; It Does Not Compel Participation in Same-Sex Weddings. This Court can avoid the fraught constitutional questions addressed above, because ORS 659A.403, properly interpreted, does not compel businesses to participate in same-sex wedding rituals. Indeed, “[i]t is axiomatic that [this Court] should construe and interpret statutes in such a manner as to 20 avoid any serious constitutional problems.” Bernstein Bros. v. Dept. of Rev., 294 Or 614, 621 (1983). The statute prohibits discrimination “on account of . . . sexual orientation.” ORS 659A.403. But no one has ever alleged that the Kleins discriminated against Complainants for being gay. It is undisputed that the Kleins willingly served Complainants before—including when Complainants purchased a wedding cake for the (opposite-sex) marriage of Rachel BowmanCryer’s mother. ER-67. The Kleins did so knowing their customers were gay. ER-192, ER-194, ER-205. When Aaron Klein declined the order at issue here, it was not because of the sexual orientation of Complainants, but only because of the ritual for which they wanted Sweetcakes to design and create a cake—a same-sex wedding ceremony. ER-6. Yet the Court of Appeals endorsed BOLI’s conclusion that the Kleins’ “refusal to provide a wedding cake for Complainants because it was for their same-sex wedding was synonymous with refusing to provide a cake because of Complainants’ sexual orientation.” ER-12. Same-sex weddings are not “synonymous” with being gay. The Court of Appeals created a false equation between protected gay status and unprotected same-sex wedding ceremonies, by noting that “on account of” is synonymous with “because of” and then interpreting “because of” to mean “causally connected to.” ER-12–13. But that is not what “on account of” (or “because 21 of”) means. That phrase has already been interpreted in the context of Oregon’s anti-discrimination statutes to dictate a “ ‘but for’ standard.” Hardie v Legacy Health Sys., 167 Or App 425, 435–36 (2000), quoted in Lacasse v Owen, 278 Or App 24, 32–33 (2016). This but-for standard requires a showing that “in the absence of” the protected status, the complainant “would have been treated differently.” Hardie, 167 Or App at 435. “But-for causation is a hypothetical construct. In determining whether a particular factor was a but-for cause of a given event, we begin by assuming that that factor was present at the time of the event, and then ask whether, even if that factor had been absent, the event nevertheless would have transpired in the same way.” [¶] If an event would have transpired in the same way, a factor is not a “but for” cause. Id. at 435 n 6 (quoting Price Waterhouse v Hopkins, 490 US 228, 240 (1989)). The Court of Appeals silently abandoned the longstanding “but-for” causation standard in favor of a much more malleable “causally connected” standard, because sexual orientation was not a but-for cause of the Kleins’ decision to decline the order from Rachel Bowman-Cryer and her mother. Aaron Klein did not inquire about the sexual orientation of the engaged couple, and he would have declined the order even if both women had opposite-sex attraction. The Kleins oppose same-sex marriage, not gay persons. See ER-187. The Court of Appeals sought to elide the distinction between gay status and the conduct of same-sex marriage by pointing to cases in which sexual conduct was treated as a proxy for sexual orientation. ER-17 (citing Christian 22 Legal Soc’y Chapter of Univ. of Cal., Hastings College of Law v Martinez, 561 US 661, 689 (2010); Lawrence v Texas, 539 US 558, 575 (2003)). But unlike homosexual conduct, same-sex marriage is not so “closely correlated with being homosexual” that they can be treated as synonymous. Lawrence, 539 US at 583 (2003) (O’Connor, J., concurring). Moreover, there are “decent and honorable” reasons—not mere “dislike and disapproval [of] homosexuals”—for opposing same-sex marriage. Obergefell v Hodges, 135 S Ct 2584, 2602 (2015); cf. Lawrence, 539 US at 583 (2003) (O’Connor, J., concurring). Same-sex marriage is therefore not “such an irrational object of disfavor” that if it “happen[s] to be engaged in exclusively or predominantly by a particular class of people, an intent to disfavor that class can readily be presumed.” Bray v Alexandria Women’s Health Clinic, 506 US 263, 270 (1993). CONCLUSION Petitioners respectfully request that this Court grant review and reverse the decision of the Court of Appeals. 23 DATED this 1st day of March, 2018. /S/ TYLER SMITH TYLER SMITH OSB No. 075287 TYLER SMITH & ASSOCIATES 181 N. Grant St. Suite 212 Canby, OR 97013 Telephone: 503.266.5590 Email: Tyler@ruralbusinessattorneys.com Attorneys for Petitioners HERBERT G. GREY OSB No. 810250 4800 SW Griffith Dr., Suite 320 Beaverton, OR 97005 Telephone: 503.641.4908 Email: Herb@greylaw.org Attorney for Petitioners C. BOYDEN GRAY* ADAM R.F. GUSTAFSON* BOYDEN GRAY & ASSOCIATES 801 17th Street, NW, Suite 350 Washington, DC 20006 Telephone: 202.955.0620 Email: gustafson@boydengrayassociates.com Attorneys for Petitioners HIRAM S. SASSER, III* KENNETH A. KLUKOWSKI* STEPHANIE N. TAUB* FIRST LIBERTY INSTITUTE 2001 West Plano Pkwy, Suite 1600 Plano, TX 75075 Telephone: 972.941.4444 Email: Kklukowski@firstliberty.org Attorneys for Petitioners *Admitted pro hac vice CERTIFICATE OF COMPLIANCE WITH ORAP 5.05 I hereby certify that (1) this petition for review complies with the wordcount limitation in ORAP 9.05(3)(a) and (2) the word-count of this petition (as described in ORAP 5.05(1)(c)) is 4954 words. I certify that that the size of the type in this petition is not smaller than 14-point font for both the text of the petition and footnotes as required by ORAP 5.05(3)(b). DATED this 1st day of March, 2018. /S/ TYLER SMITH TYLER SMITH OSB No. 075287 TYLER SMITH & ASSOCIATES 181 N. Grant St. Suite 212 Canby, OR 97013 Telephone: 503.266.5590 Email: Tyler@ruralbusinessattorneys.com Attorneys for Petitioners HERBERT G. GREY OSB No. 810250 4800 SW Griffith Dr., Suite 320 Beaverton, OR 97005 Telephone: 503.641.4908 Email: Herb@greylaw.org Attorney for Petitioners C. BOYDEN GRAY* ADAM R.F. GUSTAFSON* BOYDEN GRAY & ASSOCIATES 801 17th Street, NW, Suite 350 Washington, DC 20006 Telephone: 202.955.0620 Email: gustafson@boydengrayassociates.com Attorneys for Petitioners HIRAM S. SASSER, III* KENNETH A. KLUKOWSKI* STEPHANIE N. TAUB* FIRST LIBERTY INSTITUTE 2001 West Plano Pkwy, Suite 1600 Plano, TX 75075 Telephone: 972.941.4444 Email: Kklukowski@firstliberty.org Attorneys for Petitioners *Admitted pro hac vice CERTIFICATE OF FILING AND SERVICE I certify that on March 1, 2018, I directed Petitioners’ Petition for Review to be filed electronically with the Appellate Court Administrator, Appellate Court Records Section. I further certify that on March 1, 2018, I directed a true copy of the Petitioners’ Petition for Review to be served on the following parties at the addresses set forth below: Leigh A. Salmon Carson Whitehead 1162 Court Street NE Salem, Oregon 97301-4096 Attorneys for Respondent Service was made by eFiling. DATED this 1st day of March, 2018. /S/ TYLER SMITH TYLER SMITH OSB No. 075287 TYLER SMITH & ASSOCIATES 181 N. Grant St. Suite 212 Canby, OR 97013 Telephone: 503.266.5590 Email: Tyler@ruralbusinessattorneys.com Attorneys for Petitioners HERBERT G. GREY OSB No. 810250 4800 SW Griffith Dr., Suite 320 Beaverton, OR 97005 Telephone: 503.641.4908 Email: Herb@greylaw.org Attorney for Petitioners C. BOYDEN GRAY* ADAM R.F. GUSTAFSON* BOYDEN GRAY & ASSOCIATES 801 17th Street, NW, Suite 350 Washington, DC 20006 Telephone: 202.955.0620 Email: gustafson@boydengrayassociates.com Attorneys for Petitioners HIRAM S. SASSER, III* KENNETH A. KLUKOWSKI* STEPHANIE N. TAUB* FIRST LIBERTY INSTITUTE 2001 West Plano Pkwy, Suite 1600 Plano, TX 75075 Telephone: 972.941.4444 Email: Kklukowski@firstliberty.org Attorneys for Petitioners *Admitted pro hac vice EXCERPT OF RECORD TABLE OF CONTENTS Klein v. Oregon Bureau of Labor and Industries, 289 Or App 507 (2017) ....................................................................... ER-1 Klein v. Oregon Bureau of Labor and Industries, Final Order Cases Nos. 44-14 & 45-14................................................................. ER-63 Declaration of Respondent Melissa Klein (Excerpt) ................................. ER-185 Transcript Excerpts .................................................................................... ER-188 No. 627 ER-1 December 28, 2017 507 IN THE COURT OF APPEALS OF THE STATE OF OREGON Melissa Elaine KLEIN, dba Sweetcakes by Melissa; and Aaron Wayne Klein, dba Sweetcakes by Melissa, and, in the alternative, individually as an aider and abettor under ORS 659A.406, Petitioners, v. OREGON BUREAU OF LABOR AND INDUSTRIES, Respondent. Oregon Bureau of Labor and Industries 4414, 4514; A159899 Argued and submitted March 2, 2017. Adam R.F. Gustafson, Washington, D.C., argued the cause for petitioners. With him on the briefs were Tyler Smith, Anna Harmon, and Tyler Smith & Associates; Herbert G. Grey; C. Boyden Gray, Derek S. Lyons, and Boyden Gray & Associates, Washington DC; and Matthew J. Kacsmaryk, Kenneth A. Klukowski, Cleve W. Doty, and First Liberty Institute, Texas. Carson Whitehead, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Leigh A. Salmon, Assistant Attorney General. Stefan C. Johnson and Lambda Legal Defense and Education Fund, Inc., California, filed the brief amicus curiae for Rachel Bowman-Cryer, Laurel Bowman-Cryer, and Lambda Legal Defense and Education Fund, Inc. Peter Meza and Hogan Lovells US LLP, Colorado; Jessica L. Ellsworth, Laura A. Szarmach, and Hogan Lovells US LLP, Washington, DC; Nicole E. Schiavo and Hogan Lovells US LLP, New York; and Seth M. Marnin, 508 ER-2 Klein v. BOLI Michelle N. Deutchman, David L. Barkley, Anti-Defamation League, New York, filed the brief amicus curiae for AntiDefamation League, Bend the Arc: A Jewish Partnership for Justice, Hindu American Foundation, Interfaith Alliance Foundation, Hadassah: The Women’s Zionist Organization of America, Inc., Keshet, Metropolitan Community Churches, Global Justice Institute, More Light Presbyterians, People for the American Way Foundation, African American Ministers Leadership Council, The National Council of Jewish Women, T’ruah: The Rabbinic Call for Human Rights, Union for Reform Judaism, Religious Action Center, Women of Reform Judaism, Central Conference of American Rabbis, and Women’s League for Conservative Judaism. P. K. Runkles-Pearson, Alexander M. Naito, and Miller Nash Graham & Dunn LLP; Mathew W. dos Santos, Kelly K. Simon, and ACLU of Oregon, Inc.; Jennifer J. Middleton and Johnson Johnson & Schaller PC, filed the brief amicus curiae for ACLU Foundation of Oregon, Inc. Julia E. Markley, Courtney R. Peck, and Perkins Coie LLP; Richard B. Katskee, Carmen Green, and Americans United for Separation of Church and State, filed the brief amicus curiae for Americans United for Separation of Church and State. Before DeVore, Presiding Judge, and Garrett, Judge, and James, Judge.* GARRETT, J. Reversed as to BOLI’s conclusion that the Kleins violated ORS 659A.409 and the related grant of injunctive relief; otherwise affirmed. ______________ * James, J., vice Duncan, J. pro tempore. ER-3 Cite as 289 Or App 507 (2017) 509 Case Summary: Petitioners seek review of a final order of the Bureau of Labor and Industries (BOLI) concluding that petitioners, doing business as Sweetcakes by Melissa, violated ORS 659A.403 by refusing to bake a wedding cake for the complainants, a same-sex couple, on account of their sexual orientation. The order further concluded that petitioners violated ORS 659A.409 by communicating an intention to similarly refuse service in the future. In four assignments of error, petitioners argue: (1) that BOLI erred in concluding that petitioners violated ORS 659A.403, and, in the alternative, that the statute, as applied to them, violates their federal and state constitutional rights to free expression and the free exercise of religion; (2) that BOLI’s commissioner made public statements demonstrating that he was biased against petitioners, and his failure to recuse himself violated their due process rights under the Fourteenth Amendment to the United States Constitution; (3) that BOLI’s damages award for the complainants’ emotional distress is not supported by substantial evidence or substantial reason; and (4) that BOLI erred in concluding that petitioners violated ORS 659A.409 by communicating the intention to discriminate in the future. Held: Because petitioners’ refusal to bake a cake was causally connected to the complainants’ status as a same-sex couple, BOLI did not err in concluding that petitioners violated ORS 659A.403 by denying service “on account of” sexual orientation. Further, BOLI’s order did not violate petitioners’ right to freedom of expression under the First Amendment. Petitioners failed to demonstrate that their wedding cakes invariably constituted fully protected speech or art such that BOLI’s order was subject to the highest level of First Amendment scrutiny. At most, BOLI’s order was subject to intermediate scrutiny, which it survived because the order was not directed at the content of petitioners’ expression, and any burden on that expression was no greater than essential to further Oregon’s substantial interest in preventing invidious discrimination in the marketplace. The Court of Appeals rejected petitioners’ argument under Article I, section 8, of the Oregon Constitution because it was derivative of their First Amendment argument, and petitioners did not offer a separate analysis under the Oregon Constitution. The court also rejected petitioners’ free-exercise claims under both the state and federal constitutions because ORS 659A.403 was a neutral law of general applicability, and petitioners failed to demonstrate that they were targeted for enforcement because of their religion. As for the remaining assignments of error, the court rejected petitioners’ due-process argument because the commissioner’s statements did not evince an inability to be an impartial decision maker in a contested case; the statements did not demonstrate anything more than the commissioner’s views about the law and public policy. The court further held that BOLI’s damages award was supported both by substantial evidence of the complainants’ emotional distress caused by the denial of service, and it was supported by substantial reason. The court agreed with petitioners, however, that BOLI erred by concluding that petitioners violated ORS 659A.409, because the statements at issue could not reasonably be understood to communicate an intention to unlawfully discriminate in the future. Reversed as to BOLI’s conclusion that petitioners violated ORS 659A.409 and the related grant of injunctive relief; otherwise affirmed. ER-4 510 Klein v. BOLI GARRETT, J. 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 ORS 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, ORS 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 ORS 659A.403 and ORS 659A.409. 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 ORS 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. As explained below, we reject the Kleins’ construction of ORS 659A.403 and conclude that their denial of service was “on account of” the complainants’ sexual orientation for purposes of that statute. As for their constitutional arguments, we conclude that the final order does not impermissibly burden the Kleins’ right to free expression under the First Amendment to the United States Constitution. We conclude that, under Employment Division, Oregon Department of Human Resources v. Smith, 494 US 872, 110 ER-5 Cite as 289 Or App 507 (2017) 511 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 we reject their federal constitutional arguments, we reject the Kleins’ arguments under the Oregon Constitution. We also reject the Kleins’ arguments regarding the alleged bias of BOLI’s commissioner and their challenge to BOLI’s damages award. We agree with the Kleins, however, that the evidence does not support BOLI’s conclusion that they violated ORS 659A.409. Accordingly, we reverse the order as to that determination and the related grant of injunctive relief. BOLI’s order is otherwise affirmed. I. BACKGROUND We will discuss the relevant evidence and factual findings in greater detail within our discussion of particular assignments of error, but the following overview provides context for that later discussion.1 The complainants, Rachel Bowman-Cryer and Laurel Bowman-Cryer, met in 2004 and had long considered themselves a couple. In 2012, they decided to marry. As part of the wedding planning, Rachel and her mother, Cheryl, attended a Portland bridal show.2 Melissa Klein had a booth at that bridal show, and she advertised wedding cakes made by her bakery business, Sweetcakes. Rachel and Cheryl visited the booth and told Melissa that they would like to order a cake from her. Rachel and Cheryl were already familiar with Sweetcakes; two years earlier, 1 Because the Kleins do not challenge BOLI’s findings of historical fact, we take those facts—as described here and within particular assignments of error— from the findings set forth in BOLI’s final order. Meltebeke v. Bureau of Labor and Industries, 322 Or 132, 134, 903 P2d 351 (1995), abrogated on other grounds by State v. Hickman/Hickman, 358 Or 1, 24, 358 P3d 987 (2015) (unchallenged factual findings are the facts for purposes of judicial review of an administrative agency’s final order). 2 Because multiple parties and witnesses share the same last names, we at times use first names throughout this opinion for clarity and readability. 512 ER-6 Klein v. BOLI Sweetcakes had designed, created, and decorated a wedding cake for Cheryl’s wedding, paid for by Rachel. After the bridal show, on January 17, 2013, Rachel and Cheryl visited the Sweetcakes bakery shop in Gresham for a cake-tasting appointment, intending to order a wedding cake. At the time of the appointment, Melissa was at home providing childcare, so her husband, Aaron, conducted the tasting. During that tasting, Aaron asked for the names of the bride and groom. Rachel told him that there were two brides and that their names were Rachel and Laurel. At that point, Aaron stated that he was sorry, but that Sweetcakes did not make wedding cakes for same-sex ceremonies because of his and Melissa’s religious convictions. Rachel began crying, and Cheryl took her by the arm and walked her out of the shop. On the way to their car, Rachel became “hysterical” and kept apologizing to her mother, feeling that she had humiliated her. Cheryl consoled Rachel once they were in their car, and she assured her that they would find someone to make the wedding cake. Cheryl drove a short distance away, but then turned around and returned to Sweetcakes. This time, Cheryl reentered the shop by herself to talk with Aaron. During their conversation, Cheryl told Aaron that she had previously shared his thinking about homosexuality, but that her “truth had changed” as a result of having “two gay children.” In response, Aaron quoted a Bible passage from the Book of Leviticus, stating, “You shall not lie with a male as one lies with a female; it is an abomination.” Cheryl left and returned to the car, where Rachel had remained, “holding [her] head in her hands, just bawling.” When Cheryl returned to the car, she told Rachel that Aaron had called her “an abomination,” which further upset Rachel. Rachel later said that “[i]t made me feel like they were saying God made a mistake when he made me, that I wasn’t supposed to be, that I wasn’t supposed to love or be loved or have a family or live a good life and one day go to heaven.” When Rachel and Cheryl arrived home, Cheryl told Laurel what had happened. Laurel, who had been raised ER-7 Cite as 289 Or App 507 (2017) 513 Catholic, recognized the “abomination” reference from Leviticus and felt shame and anger. Rachel was inconsolable, which made Laurel even angrier. Later that same night, Laurel filled out an online complaint form with the Oregon Department of Justice (DOJ), describing the denial of service at Sweetcakes. In addition to the DOJ complaint, Laurel eventually filed a complaint with BOLI, as did Rachel, alleging that the Kleins had refused to make them a wedding cake because of their sexual orientation. BOLI initiated an investigation. Meanwhile, the controversy had become the subject of significant media attention. The Kleins were interviewed by, among others, the Christian Broadcast Network (CBN) and later by a radio talk show host, Tony Perkins. In the CBN interview, which was broadcast in September 2013, the Kleins explained that they did not want to participate in celebrating a same-sex marriage, wanted to live their lives in the service of God, and that, although they did not want to see their bakery business go “belly up,” they had “faith in the Lord and he’s taken care of us up to this point and I’m sure he will in the future.” The CBN broadcast also showed a handwritten sign, taped to the inside of the bakery’s front window, which stated: “Closed but still in business. You can reach me by email or facebook. www.sweetcakesweb.com or Sweetcakes by Melissa facebook page. New phone number will be provided on my website and facebook. This fight is not over. We will continue to stand strong. Your religious freedom is becoming not free anymore. This is ridiculous that we cannot practice our faith. The LORD is good and we will continue to serve HIM with all our heart [heart symbol].” (Uppercase and underscoring in original; spacing altered). In the Perkins interview, which occurred in February 2014, Aaron explained that he and Melissa “had a feeling that [requests for same-sex wedding cakes were] going to become an issue” and that they had discussed the issue. During the interview, Aaron stated that “it was one of those situations where we said ‘well I can see it is going to become an issue but we have to stand firm. It’s our belief and we have a right to it, you know.’ ” 514 ER-8 Klein v. BOLI BOLI’s investigation determined that substantial evidence supported the complaints, and the agency eventually issued formal charges against the Kleins that described the initial refusal of service as well as the Kleins’ subsequent participation in the CBN broadcast and Perkins interview. Specifically, BOLI alleged that the Kleins had violated ORS 659A.403, which entitles all persons “to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of * * * sexual orientation,” ORS 659A.403(1), and further makes it “an unlawful practice for any person to deny full and equal accommodations, advantages, facilities and privileges of any place of public accommodation in violation of this section,” ORS 659A.403(3). BOLI further alleged that the Kleins’ subsequent statements had violated another provision of the state’s public accommodations laws, ORS 656A.409, which makes it unlawful to communicate an intention to discriminate in the future on account of sexual orientation. After the issuance of formal charges, BOLI designated an ALJ to handle the contested case proceedings, and the Kleins and BOLI engaged in extensive motions practice before the ALJ. Among those motions, the Kleins sought to disqualify BOLI’s commissioner, Brad Avakian, on the ground that he was biased against them, as evidenced by his public statements about the cake controversy. In a Facebook post shortly after Laurel filed the DOJ complaint, Avakian had provided a link to a story on www.kgw.com related to the refusal of service; in that post, he wrote, “Everyone has a right to their religious beliefs, but that doesn’t mean they can disobey laws that are already in place. Having one set of rules for everybody ensures that people are treated fairly as they go about their daily lives.” Later, shortly after the first of the BOLI complaints was filed, an article in The Oregonian quoted Avakian as saying that “[e]veryone is entitled to their own beliefs, but that doesn’t mean that folks have the right to discriminate.” According to the Kleins, those statements and others indicated that Avakian had prejudged their case before the hearing. The ALJ disagreed and denied the motion to disqualify. ER-9 Cite as 289 Or App 507 (2017) 515 The Kleins and BOLI also filed cross-motions for summary judgment on multiple issues involving the merits of the case, including, as relevant on judicial review: (1) whether the complainants were denied service “on account of” their sexual orientation for purposes of Oregon’s public accommodation laws; (2) if so, whether the application of those laws violates the Kleins’ rights to free expression and religious worship under the state and federal constitutions; and (3) whether Aaron Klein’s statements during the CBN and Perkins interviews, and the note on the Sweetcakes window, were the kinds of statements of a future intention to discriminate that are prohibited by ORS 659A.409. In an interim order on the cross-motions, the ALJ agreed with BOLI on the first two questions, concluding that the Kleins’ refusal to provide a wedding cake violated ORS 659A.403, and that the statute was constitutional, both facially and as applied under the circumstances.3 However, the ALJ agreed with the Kleins that Aaron’s statements during the CBN and Perkins interviews had not been prospective; rather, the ALJ determined that those statements “are properly construed as the recounting of past events that led to the present Charges being filed,” and therefore did not violate ORS 659A.409. After the ALJ’s rulings on the various motions, only the issue of damages remained to be decided at a hearing. BOLI alleged that each complainant was claiming damages of “at least $75,000,” and it adduced evidence at the hearing—through testimony of the complainants and others—concerning emotional harm that the complainants suffered in the wake of the Kleins’ refusal to make their wedding cake. During closing arguments, BOLI also 3 The formal charges had alleged that Melissa and Aaron each violated ORS 659A.403, and that Aaron had aided and abetted Melissa’s violation. See ORS 659A.406 (making it an unlawful practice for any person to aid or abet unlawful discrimination by any place of public accommodation). The ALJ granted the Kleins’ motion for summary judgment on the allegations that Melissa had violated ORS 659A.403, and on the allegations that Aaron had aided and abetted her in violation of ORS 659A.406. However, the ALJ, and later BOLI, concluded that the Kleins were jointly and severally liable for Aaron’s violation of ORS 659A.403, and the parties have not distinguished between Aaron’s and Melissa’s liability for purposes of judicial review. For readability, we likewise discuss the Kleins’ liability jointly and do not further discuss theories of aiding and abetting, which are not at issue before us. 516 ER-10 Klein v. BOLI asked that the ALJ award damages for the distress that the complainants suffered as a result of media and socialmedia attention after the denial of service. In response, the Kleins argued that the complainants were not credible but that, even if the ALJ were to find them credible, their emotional distress was attributable to sources other than the denial of service that were not lawful bases for a damages award, such as media attention and family conflicts. The Kleins also argued that the amount of damages requested by BOLI far exceeded anything that the agency had previously sought for similar violations. After six days of testimony and argument regarding the damages issue, the ALJ issued a proposed final order that encompassed his earlier summary judgment and procedural rulings and also addressed the question of damages. With respect to damages, the ALJ found that Rachel had testified credibly about her emotional distress, but that Laurel had not been present at the cake refusal and had, in some respects, exaggerated the extent and severity of her emotional suffering. The ALJ concluded that there was no basis in law for awarding damages to the complainants for their emotional suffering caused by media and social-media attention. Ultimately, the ALJ determined that $75,000 was an appropriate award to compensate Rachel for her suffering as a result of the denial of service, and that a lesser amount, $60,000, was appropriate to compensate Laurel. Both the Kleins and the agency filed exceptions to the ALJ’s proposed final order. BOLI, through its commissioner, Avakian, then issued its final order that, for the most part, was consistent with the ALJ’s reasoning in his proposed order. Specifically, BOLI’s final order affirmed the ALJ’s determinations that the Kleins violated ORS 659A.403, it affirmed the ALJ’s conclusion that application of that statute did not violate the Kleins’ constitutional rights, and it affirmed the damages awards. However, the final order departed from the ALJ’s determination in one respect: whether the Kleins had violated ORS 659A.409 by conveying an intention to discriminate in the future. On that question, the final order determined that, based on Aaron’s statements during the CBN and Perkins interviews, and the handwritten sign taped to the bakery’s window (stating ER-11 Cite as 289 Or App 507 (2017) 517 that the “fight is not over” and vowing to “continue to stand strong”), the Kleins had conveyed an intention to unlawfully discriminate in the future by refusing service based on sexual orientation. Thus, BOLI reversed the ALJ’s ruling on that matter and concluded that the Kleins violated ORS 659A.409; but, BOLI did not award any damages based on that particular violation “because there is no evidence in the record that Complainants experienced any mental, emotional, or physical suffering because of it.” This petition for judicial review followed. II. ANALYSIS In their petition, the Kleins raise four assignments of error. In their first assignment, they argue that BOLI erred by applying ORS 659A.403 to their refusal to make the wedding cake. Within that assignment, they argue that BOLI misinterpreted the statute to apply to the refusal; alternatively, they argue that, as applied under these circumstances, the statute abridges their rights to freedom of expression and religious exercise under the federal and state constitutions. In their second assignment, the Kleins argue that their due process rights were violated by the commissioner’s failure to recuse himself. The Kleins’ third assignment asserts that BOLI’s damages award is not supported by substantial evidence or substantial reason. And, in their fourth assignment, they argue that BOLI erred by applying ORS 659A.409 because their statements after the refusal did not communicate an intention to discriminate in the future. We address each assignment of error in turn. A. First Assignment: Interpretation and Application of ORS 659A.403 1. Meaning and scope of ORS 659A.403 In their first assignment of error, the Kleins argue that BOLI misinterpreted ORS 659A.403—specifically, what it means to deny equal service “on account of” sexual orientation. According to the Kleins, they did not decline service to the complainants “on account of” their sexual orientation; rather, “they declined to facilitate the celebration of a union that conveys messages about marriage to which they do not [subscribe] and that contravene their religious 518 ER-12 Klein v. BOLI beliefs.” BOLI rejected that argument, reasoning that the Kleins’ “refusal to provide a wedding cake for Complainants because it was for their same-sex wedding was synonymous with refusing to provide a cake because of Complainants’ sexual orientation.” We, like BOLI, are not persuaded that the text, context, or history of ORS 659A.403 contemplates the distinction proposed by the Kleins. We review BOLI’s interpretation of ORS 659A.403 for legal error, without deference to the agency’s construction of the statute. ORS 183.482(8)(a); see Multnomah County Sheriff’s Office v. Edwards, 361 Or 761, 770-71, 399 P3d 969 (2017) (where statutory terms are inexact, courts determine the meaning of the statute most likely intended by the legislature that enacted it, without any deference to an agency charged with enforcing the statute). To determine the legislature’s intended meaning of ORS 659A.403, we use the analytic framework set forth in State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009), whereby we look to the text of the statute in its context, along with any helpful legislative history. The text of ORS 659A.403(1) leaves little doubt as to its breadth and operation. It provides, in full: “(1) Except as provided in subsection (2) of this section, all persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is of age, as described in this section, or older.” (Emphases added.) The phrase “on account of” is unambiguous: In ordinary usage, it is synonymous with “by reason of” or “because of.” Webster’s Third New Int’l Dictionary 13 (unabridged ed 2002); id. at 194 (defining “because of” as “by reason of : on account of”). And it has long been understood to carry that meaning in the context of antidiscrimination statutes. E.g., 18 USC § 242 (1948) (making it unlawful to deprive a person of “any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or ER-13 Cite as 289 Or App 507 (2017) 519 penalties, on account of such inhabitant being an alien, or by reason of his color, or race” (emphases added)). 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—in this case, “sexual orientation,” which is defined to mean “an individual’s actual or perceived heterosexuality, homosexuality, bisexuality or gender identity, regardless of whether the individual’s gender identity, appearance, expression or behavior differs from that traditionally associated with the individual’s sex at birth.” Former ORS 174.100(6) (2013), renumbered as ORS 174.100(7) (2015).4 Accord Hopper v. SAIF, 265 Or App 465, 470, 336 P3d 530 (2014) (explaining that, because the ordinary meaning of the term “for” in context was “because of” or “on account of,” the workers’ compensation statute at issue “requires a worker to prove that any failure to cooperate was because of—in other words, causally connected to—reasons beyond the worker’s control” (first emphasis in original; second emphasis added)); Elk Creek Management Co. v. Gilbert, 353 Or 565, 580-81, 303 P3d 929 (2013) (explaining that antidiscrimination statutes often use the term “retaliation” “in conjunction with the word ‘because’ or other words that require a causal connection between one party’s acts and another party’s protected activity” (emphasis added)). In this case, Sweetcakes provides a service—making wedding cakes—to heterosexual couples who intend to wed, but it denies the service to same-sex couples who likewise intend to wed. Under any plausible construction of the plain text of ORS 659A.403, that denial of equal service is “on account of,” or causally connected to, the sexual orientation of the couple seeking to purchase the Kleins’ wedding-cake service. The Kleins do not point to any text in the statute or provide any context or legislative history suggesting that we should depart from the ordinary meaning of those words. What they argue instead is that the statute is silent as to 4 On judicial review, the Kleins do not dispute that Sweetcakes is a “place of public accommodation” within the meaning of ORS 659A.403. See ORS 659A.400 (defining “a place of public accommodation” for purposes of ORS chapter 659A). 520 ER-14 Klein v. BOLI whether it encompasses “gay conduct” as opposed to sexual orientation. The Kleins state that they are willing to serve homosexual customers, so long as those customers do not use the Kleins’ cakes in celebration of same-sex weddings. As such, according to the Kleins, they do not discriminate against same-sex couples “on account of” their status; rather, they simply refuse to provide certain services that those same-sex couples want. The Kleins contend that BOLI’s “broad equation of celebrations (weddings) of gay conduct (marriage) with gay status rewrites and expands Oregon’s public accommodations law.” We see no evidence that the drafters of Oregon’s public accommodations laws intended that type of distinction between status and conduct. First, there is no reason to believe that the legislature intended a “status/conduct” distinction specifically with regard to the subject of “sexual orientation.” When the legislature in 2007 added “sexual orientation” to the list of protected characteristics in ORS 659A.403, Or Laws 2007, ch 100, § 5, it was unquestionably aware of the unequal treatment that gays and lesbians faced in securing the same rights and benefits as heterosexual couples in committed relationships. During the same session that the legislature amended ORS 659A.403 (and other antidiscrimination statutes) to include “sexual orientation,” it adopted the Oregon Family Fairness Act, which recognized the “numerous obstacles” that gay and lesbian couples faced and was intended to “extend[ ] benefits, protections and responsibilities to committed same-sex partners and their children that are comparable to those provided to married individuals and their children by the laws of this state.” Or Laws 2007, ch 99, §§ 2(3), (5). To that end, section 9 of that law provided: “Any privilege, immunity, right or benefit granted by statute, administrative or court rule, policy, common law or any other law to an individual because the individual is or was married, or because the individual is or was an in-law in a specified way to another individual, is granted on equivalent terms, substantive and procedural, to an individual because the individual is or was in a domestic partnership or because the individual is or was, based on a domestic partnership, related in a specified way to another individual.” ER-15 Cite as 289 Or App 507 (2017) 521 Or Laws 2007, ch 99, § 9(1). The Kleins have not provided us with any persuasive explanation for why the legislature would have intended to grant equal privileges and immunities to individuals in same-sex relationships while simultaneously excepting those committed relationships from the protections of ORS 659A.403.5 Nor does the Kleins’ proposed distinction find support in the context or history of ORS 659A.403 more generally. As originally enacted in 1953, the statute (then numbered ORS 30.670) prohibited “any distinction, discrimination or restriction on account of race, religion, color or national origin.” Or Laws 1953, ch 495, § 1. One of the purposes of the statute, the Supreme Court has observed, was “to prevent ‘operators and owners of businesses catering to the general public to subject Negroes to oppression and humiliation.’ ” Schwenk v. Boy Scouts of America, 275 Or 327, 332, 551 P2d 465 (1976) (quoting a statement by one of the principal sponsors of the statute (emphasis removed)). Yet, under the distinction proposed by the Kleins, owners and operators of businesses could continue to oppress and humiliate black people simply by recasting their bias in terms of conduct rather than race. For instance, a restaurant could refuse to serve an interracial couple, not on account of the race of either customer, but on account of the conduct— interracial dating—to which the proprietor objected. In the absence of any textual or contextual support, or legislative history on that point, we decline to construe ORS 659A.403 in a way that would so fundamentally undermine its purpose. See King v. Greyhound Lines, Inc., 61 Or App 197, 203, 656 P2d 349 (1982) (adopting an interpretation of Oregon’s 5 At the time that the Oregon Family Fairness Act was enacted, Article XV, section 5a, of the Oregon Constitution defined “marriage” to be limited to the union of one man and one woman, and the Oregon Family Fairness Act expressly states that it “cannot bestow the status of marriage on partners in a domestic partnership.” Or Laws 2007, ch 99, § 2(7). Nonetheless, the act contemplated, but did not require, the performance of “solemnization ceremony[ies]” and left it to the “dictates and conscience of partners entering into a domestic partnership to determine whether to seek a ceremony or blessing over the domestic partnership.” Or Laws 2007, ch 99, § 2(8). Thus, the legislature was aware that same-sex couples would be participating in wedding ceremonies, and when it simultaneously chose to extend the protections of ORS 659A.403 to cover sexual orientation, there is no reason to believe that it intended to exempt places of public accommodation— such as cake shops, dress shops, or flower shops—so as to permit them to discriminate with regard to services related to those anticipated ceremonies. 522 ER-16 Klein v. BOLI public accommodation laws that recognizes that “the chief harm resulting from the practice of discrimination by establishments serving the general public is not the monetary loss of a commercial transaction or the inconvenience of limited access but, rather, the greater evil of unequal treatment, which is the injury to an individual’s sense of self-worth and personal integrity”). Tellingly, the Kleins’ argument for distinguishing between “gay conduct” and sexual orientation is rooted in principles that they derive from United States Supreme Court cases rather than anything in the text, context, or history of ORS 659A.403. Specifically, the Kleins draw heavily on the Supreme Court’s reasoning in Bray v. Alexandria Women’s Health Clinic, 506 US 263, 113 S Ct 753, 122 L Ed 2d 34 (1993), which concerned the viability of a federal cause of action under 42 USC section 1985(3) against persons obstructing access to abortion clinics. In that case, the Supreme Court addressed, among other things, whether the petitioners’ opposition to abortion reflected an animus against women in general—that is, whether, because abortion is “an activity engaged in only by women, to disfavor it is ipso facto to discriminate invidiously against women as a class.” Id. at 271 (footnote omitted). In rejecting that theory of ipso facto discrimination, the Court observed: “Some activities may be such an irrational object of disfavor that, if they are targeted, and if they also happen to be engaged in exclusively or predominantly by a particular class of people, an intent to disfavor that class can readily be presumed. A tax on wearing yarmulkes is a tax on Jews. But opposition to voluntary abortion cannot possibly be considered such an irrational surrogate for opposition to (or paternalism towards) women. Whatever one thinks of abortion, it cannot be denied that there are common and respectable reasons for opposing it, other than hatred of, or condescension toward (or indeed any view at all concerning), women as a class—as is evident from the fact that men and women are on both sides of the issue, just as men and women are on both sides of petitioners’ unlawful demonstrations.” Id. at 270. ER-17 Cite as 289 Or App 507 (2017) 523 The Kleins argue that “[t]he same is true here. Whatever one thinks of same-sex weddings, there are respectable reasons for not wanting to facilitate them.” They contend that BOLI simply “ignores Bray” and that BOLI’s construction of ORS 659A.403 “fails the test for equating conduct with status” that the Supreme Court announced in that case. Bray, which involved a federal statute, does not inform the question of what the Oregon legislature intended when it enacted ORS 659A.403. But beyond that, Bray does not articulate a relevant test for analyzing the issue presented in this case. Bray addressed the inferences that could be drawn from opposition to abortion as a “surrogate” for sex-based animus, and it was in that context that the Supreme Court described “irrational object[s] of disfavor” that “happen to be engaged in exclusively or predominantly by a particular class of people,” 506 US at 270, such that intent to discriminate against that class can be presumed. Here, by contrast, there is no surrogate. The Kleins refused to make a wedding cake for the complainants precisely and expressly because of the relationship between sexual orientation and the conduct at issue (a wedding). And, where a close relationship between status and conduct exists, the Supreme Court has repeatedly rejected the type of distinction urged by the Kleins. See Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez, 561 US 661, 689, 130 S Ct 2971, 177 L Ed 2d 838 (2010) (“[Christian Legal Society] contends that it does not exclude individuals because of sexual orientation, but rather on the basis of a conjunction of conduct and the belief that the conduct is not wrong. Our decisions have declined to distinguish between status and conduct in this context.” (Citation and internal quotation marks omitted.)); Lawrence v. Texas, 539 US 558, 575, 123 S Ct 2472, 156 L Ed 2d 508 (2003) (“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”). We therefore reject the Kleins’ proposed distinction between status and conduct, and we hold that their refusal to serve the complainants is the type of discrimination “on account of 524 ER-18 Klein v. BOLI * * * sexual orientation” that falls within the plain meaning of ORS 659A.403.6 The reasons for the Kleins’ discrimination on account of sexual orientation—regardless of whether they are “common and respectable” within the meaning of Bray— raise questions of constitutional law, not statutory interpretation. The Kleins, in the remainder of their argument concerning the construction of ORS 659A.403, urge us to consider those constitutional questions and to interpret the statute in a way that avoids running afoul of the “Speech and Religion Clauses of the Oregon and United States constitutions.” See generally State v. McNally, 361 Or 314, 337, 392 P3d 721 (2017) (describing the interpretive canon by which courts will “avoid an interpretation that would raise constitutional problems in application, if another reasonable interpretation of the statute would not”). However, that canon applies only where the court is faced with competing plausible constructions of the statute. See State v. Lane, 357 Or 619, 637, 355 P3d 914 (2015) (“The canon of interpretation that counsels avoidance of unconstitutionality applies only when a disputed provision remains unclear after examination of its text in context and in light of its enactment history.”). Here, the Kleins have not made that threshold showing of ambiguity. Accordingly, we affirm BOLI’s order with regard to its construction of ORS 659A.403, and we turn to the merits of the Kleins’ constitutional arguments. 2. Constitutional challenges to ORS 659A.403 The Kleins invoke both the United States and the Oregon constitutions in arguing that the final order violates their rights to free expression and the free exercise of their religion. Oregon courts generally seek to resolve arguments under the state constitution before turning to the federal constitution. See State v. Babson, 355 Or 383, 432-33, 326 P3d 559 (2014) (discussing policy reasons for analyzing state constitutional claims first). In this case, however, the 6 In doing so, we join other courts that have declined to draw a “status/ conduct” distinction similar to that urged by the Kleins. See, e.g., State v. Arlene’s Flowers, Inc., 187 Wash 2d 804, 823, 389 P3d 543, 552 (2017) (stating that “numerous courts—including our own—have rejected this kind of status/conduct distinction in cases involving statutory and constitutional claims of discrimination,” and citing cases to that effect). ER-19 Cite as 289 Or App 507 (2017) 525 Kleins draw almost entirely on well-developed federal constitutional principles, and they do not meaningfully develop any independent state constitutional theories. Accordingly, in the discussion that follows, we address the Kleins’ federal constitutional arguments first and their state arguments second. See Church at 295 S. 18th St. v. Employment Dept., 175 Or App 114, 123 n 2, 28 P3d 1185, rev den, 333 Or 73 (2001) (noting that “[t]he Supreme Court likewise does not always pause to consider state constitutional arguments before addressing federal constitutional arguments, particularly when the parties have not asserted any independent state constitutional analysis”); see also Neumann v. Liles, 358 Or 706, 716 n 6, 369 P3d 1117 (2016) (“Ordinarily, we would look to our state constitution before addressing any federal constitutional issues. As noted, however, the parties to this case have argued this issue solely under the First Amendment and have not invoked Article I, section 8, of the Oregon Constitution.”). a. Free expression The Kleins argue that BOLI’s final order violates their First Amendment right to freedom of speech. BOLI argues that the order simply enforces ORS 659A.403, a content-neutral regulation of conduct that does not implicate the First Amendment at all. And each side argues that United States Supreme Court precedent is decisively in its favor. The issues before us arise at the intersection of two competing principles: the government’s interest in promoting full access to the state’s economic life for all of its citizens, which is expressed in public accommodations statutes like ORS 659A.403, and an individual’s First Amendment right not to be compelled to express or associate with ideas with which she disagrees. Although the Supreme Court has grappled with that intersection before, it has not yet decided a case in this particular context, where the public accommodation at issue is a retail business selling a service, like cake-making, that is asserted to involve artistic expression.7 7 The issue is currently before the Supreme Court in a case involving a Colorado bakery that similarly refused to make a wedding cake for a samesex couple. Craig v. Masterpiece Cakeshop, Inc., 370 P3d 272 (Colo App 2015), ER-20 526 Klein v. BOLI It is that asserted artistic element that complicates the First Amendment analysis—and, ultimately, distinguishes this case from the precedents on which the parties rely. Generally speaking, the First Amendment does not prohibit government regulation of “commerce or conduct” whenever such regulation indirectly burdens speech. Sorrell v. IMS Health Inc., 564 US 552, 567, 131 S Ct 2653, 180 L Ed 2d 544 (2011). When, however, the government regulates activity that involves a “significant expressive element,” some degree of First Amendment scrutiny is warranted. Arcara v. Cloud Books, Inc., 478 US 697, 706, 106 S Ct 3172, 92 L Ed 2d 568 (1986); id. at 705 (reasoning that the “crucial distinction” between government actions that trigger First Amendment scrutiny and those that do not is whether the regulated activity “manifests” an “element of protected expression”). In the discussion that follows, we conclude that the Kleins have not demonstrated that their wedding cakes invariably constitute fully protected speech, art, or other expression, and we therefore reject the Kleins’ position that we must subject BOLI’s order to strict scrutiny under the First Amendment. At most, the Kleins have shown that their cake-making business includes some arguably expressive elements as well as non-expressive elements, so as to trigger intermediate scrutiny. We assume (without deciding) that that is true, and then conclude that BOLI’s order nonetheless survives intermediate scrutiny because any burden on the Kleins’ expressive activities is no greater than is essential to further Oregon’s substantial interest in promoting the ability of its citizens to participate equally in the marketplace without regard to sexual orientation. (1) “Public accommodations” and the First Amendment Oregon enacted its Public Accommodation Act in 1953. See Or Laws 1953, ch 495. The original act guaranteed the provision of “full and equal accommodations, advantages, facilities and privileges * * * without any distinction, cert den, No. 15SC738, 2016 WL 1645027 (Colo Apr 25, 2016), cert granted sub nom Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 137 S Ct 2290 (2017). ER-21 Cite as 289 Or App 507 (2017) 527 discrimination or restriction on account of race, religion, color, or national origin.” Former ORS 30.670 (1953), renumbered as ORS 659A.403 (2001). It applied to “any hotel, motel or motor court, any place offering to the public food or drink for consumption on the premises, or any place offering to the public entertainment, recreation or amusement.” Former ORS 30.675 (1953), renumbered as ORS 659A.400 (2001). Oregon’s statute was thus similar in scope to Title II of the federal Civil Rights Act of 1964, which prohibits discrimination “on the ground of race, color, religion, or national origin” in three broad categories of public accommodations: those that provide lodging to transient guests, those that sell food for consumption on the premises, and those that host “exhibition[s] or entertainment,” such as theaters and sports arenas. Pub L 88-352, Title II, § 201, 78 Stat 243 (1964), codified as 42 USC § 2000a(b). When the United States Supreme Court upheld the public accommodations provisions of Title II in 1964, it observed that the constitutionality of state public accommodations laws at that point had remained “unquestioned,” citing previous instances in which it had “rejected the claim that the prohibition of racial discrimination in public accommodations interferes with personal liberty.” Atlanta Motel v. United States, 379 US 241, 260-61, 85 S Ct 348, 13 L Ed 2d 258 (1964). Over two decades, the Oregon legislature incrementally expanded the definition of “place of public accommodation” to include “trailer park[s]” and “campground[s],” Or Laws 1957 ch 724, § 1, and then to places “offering to the public food or drink for consumption on or off the premises,” Or Laws 1961, ch 247, § 1 (emphasis added). Then, in 1973, the legislature significantly expanded the definition to include “any place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements or otherwise,” subject to an exception for “any institution, bona fide club or place of accommodation which is in its nature distinctly private.” Or Laws 1973, ch 714, § 2 (emphasis added). Other states similarly enlarged the scope of their public-accommodations laws over time. See, e.g., Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 US 557, 571-72, 115 S Ct 2338, 132 L Ed 2d 487 (1995) (describing the ways in 528 ER-22 Klein v. BOLI which the Massachusetts legislature had “broaden[ed] the scope of” the state’s public accommodations law); Roberts v. United States Jaycees, 468 US 609, 624, 104 S Ct 3244, 82 L Ed 2d 462 (1984) (observing that Minnesota had “progressively broadened the scope of its public accommodations law in the years since it was first enacted, both with respect to the number and type of covered facilities and with respect to the groups against whom discrimination is forbidden”). First Amendment challenges to the application of public-accommodations laws—and other forms of antidiscrimination laws—have been mostly unsuccessful. See, e.g., Roberts, 468 US at 625-29 (rejecting argument that a private, commercial association had a First Amendment right to exclude women from full membership); Hishon v. King & Spalding, 467 US 69, 78, 104 S Ct 2229, 81 L Ed 2d 59 (1984) (rejecting law firm’s claim that prohibiting the firm from discriminating on the basis of gender in making partnership decisions violated members’ First Amendment rights to free expression and association); Runyon v. McCrary, 427 US 160, 175-76, 96 S Ct 2586, 49 L Ed 2d 415 (1976) (rejecting private schools’ claim that they had a First Amendment associational right to discriminate on the basis of race in admitting students). The United States Supreme Court has repeatedly acknowledged that public accommodations statutes in particular are “well within the State’s usual power to enact when a legislature has reason to believe that a given group is the target of discrimination.” Hurley, 515 US at 572. The Court has further acknowledged that states enjoy “broad authority to create rights of public access on behalf of [their] citizens,” in order to ensure “wide participation in political, economic, and cultural life” and to prevent the “stigmatizing injury” and “the denial of equal opportunities” that accompanies invidious discrimination in public accommodations. Roberts, 468 US at 625. And the Court has recognized a state’s interest in preventing the “unique evils” that stem from “invidious discrimination in the distribution of publicly available goods, services, and other advantages.” Id. at 628. However, as states adopted more expansive definitions of “places of public accommodation,” their antidiscrimination statutes began to reach entities that were ER-23 Cite as 289 Or App 507 (2017) 529 different in kind from the commercial establishments that were the original target of public accommodations laws. As a result, on two occasions, the Court held that the application of such laws violated the First Amendment. First, in Hurley, the court held that Massachusetts’s public accommodations law could not be applied to require a St. Patrick’s Day parade organizer to include a gay-rights group in its parade. 515 US at 573. Observing that state public accommodations laws do not, “as a general matter, violate the First or Fourteenth Amendments,” the Court went on to conclude that the Massachusetts law had been “applied in a peculiar way” to a private parade, a result that “essentially requir[ed]” the parade organizers to “alter the expressive content of their parade” by accommodating a message (of support for gay rights) that they did not want to include. Id. at 572-73 (emphasis added). The Court further reasoned that such an application of the statute “had the effect of declaring the [parade] sponsors’ speech itself to be the public accommodation,” which violated “the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” Id. at 573. Following Hurley, the Court decided Boy Scouts of America v. Dale, 530 US 640, 120 S Ct 2446, 147 L Ed 2d 554 (2000) (Dale), in which it held that applying New Jersey’s public accommodations law to require the Boy Scouts to admit a gay scoutmaster violated the group’s First Amendment right to freedom of association. The Court observed that, over time, public accommodations laws had been expanded to cover more than just “traditional places of public accommodation—like inns and trains.” Id. at 656. According to the Court, New Jersey’s definition of a “place of public accommodation” was “extremely broad,” particularly because the state had “applied its public accommodations law to a private entity without even attempting to tie the term ‘place’ to a physical location.” Id. at 657. The court distinguished Dale from prior cases in which it held that public accommodations laws posed no First Amendment problem, observing that, in those prior cases, the law’s enforcement did not “materially interfere with the ideas that the organization sought to express.” Id. 530 ER-24 Klein v. BOLI Thus, Hurley and Dale demonstrate that the First Amendment may stand as a barrier to the application of state public accommodations laws when such laws are applied to “peculiar” circumstances outside of the usual commercial context. See Dale, 530 US at 657 (“As the definition of ‘public accommodation’ has expanded from clearly commercial entities, such as restaurants, bars, and hotels, to membership organizations such as the Boy Scouts, the potential for conflict between state public accommodations laws and the First Amendment rights of organizations has increased.”). In this case, the Kleins concede that Sweetcakes is a “place of public accommodation” under Oregon law because it is a retail bakery open to the public. But the Kleins contend that, as in Hurley and Dale, application of ORS 659A.403 in this case violates their First Amendment rights. (2) First Amendment precedent BOLI and the Kleins offer competing United States Supreme Court precedent that, they argue, clearly requires a result in their respective favors. We begin our analysis by explaining why we do not regard the authorities cited by the parties as controlling. The Kleins argue that the effect of BOLI’s final order is to compel them to express a message—a celebration of same-sex marriage—with which they disagree. They primarily draw on two interrelated lines of First Amendment cases that, they contend, preclude the application of ORS 659A.403 here. First, the Kleins rely on cases holding that the government may not compel a person to speak or promote a government message with which the speaker does not agree. See, e.g., Board of Education v. Barnette, 319 US 624, 63 S Ct 1178, 87 L Ed 1628 (1943) (holding that a state may not sanction a public-school student or his parents for the student’s refusal to recite the Pledge of Allegiance or salute the flag of the United States); Wooley v. Maynard, 430 US 705, 97 S Ct 1428, 51 L Ed 2d 752 (1977) (holding that New Hampshire could not force a person to display the “Live Free or Die” state motto on his license plate). ER-25 Cite as 289 Or App 507 (2017) 531 We do not consider that line of cases to be helpful here. In “compelled speech” cases like Barnette and Wooley, the government prescribed a specific message that the individual was required to express. ORS 659A.403 does nothing of the sort; it is a content-neutral regulation that is not directed at expression at all. It does not even regulate cakemaking; it simply prohibits the refusal of service based on membership in a protected class. The United States Supreme Court has repeatedly held that such content-neutral regulations—although they may have incidental effects on an individual’s expression—are an altogether different, and generally permissible, species of government action than a regulation of speech. See Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 US 47, 62, 126 S Ct 1297, 164 L Ed 2d 156 (2006) (FAIR) (“[I]t has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” (Internal quotation marks omitted.)); R. A. V. v. St. Paul, 505 US 377, 385, 112 S Ct 2538, 120 L Ed 2d 305 (1992) (“We have long held * * * that nonverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses * * *.”). In short, we reject the Kleins’ analogy of this case to Barnette and Wooley. Second, the Kleins rely heavily on Hurley and Dale, which, as discussed above, invalidated the application of public accommodations statutes in “peculiar” circumstances outside of the usual commercial context. The difficulty with that analogy is that this case does involve the usual commercial context; Sweetcakes is not a private parade or membership organization, and it is hardly “peculiar,” as that term was used in Hurley, to apply ORS 659A.403 to a retail bakery like Sweetcakes that is open to the public and that exists for the purpose of engaging in commercial transactions. Indeed, the Kleins accept the premise that Sweetcakes is a place of public accommodation under Oregon law, and that, as such, it must generally open its doors to customers of all sexual orientations, regardless of the Kleins’ religious views about homosexuality. Thus, if the Kleins are to succeed in avoiding compliance with the statute, it cannot be because 532 ER-26 Klein v. BOLI their activity occurs outside the ordinary commercial context that the government has wide latitude to regulate, as was the case in Hurley and Dale. The Kleins must find support elsewhere. In BOLI’s view, on the other hand, the Kleins’ arguments are disposed of by the United States Supreme Court’s decision in FAIR. In that case, an association of law schools and law faculty (FAIR) sought to enjoin the enforcement of the Solomon Amendment, a federal law that requires higher-education institutions, as a condition for receiving federal funds, to provide military recruiters with the same access to their campuses as non-military recruiters. 547 US at 52-55. Because FAIR opposed the military’s policy at that time regarding homosexual service-members, FAIR argued that the equal-access requirement violated the schools’ First Amendment rights to freedom of speech and association. Id. at 52-53. The Court rejected FAIR’s compelled-speech argument, reasoning that the Solomon Amendment “neither limits what law schools may say nor requires them to say anything,” and, therefore, the law was a “far cry” from the compulsions at issue in Barnette and Wooley. Id. at 60, 62. The Court acknowledged that compliance with the Solomon Amendment would indirectly require the schools to “speak” in a sense because it would require the schools to send emails and post notices on behalf of the military if they chose to do so for other recruiters. Nevertheless, the Court found it dispositive that the Solomon Amendment did not “dictate the content of the speech at all, which is only ‘compelled’ if, and to the extent [that,] the school provides such speech for other recruiters.” Id. The Court distinguished that situation from those where “the complaining speaker’s own message was affected by the speech it was forced to accommodate.” Id. at 63-64 (citing, inter alia, Hurley, 515 US at 568). In BOLI’s view, this case is like FAIR because ORS 659A.403 does not directly compel any speech; even if one considers the Kleins’ cake-making to involve some element of expression, the law only compels the Kleins to engage in that expression for same-sex couples “if, and to the extent” that the Kleins do so for the general public. ER-27 Cite as 289 Or App 507 (2017) 533 This case is distinguishable from FAIR, however, in a significant way. Essential to the holding in FAIR was that the schools were not compelled to express a message with which they disagreed. The schools evidently did not assert, nor did the Supreme Court contemplate, that there was a meaningful ideological or expressive component to the emails or notices themselves, which merely conveyed factual information about the presence of recruiters on campus. The Court thus distinguished the case from Barnette and Wooley, cases that addressed the harm that results from true compelled speech—that is, depriving a person of autonomy as a speaker and “inva[ding]” that person’s “ ‘individual freedom of mind,’ ” Wooley, 430 US at 714 (quoting Barnette, 319 US at 637); see Hurley, 515 US at 576 (“[W]hen dissemination of a view contrary to one’s own is forced upon a speaker intimately connected with the communication advanced, the speaker’s right to autonomy over the message is compromised.”). Here, unlike in FAIR, the Kleins very much do object to the substantive content of the expression that they believe would be compelled. They argue that their wedding cakes are works of art that express a celebratory message about the wedding for which they are intended, and that the Kleins cannot be compelled to create that art for a wedding that they do not believe should be celebrated. And there is evidentiary support for the Kleins’ view, at least insofar as every wedding cake that they create partially reflects their own creative and aesthetic judgment. Whether that is sufficient to make their cakes “art,” the creation of which the government may not compel, is a question to which we will turn below, but even the Kleins’ subjective belief that BOLI’s order compels them to express a specific message that they ideologically oppose makes this case different from FAIR. That fact is also what makes this case difficult to compare to other public accommodations cases that the United States Supreme Court has decided. It appears that the Supreme Court has never decided a free-speech challenge to the application of a public accommodations law to a retail establishment selling highly customized, creative goods and services that arguably are in the nature of art or other expression. 534 ER-28 Klein v. BOLI To put the problem into sharper focus, we see no reason in principle why the services of a singer, composer, or painter could not fit the definition of a “place of public accommodation” under ORS 659A.400. One can imagine, for example, a person whose business is writing commissioned music or poetry for weddings, or producing a sculpture or portrait of the couple kissing at an altar. One can also imagine such a person who advertises and is willing to sell those services to the general public, but who holds strong religious convictions against same-sex marriage and would feel her “freedom of mind” violated if she were compelled to produce her art for such an occasion. Cf. Barnette, 319 US at 637. For the Kleins, this is that case. BOLI disagrees that a wedding cake is factually like those other examples, but the legal point that those examples illustrate is that existing public accommodations case law is awkwardly applied to a person whose “business” is artistic expression. The Court has not told us how to apply a requirement of nondiscrimination to an artist. We believe, moreover, that it is plausible that the United States Supreme Court would hold the First Amendment to be implicated by applying a public accommodations law to require the creation of pure speech or art. If BOLI’s order can be understood to compel the Kleins to create pure “expression” that they would not otherwise create, it is possible that the Court would regard BOLI’s order as a regulation of content, thus subject to strict scrutiny, the test for regulating fully protected expression. See Hurley, 515 US at 573 (application of public accommodations statute violated the First Amendment where it “had the effect of declaring the sponsors’ speech itself to be the public accommodation,” thus infringing on parade organizers’ “autonomy to choose the content of [their] own message”); see also Riley v. National Federation of the Blind, 487 US 781, 79598, 108 S Ct 2667, 101 L Ed 2d 669 (1988) (explaining that “[m]andating speech that a speaker would not otherwise make necessarily alters the content of the speech,” and subjecting such regulation to “exacting First Amendment scrutiny”). Although the Court has not clearly articulated the extent to which the First Amendment protects visual art ER-29 Cite as 289 Or App 507 (2017) 535 and its creation, it has held that the First Amendment covers various forms of artistic expression, including music, Ward v. Rock Against Racism, 491 US 781, 790, 109 S Ct 2746, 105 L Ed 2d 661 (1989); “live entertainment,” such as musical and dramatic performances, Schad v. Mount Ephraim, 452 US 61, 65, 101 S Ct 2176, 68 L Ed 2d 671 (1981); and video games, Brown v. Entertainment Merchants Assn, 564 US 786, 790, 131 S Ct 2729, 180 L Ed 2d 708 (2011). See also Kaplan v. California, 413 US 115, 119-20, 93 S Ct 2680, 37 L Ed 2d 492 (1973) (“[P]ictures, films, paintings, drawings, and engravings * * * have First Amendment protection.”). The Court has also made clear that a particularized, discernible message is not a prerequisite for First Amendment protection.8 See Hurley, 515 US at 569 (“[A] narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a particularized message, would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll.” (Citation and internal quotation marks omitted.)); see also Ward, 491 US at 790 (concluding that music is protected expression, due to “its capacity to appeal to the intellect and to the emotions”). In short, although ORS 659A.403 is a contentneutral regulation that is not directed at expression, the Kleins’ arguments cannot be dismissed on that ground alone. Rather, we must decide whether the Kleins’ cakemaking activity is sufficiently expressive, communicative, 8 The First Amendment’s protection of artwork is distinct from the protections that extend to so-called “expressive conduct.” Expressive conduct involves conduct that may be undertaken for any number of reasons but, in the relevant instance, is undertaken for the specific purpose of conveying a message. See, e.g., Texas v. Johnson, 491 US 397, 405, 109 S Ct 2533, 105 L Ed 2d 342 (1989) (reasoning that not every action taken with respect to the flag of the United States is necessarily expressive); United States v. O’Brien, 391 US 367, 375, 88 S Ct 1673, 20 L Ed 2d 672 (1968) (recognizing that a person may knowingly destroy a draft card without necessarily intending to express any particular view). For example, a person may camp in a public park for any number of reasons, only some of which are intended to express an idea. See Clark v. Community for Creative Non-Violence, 468 US 288, 104 S Ct 3065, 82 L Ed 2d 221 (1984). In contrast (as we understand the Supreme Court to have held), because the creation of artwork and other inherently expressive acts are unquestionably undertaken for an expressive purpose, they need not express an articulable message to enjoy First Amendment protection. 536 ER-30 Klein v. BOLI or artistic so as to implicate the First Amendment, and, if it is, whether BOLI’s final order compelling the creation of such expression in a particular circumstance survives First Amendment scrutiny. (3) Whether these cakes implicate the First Amendment If, as BOLI argues, the Kleins’ wedding cakes are just “food” with no meaningful artistic or communicative component, then, as the foregoing discussion illustrates, BOLI’s final order does not implicate the First Amendment; the Kleins’ objection to having to “speak” as a result of ORS 659A.403 is no more powerful than it would be coming from the seller of a ham sandwich. On the other hand, if and to the extent that the Kleins’ wedding cakes constitute artistic or communicative expression, then the First Amendment is implicated by BOLI’s final order. In short, we must decide whether the act that the Kleins refused to perform—to design and create a wedding cake—is “sufficiently imbued with elements of communication” so as to “fall within the scope” of the First Amendment. Spence v. Washington, 418 US 405, 409, 94 S Ct 2727, 41 L Ed 2d 842 (1974). On this point, BOLI makes a threshold argument that we must address, which is that, because the Kleins refused service to Rachel and Laurel before even finding out what kind of cake the couple wanted, there is no basis for assessing the “artistic” component of whatever cake might have resulted. For all we know, BOLI reasons, Rachel and Laurel might have wanted a standardized cake that would not have involved any meaningful expressive activity on the part of the Kleins. However, we believe the fair interpretation of this record is that the Kleins do not offer such “standardized” or “off the shelf” wedding cakes; they testified that their practice for creating wedding cakes includes a collaborative and customized design process that is individual to the customer. According to the Kleins, they intend— and their “clients expect”—that “each cake will be uniquely crafted to be a statement of each customer’s personality, physical tastes, theme and desires, as well as their palate.” According to Melissa, she “almost never make[s] a cake without creating a unique element of style and customization.” ER-31 Cite as 289 Or App 507 (2017) 537 Furthermore, the complainants expressly stated that they wanted a cake “like” the one that the Kleins had created for Rachel’s mother’s wedding, which was a custom-designed cake. On this record, we therefore assume that any cake that the Kleins made for Rachel and Laurel would have followed the Kleins’ customary practice. Consequently, the question is whether that customary practice, and its end product, are in the nature of “art.” As noted above, if the ultimate effect of BOLI’s order is to compel the Kleins to create something akin to pure speech, then BOLI’s order may be subject to strict scrutiny. If, on the other hand, the Kleins’ cake-making retail business involves, at most, both expressive and non-expressive components, and if Oregon’s interest in enforcing ORS 659A.403 is unrelated to the content of the expressive components of a wedding cake, then BOLI’s order need only survive intermediate scrutiny to comport with the First Amendment. See United States v. O’Brien, 391 US 367, 376, 88 S Ct 1673, 20 L Ed 2d 672 (1968) (“[W]hen ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.”); see also Turner Broadcasting System, Inc. v. FCC, 512 US 622, 662, 114 S Ct 2445, 129 L Ed 2d 497 (1994) (applying intermediate scrutiny to a content-neutral regulation that compelled cable operators to carry certain channels). The record reflects that the Kleins’ wedding cakes follow a collaborative design process through which Melissa uses her customers’ preferences to develop a custom design, including choices as to “color,” “style,” and “other decorative detail.” Melissa shows customers previous designs “as inspiration,” and she then draws “various designs on sheets of paper” as part of a dialogue with the customer. From that dialogue, Melissa “conceives” and customizes “a variety of decorating suggestions” as she ultimately finalizes the design. Thus, the process does not simply involve the Kleins executing precise instructions from their customers; instead, it is clear that Melissa uses her own design skills and aesthetic judgments. 538 ER-32 Klein v. BOLI Therefore, on this record, the Kleins’ argument that their products entail artistic expression is entitled to be taken seriously. That being said, we are not persuaded that the Kleins’ wedding cakes are entitled to the same level of constitutional protection as pure speech or traditional forms of artistic expression. In order to establish that their wedding cakes are fundamentally pieces of art, it is not enough that the Kleins believe them to be pieces of art. See Nevada Comm’n on Ethics v. Carrigan, 564 US 117, 127, 131 S Ct 2343, 180 L Ed 2d 150 (2011) (“[T]he fact that a nonsymbolic act is the product of deeply held personal belief—even if the actor would like to convey his deeply held personal belief— does not transform action into First Amendment speech.” (Emphasis in original.)); see also Clark v. Community for Creative Non-Violence, 468 US 288, 293 n 5, 104 S Ct 3065, 82 L Ed 2d 221 (1984) (the burden of proving that an activity is protected expression is on the person asserting First Amendment protection for that activity). For First Amendment purposes, the expressive character of a thing must turn not only on how it is subjectively perceived by its maker, but also on how it will be perceived and experienced by others. See Spence, 418 US at 409-10 (looking to subjective and objective considerations in assessing whether an act constitutes First Amendment protected expression, including “the factual context and environment in which it was undertaken”). Here, although we accept that the Kleins imbue each wedding cake with their own aesthetic choices, they have made no showing that other people will necessarily experience any wedding cake that the Kleins create predominantly as “expression” rather than as food. Although the Kleins’ wedding cakes involve aesthetic judgments and have decorative elements, the Kleins have not demonstrated that their cakes are inherently “art,” like sculptures, paintings, musical compositions, and other works that are both intended to be and are experienced predominantly as expression. Rather, their cakes, even when custom-designed for a ceremonial occasion, are still cakes made to be eaten. Although the Kleins themselves may place more importance on the communicative aspect of one of their cakes, there is no information in this record that would permit an inference that the same is true in all cases for the ER-33 Cite as 289 Or App 507 (2017) 539 Kleins’ customers and the people who attend the weddings for which the cakes are created. Moreover, to the extent that the cakes are expressive, they do not reflect only the Kleins’ expression. Rather, they are products of a collaborative process in which Melissa’s artistic execution is subservient to a customer’s wishes and preferences. For those reasons, we do not agree that the Kleins’ cakes can be understood to fundamentally and inherently embody the Kleins’ expression, for purposes of the First Amendment.9 We also reject the Kleins’ argument that, under the facts of this case, BOLI’s order compels them to “host or accommodate another speaker’s message” in a manner that the Supreme Court has deemed to be a violation of the First Amendment. See FAIR, 547 US at 63 (listing cases). In the only such case that involved the enforcement of a contentneutral public accommodations law, Hurley, the problem was that the speaker’s autonomy was affected by the forced intermingling of messages, with consequences for how others would perceive the content of the expression. 515 US at 576-77 (reasoning that parades, unlike cable operators, are not “understood to be so neutrally presented or selectively viewed,” and “the parade’s overall message is distilled from the individual presentations along the way, and each unit’s expression is perceived by spectators as part of the whole” (emphasis added)). Here, because the Kleins refused to provide their wedding-cake service to Rachel and Laurel altogether, this is not a situation where the Kleins were asked to articulate, host, or accommodate a specific message that they found offensive. It would be a different case if BOLI’s order had awarded damages against the Kleins for refusing to decorate a cake with a specific message requested by a customer (“God Bless This Marriage,” for example) that they found offensive or contrary to their beliefs. Cf. Craig 9 To be clear, we do not foreclose the possibility that, on a different factual record, a baker (or chef) could make a showing that a particular cake (or other food) would be objectively experienced predominantly as art—especially when created at the baker’s or chef’s own initiative and for her own purposes. But, as we have already explained, the Kleins never reached the point of discussing what a particular cake for Rachel and Laurel would look like; they refused to make any wedding cake for the couple. Therefore, in order to prevail, the Kleins (as they implicitly acknowledge) must demonstrate that any cake that they make through their customary practice constitutes their own speech or art. They have not done so. 540 ER-34 Klein v. BOLI Masterpiece Cakeshop, Inc., 370 P3d 272, 282 n 8 (Colo App 2015), cert den, No. 15SC738, 2016 WL 1645027 (Colo Apr 25, 2016), cert granted sub nom Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 137 S Ct 2290 (2017) (distinguishing the refusal to create a custom wedding cake for a same-sex couple from the refusal to decorate a cake with a specific message, such as “Homosexuality is a detestable sin. Leviticus 18:2.”). The Kleins’ additional concern, as we understand it, is that a wedding cake communicates a “celebratory message” about the wedding for which it is intended, and the Kleins do not wish to “host” the message that same-sex weddings should be celebrated. But, unlike in Hurley, the Kleins have not raised a nonspeculative possibility that anyone attending the wedding will impute that message to the Kleins. We think it more likely that wedding attendees understand that various commercial vendors involved with the event are there for commercial rather than ideological purposes. Moreover, to the extent that the Kleins subjectively feel that they are being “associated” with the idea that samesex marriage is worthy of celebration, the Kleins are free to engage in their own speech that disclaims such support. Cf. FAIR, 547 US at 65 (rejecting argument that law schools would be perceived as supporting any speech by recruiters by simply complying with the Solomon Amendment; noting that nothing prevented the schools from expressing their views in other ways). In short, we disagree that the Kleins’ wedding cakes are invariably in the nature of fully protected speech or artistic expression, and we further disagree that BOLI’s order forces the Kleins to host, accommodate, or associate with anyone else’s particular message. Thus, because we conclude that BOLI’s order does not have the effect of compelling fully protected expression, it does not trigger strict scrutiny under the First Amendment. As noted above, however, BOLI’s order is still arguably subject to intermediate First Amendment scrutiny if the Kleins’ cake-making activity involves both expressive and non-expressive elements. O’Brien, 391 US at 376 (“[W]hen ‘speech’ and ‘nonspeech’ elements are combined in ER-35 Cite as 289 Or App 507 (2017) 541 the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.”); see also Turner Broadcasting System, Inc., 512 US at 661-62. Here, we acknowledge that the Kleins’ cake-making process is not a simple matter of combining ingredients and following a customer’s precise specifications. Instead, based on the Kleins’ customary practice, the ultimate effect of BOLI’s order is to compel them to engage in a collaborative process with a customer and to create a custom product that they would not otherwise make. The Kleins’ argument that that process involves individualized aesthetic judgments that are themselves within the realm of First Amendment protected expression is not implausible on its face. Ultimately, however, we need not resolve whether that argument is correct. That is because, even assuming (without deciding) that the Kleins’ cake-making business involves aspects that may be deemed “expressive” for purposes of the First Amendment, BOLI’s order is subject, at most, to intermediate scrutiny, and it survives such scrutiny, as explained below. (4) BOLI’s final order survives First Amendment scrutiny Neither ORS 659A.403 nor BOLI’s order is directed toward the expressive content of the Kleins’ business. When a content-neutral regulation indirectly imposes a burden on protected expression, it will be sustained if “ ‘it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.’ ” Turner Broadcasting System, Inc., 512 US at 662 (quoting O’Brien, 391 US at 377). We address each factor in turn. We first address the state’s interest in enforcing its public-accommodations law. As noted above, the United States Supreme Court has consistently acknowledged that states have a compelling interest both in ensuring equal access to publicly available goods and services and in 542 ER-36 Klein v. BOLI preventing the dignitary harm that results from discriminatory denials of service. That interest is no less compelling with respect to the provision of services for same-sex weddings; indeed, that interest is particularly acute when the state seeks to prevent the dignitary harms that result from the unequal treatment of same-sex couples who choose to exercise their fundamental right to marry. See Obergefell v. Hodges, ___ US ___, ___, 135 S Ct 2584, 2600, 192 L Ed 2d 609 (2015) (“The right to marry thus dignifies couples who wish to define themselves by their commitment to each other.” (Internal quotation marks omitted.)). Thus, we readily conclude that BOLI’s order furthers “an important or substantial governmental interest.” Furthermore, Oregon’s interest is in no way related to the suppression of free expression. Rather, Oregon has an interest in preventing the harms that result from invidious discrimination that is “wholly apart from the point of view such conduct may transmit.” Roberts, 468 US at 628. BOLI’s order reflects a concern with ensuring equal access to products like wedding cakes when a seller chooses to sell them to the general public, not a concern with influencing the expressive choices involved in designing or decorating a cake. Finally, we conclude that any burden imposed on the Kleins’ expression is no greater than essential to further the state’s interest. Again, it is significant that BOLI’s order does not compel the Kleins to express an articulable message with which they disagree; rather, their objection is to being compelled to engage in any conduct that they regard as expressive. “ ‘[A]n incidental burden on speech is no greater than is essential, and therefore is permissible’ ” if “ ‘the neutral regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.’ ” FAIR, 547 US at 67 (quoting United States v. Albertini, 472 US 675, 689, 105 S Ct 2897, 86 L Ed 2d 536 (1985)). Given that the state’s interest is to avoid the “evil of unequal treatment, which is the injury to an individual’s sense of self-worth and personal integrity,” King, 61 Or App at 203, there is no doubt that that interest would be undermined if businesses that market their goods and services to the “public” are given a special privilege to exclude certain ER-37 Cite as 289 Or App 507 (2017) 543 groups from the meaning of that word. Thus, we conclude that the final order in this case survives First Amendment scrutiny. (5) Oregon Constitution, Article I, section 8 The Kleins assert that BOLI’s final order also violates their rights under Article I, section 8, of the Oregon Constitution, which provides that “[n]o law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever[.]” The Kleins’ argument is limited to the observation that Article I, section 8, has been held to establish broader protection for speech than the First Amendment, a premise from which they conclude that, “since BOLI’s Final Order violates the federal Constitution’s Speech Clause, it also violates the Oregon Constitution’s broader counterpart a fortiori.” We have rejected the First Amendment predicate for that derivative argument, and the Kleins do not offer any separate analysis under the state constitution. Accordingly, we reject their argument under Article I, section 8, without further discussion. See, e.g., State v. Dawson, 277 Or App 187, 189-90, 369 P3d 1244, rev den, 359 Or 847 (2016) (declining to consider inadequately developed argument under the state constitution on appeal). b. Free exercise of religion We turn to the Kleins’ contention that BOLI’s order violates their constitutional right to the free exercise of their religion. The Kleins advance two arguments under the United States Constitution: (1) BOLI’s final order is not merely the application of a “neutral and generally applicable” law because it impermissibly “targets” religion, and (2) the order implicates the Kleins’ “hybrid rights,” subjecting it to heightened scrutiny that it cannot survive. The Kleins also invoke the Oregon Constitution’s free-exercise clauses in Article I, sections 2 and 3, contending that: (1) as under the federal constitution, the final order impermissibly targets religion, and (2) even if the final order does not impermissibly target religion, they should be granted an exemption to ORS 659A.403 on religious grounds. For the reasons explained below, we reject the Kleins’ arguments. 544 ER-38 Klein v. BOLI The First Amendment proscribes laws “prohibiting the free exercise of” religion. The question presented by this case is whether BOLI’s final order enforcing ORS 659A.403 against the Kleins runs afoul of that constitutional guarantee; if it does, the order is invalid unless it can survive strict scrutiny. See Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 US 520, 546-47, 113 S Ct 2217, 124 L Ed 2d 472 (1993); United States v. Lee, 455 US 252, 257-58, 102 S Ct 1051, 71 L Ed 2d 127 (1982). The answer begins with Employment Division, Oregon Department of Human Resources v. Smith, in which the United States Supreme Court held that “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 (or prescribes) conduct that his religion prescribes (or proscribes).’ ” 494 US at 879 (quoting Lee, 455 US at 263 n 3 (Stevens, J., concurring)). Put another way, neutral and generally applicable laws do not offend the Free Exercise Clause simply because “the law has the incidental effect of burdening a particular religious practice.” Church of Lukumi Babalu Aye, Inc., 508 US at 531. 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.” Id. at 533. To determine a law’s object, we begin with the text, as “the minimum requirement of neutrality is that a law not discriminate on its face.” Id. “A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernible from the language or context.” Id. “Apart from the text, the effect of a law in its real operation is strong evidence of its object.” Id. at 535; see id. (cautioning that mere “adverse impact will not always lead to a finding of impermissible targeting”). 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.” Id. at 543. Nothing in the text of ORS 659A.403 or BOLI’s final order is facially discriminatory towards the exercise of religious beliefs. Rather, the statute prohibits any “place ER-39 Cite as 289 Or App 507 (2017) 545 of public accommodation” from discriminating “on account of” protected characteristics, including “sexual orientation.” Similarly, BOLI’s order is, on its face, a neutral application of ORS 659A.403 that gives no indication that the result would have been different if the Kleins’ refusal of service was based upon secular rather than religious convictions. A law that is written in neutral terms may still violate the Free Exercise Clause, however. In Church of Lukumi Babalu Aye, Inc., the Court concluded that the city ordinances in question—which prohibited certain animal slaughtering for “ritual[s]” and “sacrifice”—were not neutral because some important terms, as the ordinances defined them, targeted the Santeria religion’s practice of ritualistic animal sacrifice while exempting other secular and religious practices like hunting and kosher slaughter. 508 US at 535-36. The laws were also not “generally applicable” because they were substantially underinclusive in advancing the government’s stated interests of protecting the public health and preventing cruelty to animals. Id. at 543. Rather, the laws were “drafted with care to forbid few killings but those occasioned by religious sacrifice.” Id. Here, the Kleins advance a similar argument that BOLI’s order violates the Free Exercise Clause because it applies ORS 659A.403 in a way that impermissibly “targets” religion for disfavored treatment. They contend that the final order was a “novel expansion” of ORS 659A.403 that “was, at best, discretionary and done for the specific purpose of forcing business owners with moral reservations about same-sex marriage to either violate their consciences or go out of business.” (Emphasis removed.) BOLI responds that no evidence exists to support the Kleins’ assertions, which are “pure speculation and utterly without merit.” On review of the record, we agree with BOLI. The Kleins have directed us to no evidence whatsoever that ORS 659A.403 was enacted for the purpose of singling out religiously motivated action, or that BOLI has selectively targeted religion in its enforcement of the statute. The Kleins likewise fail to support their assertion that BOLI’s final order constitutes a “novel expansion” of the statute, rather than a straightforward application of a facially neutral statute to 546 ER-40 Klein v. BOLI the facts of this case. For those reasons, the Kleins’ “targeting” argument is meritless. The Kleins’ second argument under the federal Free Exercise Clause is that the final order burdens their “hybrid rights.” That is, the final order burdens both Free Exercise rights and other constitutional rights, a combination that purportedly triggers an exception to Smith and subjects even neutral laws of general applicability to strict scrutiny. The Kleins’ argument relies on the following passage from Smith: “The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech * * *. * * * “The present case does not present such a hybrid situation, but a free exercise claim unconnected with any communicative activity * * *.” 494 US at 881-82. We have previously expressed skepticism about whether a “hybrid-rights “doctrine” exists, and, to the extent it does, how it could be properly applied. In Church at 295 S. 18th Street, St. Helens, we referred to the Smith passage as “dictum,” observing that it merely “noted—without reference to any particular standard—that, in the past, the Court had struck down neutral, generally applicable laws when a case ‘involved’ both the Free Exercise Clause and some other constitutional protection.” 175 Or App at 114, 127-28. We questioned whether that dictum could be soundly applied as a legal standard in other cases: “Why the addition of another constitutional claim would affect the standard of review of a free exercise claim is not immediately obvious. Indeed, if the mere allegation of an additional constitutional claim has the effect of altering the standard articulated in Smith, then the ‘hybrid’ exception likely would swallow the Smith rule; free exercise claims will frequently also pose at least a colorable free speech claim. On the other hand, if the Court meant that strict scrutiny pertains only when an additional constitutional ER-41 Cite as 289 Or App 507 (2017) 547 claim is successfully asserted, then the rule of Smith becomes mere surplusage, as the church already would win under the alternate constitutional theory.” Id. at 127-28. Other courts have similarly called the Smith passage dictum and have declined to follow it. See, e.g., Combs v. Homer-Ctr. Sch. Dist., 540 F3d 231, 247 (3d Cir 2008) (“Until the Supreme Court provides direction, we believe the hybrid-rights theory to be dicta.”); Watchtower Bible & Tract Soc. of New York, Inc. v. Vill. of Stratton, 240 F3d 553, 561 (6th Cir 2001), rev’d on other grounds, 536 US 150, 122 S Ct 2080, 153 L Ed 2d 205 (2002) (“That language was dicta and therefore not binding.”); Knight v. Conn. Dep’t of Pub. Health, 275 F3d 156, 167 (2d Cir 2001) (“[T]he language relating to hybrid claims is dicta and not binding on this court.”). But see Miller v. Reed, 176 F3d 1202, 1207 (9th Cir 1999) (applying a “colorable claim” approach, under which strict scrutiny applies if the person asserting a free-exercise claim brings an additional constitutional claim that has a “fair probability or likelihood, but not a certitude, of success on the merits” (internal quotation marks omitted)); accord Axson-Flynn v. Johnson, 356 F3d 1277, 1295 (10th Cir 2004). The intervening years have given us no reason to reconsider our view that the Smith passage was dictum. Despite the considerable doubts about the “hybrid-rights doctrine” that have been expressed in case law and academic commentary,10 the United States Supreme Court has taken no further steps to embrace such a doctrine. We therefore agree with the Sixth Circuit’s reasoning that, “at least until the Supreme Court holds that legal standards under the Free Exercise Clause vary depending on whether other constitutional rights are implicated, we will not use a 10 See, e.g., Church of Lukumi Babalu Aye, Inc., 508 US at 567 (Souter, J., concurring) (dismissing the doctrine as “ultimately untenable”); Kissinger v. Bd. of Trs. of the Ohio State Univ., 5 F3d 177, 180 (6th Cir 1993) (calling the “hybridrights doctrine” “completely illogical”); Erwin Chemerinsky, Constitutional Law: Principles and Policies § 12.3.2.3 at 1261-62 (3d ed 2006) (describing the doctrine’s status as unclear); Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U Chi L Rev 1109, 1122 (1990) (“[A] legal realist would tell us * * * that the Smith Court’s notion of ‘hybrid’ claims was not intended to be taken seriously.”). 548 ER-42 Klein v. BOLI stricter legal standard than that used in Smith to evaluate generally applicable, exceptionless state regulations under the Free Exercise Clause.” Kissinger v. Bd. of Trs. of Ohio State Univ., 5 F3d 177, 180 (6th Cir 1993). Accordingly, we reject the Kleins’ “hybrid-rights doctrine” argument. As noted, the Kleins also invoke Article I, sections 2 and 3, of the Oregon Constitution (the free-exercise clauses).11 Under those clauses, when a law is not neutral and expressly targets religion, courts examine the law with “exacting scrutiny”; when the law is “neutral toward religion,” the Oregon Supreme Court has framed the proper inquiry as whether there is “statutory authority to make such a regulation” and whether an individual claims “exemption on religious grounds.” State v. Hickman/Hickman, 358 Or 1, 15-16, 358 P3d 987 (2015) (internal quotation marks omitted) (applying only a “targeting” analysis). The Kleins’ first argument is that the statute and final order are not neutral toward religion because they “target” the Kleins’ religious practice. In support of that contention, the Kleins essentially incorporate their arguments under the federal Free Exercise Clause; they do not contend that the analysis meaningfully differs under the state constitution, and we therefore reject that argument for the same reasons discussed above. Second, the Kleins argue that, even in the absence of impermissible targeting, they should be granted a religious exemption from compliance with ORS 659A.403. They rely on two cases—Hickman and Cooper v. Eugene Sch. Dist., 301 Or 358, 723 P2d 298 (1986). As BOLI correctly points out, however, neither of those cases actually created a religious exemption to a neutral law, or discussed the criteria, methodology, or standards that a court would use in determining whether to grant one. Cooper dealt with a law Article I, sections 2 and 3, provide: “Section 2. Freedom of worship. All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their own consciences. “Section 3. Freedom of religious opinion. No law shall in any case whatever control the free exercise, and enjoyment of religeous [sic] opinions, or interfere with the rights of conscience.” 11 ER-43 Cite as 289 Or App 507 (2017) 549 that was “not neutral toward religion,”12 which the Supreme Court distinguished from a “general” and “neutral” regulation that could present an issue of an “individual claim to exemption on religious grounds.” 301 Or at 368-69. Nearly two decades later, Hickman simply cited Cooper, see 358 Or at 15-16 in a case that similarly did not present the issue of whether to grant a religious exemption, see id. at 17 (“The issue before us, then, is not whether and under what circumstances religiously motivated conduct is entitled to an exemption from a generally applicable and neutral law. Nor is the issue before us the more specific one of whether the defendants in this case are entitled to an exemption * * *.”). In short, although the Kleins argue that the Oregon Constitution requires that they be granted an exemption on religious grounds to an otherwise neutral law, the cases on which they rely did not impose such a requirement, but merely acknowledged an abstract possibility that it could happen in a future case. The Kleins have not offered a focused argument for why the Oregon Constitution requires an exemption in this case, under the methodology for interpreting our constitution. See, e.g., Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992) (identifying “three levels” on which to interpret the Oregon Constitution: its “specific wording, the case law surrounding it, and the historical circumstances that led to its creation”). They simply assert that a religious exemption to ORS 659A.403’s requirement of nondiscrimination on account of sexual orientation would impair the state’s nondiscrimination goals “minimally, if at all,” while furthering goals of “respect and tolerance for people of different beliefs.” That argument does not amount to solid constitutional ground in which to root an individual exemption to a valid and neutral statute. Moreover, it is far from clear that a religious exemption as proposed by the Kleins would have only a “minimal” effect on the state’s antidiscrimination objectives. The Kleins seek an exemption based on their sincere religious 12 Former ORS 342.650 (1965), repealed by Or Laws 2010, ch 105, § 3 (spec sess), provided: “No teacher in any public school shall wear any religious dress while engaged in the performance of his duties as a teacher.” 550 ER-44 Klein v. BOLI opposition to same-sex marriage; but those with sincere religious objections to marriage between people of different races, ethnicities, or faiths could just as readily demand the same exemption. The Kleins do not offer a principled basis for limiting their requested exemption in the manner that they propose, except to argue that there are “decent and honorable” reasons, grounded in religious faith, for opposing same-sex marriage, as recognized by the United States Supreme Court in Obergefell, ___ US at ___, 135 S Ct at 2602. That is not in dispute. But neither the sincerity, nor the religious basis, nor the historical pedigree of a particular belief has been held to give a special license for discrimination. See, e.g., Bob Jones Univ. v. United States, 461 US 574, 602-03, 103 S Ct 2017, 76 L Ed 2d 157 (1983) (a religious school’s interests in practicing its sincerely held religious beliefs by prohibiting interracial dating and marriage did not outweigh the government’s “overriding interest in eradicating racial discrimination in education” (internal quotation marks omitted)). For the foregoing reasons, we reject the Kleins’ arguments that BOLI’s final order violates the federal Free Exercise Clause or Article I, sections 2 and 3, of the Oregon Constitution. B. Second Assignment: Commissioner’s Failure to Recuse Himself In their second assignment of error, the Kleins assert that BOLI’s commissioner, Avakian, “the ultimate decision[ ]maker in this case, violated the Kleins’ [d]ue [p]rocess rights by failing to recuse himself despite numerous public comments revealing his intent to rule against them.” Specifically, they argue that Avakian’s comments about the cake controversy in a Facebook post and in an article that appeared in The Oregonian show that he judged the Kleins’ case before giving them an opportunity to present their version of the facts and the law. We agree with BOLI that Avakian’s comments reflect, at most, his general views about the law and public policy, and therefore are not the kind of comments that require disqualification. To establish a due-process violation, “[o]ne claiming that a decision[ ]maker is biased has the burden of showing ER-45 Cite as 289 Or App 507 (2017) 551 actual bias.” Becklin v. Board of Examiners for Engineering, 195 Or App 186, 207-08, 97 P3d 1216 (2004), rev den, 338 Or 16 (2005); see Teledyne Wah Chang v. Energy Fac. Siting Council, 298 Or 240, 262, 692 P2d 86 (1984) (same) (citing Boughan v. Board of Engineering Examiners, 46 Or App 287, 611 P2d 670, rev den, 289 Or 588 (1980)). When that claim of bias is based on prejudgment, the relevant inquiry is whether “the decision maker has so prejudged the particular matter as to be incapable of determining its merits on the basis of the evidence and arguments presented.” Columbia Riverkeeper v. Clatsop County, 267 Or App 578, 602, 341 P3d 790 (2014). Importantly, in assessing bias, courts have long distinguished between a decision-maker’s prejudgment of facts as opposed to preconceptions about law or policy, particularly in the context of quasi-judicial decisions. See 1000 Friends of Oregon v. Wasco Co. Court, 304 Or 76, 82-83, 742 P2d 39 (1987), cert den, 486 US 1007 (1988) (explaining that the combination of executive, legislative, and adjudicative functions within a single government body “leaves little room to demand that an elected [official] who actively pursues a particular view of the community’s interest in his policymaking role must maintain an appearance of having no such view when the decision is to be made by an adjudicatory procedure”). As we explained in Samuel v. Board of Chiropractic Examiners, 77 Or App 53, 60, 712 P2d 132 (1985), rev den, 302 Or 36 (1986), “[a] preconceived point of view concerning an issue of law * * * is not an independent basis for disqualification.” (Citing, inter alia, Trade Comm’n v. Cement Inst., 333 US 683, 68 S Ct 793, 92 L Ed 1010 (1948).). In Cement Inst., the United States Supreme Court articulated that principle in the context of a challenge to the impartiality of the Federal Trade Commission: “[No previous] decision of this Court would require us to hold that it would be a violation of procedural due process for a judge to sit in a case after he had expressed an opinion as to whether certain types of conduct were prohibited by law. In fact, judges frequently try the same case more than once and decide identical issues each time, although these issues involved questions both of law and fact. Certainly, the Federal Trade Commission cannot possibly be under 552 ER-46 Klein v. BOLI stronger constitutional compulsions in this respect than a court.” 333 US at 702-03 (footnote omitted); accord Rombough v. Fed. Aviation Admin., 594 F2d 893, 900 (2d Cir 1979) (“[I]t is not improper for members of regulatory commissions to form views about law and policy on the basis of their prior adjudications of similar issues which may influence them in deciding later cases. An agency’s conclusions as to general principles of law do not require disqualification.” (Citing, inter alia, Cement Inst., 333 US at 700-03; citations omitted.).). Accordingly, public comments that convey preconceptions about law or policy related to a dispute do not automatically disqualify a decision-maker from judging that controversy. As Judge Jerome Frank succinctly observed in In re J.P. Linahan, Inc., 138 F2d 650, 651 (2d Cir 1943), if “ ‘bias’ and ‘partiality’ be defined to mean the total absence of preconceptions in the mind of the judge, then no one has ever had a fair trial and no one ever will.” The touchstone of bias, instead, is whether the comments show that the decision maker is not capable of judging the controversy fairly on its own facts. See Hortonville Dist. v. Hortonville Educ. Ass’n, 426 US 482, 493, 96 S Ct 2308, 49 L Ed 2d 1 (1976) (“Nor is a decision[ ]maker disqualified simply because he has taken a position, even in public, on a policy issue related to the dispute, in the absence of a showing that he is not ‘capable of judging a particular controversy fairly on the basis of its own circumstances.’ ” (Quoting United States v. Morgan, 313 US 409, 421, 61 S Ct 999, 85 L Ed 1429 (1941), and citing Cement Institute, 333 US at 701.)). In assessing a decision-maker’s capability in that regard, we presume that public officials will perform their duties lawfully. Gilmore v. Board of Psychologist Examiners, 81 Or App 321, 324, 725 P2d 400, rev den, 302 Or 460 (1986) (citing ORS 40.135(1)(j)); see Morgan, 313 US at 421 (“Cabinet officers charged by Congress with adjudicatory functions are not assumed to be flabby creatures any more than judges are. Both may have an underlying philosophy in approaching a specific case. But both are assumed to be men of conscience and intellectual discipline, capable of ER-47 Cite as 289 Or App 507 (2017) 553 judging a particular controversy fairly on the basis of its own circumstances.”). In this case, Avakian’s comments on Facebook and in the The Oregonian fall short of the kinds of statements that reflect prejudgment of the facts or an impermissibly closed-minded view of law or policy so as to indicate that he, as a decision maker, cannot be impartial. On Facebook, before a BOLI complaint had been filed, Avakian posted: “Everyone has a right to their religious beliefs, but that doesn’t mean they can disobey laws that are already in place. Having one set of rules for everybody ensures that people are treated fairly as they go about their daily lives.” Below that paragraph, Avakian provided a link to “ ‘Ace of Cakes’ [13] offers free wedding cake for Ore. Gay couple www.kgw.com.,” followed by another paragraph: “The Oregon Department of Justice is looking into a complaint that a Gresham bakery refused to make a wedding cake for a same sex marriage. * * * It started when a mother and daughter showed up at Sweet Cakes by Melissa looking for a wedding cake.” Viewed in context with the rest of the post, Avakian’s statements that “[e]veryone has a right to their religious beliefs, but that doesn’t mean they can disobey laws that are already in place,” and that “[h]aving one set of rules for everybody ensures that people are treated fairly as they go about their daily lives,” are comments about the controversy between the Kleins and the complainants. However, they do not describe particular facts of the case, suggest that Avakian has already investigated or decided those facts, or even suggest that he has fixed views as to any defenses or interpretations of the law that might be advanced in the context of a contested proceeding. That is, they reflect his general views of law and policy regarding public accommodations laws, but not the type of prejudgment that casts doubt on whether he is capable of judging the controversy fairly in an official proceeding. Avakian’s statements in The Oregonian article likewise fail to demonstrate that he was incapable of fairly 13 “Ace of Cakes” refers to a television show, the host of which provided the complainants with a free wedding cake. 554 ER-48 Klein v. BOLI judging this case. As BOLI points out, the Kleins selectively quote from that article to create an impression that Avakian was commenting specifically on their conduct. For instance, in quoting excerpts, the Kleins argue that Avakian “said that ‘folks’ in Oregon do not have a ‘right to discriminate’ and stated that those who use their ‘beliefs’ to justify discrimination need to be ‘rehabilitate[d].’ ” (Alterations by the Kleins.) Later, the Kleins characterize Avakian as stating that “the Kleins * * * needed to be ‘rehabilitate[d].’ ” The full quotations from that article, viewed in context, present a different picture. The article states, “ ‘Everybody is entitled to their own beliefs, but that doesn’t mean that folks have the right to discriminate,’ Avakian said, speaking generally.” (Emphasis added.) That sentence follows a paragraph in which the author describes the antidiscrimination law generally. Given that context, and the author’s express qualification that Avakian was “speaking generally,” there is no basis on which to conclude that Avakian was commenting specifically on the merits of the Kleins’ case. Similarly, and contrary to the Kleins’ suggestion, the article does not quote Avakian as saying that the Kleins must be “rehabilitated.” Rather, the article quotes Avakian concerning a more general proposition: “ ‘The goal is never to shut down a business. The goal is to rehabilitate,’ Avakian said. ‘For those who do violate the law, we want them to learn from that experience and have a good, successful business in Oregon.’ ” Again, nothing in that quote suggests that Avakian was responding to a question about the Kleins in particular, as opposed to BOLI investigations in general. Indeed, the context again suggests the latter. The next sentence in the article states, “The bureau’s civil rights division conducts about 2,200 investigations a year on all types of discrimination, Avakian said.” There is, in fact, only one quote attributed to Avakian in The Oregonian article that appears to relate specifically to the Kleins’ case—one that they do not mention. With regard to BOLI’s investigation of the complaint against the Kleins, Avakian is quoted as saying, “ ‘We are committed ER-49 Cite as 289 Or App 507 (2017) 555 to a fair and thorough investigation to determine whether there’s substantial evidence of unlawful discrimination.’ ” In sum, the public comments on which the Kleins rely do not demonstrate anything more than Avakian’s general views about law and policy related to antidiscrimination statutes.14 Because those types of public comments do not establish a lack of impartiality for purposes of due process, we reject the Kleins’ second assignment of error. C. Third Assignment: Damages Award In their third assignment of error, the Kleins argue that BOLI’s damages award of $75,000 and $60,000 to Rachel and Laurel, respectively, is not supported by substantial evidence or substantial reason. See ORS 183.482 (8)(c) (“The court shall set aside or remand the order if the court finds that the order is not supported by substantial evidence in the record.”); Hamilton v. Pacific Skyline, Inc., 266 Or App 676, 680, 338 P3d 791 (2014) (explaining that the “substantial reason requirement inheres in our substantial evidence standard of review under ORS 183.482(8)(c)”). Within the assignment of error, they make three distinct contentions: (1) the damages award is inconsistent with BOLI’s findings and ignores the Kleins’ mitigating evidence and evidence of the complainants’ discovery abuses; (2) the damages award is “internally contradictory” with regard to recovery for emotional distress resulting from publicity of the case; and (3) the damages award is out of line with BOLI’s awards in other cases. As discussed below, we reject each of those challenges. To better frame the arguments, we provide additional context for the damages award. Under ORS 659A.850(4)(a)(B), BOLI is authorized to “[e]liminate the effects of the unlawful practice that the respondent is found to have engaged in, including but not limited to paying an award of actual damages suffered by the complainant and complying with injunctive or other equitable relief[.]” In 14 The Kleins’ opening brief appears to include, by way of an appendix, material that was not part of the administrative record. We have confined our review to public comments by Avakian that were raised in the Kleins’ motion to disqualify and that were before the ALJ and BOLI in the proceedings below. 556 ER-50 Klein v. BOLI this case, BOLI’s formal charges alleged that, pursuant to that statute, each complainant claimed “[d]amages for emotional, mental, and physical suffering in the amount of at least $75,000.” At the hearing on damages, BOLI offered evidence of the emotional distress that the complainants suffered as a result of the Kleins’ denial of service, including testimony from Rachel and Laurel. The Kleins offered evidence to rebut BOLI’s evidence that the refusal of service was the source of the complainants’ distress, including evidence that, during the relevant time period, the complainants were engaged in a custody dispute for their two foster children. They also elicited testimony from Rachel’s brother to support their theory that the complainants were pursuing the case for political reasons rather than to remedy emotional distress. During closing arguments, BOLI’s prosecutor explained that the agency was seeking damages related to two different causes: “There are two distinct causes of emotional distress damages in this case. The first is the damage that’s based on the refusal itself, and for that the Agency is seeking $75,000 for each Complainant. There is also the damages that resulted from the media scrutiny of this case, and for that amount we would defer to the forum’s discretion.” BOLI’s prosecutor then proceeded to argue the two causes separately, first recounting testimony about the feelings of embarrassment, depression, sadness, and anger that Rachel and Laurel experienced around the time of the refusal and thereafter, including the strain that it put on their relationship and their relationships with others. The prosecutor then argued that “[t]he second cause of emotional distress is this media scrutiny.” She contended that the media coverage had made Rachel and Laurel fearful for their lives, afraid for the safety of their foster children, and anxious that it would jeopardize their then-pending efforts to adopt the children. Anticipating a challenge to the amount of the damages sought, BOLI’s prosecutor argued that emotional distress damages are “very fact specific,” and that “$75,000 for the refusal itself is very well within the parameters of what’s appropriate.” (Emphasis added.) ER-51 Cite as 289 Or App 507 (2017) 557 The Kleins responded that the complainants had not told a consistent story throughout; that there was no credible evidence that the emotional distress suffered by the complainants was actually caused by the denial of service as opposed to other factors in the complainants’ lives, such as the custody dispute; that neither Rachel nor Laurel was present for Aaron’s “abomination” statement when Cheryl returned to the shop and that, in any event, there was disagreement as to what he actually said; and that the previous cases referenced by BOLI’s prosecutor involved more severe instances of discriminatory treatment. In rebuttal, BOLI’s prosecutor emphasized that whether Aaron called the complainants “an abomination” or quoted a Bible verse using that word was “beside the point”: “[H]ow it was couched doesn’t really matter; the word is what resonated with the Complainants.” In his proposed final order, the ALJ set forth extensive factual findings, including express credibility determinations regarding the witnesses at the hearing. The ALJ found that Rachel, despite being an “extremely emotional witness,” had “answered questions directly in a forthright manner” and “did not try to minimize the effect of media exposure on her emotional state as compared to how the cake denial affected her.” The ALJ explained that it credited Rachel’s testimony “about her emotional suffering in its entirety,” but that he “only credited her testimony about media exposure when she testified about specific incidents.” The ALJ found Laurel less credible. That was because Laurel “was a very bitter and angry witness who had a strong tendency to exaggerate and over-dramatize events,” argued with the Kleins’ attorney and “had to be counseled by the ALJ to answer the questions asked of her instead of editorializing about the cake refusal and how it affected her,” and her “testimony was inconsistent in several respects with more credible evidence.” Thus, the ALJ “only credited her testimony about media exposure when she testified about specific incidents” and otherwise credited her testimony only “when it was either (a) undisputed, or (b) disputed but corroborated by other credible testimony.” 558 ER-52 Klein v. BOLI The ALJ then set forth his reasoning regarding a damages award, describing specific aspects of each complainant’s emotional suffering and distinguished “suffering from the cake refusal” from “suffering from publicity about the case.” With regard to the latter, the ALJ ultimately concluded that, as a factual matter, the Kleins were “responsible” for at least some of the publicity that had followed the initial refusal, but that “there is no basis in law for awarding damages to Complainants for their emotional suffering caused by media and social media attention related to this case.” The ALJ’s proposed final order then set forth his conclusion on the amount of damages related to the initial refusal: “In this case, the forum concludes that $75,000 and $60,000, are appropriate awards to compensate Complainants [Rachel] and [Laurel], respectively, for the emotional suffering they experienced from Respondents’ cake refusal. [Laurel] is awarded the lesser amount because she was not present at the cake refusal and the forum found her testimony about the extent and severity of her emotional suffering to be exaggerated in some respects.” BOLI, in its final order, largely adopted the reasoning and conclusions proposed by the ALJ, including his credibility determinations. BOLI, like the ALJ, separately discussed the emotional suffering of each complainant with regard to the denial of service and from publicity. And, like the ALJ, BOLI concluded that damages for emotional suffering caused by media attention were not recoverable. BOLI’s final order also adopted the ALJ’s analysis of the amount of damages to each complainant. The order states: “In this case, the ALJ proposed that $75,000 and $60,000, are appropriate awards to compensate [Rachel and Laurel], respectively, for the emotional suffering they experienced from Respondents’ denial of service. The proposal for [Laurel] is less because she was not present at the denial and the ALJ found her testimony about the extent and severity of her emotional suffering to be exaggerated in some respects. In this particular case, the demeanor of the witnesses was critical in determining both the sincerity ER-53 Cite as 289 Or App 507 (2017) 559 and extent of the harm that was felt by [Rachel and Laurel]. As such, the Commissioner defers to the ALJ’s perception of the witnesses and evidence presented at hearing and adopts the noneconomic award as proposed, finding also that this noneconomic award is consistent with the forum’s prior orders.” In a footnote to that paragraph, the order cites specific BOLI cases in which damages were awarded, in amounts ranging from $50,000 to $350,000 per complainant. With that background, we return to the issues presented by the Kleins’ third assignment of error. 1. Countervailing evidence The Kleins assert that BOLI’s order “is inconsistent with its credibility determinations”—specifically, BOLI’s findings regarding what Aaron actually said to Cheryl when she returned to Sweetcakes after the initial refusal of service. According to the Kleins, BOLI found as fact that Aaron did not actually refer to Rachel as an “abomination” but had only quoted a verse from the Book of Leviticus, stating, “You shall not lie with a male as one lies with a female; it is an abomination.” Yet, BOLI awarded damages to both complainants “for harm attributable to being called ‘abomination[s].’ ” We do not read BOLI’s order to rest on a finding that Aaron specifically called the complainants “an abomination” as opposed to quoting a biblical verse. As described above, BOLI argued during the damages hearing that exactly how the word was “couched” was beside the point. BOLI’s final order likewise reflects a focus on the effect of the word “abomination” on the complainants, including their recognition of that biblical reference and their associations with the reference. For instance, the order states that Rachel, who was brought up as a Southern Baptist, “interpreted [Aaron’s] use of the word ‘abomination’ [to] mean that God made a mistake when he made her, that she wasn’t supposed to exist, and that she had no right to love or be loved[.]” Similarly, the order states that Laurel recognized the statement as a reference from Leviticus and, based on her religious background, “understood the term ‘abomination’ to mean ‘this is a creature not created 560 ER-54 Klein v. BOLI by God, not created with a soul. They are unworthy of holy love. They are not worthy of life.’ ” Viewing the final order as a whole, we see no inconsistency. BOLI found that Aaron used the term “abomination” in the course of explaining why he was denying service to the complainants on account of their sexual orientation, and further found that the complainants experienced emotional distress based on the use of that term. It is that nexus that underlies BOLI’s damages award. The Kleins also argue that the final order does not account for certain evidence that undermined the damages case, including evidence that the complainants were pursuing the case out of a desire for political change and that they were experiencing stress from their custody dispute at the time. The Kleins also argue that the final order fails to account for ways in which the complainants frustrated the Kleins efforts to “discover the true extent of their alleged emotional harm.” According to the Kleins, the final order therefore lacks substantial reason. The Kleins’ argument in that regard “misconceives the nature of the substantial reason requirement.” Jenkins v. Board of Parole, 356 Or 186, 208, 335 P3d 828 (2014). As the Supreme Court explained in Jenkins, an order satisfies the substantial reason requirement so long as it “provide[s] an explanation connecting the facts of the case and the result reached, and [there is] no indication that, in making its decision, the [agency] relied on evidence that did not qualify as substantial evidence.” Id. Beyond that, an agency generally is not required to explain why it was not persuaded by particular evidence. See D. T. v. Dept. of Human Services, 247 Or App 293, 304 n 5, 269 P3d 96 (2011) (“The ‘substantial reason’ test does not require an agency to expressly reject each of a petitioner’s arguments or recount all the evidence that the agency considered; rather, it requires that an agency adequately explain ‘the reasoning that leads * * * from the facts that it has found to the conclusions that it draws from those facts.’ ” (Quoting Drew v. PSRB, 322 Or 491, 500, 909 P2d 1211 (1996); emphases removed.)); Kaiser Permanente v. Bonfiglio, 241 Or App 287, 291, 249 P3d 158, rev den, 350 Or 573 (2011) (“[T]he board relied primarily ER-55 Cite as 289 Or App 507 (2017) 561 on Stigler’s opinion, and adequately explained why it found his opinion to be the most persuasive. The board was not required to explain why all the other opinions were less persuasive. Stigler’s opinion constitutes substantial evidence and supports the board’s findings.”); see also Jenkins, 356 Or at 200 n 6 (“Nothing in [a previous decision, Gordon v. Board of Parole, 343 Or 618, 175 P3d 461 (2007),] suggests that, for purposes of substantial reason review under ORS 183.482(8)(c), the court believed that the board was required to identify specific evidence in the record that supported its ultimate determinations of fact and law.”). In this case, BOLI’s order includes extensive factual findings regarding the emotional suffering that the complainants experienced and it connects the amount of damages to that suffering. That is sufficient to satisfy the substantial reason requirement, and we decline to reweigh, under the guise of substantial reason, the competing evidence as to the extent of the complainants’ damages. See Multnomah County Sheriff’s Office v. Edwards, 277 Or App 540, 562, 373 P3d 1099 (2016), aff’d, 361 Or 761, 399 P3d 969 (2017) (explaining that “the amount of damages that a complainant is entitled to is an issue of fact,” which we review for substantial evidence). 2. Damages from publicity and media attention Next, the Kleins argue that the damages award is internally inconsistent in its treatment of harm caused by media attention from the case. According to the Kleins, BOLI’s formal charges “sought $150,000 in total damages based on alleged emotional suffering stemming from the denial of service and subsequent media exposure.” (Emphases by the Kleins.) But then, despite concluding that the complainants were not entitled to recover for harm attributable to media exposure, the final order awards an amount close to the prayer. The Kleins’ argument proceeds from a mistaken premise. BOLI’s formal charges did not seek “$150,000 in total damages based on alleged emotional suffering stemming from the denial of service and subsequent media exposure.” (Emphases by the Kleins.) Rather, the formal charges sought damages in “the amount of at least $75,000” for each 562 ER-56 Klein v. BOLI complainant. (Emphasis added.) And, as described above, BOLI’s prosecutor clearly expressed during the damages hearing—and the ALJ plainly understood—that BOLI was seeking $75,000 for each complainant for the refusal itself and additional damages, at the ALJ’s discretion, for harm attributable to media and social media attention. Both the ALJ’s preliminary order and BOLI’s final order reflect that understanding of the damages request.15 Thus, there is no plausible basis on which to infer that, by awarding $75,000 to Rachel and $60,000 to Laurel, BOLI relied to any extent on emotional suffering from media attention, particularly when BOLI’s order expressly says otherwise. The Kleins’ alternative contention regarding publicity damages is based on a statement that BOLI made in the context of denying recovery for those damages. In that part of the order, BOLI concluded that “complainants’ emotional harm related to the denial of service continued throughout the period of media attention and that the facts related solely to emotional harm resulting from media attention do not adequately support an award of damages.” (Emphases added.) According to the Kleins, that emphasized text reflects that BOLI “awarded damages for harm lasting over twenty-six months” related solely to the initial denial of service, yet the proposed final order and final order “note a near total lack of any such evidence” regarding persistent harm from the initial refusal. The Kleins’ mischaracterize the relevant orders. In his proposed final order, the ALJ distinguished testimony about specific incidents involving emotional suffering from testimony about emotional suffering more generally. The 15 The ALJ’s order states, “The Formal Charges seek damages for emotional, mental and physical suffering in the amount of ‘at least $75,000’ for each Complainant. In addition to any emotional suffering experienced by Complainants as a direct result of Sweetcakes’ refusal to bake them a cake (‘cake refusal’), the Agency also seeks damages for suffering caused to Complainants by media publicity and social media responses to this case.” The final order likewise explains that the formal charges sought “at least $75,000” for each complainant and, “[i]n addition to any emotional suffering experienced by Complainants as a direct result of Sweetcakes’ refusal to bake them a cake (‘denial of service’), the Agency also seeks damages for suffering caused to Complainants by media publicity and social media responses to this case.” ER-57 Cite as 289 Or App 507 (2017) 563 ALJ credited Laurel’s testimony that she “still feels emotional effects from the denial of service because [Rachel and their two children] ‘were’ still suffering and that ‘was’ tearing me apart.” The ALJ also specifically found that Rachel had not tried “to minimize the effect of media exposure on her emotional state as compared to how the cake denial affected her,” and he credited Rachel’s testimony “about her emotional suffering in its entirety.” His order further states: “Without giving any specific examples, [Rachel] credibly testified that, in a general sense, the cake refusal has caused her continued emotional suffering up to the time of hearing. Other than that, she did not testify as to any specific suffering she experienced after February 1 that was directly attributable to the cake refusal.” (Emphasis added; footnote omitted.) In adopting the ALJ’s reasoning, BOLI’s final order similarly distinguished between generalized testimony and testimony about specific instances of suffering, and it repeated the ALJ’s findings in that regard. Viewed in context, BOLI’s findings and conclusions demonstrate that it credited Laurel’s and Rachel’s testimony that, at the time of the hearing, they continued to experience some degree of emotional suffering from the initial refusal, but the final order also reflects that BOLI understood that evidence to be generalized and limited. Nothing in the final order indicates that BOLI gave that evidence more weight than it could bear, or suggests that the agency relied on evidence that was not substantial when determining damages. Rather, the complainants’ generalized evidence of continued suffering until the time of the hearing is one among the many facts on which the agency relied to support the damages award in the final order. See Edwards, 277 Or App at 563 (“[A] complainant’s testimony, if believed, is sufficient to support a claim for emotional distress damages.”); id. (citing Peery v. Hanley, 135 Or App 162, 165, 897 P2d 1189, adh’d to on recons, 136 Or App 492, 902 P2d 602 (1995), for the proposition that a “plaintiff’s testimony, if believed, is sufficient to establish [the] causation element of [an] emotional distress claim”)). 564 ER-58 Klein v. BOLI 3. Consistency with other BOLI awards Finally, the Kleins argue that BOLI’s award lacks substantial reason because it is “out of line with comparable cases.” The Kleins contend, as they did below, that the complainants’ suffering relates to a single, discrete incident, whereas past BOLI cases with such significant damages awards involved ongoing harassment and typically involved emotional suffering so severe that it required medical treatment. Fact-matching, when considering emotional distress damages, is of limited value. As we explained in Edwards, BOLI must consider “the type of discriminatory conduct, and the duration, frequency, and severity of the conduct. It also considers the type and duration of the mental distress and the vulnerability of the [c]omplainant.” 277 Or App at 563 (internal quotation marks omitted; alteration in original). The actual amount of any award, therefore, depends on the facts presented by each complainant. Id. As BOLI notes in its final order, the agency has awarded far greater damages than $75,000 and $60,000 to a complainant in cases involving invidious discrimination. E.g., In the Matter of Andrew W. Engel, DMD, 32 BOLI 94, 114, 140-41 (2012) (awarding $325,000 in damages for “emotional, mental, and physical suffering” to a complainant subjected to harassment for religious beliefs, which resulted in anxiety, stress, insomnia, gastrointestinal problems and weight loss requiring medical treatment); In the Matter of From the Wilderness, Inc., 30 BOLI 227, 284-85, 292-93 (2009) (awarding $125,000 in damages for “mental and emotional suffering” to a complainant subjected to verbal and physical sexual harassment for more than two months before being fired and then retaliated against, and who then suffered panic attacks requiring medical treatment). BOLI has also awarded lesser amounts in cases involving significant trauma, e.g., In the Matter of Charles Edward Minor, 31 BOLI 88, 99, 104-05 (2010) (awarding $50,000 in damages for “emotional, mental, and physical suffering” to a complainant subjected to verbal and physical sexual harassment, with the abuse culminating in the respondent striking her in the head with his fist, and the abuse caused anxiety, ER-59 Cite as 289 Or App 507 (2017) 565 reclusiveness, and fear). Nonetheless, given BOLI’s detailed factual findings about the effect of the refusal of service on these particular complainants—including anger, depression, questioning their own identity and self-worth, embarrassment, shame, frustration, along with anxiety and reduced excitement about the wedding itself—we cannot say that the order is so far out of line with previous cases that it lacks substantial reason. See Edwards, 277 Or App at 542-43, 564-65 (reaching a similar conclusion with regard to BOLI’s $50,000 emotional-distress award to a complainant who had not received the veterans’ preference during a hiring process, and the complainant experienced physical symptoms of stress, was “upset,” “felt that he was not receiving the respect to which he was entitled,” and his “relationships suffered”; and observing that the award “was comparable to the awards given in [one previous BOLI case] and significantly less than the award given in [another case] to a complainant who suffered similar symptoms of emotional distress”). For the foregoing reasons, we reject the third assignment of error and affirm the damages award. D. Fourth Assignment: Application of ORS 659A.409 In their fourth assignment of error, the Kleins contend that BOLI erred in concluding that they violated ORS 659A.409. That statute provides, as pertinent here, that “it is an unlawful practice for any person acting on behalf of any place of public accommodation as defined in ORS 659A.400 to publish, circulate, issue or display, or cause to be published, circulated, issue or displayed, any communication, notice, advertisement or sign of any kind to the effect that any of the accommodations, advantages, facilities, services or privileges of the place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of race, color, religion, sex, sexual orientation, national origin, marital status or age * * *.” ORS 659A.409. In essence, the statute makes it unlawful to threaten to commit unlawful discrimination. In its final order, BOLI concluded that the Kleins did so through several statements, as discussed below, and enjoined them from committing further violations. 566 ER-60 Klein v. BOLI The Kleins acknowledge that BOLI “may enjoin people from threatening to discriminate on the basis of sexual orientation,” without implicating the First Amendment. Cf. FAIR, 547 US at 62 (observing that Congress may, for example, require employers to “take down a sign reading ‘White Applicants Only’ ”). However, the Kleins argue that the statements that BOLI found objectionable did not communicate any intention to discriminate in the future, but merely expressed the Kleins’ views about the ongoing controversy and their belief in the validity of their legal and moral position. The final order describes three discrete statements attributed to the Kleins. First, in the February 2014 interview with Tony Perkins, Aaron described his brief conversation with Rachel at Sweetcakes that led to him telling her, “[W]e don’t do same-sex marriage, same-sex wedding cakes.” Second, at a different point in that same interview, Aaron related an earlier conversation that he had had with Melissa regarding the prospect of legalized same-sex marriage; in that conversation, according to Aaron, he and Melissa agreed that they could “see it is going to become an issue but we have to stand firm.” Third, BOLI relied on the handwritten sign that was taped to the inside of Sweetcakes’ front window, which read, in part, “Closed but still in business. * * * This fight is not over. We will continue to stand strong. Your religious freedom is becoming not free anymore. This is ridiculous that we cannot practice our faith. The LORD is good and we will continue to serve HIM with all our heart.” In the final order, BOLI reasoned that the above statements, considered in “text and context,” were properly construed as “the recounting of past events,” but also “constitute notice that discrimination will be made in the future by refusing such services.” As a result, BOLI’s final order included language ordering the Kleins “to cease and desist” from making any communication “to the effect that” they would discriminate in the future “on account of sexual orientation.” The language in the order precisely tracks the statutory language in ORS 659A.409, quoted above. On judicial review, the Kleins essentially make two arguments. First, they argue that BOLI erred in concluding ER-61 Cite as 289 Or App 507 (2017) 567 that the three statements, individually or collectively, violated ORS 659A.409 by communicating an intention to discriminate in the future. In the Kleins’ view, those statements simply describe “the facts of this case, their view of the law, and their intent to vindicate that view.” Second, the Kleins argue that BOLI’s injunction is overbroad to the extent that it purports to restrict the Kleins from expressing those views. We agree with the Kleins’ first point. Aaron’s statements in the February 2014 interview can be reasonably understood only one way: as describing past events. BOLI’s order states that Aaron “did not say only that he would not do complainants’ specific marriage and cake but, that respondents ‘don’t do’ same-sex marriage and cakes.” But regardless of whether his words can be understood to refer generally to same-sex marriage and cakes, BOLI ignores the context in which he made that remark during the interview. Aaron was asked by the interviewer, “Tell us how this unfolded and your reaction to that.” He responded by describing what had happened on the day of the refusal, including, “I said, ‘I’m very sorry, I feel like you may have wasted your time. You know we don’t do same-sex marriage, same-sex wedding cakes.’ And she got upset, noticeably, and I understand that.” (Emphasis added.) Viewed in that context, Aaron’s recounting of those historical events cannot be understood as a statement that he would deny service in the future. Likewise, Aaron’s recounting, during the interview, of past conversations that he and Melissa had engaged in before the denial of service cannot reasonably be understood as an assertion of their plans to discriminate in the future. Aaron was asked by the interviewer whether the controversy with the complainants had caught him off guard, and he responded, “[I]t was one of those situations where we said ‘well I can see it is going to become an issue but we have to stand firm.’ ” That statement plainly recounted his past thinking and cannot reasonably be construed as the kind of threat of prospective discrimination that ORS 659A.409 prohibits. That leaves the note taped to the Sweetcakes window. Again, that note read: 568 ER-62 Klein v. BOLI “Closed but still in business. You can reach me by email or facebook. www.sweetcakesweb.com or Sweetcakes by Melissa facebook page. New phone number will be provided on my website and facebook. This fight is not over. We will continue to stand strong. Your religious freedom is becoming not free anymore. This is ridiculous that we cannot practice our faith. The LORD is good and we will continue to serve HIM with all our heart [heart symbol].” (Uppercase and underscoring in original; spacing altered.) BOLI concedes that the statement could refer to their intention to stand strong in their legal fight, but argues that it “also could refer to the denial of services to same-sex couples.” We are not persuaded that, given the ambiguity in the note, it can serve as an independent basis for BOLI’s determination that the Kleins violated ORS 659A.409— and, indeed, BOLI did not purport to rely on the note alone. As explained above, in overturning the ALJ’s determination regarding ORS 659A.409, BOLI relied heavily on statements in the Perkins interview—taken out of context—to conclude that the Kleins had communicated an intention to discriminate in the future. When those statements and the note are viewed in their proper context, the record does not support BOLI’s conclusion that the Kleins violated ORS 659A.409. We therefore reverse that part of BOLI’s order.16 Reversed as to BOLI’s conclusion that the Kleins violated ORS 659A.409 and the related grant of injunctive relief; otherwise affirmed. 16 BOLI expressly declined to award damages based on the violation of ORS 659A.409, so our decision affects only the part of BOLI’s order that grants injunctive relief. ER-63 BRAD AVAKIAN CHRISTIE COMMISSIONER HAMMOND DEPU T Y COMMISSIONER BUREAU OF LABOR AND INDUSTRIES BEFORE THE COMMISSIONER OF THE BUREAU OF LABOR AND INDUSTRIES OF THE STATE OF OREGON In the Matter of: Case Nos. 44-14 & 45-14 MELISSA ELAINE KLEIN, dba SWEETCAKES BY MELISSA, FINDINGS OF FACT ULTIMATE FINDINGS OF FACT CONCLUSIONS OF LAW OPINION ORDER and AARON WAYNE KLEIN, dba SWEETCAKES BY MELISSA, and, in the alternative, individually as an aider and abettor under ORS 659A.406, Res ondents. SYNOPSIS The Agency's Formal Charges alleged that Respondents refused to make a wedding cake for two Complainants based on their sexual orientation and that Respondents published and displayed a communication to that effect, in violation of ORS 659A.403 and ORS 659A.409. In addition, the Formal Charges alleged that Aaron Klein aided and abetted Melissa Klein in the commission of those violations. In this Final Order, the Commissioner concludes that: (1) A. Klein, acting on behalf of Sweetcakes by Melissa, refused to make a wedding cake for Complainants based on their sexual orientation, thereby violating ORS 659A.403; (2) M. Klein did not violate ORS 659A.403; and (3) A. Klein did not aid and abet M. Klein in violation of ORS 659A.406. The Commissioner reversed the ALJ's ruling on summary judgment motions that neither A. nor M. Klein violated ORS 659A.409 and held that both A. and M. Klein violated ORS 659A.409. The Commissioner held that, as partners, A. Klein and M. Klein are jointly and severally liable for all violations. The Commissioner awarded Complainants $75,000 and $60,000, respectively, in damages for emotional and mental suffering resulting from the denial of service. 800 NE OREGON ST . , SUITE 1045 PORTLAND OR 97232-2180 TELEP HONE (971) 673-078 1 FAX (97 1) 673 -0762 OREGO N RELAY TTY (800 ) 735 -29 00 ER-64 1 NOTE: The procedural history of this case is extensive and includes the ALJ's lengthy 2 ruling on Respondents' motion and the Agency's cross-motion for summary judgment. 3 For ease of reading, all procedural facts, pre-hearing motions, and rulings on those 4 motions are included as an Appendix to this Final Order. The Appendix immediately 5 follows the "Order" section of this Final Order that bears the Commissioner's signature. 6 IMPORTANT: The Judicial Review Notice that customarily follows the "Order" 7 section of Commissioner's Final Orders may be found on the last page of this Final 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Order. The above-entitled case came on regularly for hearing before Alan McCullough, designated as Administrative Law Judge ("ALJ") by Brad Avakian, Commissioner of the Bureau of Labor and Industries for the State of Oregon. The hearing was held at the Office of Administrative Hearings, located at 7995 S. W. Mohawk Street, Entrance B, Tualatin, Oregon. The evidentiary part of the hearing was conducted on March 10-13, and 17, 2015, and closing arguments were made on March 18, 2015. The Bureau of Labor and Industries ("BOLi" or "the Agency") was represented by BOLi's chief prosecutor, Jenn Gaddis, and Cristin Casey, administrative prosecutor, both employees of the Agency. Paul Thompson, Complainants' attorney, was present throughout the hearing. Complainants Rachel Bowman-Cryer and Laurel BowmanCryer were both present throughout the hearing. Respondents Melissa Klein and Aaron Wayne Klein were both present throughout the hearing and were represented by Herbert Grey, Tyler Smith, and Anna Harmon, attorneys at law. The Agency called the following witnesses: Rachel Bowman-Cryer, Laurel Bowman-Cryer, Cheryl McPherson, Aaron Cryer, Jessica Ponaman, Candice Ericksen, Laura Widener, Aaron Klein, and Melissa Klein. FINAL ORDER (Swee/cakes, ##44-14 & 45-14) -2 ER-65 1 2 Respondent called the following witnesses: Aaron Klein, Melissa Klein, and Rachel Bowman-Cryer. 3 At hearing, the forum received into evidence: 4 a) Administrative exhibits X1 through X95. 5 b) Agency exhibits A1 through A12, A23 (pp. 1-4), A25, and A27 through A29 6 were received. Exhibit A30 was offered but not received. c) 7 Respondents' exhibits R2 (selected "posts" on pp. 3 and 9), R2 through 8 R5, R6 (pp. 1-2), R7 through R12, R13 (pp. 7-18), R15, R16, R18 through R24, R26, 9 R27, R28 (pp. 1-3, part of p. 4, pp. 14-28), R29, R30, R32, R33 (pp. 5-8), and R34 10 through R41 were received. Exhibits R1, R14, and R17 were offered but not received. 11 Having fully considered the entire record in this matter, I, Brad Avakian, 12 Commissioner of the Bureau of Labor and Industries, hereby make the following 13 Findings of Fact (Procedural and on the Merits), Ultimate Findings of Fact, Conclusions 14 of Law, Opinion, and Order. 1 15 FINDINGS OF FACT - THE MERITS 2 16 1) 17 18 19 LBC and RBC are both homosexual females. They met in 2004 while they attended the same college and considered themselves a "couple" for the 11 years preceding the hearing. They lived together in Texas until 2009, when they moved to 20 21 22 1 23 2 24 25 The Ultimate Findings of Fact required by OAR 839-050-0370(1)(b)(B) are subsumed within the Findings of Fact - The Merits. Except for Finding of Fact #43 - The Merits, the findings of fact relevant to the forum's determination of whether Respondents violated ORS 659A.403, ORS 659A.406, and ORS 659A.409 are set out in the forum's ruling on Respondents' Renewed Motion for Summary Judgment and the Agency's Cross-Motion for Summary Judgment. See Finding of Fact #28 - Procedural, supra. They are duplicated in these Findings of Fact - The Merits only to the extent necessary to provide context to Complainants' claim for damages. FINAL ORDER (Sweetcakes, ##44-14 & 45-14)-3 ER-66 1 Portland, Oregon, and have lived together continuously since moving to Portland. 2 (Testimony of LBC, RBC, McPherson) 3 2) LBC first asked RBC to marry her soon after they met and was turned 4 down. 5 finally agreed to marry her. (Testimony of RBC, LBC) 6 LBC continued to propose on a regular basis until October 2012, when RBC 3) Before October 2012, RBC did not want to get married because of her 7 personal experience of failed marriages that "tended to do more damage than good." 8 (Testimony of RBC, LBC, McPherson) 9 4) In November 2011, Complainants became foster parents for "E" and "A,"3 10 two disabled children with very high special needs, after the death of their mother, 11 LBC's best friend. At the time, Complainants were already the children's godparents. 12 When they became the children's foster parents, Complainants decided that they 13 wanted to adopt the children. Subsequently, Complainants became involved in a bitter 14 and emotional custody battle for the children with the children's great-grandparents that 15 continued until sometime after December 2013, when Complainants' December 2013 16 adoption application was formally approved by the state of Oregon. 4 17 LBC, RBC, McPherson) 18 5) (Testimony of In October 2012, RBC decided that she and LBC should get married in 19 order to give their foster children "permanency and commitment" by showing them how 20 much she and LBC loved one another and were. committed to one another. RBC told 21 LBC that she wanted to get married, which made LBC "extremely happy." After her 22 long-standing matrimonial reticence, RBC then became excited to get married and to 23 24 25 3 The forum uses the children's first name initials instead of their full names to protect their privacy. 4 Although it is undisputed that Complainants eventually adopted the children, there is no evidence as to what date the adoptions were finalized. FINAL ORDER (Swee/cakes, ##44-14 & 45-14) -4 ER-67 1 start planning the wedding, wanting a wedding that was as "big and grand" as they 2 could afford. (Testimony of RBC, LBC) 3 6) Sometime between October 2012 and January 17, 2013, RBC and Cheryl 4 McPherson ("CM"), RBC's mother, attended a Portland bridal show. MK had a booth at 5 the show to advertise wedding cakes made by Sweetcakes by Melissa ("Sweetcakes"). 6 Two years earlier, Sweetcakes had designed, created, and decorated a wedding cake 7 for CM and RBC that RBC really liked. At the show, RBC and CM visited Sweetcakes's 8 booth and told MK they would like to order a cake from her. After the show, RBC made 9 an appointment via email for a cake tasting at Sweetcakes. (Testimony of RBC, CM, 10 11 MK; Ex. R16) 7) Complainants were both excited about the cake tasting at Sweetcakes 12 because the cake Respondents had made for CM's wedding had been so good and 13 RBC wanted to order a cake like CM's cake. (Testimony of RBC, A. Cryer) 14 9) On January 17, 2013, RBC and CM visited Sweetcakes's bakery shop in 15 Gresham, Oregon for their cake tasting appointment, intending to order a cake for 16 RBC's wedding to LBC. (Respondents' Admission; Affidavit of AK; Testimony of RBC, 17 CM, AK) 18 9) In January 2013, AK and MK were alternately caring for their infant twins 19 at their home. At the time of the tasting, MK was at home and AK conducted the 20 tasting. During the tasting, AK asked for the names of the bride and groom, and RBC 21 told him there would be two brides and their names were "Rachel and Laurel." At that 22 point, AK stated that he was sorry, but that Sweetcakes did not make wedding cakes for . 23 same-sex ceremonies because of AK's and MK's religious convictions. In response, 24 RBC began crying. She felt that she had humiliated her mother and was anxious 25 whether CM was ashamed of her, in that CM had believed that being a homosexual was FINAL ORDER (Sweetcakes, ##44-14 & 45-14)-5 ER-68 1 wrong until only a few years earlier. CM then took RBC by the arm and walked her out 2 of Sweetcakes to their car. On the way out to their car and in the car, RBC became 3 hysterical and kept telling CM "I'm sorry" because she felt that she had humiliated CM. 4 (Respondents' Admission; Affidavit of AK; Testimony of RBC, CM) 5 10) In the car, CM hugged RBC and assured her they would find someone to 6 make a wedding cake. CM drove a short distance, then returned to Sweetcakes and re- 7 entered Sweetcakes by herself to talk to AK. During their subsequent conversation, CM 8 told AK that she used to think like him, but her "truth had changed" as a result of having 9 "two gay children." AK quoted Leviticus 18:22 to CM, saying "You shall not lie with a 10 male as one lies with a female; it is an abomination." CM then left Sweetcakes and 11 returned to the car. While CM was in Sweetcakes, RBC remained sitting in the car, 12 "holding [her] head in her hands, just bawling." (Affidavit of AK; Testimony of RBC, CM) 13 14 11) When CM returned to the car, she told RBC that AK had told her that "her children were an abomination unto God." (Testimony of RBC; CM) 15 12) When CM told RBC that AK had called her "an abomination," this made 16 RBC cry even more. RBC was raised as a Southern Baptist. The denial of service in 17 this manner made her feel as if God made a mistake when he made her, that she 18 wasn't supposed to be, and that she wasn't supposed to love or be loved, have a family, 19 or go to heaven. (Testimony of RBC) 20 13) CM and RBC then drove home. RBC was crying when they arrived home 21 and immediately went upstairs to her bedroom, followed by LBC and CM, where she lay 22 in her bed, crying. 5 In the bedroom, LBC asked CM what had happened, and CM told 23 24 25 5 RBC credibly testified as follows: "I was beyond upset. I just wanted everybody to leave me alone. I couldn't face looking at my mom, and I didn't even know if I still wanted to go through with getting married anymore. So I just told everybody to leave me alone as much as possible, and I went to my room." FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -6 ER-69 1 her that AK had told them that Sweetcakes did "not do same-sex weddings" and that AK 2 had told CM that "your children are an abomination." LBC was "flabbergasted" at AK's 3 statement about same-sex weddings. 4 (Testimony of RBC, LBC, CM) 5 14) This upset her and made her very angry. LBC, who was raised as a Catholic, recognized Klein's statement as a 6 reference from Leviticus. She was "shocked" to hear that AK had referred to her as an 7 "abomination," and thought CM may have heard wrong. She took the denial of service 8 in this manner to mean " ... this is a creature not created by God, not created with a soul; 9 they are unworthy of holy love; they are not worthy of life." She immediately thought 1O that this never would have happened if she had not asked RBC to marry her and felt 11 shame because of it. 12 acceptance of RBC's sexual orientation. (Testimony of LBC) 13 15) She also worried that this might negatively impact CM's LBC, who had always viewed herself as RBC's protector, got into bed with 14 RBC and tried to soothe her. RBC became even more upset and pushed RBC away. 15 In response, LBC lost her temper and started yelling that she "could not believe this had 16 happened" and that she could "fix" things if RBC would just let her. After LBC left the 17 room, RBC continued crying and spent much of that evening in bed. (Testimony of 18 RBC, LBC, CM) 19 16) Back downstairs, E, the older of Complainants' foster daughters was 20 extremely agitated from events at school that day. 21 refused to be calmed, repeatedly calling out for RBC, with whom she had a special 22 bond. Eventually, E cried herself to sleep. LBC's inability to calm E was very frustrating 23 to her. She felt overwhelmed because she didn't know how to handle the situation. 24 That night, LBC was very upset, cried a lot, and was hurt and angry. (Testimony LBC, 25 A. Cryer) FINAL ORDER (Swee/cakes, ##44-14 & 45-14) - 7 LBC tried to calm her, but she ER-70 1 17) After CM returned home on January 17, 2013, she telephoned "Lauren" at 2 the West End Ballroom ("WEB"), the venue where Complainants planned to have their 3 commitment ceremony, and told Lauren that Sweetcakes had refused them cake 4 service for their wedding. CM also posted a review on Sweetcakes Facebook wedding 5 page and on another wedding website with a message stating: "If you're a gay couple 6 and having a commitment ceremony or wedding, don't go to this place because they 7 discriminate against gay people." (Testimony of CM; Ex. R22) 8 9 1O 11 18) At 8:22 p.m. on January 17, 2013, Lauren from WEB emailed RBC and LBC to say she had heard from CM and wanted to know the details of the refusal at Sweetcakes. (Testimony of LBC; Ex. R32) 19) At 9: 10 p.m. on January 17, 2013, RBC sent a return email to Lauren at 12 WEB in which she stated: 13 "Hi Lauren, 14 15 16 17 18 19 20 21 22 23 24 25 "I am sorry to have to bring this to your attention. I want to assure you that we would have gone with Sweet Cakes reguardless (sic) of your recommendation, because we purchased my mother's wedding cake from them and were very happy with the cake. My girlfriend and I purchased my mother's cake as a wedding gift for her. At that time Melissa said nothing about not wanting to work for us because we were gay. "I even spoke with them at the Portland Wedding Show and made an appointment then for 1pm today. When we showed up for the appointment it was with Melissa's husband. I did not catch his name because the appointment did not last long enough for me to ask. He took us in the office and asked what the bride and groom names were. When we told him that our names were Rachel and Laurel, he quickly said that they don't do gay weddings because they are Christians and don't believe same-sex marriage is right. My mother asked why they had no problem taking my money when I purchased her cake. She told them that we are a christian family as well and that she used to believe like he believed until God blessed her with two gay children. "I was stunned and crying. This is twice in this wedding process that we have faced this kind of bigotry. It saddens me because we moved from Texas so that my brother and I could be more accepted in the community. FINAL ORDER (Sweetcakes, 1#144-14& 45-14)- 8 ER-71 1 "We wanted to inform you of all of this because you have a right to know so that other same-sex couples don't have to go through this in the future. It surprisingly that both the West End Ballroom and the caterers we chose, Premier Catering, reccommend (sic) Sweet Cakes and yet neither mentioned to us that they don't do gay weddings. I figure that this must be because no one ever speaks up to let you know. I didn't want to let this pass without saying something. 2 3 4 "My fiance and I have been together for 10 years. We are adopting our two foster children and wanted to get married as a sign of our commitment to each other and the family that we are creating. It saddens me that my children will grow up in a world where people are an abomination because they love each other. It is my responsibility to set an example for them that you should speak up when you see injustice because that is how we make progress. 5 6 7 8 'Thank you for your fast response to both my mother and I. I realize that you are not responsible for their poor behavior, and thank you for your understanding. If there is anymore info that I can provide for you please let me know. 9 10 "Sincerely, Rachel Cryer & Laurel Bowman" 11 12 13 (Testimony of LBC; Ex. R32) 20) 14 15 Later that same evening, LBC filled out an "Oregon Department of Justice ("DOJ") Consumer Complaint Form," using her smart phone to access DOJ's website. In hard copy, 6 the complaint was two pages long. On the first page, she provided her 16 name, address, phone number and email address, Sweetcakes's name, address, and 17 phone number. On the first page, immediately above the space where LBC wrote her 18 name, the following text was printed: 19 "By submitting this complaint, DOJ's permanent records and complaint may be released complaining; c) this complaint By submitting this complaint, information and documentation 20 21 22 I understand a) this complaint will become part of is subject to Oregon's Public Records Law; b) this to the business or person about whom I am may be referred to another governmental agency. I authorize any party to release to the DOJ any relative to this complaint." 23 24 25 6 The record lacks substantial evidence to establish what the digital format for the complaint form looked like, but Ex. R3 is a hard copy of the complaint that Respondents received. The forum relies on that copy in describing the contents and format of the complaint. FINAL ORDER (Swee/cakes, ##44-14 & 45-14) -9 ER-72 1 This public records disclaimer was not visible on LBC's smart phone view of DOJ's 2 form. On the second page, LBC described the details of her complaint as follows: 3 4 5 6 7 8 "In november of 2011 my fiance and I purchased a wedding cake from this establishment for her mother's wedding. We spent 250. When we decided to get married ourselves chose to back and purchase a second cake. Today, January 17, 2013, we went for our cake tasting. When asked for a grooms name my soon to be mother in law informed them of my name. The owner then proceeded to say we were abominations unto the lord and refused to make another cake for us despite having already paid 250 once and having done business in the past. We were then informed that our money was not equal, my fiance reduced to tears. This is absolutely unacceptable." (Testimony of LBC; Exhibit R3) 9 21) Aaron Cryer, RBC's brother, also lived with Complainants at this time. 10 Later on the evening of January 17, 2013, he arrived home from school and work and 11 he and Complainants had a 30 minute conversation about what happened at 12 Sweetcakes that day. (Testimony of A. Cryer) 13 22) On January 18, 2013, RBC felt depressed and questioned whether there 14 was something inherently wrong with the sexual orientation she was born with and if 15 she and LBC deserved to be married like a heterosexual couple. She spent most of her 16 day in her room, trying to sleep. (Testimony of RBC) 17 23) In the days following January 17, 2013, RBC had difficulty controlling her 18 emotions and cried a lot, and Complainants argued because of RBC's inability to control 19 her emotions. They had not argued previously since moving to Oregon. RBC also 20 became more introverted and distant in her family relationships. She and A. Cryer, 21 have always been very close, and their connection was not as close "for a little bit" after 22 January 17, 2013. RBC questioned whether she had the ability to be a good mother 23 because of the difficulty she was having in controlling her emotions. A week later, RBC 24 still felt "very sad and stressed," felt concerned about still having to plan her wedding, 25 and felt less exuberant about the wedding. Previous to that time, she had been "very FINAL ORDER (Sweetcakes, ##44-14 & 45-14)-10 ER-73 1 friendly and happy" in her communications with Candice Ericksen, A and E's great aunt, 2 about her wedding. 3 potential wedding vendors, she experienced anxiety over possible rejection because her 4 wedding was a same-sex wedding. (Testimony of RBC, LBC, CM, A. Cryer, Ericksen) 5 24) After January 17, 2013, although RBC relied on CM to contact In the days following January 17, 2013, LBC experienced extreme anger, 6 outrage, embarrassment, exhaustion, frustration, intense sorrow, and shame as a 7 reaction to AK's refusal to provide a cake. 8 console E, she could not protect RBC, and because RBC was no longer sure she 9 wanted be married. Her excitement about getting married was also lessened because 10 she was not sure she could protect RBC if any similar incidents occurred. (Testimony of 11 RBC, LBC, Ericksen) 12 25) She felt sorrow because she couldn't After January 17, 2013, CM assumed the responsibility for contacting the 13 vendors who would be needed for Complainants' ceremony. 14 arranged for a cake tasting at Pastry Girl ("PG"), another local bakery. While making 15 the appointment, CM asked Laura Widener, PG's owner/baker, if she was okay with 16 providing a cake for a same-sex wedding ceremony. Widener assured her that this was 17 not a problem. (Testimony of RBC, CM, Widener; Ex. R4) 18 26) Shortly thereafter, she On January 21, 2013, CM and RBC went to PG and met with Widener. 19 While at PG, CM and RBC were both anxious, and CM did most of the talking, while 20 RBC tried not to cry until they started talking about the design of the cake. At that point, 21 RBC became more animated and was able to explain the design she wanted on the 22 cake. By the end of the meeting, the design they settled on was a cake with three tiers 23 that had a peacock's body on top and the peacock's tail feathers trailing down over tiers 24 to the cake plate. When completed, the peacock and its feathers were hand-created 25 FINAL ORDER (Swee/cakes, ##44-14 & 45-14) -11 ER-74 1 and hand-painted by Widener. 2 (Testimony of Widener, RBC, CM) 3 4 5 6 27) Widener charged Complainants $250 for the cake. Respondents would have charged $600 for making and delivering the same cake. (Testimony of AK) 28) On January 28, 2013, DOJ mailed a copy of LBC's Consumer Complaint to Respondents, along with a cover letter. In pertinent part, DOJ's cover letter stated: 7 8 9 10 11 12 13 14 15 16 17 "We have received the enclosed consumer complaint about your business. We understand that there are often two sides to a problem, and we would appreciate your prompt review of this matter. "We do not represent the complainant. We do, however, review all complaints to determine whether grounds exist to warrant action by us. Your response to the allegations in the complaint would help us to make that determination. "In the interest of efficiency, we prefer that you respond directly to the complainant and e-mail copy of the response to our office. Please include the file number shown above on the subject line of your e-mail. Alternatively, you may respond to us by regular mail." On January 29, AK posted a copy of the first page of LBC's DOJ complaint on his Facebook page, prefaced by his comment "[!]his is what happens when you tell gay people you won't do their 'wedding cake."' At that time, AK only had 17 "friends" on his Facebook page. (Testimony of LBC, AK; Exs. R3, A4) 18 19 29) On the same day that AK posted LBC's DOJ complaint, LBC received an email telling her of the posting and that she should look at it. LBC did so, then called 20 21 Paul Thompson, Complainants' attorney in this proceeding. Later that day, the posting was removed. (Testimony of LBC, AK) 22 23 24 25 30) On February 1, 2013, LBC went to the emergency room of a local hospital at approximately 8:00 p.m. because of an injury to her shoulder that she had suffered three weeks earlier when lifting one of her foster children above her head when they FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -12 ER-75 1 were playing. While in the hospital, she became aware that AK's refusal to make their 2 wedding cake was on the news. This made her very upset and she cried when she was 3 examined by a doctor, telling the doctor that she had an "unpleasant interaction with a 4 business owner, and now this information is on the news." (Testimony of LBC; Exs. A6, 5 R7) 6 31) On February 1, 2013, RBC became aware that the media was aware of 7 AK's refusal to make a wedding cake for Complainants when she received a telephone 8 call from Lars Larson, an American conservative talk radio show host based in Portland, 9 Oregon, who told her that he had spoken with AK and wanted to see what RBC "had to 10 say about the pending case." RBC refused to talk with Larson and called LBC, who was 11 at the hospital having her shoulder examined. (Testimony of RBC, LBC) 12 32) As soon as they became aware that LBC's DOJ complaint had become 13 public knowledge through the media, both Complainants greatly feared that E and A 14 would be taken away from them by the state of Oregon's foster care system. 7 Earlier, 15 16 17 18 19 20 21 7 The level of Complainants' concern over their foster parent status was vividly illustrated in RBC's and LBC's testimony on direct examination by the Agency: R. Bowman-Cryer Q: "So how did you react? How did you react to hearing about your case, I guess, or your situation in the news?" A: "My first concern was that nobody could know that we had these children and that whatever we did had to be to protect them. We did not want their names in the media. We did not want any information about them or our foster parent status or the status of their case to be public knowledge to anyone." L. Bowman-Cryer Q: "Was the fear from that initial media release ever lessened for you?" 22 A: "No, ma'am. That fear was paramount to everything." 23 Q: 'When you say paramount, was it greater for you than the actual refusal of service?" A: "At that point in time, yes, ma'am." 24 25 Q: "Did you still feel emotional effects from the refusal of service?" A: "Absolutely, yes, ma'am. My children were still suffering. My wife was still suffering, and that was tearing me apart." FINAL ORDER (Swee/cakes, ##44-14 & 45-14) - 13 ER-76 1 they had been instructed that it was their responsibility to make sure that the girls' 2 information was protected and that the state would "have to readdress placement" of the 3 girls with Complainants 4 (Testimony of RBC, LBC) 5 33) if any information was released Based on the media or potential media exposure about the case after 6 February 1, 2013, LBC's headaches increased. 7 fearful. (Testimony of LBC; Ex. A12) 8 34) concerning the girls. She felt intimidated and became At some point after February 1, 2013, one of RBC's Facebook "friends" 9 saw an article about the case in her local Florida paper and posted it on Facebook, 10 adding in her comments that RBC and LBC had children. RBC immediately responded, 11 writing: "Jessica - I know you were trying to defend us, but you released information 12 about our kids. The public doesn't know we have kids; that is the whole point of being 13 silent. Please remove your comment immediately." RBC's "friend" responded and said 14 she removed her comment as soon as she read RBC's response. (Testimony of RBC; 15 Ex. A26) 16 35) On February 8, 2013, Paul Thompson sent a letter regarding 17 Complainants and their situation to the following media sources: 18 Oregonian, OPB, KATU, KPTV, the Lars Larson Radio Show, The Wall Street Journal, 19 Willamette Week, and Reuters. The letter read as follows: 20 21 KGW, KOIN, The "Members of the Media: 23 "I would like to begin by thanking each of you for your interest in this story. As you know, I represent the lesbian couple who were denied a wedding cake by Sweet Cakes by Melissa. I ask that their names not be printed in regards to this statement, as they would appreciate privacy in this matter. 24 "The Press Release reads: 22 25 FINAL ORDER (Swee/cakes, ##44-14 & 45-14) -14 ER-77 1 2 3 4 5 6 7 8 9 10 11 "We are grateful for the outpouring of support we have received from friends, family, members of the LGBT community, and our allies. We are especially thankful that LGBT-supportive companies have graciously offered their services to make our special day perfect "At this time, the support of the community and other well-wishers is all we require. We ask that individuals and companies that want to provide support, direct their donations in our name to Pride Northwest, our pride organization in Portland, Oregon. They have accepted our request to direct donations and gifts to further awareness of issues affecting the LGBT community, including marriage equality and families. Interested parties can contact Cory L Murphy of Pride Northwest with any questions. * * * "We have decided to accept the gracious offer from Mr. Duff Goldman of Charm City Cakes and the TV show 'Ace of Cakes.' At the time Mr. Goldman made his offer we had already contracted with and paid for another local bakery, Pastrygirl, to make our wedding cake. It is extremely important to us to honor that contract With that in mind we have humbly asked Mr. Goldman and Charm City Cakes to prepare a Bride's cake for us in place of the traditional Groom's cake. We are grateful to both bakeries for being a part of making our wedding date incredibly special. 12 13 14 15 16 "While we are humbled by the support and mindful of people's interest, this matter has placed us in the media spotlight against our wishes. In order to maintain our privacy, we will not be granting interviews and are asking everyone to respect our privacy at this time. "Please direct any media inquiries to our attorney, Paul Thompson[.]" (Exs. A7, R28) 17 18 19 20 21 22 23 24 36) On February 9, 2013, there was an organized protest outside Respondents' bakery that was reported by KATU.com. The protest was organized by a person or persons who started a Facebook page called "BoycottSweetCakesByMelissaGRESHAM" ("Boycott") on February 6, 2013, and posted a photo from KATU.com that shows "protesters gathered Saturday outside a Gresham bakery that's at the center of a wedding cake controversy.'' Complainants were not involved in the protest or subsequent boycott. However, on February 10, 2013, both Complainants made comments on Boycott's Facebook page in which they indirectly 25 FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -15 ER-78 1 identified themselves as the persons who sought the wedding cake and thanked people 2 for their support. (Exs. R9, R13) 3 37) On February 8, 2013, Herbert Grey, Respondents' lead counsel in this 4 case, sent a letter to DOJ that responded to LBC's January 17, 2013, consumer 5 complaint. 6 concerning the complaint filed by "Laurel Bowman" and addressed the issues raised in 7 the complaint. Grey also cc'd a copy of his letter to LBC. (Ex. R10) 8 9 38) In the letter, Grey identified himself as representing Respondents On February 12, 2013, DOJ emailed a copy of LBC's DOJ consumer complaint to a number of media sources, along with a note stating: 10 "Hey everyone, 11 14 "Please pardon the mob email. But it seems the most efficient and fair thing to do. Attached is the initial Sweet Cakes complaint as well as the newly received response from the bakery owners' lawyer. The other new development is that the complainants have informed the DOJ and BOLi that they plan on filing a complaint with BOLi. That has yet to happen as early this afternoon. But we're told it's the plan. At that point, the DOJ's involvement in the saga will end." 15 On February 13, 2013, this email was forwarded to Herb Grey, Respondents' attorney, 16 by Tony King, the executive producer of the Lars Larson Show. (Ex. R15) 12 13 17 39) After LBC's DOJ complaint was publicized in the media, Complainants 18 both had negative confrontations from relatives who learned about their complaint 19 against Respondents through the media. In January 2013, LBC had just begun to re- 20 establish a relationship with an aunt who had physically and emotionally abused her as 21 a child and also owned all of the family property. Shortly after LBC's complaint became 22 public, the aunt insisted through social media that LBC drop the complaint. She also 23 called LBC and told her she was not welcome on family property and she would shoot 24 LBC "in the face" if LBC ever set foot on the family's property in Ireland or the United 25 States. This threat "devastated" LBC, as it meant she could not visit her mother or FINAL ORDER (Swee/cakes, ##44-14 & 45-14) -16 ER-79 1 grandmother, both of whom lived on family property. RBC's sister, who believed that 2 homosexuals should not be allowed to get married, wrote a Facebook message to the 3 Kleins to tell them that she supported them. This was a "crushing blow" to RBC, and it 4 hurt her and made her very angry at her sister. (Testimony of LBC, RBC, CM; Ex. A 16) 5 40) On June 27, 2013, Complainants had a commitment ceremony at the 6 West End Ballroom, a venue located at 1220 S.W. Taylor in downtown Portland. On the 7 day of the ceremony, the words "ROMANCE BY CANDLELIGHT - STARRING 8 RACHEL AND LAUREL - JUNE 27, 2013" were posted on a large billboard on the 9 street-facing wall of the WEB. Only invited guests were allowed to attend the 10 ceremony. Just prior to the ceremony, Duff Goldman's free cake was delivered by an 11 incognito motorcyclist. At the ceremony, Complainants and their guests celebrated with 12 their cakes from Pastry Girl and Goldman. 13 considered themselves to be married even though they could not be legally married in 14 the state of Oregon at that time. (Testimony of RBC, LBC, Widener; Exs. R18, R19) 15 41) After the ceremony, Complainants On August 8, 2013, RBC filed a verified complaint with BOLi alleged that 16 Sweetcakes by Melissa had discriminated against her by refusing to make her a 17 wedding cake because of her sexual orientation. (Testimony of RBC; Ex. A27) 18 42) On August 14, 2013, BOLi's Communications Director issued a press 19 release related to RBC's complaint. The first paragraph read: "Portland, OR-A 20 sex couple has filed an anti-discrimination complaint with the Oregon Bureau of Labor 21 and Industries (BOLi) against a Gresham bakery, Sweet Cakes by Melissa, for allegedly 22 refusing service based on sexual orientation." (Ex. R20) 23 43) same- During the CBN video interview described in Finding of Fact #12 in the 24 ALJ's Summary Judgment Ruling, CBN broadcast a picture of a handwritten note taped 25 on the inside of a front window at Sweetcakes' bakery in Gresham. The note read: FINAL ORDER (Swee/cakes, ##44-14 & 45-14) -17 ER-80 1 2 3 4 5 6 "Closed but still in business. You can reach me by email or facebook. www.sweetcakesweb.com or Sweetcakes by Melissa facebook page. New phone number will be provide on my website and facebook. This fight is not over. We will continue to stand strong. Your religious freedom is becoming not free anymore. This is ridiculous that we cannot practice our faith. The LORD is good and we will continue to serve HIM with all our heart. [heart symbol]" (Ex. 1-1, Respondents' Motion for Summary Judgment) 44) On November 7, 2013, LBC filed a verified complaint with BOLi alleging 7 that Sweetcakes by Melissa had discriminated against her by refusing to make her a 8 wedding cake because of her sexual orientation. (Testimony of LBC; Ex. A28) 9 10 11 12 13 14 15 16 17 18 45) On January 17, 2014, BOLi's Communications Director issued a press release that began and ended with the following statements: "BOLi finds substantial evidence of unlawful discrimination in bakery civil rights complaint Sweet Cakes complaint will now move into conciliation to determine whether settlement can be reached "Portland, OR - A Gresham bakery violated the civil rights of a same-sex couple when it denied service based on sexual orientation, a Bureau of Labor and Industries (BOLi) investigation has found. "The couple filed the complaint against Sweetcakes by Melissa under the Oregon Equality Act of 2007, a law that protects the rights of gays, lesbians, bisexual and transgender Oregonians in employment, housing and public places. "* * * * * "Copies of the complaint are available upon request. * * *" 19 20 21 (Ex. R24) 46) Complainants were legally married by signing a "legal document of 22 marriage" in 2014, a few days after Oregon's ban on same-sex marriage was struck 23 down in federal court. (Testimony of RBC) 24 25 47) From February 1, 2013, until the time of the hearing, many people have made "hate-filled" comments through social media and in the comments sections of FINAL ORDER (Sweetcakes,##44-14 & 45-14)-18 ER-81 1 various websites that were supportive of Respondents and critical of or threatening to 2 Complainants. 3 pain, frustration, suffering, torture, shame, humiliation, degradation, fear that she would 4 be harassed at home because the DOJ complaint with Complainants' home address 5 had been posted on Facebook, and the feeling that her reputation was being destroyed. 6 (Testimony of RBC, LBC, CM; Ex. A24) 7 48) These comments and the media attention caused RBC stress, anger, The publicity from the case and accompanying threats from third parties 8 on social media made RBC "scared" for the lives of A, E, LBC, and herself. (Testimony 9 of RBC) 10 49) Although AK has been interviewed by the media on a number of 11 occasions about the case, he did not initiate any contacts with the media. Other than 12 posting LBC's DOJ complaint on his Facebook page, there is no evidence that AK gave 13 Complainants' names to the media. Finally, there is no evidence in the record of any 14 untruthful statements that AK or MK made to public media regarding their case. 8 15 (Testimony of AK; Entire Record) 16 50) Except for Paul Thompson's February 8, 2013, press release, 17 Complainants have never solicited media attention nor been interviewed by the media 18 with regard to this case. (Testimony of RBC, LBC) 19 51) Candice Ericksen, Laura Widener, Melissa Klein, Jessica Ponaman, and 20 Aaron Cryer were credible witnesses and the forum has credited their testimony in its 21 entirety. (Testimony of Ericksen, Widener, M. Klein, RBC, Ponaman) 22 23 24 25 8 Complainants testified that they were upset by Respondents' repeated untruthful statements about them in the media, but did not testify as to any specific incident in which Respondents made untruthful statements of which they were aware and the Agency presented no other evidence of any such statements. FINAL ORDER ( Sweetcakes, ##44-14 & 45-14) - 19 ER-82 1 52) For the most part, CM's testimony was credible, even though her answers 2 frequently strayed from the subject of the questions. However, the forum did not believe 3 her earlier statements to Ponaman that RBC was "throwing up" because she was so 4 nervous and that "for days [RBC] couldn't get out of bed" because RBC did not testify to 5 those facts and because RBC spent 30 minutes talking with LBC and A. Cryer the night 6 of January 17, 2013, and went to a cake tasting at Pastry Girl on January 21, 2013. 7 Due to these exaggerations, the forum has only credited CM's testimony when it was 8 either (a) undisputed, or (b) disputed but corroborated by other credible testimony. 9 (Testimony of CM) 10 53) AK was a credible witness except for his testimony that he did not realize 11 that LBC's name and address were on the DOJ complaint that he posted on his 12 Facebook page. LBC's name, address, and phone number are conspicuously printed 13 on the complaint immediately above Sweetcakes's name, address, and phone number, 14 and the forum finds it extremely unlikely that AK would have posted the complaint 15 without reading it, particularly since he posted a comment immediately above it that 16 read: "This is what happens when you tell gay people you won't do their 'wedding' 17 cake." Apart from that testimony, the forum has credited AK's testimony in its entirety. 18 (TestimonyofAK) 19 54) RBC was an extremely emotional witness who was in tears or close to 20 tears during most of her testimony. 21 questions directly in a forthright manner. She did not try to minimize the effect of media 22 exposure on her emotional state as compared to how the denial of service affected her. 23 The forum has credited RBC's testimony about her emotional suffering in its entirety. 24 However, the forum has only credited her testimony about media exposure when she 25 testified about specific incidents. (Testimony of RBC) FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -20 Despite her emotional state, she answered ER-83 1 55) LBC was a very bitter and angry witness who had a strong tendency to 2 exaggerate and over-dramatize events. On cross examination, she argued repeatedly 3 with Respondents' counsel and had to be counseled by the ALJ to answer the questions 4 asked of her instead of editorializing about the denial of service and how it affected her. 5 Her testimony was inconsistent in several respects with more credible evidence. First, 6 she testified that she had a "major blowout" and "really bad fight" with A. Cryer between 7 January 17 and January 21, 2013. 8 fought with LBC, "I wouldn't say we fought." 9 affect his relationship with LBC. Second, she testified that her blood pressure spiked in 10 the hospital to 210/165 on February 1, 2013, when she learned that her DOJ complaint 11 had hit the media, requiring the immediate attention of a doctor and four nurses. Her 12 treating doctor's report notes that she was upset and crying about her situation hitting 13 the news, but there is no mention of a blood pressure spike. Third, she testified that the 14 media were standing outside her and RBC's apartment on February 1, 2013, when she 15 talked to RBC from the hospital. RBC, who was at the apartment at that time, testified 16 that the media were not outside their apartment at that time. Fourth, LBC testified that 17 RBC stayed in bed the rest of the day after she returned from the cake tasting at 18 Sweetcakes. 19 conversation that evening. Like RBC, the forum has only credited her testimony about 20 media exposure when she testified about specific incidents. 21 credited LBC's testimony when it was either (a) undisputed, or (b) disputed but 22 corroborated by other credible testimony. (Testimony of LBC) In contrast, A. Cryer testified, when asked if he He also testified that this case did not In contrast, A. Cryer testified that he, LBC, and RBC had a 30 minute 23 24 25 FINAL ORDER (Sweetcakes, ##44-14 & 45-14) - 21 The forum has only ER-84 CONCLUSIONS OF LAW 1 2 1) At all times material herein, Respondents AK and MK owned and operated 3 a bakery in Gresham, Oregon as a partnership under the assumed business name of 4 Sweetcakes by Melissa. 5 6 7 8 9 10 11 2) At all times material herein, Sweetcakes by Melissa was a "place of public accommodation" as defined in ORS 659A.400. 3) At all times material herein, AK and MK were individuals and "person[s]" under ORS 659A.010(9), ORS 659A.403, ORS 659A.406, and ORS 659A.409. 4) At all times material herein, Complainants' sexual orientation was homosexual. 5) AK denied the full and equal accommodations, advantages, facilities and 12 privileges of Sweetcakes by Melissa to Complainants based on their sexual orientation, 13 thereby violating ORS 659A.403. 14 6) AK did not violate ORS 659A.406. 15 7) AK and MK violated ORS 659A.409. 16 8) Complainants suffered emotional and mental suffering as a result of AK's 17 18 19 20 violation of ORS 659A.403. 9) As partners, AK and MK are jointly and severally liable for AK's violation of ORS 659A.403 and their joint violations of ORS 659A.409 10) The Commissioner of the Bureau of Labor and Industries has jurisdiction 21 over the persons and of the subject matter herein and the authority to eliminate the 22 effects of any unlawful practices found. ORS 659A.800 to ORS 659A.865. 23 11) Pursuant to ORS 659A.850 and ORS 659A.855, the Commissioner of the 24 Bureau of Labor and Industries has the authority under the facts and circumstances of 25 this case to issue an appropriate cease and desist order. The sum of money awarded FINAL ORDER (Swee/cakes, ##44-14 & 45-14) -22 ER-85 1 to Complainants and the orders to cease and desist violating ORS 659A.403 and ORS 2 659A.409 are an appropriate exercise of that authority. 3 OPINION 4 5 Introduction In his ruling on Respondents' motion and the Agency's cross-motion for summary 6 7 8 judgment, the ALJ concluded that Respondents did not violate ORS 659A.409. 9 This final order reverses that decision. The following discussion explains why. ORS 659A.409 provides, in pertinent part: 9 "* * * [l]t is an unlawful practice for any person acting on behalf of any place of public accommodation as defined in ORS 659A.400 to publish, circulate, issue or display, or cause to be published, circulated, issued or displayed, any communication, notice, advertisement or sign of any kind to the effect that any of the accommodations, advantages, facilities, services or privileges of the place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of * * * sexual orientation[.]" 10 11 12 13 14 The first paragraph in section IV of the Agency's Charges 10 alleges that 15 16 17 18 19 20 21 22 "Respondents published, issued * * * a communication, notice * * * that its accommodation, advantages * * * would be refused, withheld from or denied to, or that discrimination would be made against, a person on account of his or her sexual orientation." In subparagraphs "a" and "c," the Agency identifies ORS 659A.409 as the statute that was allegedly violated. Earlier in the Charges, the Agency identified statements made by AK that were broadcast on CBN television on September 2, 2013, 9 23 See Finding of Fact #28 - Procedural, infra. In the ALJ's ruling on the motions for summary judgment, he noted that the Agency did not allege that AK violated ORS 659A.409, but did not consider this paragraph. See footnote 26. 24 10 25 Section IV is prefaced by the caption "UNLAWFUL PRACTICE: DISCRIMINATION BY PUBLICATION, CIRCULATION, ISSUANCE, OR DISPLAY OF A COMMUNICATION, NOTICE, ADVERTISEMENT, OR SIGN OF A DENIAL OF ACCOMMODATIONS, ADVANTAGES, FACILITIES, SERVICES OR PRIVILEGES BY A PLACE OF PUBLIC ACCOMMODATION BASED ON SEXUAL ORIENTATION." FINAL ORDER (Swee/cakes, ##44-14 & 45-14) -23 ER-86 1 and on the radio on February 13, 2014, that allegedly communicated an intent to 2 discriminate based on sexual orientation. The full text of the relevant part of the CBN 3 broadcast is reprinted below: 4 5 6 7 8 A. Klein: 'I didn't want to be a part of her marriage, which I think is wrong.' M. Klein: 'I am who I am and I want to live my life the way I want to live my life and, you know, I choose to serve God.' A. Klein: 'It's one of those things where you never want to see something you've put so much work into go belly up, but on the other hand, um, I have faith in the Lord and he's taken care of us up to this point and I'm sure he will in the future.' (September 2, 2013, CBN interview) 9 10 The Agency's cross-motion for summary judgment also singles out the text on a 11 handwritten sign that was shown taped to the inside of Sweetcakes' front window during 12 the CBN broadcast: 13 14 15 16 17 "Closed but still in business. You can reach me by email or facebook. www.sweetcakesweb.com or Sweetcakes by Melissa facebook page. New phone number will be provided on my website and facebook. This fight is not over. We will continue to stand strong. Your religious freedom is becoming not free anymore. This is ridiculous that we cannot practice our faith. The LORD is good and we will continue to serve HIM with all our heart. [heart symbol]" The full text of the relevant part of the Perkins' broadcast is reprinted below: 18 Perkins: '***Tell 19 Klein: 'Well, as far as how it unfolded, it was just, you know, business as usual. We had a bride come in. She wanted to try some wedding cake. Return customer. Came in, sat down. I simply asked the bride and groom's first name and date of the wedding. She kind of giggled and informed me it was two brides. At that point, I apologized. I said 'Tm very sorry, I feel like you may have wasted your time. You know we don't do same-sex marriage, same-sex wedding cakes." And she got upset, noticeably, and I understand that. Got up, walked out, and you know, that was, I figured the end of it.' 20 21 22 23 24 25 us how this unfolded and your reaction to that.' Perkins: 'Aaron, let me stop you for a moment. Had you and your wife, had you talked about this before; is this something that you had discussed? Did you think, you know, this might occur and had you thought through how you might respond or did this kind of catch you off guard?' FINAL ORDER (Sweetcakes, ##44-14 & 45-14)-24 ER-87 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Klein: 'You know, it was something I had a feeling was going to become an issue and I discussed it with my wife when the state of Washington, which is right across the river from us, legalized same-sex marriage and we watched Masterpiece Bakery going through the same issue that we ended up going through. But, you know, it was one of those situations where we said "well I can see it is going to become an issue but we have to stand firm. It's our belief and we have a right to it, you know." I could totally understand the backlash from the gay and lesbian community. I could see that; what I don't understand is the government sponsorship of religious persecution. That is something that just kind of boggles my mind as to how a government that is under the jurisdiction of the Constitution can decide, you know, that these people's rights overtake these people's rights or even opinion, that this person's opinion is more valid than this person's; it kind of blows my mind.' (February 13, 2014, Perkins' interview) The Agency's cross-motion for summary judgment singles out the statements made on those two occasions as proof that Respondents violated ORS 659A.409, along with the note posted on Sweetcakes' front door. "ORS 659A.409 provides, in pertinent part: '* * * it is an unlawful practice for any person acting on behalf of any place of public accommodation as defined in ORS 659A.400 to publish, circulate, issue or display, or cause to be published, circulated, issued or displayed, any communication, notice, advertisement or sign of any kind to the effect that any of the accommodations, advantages, facilities, services or privileges of the place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of * * * sexual orientation * * *.' 18 In their motion for summary judgment, Respondents argue that "ORS 659A.409 by its 19 terms requires a statement of future intention that is entirely absent in this instance." 20 Respondents further argue that: 21 22 23 24 25 "A review of the videotape record of the CBN broadcast * * * clearly shows that Aaron Klein spoke only of the reason why he and his wife declined to participate in complainants' ceremony. The same is true of the Perkins radio broadcast. * * * A statement of future intention in either media event is conspicuously absent." In contrast, the Agency argues that the Klein's statements are a prospective communication: FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -25 ER-88 1 2 3 "Reviewed in context, Respondents communicated quite clearly that same-sex couples would not be provided wedding cake services at their bakery. These are not descriptions of past events as alleged by Respondents. Respondents stated their position in these communications and notify the public that they 'don't do same sex weddings,' they 'stand firm,' are 'still in business' and will 'continue to stay strong."' 4 5 As stated earlier, the Agency asserts that the three incidents described above - 6 the two interviews and the note -- show Respondents' prospective intent to discriminate. 7 Although the Agency did not include the text or specifically allege the existence of the 8 note in its Formal Charges and the Perkins' interview occurred after the Agency had 9 completed its initial investigation of the complaint and issued its Substantial Evidence 10 Determination, this does not preclude the Agency from pursuing those incidents at 11 hearing. 12 determination and charges may include evidence not discovered by the investigator. 13 See In the Matter of Sears, Roebuck and Company, 18 BOLi 47, 78 (1999). The only 14 limitation is that the charges be "reasonably related" to the allegations of the initial 15 complaint. Id. The allegations and theories of the specific charges define those to be 16 adjudicated through the hearing, whether or not those allegations and theories are 17 consistent with or even based on those in the administrative determination. See In the 18 Matter of Jake's Truck Stop, 7 BOLi 199, 211 (1988). Also, the only limitation on 19 charges is that the complainant must have had standing to raise the issues and those 20 issues must encompass discrimination only like or reasonably related to the allegations 21 in the complaint. See In the Matter of Sapp's Realty, Inc., 4 BOLi 93, 94 (1981 ). The Agency's investigation may continue past its substantial evidence 22 In the present case, both the note and Perkins interview are not only "reasonably 23 related' but, directly related to the allegations and theories of both the original complaint 24 and charges. Whether corroborating evidence or included as a fact underlying a 25 FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -26 ER-89 1 specific charge, they may be considered as evidence to determine whether a violation 2 of ORS 659A.409 occurred. 3 Whatever Respondents' intentions may have been or may still be with regard to 4 providing wedding cake services for same-sex weddings, the Commissioner finds that 5 AK's above-quoted statements, evaluated both for text and context, are properly 6 construed as the recounting of past events that led to the present Charges being filed. 7 In addition, they also constitute notice that discrimination will be made in the future by 8 refusing such services. In the Perkins' interview, AK stated " ... We don't do same-sex 9 marriage, same-sex wedding cakes .... " He continued that in discussing Washington's 1O same-sex marriage law with MK, "we can see this becoming an issue and we have to 11 stand firm." The note similarly said " ... This fight is not over. We will continue to stand 12 strong .... " On their face, these statements are not constrained to a singular incident or 13 time. They reference past, present and future conduct. AK did not say only that he 14 would not do complainants' specific marriage and cake but, that respondents "don't do" 15 same-sex marriage and cakes. Respondents' joint statement that they will "continue" to 16 stand strong relates to their denial of service and is prospective in nature. 17 statements, therefore, indicate Respondents' clear intent to discriminate in the future 18 just as they had done with Complainants. The 19 The Commissioner concludes that, through the communications described 20 above, AK and MK both violated ORS 659A.409. 11 However, the Commissioner awards 21 22 23 24 25 11 See In the Matter of Blachana, LLC, 32 BOLi 220 (2013), appeal pending (Respondent found to have violated ORS 659A.409 when member of the LLC left a telephone message with the organizer of a group of transgender individuals who had visited the LLC's nightclub regularly on Friday nights during the previous 18 months asking "not to come back on Friday nights."); In the Matter of The Pub, 6 BOLi 270, 282-83 (1987)(Respondent found to have violated ORS 659.037, the predecessor of ORS 659A.409, by posting a on front door of pub, immediately under another sign that said "VIVA APARTHEID," a sign that said "NO SHOES, SHIRTS, SERVICE, NIGGERS," and a sign inside the pub, with chain and spikes attached at each end, that read "Discrimination. Webster - to use good judgment" on the front and FINAL ORDER (Sweetcakes, ##44-14 & 45-14)-27 ER-90 1 no damages to Complainants based on Respondents' unlawful practice because there 2 is no evidence in the record that Complainants experienced any mental, emotional, or 3 physical suffering because of it. 4 In their Answers to the Formal Charges, Respondents raised the affirmative 5 defenses that ORS 659A.409 is unconstitutional on its face and as applied. 6 defense is set out with particularity in Finding of Fact #7 - Procedural. The forum did 7 not address these defenses in the ALJ's Summary Judgment ruling because the ALJ 8 concluded that Respondents did not violate ORS 659A.409. 9 addresses them without duplicating the extensive analysis in the ALJ's Summary 10 11 Their The Commissioner now Judgment ruling. Oregon Constitution -- Article I, Sections 2 and 3 12 13 14 Article I, Sections 2 and 3 of the Oregon Constitution provide: "Section 2. Freedom of worship. All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their own consciences. 15 16 17 18 19 20 21 22 23 "Section 3. Freedom of religious opinion. No law shall in any case whatever control the free exercise, and enjoyment of religeous [sic] opinions, or interfere with the rights of conscience." ORS 659A.409, like ORS 659A.403, is a law that is part of a general regulatory scheme, expressly neutral toward religion as such and neutral among religions. Accordingly, it is constitutional on its face. Meltebeke v. Bureau of Labor and Industries, 322 Or 132, 903 P2d 351 (1995). It is also constitutional as applied in this case because Respondents' statements announcing their clear intent to discriminate in future, just as they had done with Complainants, was not a religious practice but was conduct motivated by their 24 25 "Authentic South African Apartheid Nigger 'Black' Handcuffs Directions Drive Through Wrists and Bend Over Tips" on the back). FINAL ORDER (Swee/cakes, ##44-14 & 45-14)-28 ER-91 1 religious beliefs. Id. at 153. Furthermore, the Oregon Supreme Court has held, in the 2 context of Article I, section 8, that engagement in constitutionally protected expression 3 while engaging in otherwise punishable conduct does not insulate the unlawful conduct 4 from the usual consequences that accompany it. 5 Logging Co. v. Wade, 317 Or 445, 452, 857 P2d 101 (1993)("a person's reason for 6 engaging in punishable conduct does not transform conduct into expression under 7 Article I, section 8 [and] speech accompanying punishable conduct does not transform 8 conduct into expression[.]); State v. Plowman, 314 Or 157, 165, 838 P2d 558 (1992) 9 ("One may hate members of a specified group all one wishes, but still be punished 10 constitutionally if one acts together with another to cause physical injury to a person 11 because of that person's perceived membership in the hated group"). The same should 12 hold true with regard to the protections afforded by Article I, sections 2 and 3.12 13 United States Constitution - First Amendment: Unlawfully Infringing Respondents' right of conscience and right to free exercise of religion 14 17 18 on The Commissioner finds ORS 659A.409 constitutional, both facially and as 15 16 See, e.g., Hoffman and Wright applied, based on the same reasoning set out in the Summary Judgment ruling with respect to the constitutionality of ORS 659A.403. Oregon Constitution - Section 8: freedom of speech Article I, Section 8 of the Oregon Constitution provides: 19 "Section 8. Freedom of speech and press. No laws shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right." 20 21 22 23 24 25 12 This reasoning also applies to the ALJ's analysis of the constitutionality of ORS 659A.403 in the summary judgment ruling. FINAL ORDER (Swee/cakes, ##44-14 & 45-14)-29 ER-92 1 In State v. Robertson, 293 Or 402, 649 P2d 569 (1982), the Oregon Supreme Court 2 established a basic framework, with three categories, for determining whether a law 3 violates Article I, Section 8. ORS 659A.409 falls within Robertson's second category 4 because it is "directed in terms against the pursuit of a forbidden effect" and "the 5 proscribed means [of causing that effect] include speech or writing." Id. at 417-18. 13 6 Oregon courts examine a statute in the second category for "overbreadth' to determine 7 if 'the terms of [the] law exceed constitutional boundaries, purporting to reach conduct 8 protected by guarantees such as*** 9 the court then must determine whether it can be interpreted to avoid such overbreadth." 10 [A]rticle I, section 8. * * * If a statute is overbroad, State v. Babson, 355 Or 383, 391, 326 P3d 559, 566 (2014). 11 Respondents assert that ORS 659A.409 prohibits Respondents from 12 "express[ing] their own position" and that ORS 659A.409 amounts to "a speech code." 13 To the contrary, the language of ORS 659A.409 focuses on the discriminatory effect 14 that accompanies certain speech "published, circulated, issued or displayed" on behalf 15 of a place of public accommodation. It does not cover expressions of personal opinion, 16 political commentary, or other privileged communications unrelated to the business of a 17 place of public accommodation, and its breadth is narrowly tailored to address the 18 effects of the speech at issue. 19 Section 8. 14 As such, it is facially constitutional under Article I, 20 21 22 13 23 In its cross-motion for summary judgment, the Agency concedes that ORS 659A.409 "falls within the second Robertson category of laws." 24 14 25 See also State v. Sutherland, 329 Or 359,365, 987 P2d 501, 504 (1999)(for a statute to be facially unconstitutional, it must be unconstitutional in all circumstances, i.e., there can be no reasonably likely circumstances in which application of the statute would pass constitutional muster). FINAL ORDER (Swee/cakes, ##44-14 & 45-14)-30 ER-93 1 A statute that falls within Robertson category two is not subject to an as-applied 2 challenge. 3 504-05 (2002), citing City of Eugene v. Lee, 177 Or App 492, 497, 34 P3d 690 (2001 ). 4 U.S. Constitution - First Amendment: Unlawfully infringing on Respondents' right to free speech 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 See Leppanen v. Lane Transit Dist., 181 Or App 136, 142-43, 45 P3d 501, In pertinent part, the First Amendment to the U.S. Constitution provides "Congress shall make no law * * * abridging the freedom of speech * * *." This applies to the State of Oregon under the Fourteenth Amendment. In his Summary Judgment ruling, the ALJ conducted a "compelled speech" analysis to Respondents' defense that baking a wedding cake for Complainants Amendment. was "speech" that violated the First In contrast, the speech that violated ORS 659A.409 - the CBN interview, the "note" on Sweetcakes's door, and the Perkins' interview - was voluntary on Respondents' part. ORS 659A.409 is an integral part the anti-discrimination public accommodation laws in ORS chapter 659A. The forum first interpreted this statute nearly 30 years ago, when it was numbered as ORS 659.037, in a case in which the Respondent owned a bar and posted a sign on the front door stating "NO, SHOES, SHIRTS, SERVICE, NIGGERS." In the Matter of The Pub, 6 BOLi 270, 278 (1987). In her Final Order, the Commissioner held that this statute, then numbered as ORS 659.037, "does not generally operate to deny [a] Respondent his constitutional guarantees of free speech." Subsequently, in Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 572 (1995), the U. S. Supreme Court held that "modern public accommodations laws are well within the State's usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general 25 FINAL ORDER (Swee/cakes, ##44-14 & 45-14) -31 ER-94 1 matter, violate the First or Fourteenth Amendments." 15 In conclusion, ORS 659A.409 is 2 constitutional on its face. It is also constitutional as applied because the Commissioner 3 only applies it to Respondents' language that indicate Respondents' clear intent to 4 discriminate in future just as they had done with Complainants. 5 Damages 6 This case is not about a wedding cake or a marriage. It is about a business's 7 refusal to serve someone because of their sexual orientation. Under Oregon law, that is 8 illegal. 9 Free enterprise provides great opportunity for entrepreneurs to take an idea, 10 create a business and achieve whatever success they can. It is a system open to all 11 but, to participate fairly, businesses must follow the laws that apply to each of them 12 equally. A business that disregards the law erodes the free marketplace for both law 13 abiding businesses and patrons alike. 14 Respondents' claim they are not denying service because of Complainants' 15 sexual orientation but rather because they do not wish to participate in their same sex 16 wedding ceremony. The forum has already found there to be no distinction between the 17 two. Further, to allow Respondents, a for profit business, to deny any services to people 18 because of their protected class, would be tantamount to allowing legal separation of 19 people based on their sexual orientation from at least some portion of the public 20 marketplace. This would clearly be contrary to Oregon law as well as any standard by 21 which people in a free society should choose to treat each other. 22 23 24 25 15 Cf. Hishon v. King & Spalding, 467 U.S. 69, 78 (1984)("[i]nvidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment, but it has never been accorded affirmative constitutional protections") FINAL ORDER (Swee/cakes,##44-14 & 45-14) -32 ER-95 1 Within Oregon's public accommodations law is the basic principle of human 2 decency that every person, regardless of their sexual orientation, has the freedom to 3 fully participate in society. The ability to enter public places, to shop, to dine, to move 4 about unfettered by bigotry. 5 When Respondents denied RBC and LBC a wedding cake, their act was more 6 than the denial of the product. It was, and is, a denial of RBC's and LBC's freedom to 7. participate equally. It is the epitome of being told there are places you cannot go, things 8 you cannot do ... or be. Respondent's conduct was a clear and direct statement that 9 RBC and LBC lacked an identity worthy of being recognized. 1O 11 12 The denial of these basic freedoms to which all are entitled devalues the human condition of the individual, and in doing so, devalues the humanity of us all. This was clearly reflected in RBC's and LBC's testimony. In addition to other 13 emotional responses, RBC described that being raised a Christian in the Southern 14 Baptist Church, 15 mistake when he made her, that she wasn't supposed to be, and that she wasn't 16 supposed to love or be loved, have a family, or go to heaven. LBC, who was raised 17 Catholic, interpreted the denial to represent that she was not a creature created by god, 18 not created with a soul and unworthy of holy love and life. She felt anger, intense 19 sorrow and shame. These are the reasonable and very real responses to not being 20 allowed to participate in society like everyone else. 21 subjected to such separation is felt deeply and severely, as the evidence in this case 22 indicated. Respondent's denial of service made her feel as if God made a The personal harm in being 23 The Formal Charges seek damages for emotional, mental and physical suffering 24 in the amount of "at least $75,000" for each Complainant. In addition to any emotional 25 suffering experienced by Complainants as a direct result of Sweetcakes' refusal to bake FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -33 ER-96 1 them a cake ("denial of service"), the Agency also seeks damages for suffering caused 2 to Complainants by media publicity and social media responses to this case. 3 In order, the forum considers the extent of Complainants' emotional suffering and 4 the cause of that suffering; and the appropriate amount of damages. 5 awarded do not constitute a fine or civil penalty, which the Commissioner has no 6 authority to impose in a case such as this. 7 RBC and LBC for the harm they suffered and which was proven at hearing. This is an 8 important distinction as this order does not punish respondents for their illegal conduct 9 but, rather makes whole those subjected to the harm their conduct caused. 10 1. Any damages Instead, any damages fairly compensate Extent and Cause of Complainants' Emotional Suffering 11 A. R. Bowman-Cryer 12 a. Emotional suffering from the denial of service 13 Prior to the cake tasting, LBC had been asking RBC to marry her for nine years. 14 Until October 2012, RBC did not want to be married because of her personal 15 experience of failed marriages. At that time, RBC decided that they should get married 16 to give their foster children a sense of "permanency and commitment." After her long- 17 standing matrimonial reticence, RBC became excited to get married and to start 18 planning the wedding, 16 wanting a wedding that was as "big and grand" as they could 19 afford. Obtaining a cake from Sweetcakes like the one purchased for CM's wedding 20 two years earlier was part of that grand scheme, and both Complainants were excited 21 about the cake tasting at Sweetcakes because of how much they liked the cake 22 Respondents had made for CM's wedding. 23 24 25 16 The forum acknowledges that Complainants' "wedding" on June 27, 2013, was only a commitment ceremony, not a legal "marriage." See footnote 58, infra. FINAL ORDER (Swee/cakes, ##44-14 & 45-14) - 34 ER-97 1 RBC's emotional suffering began at the January 17, 2013, cake tasting when AK 2 told RBC and CM that Sweetcakes did not make wedding cakes for same-sex 3 ceremonies. 4 mother and was concerned that CM, who had believed that homosexuality was wrong 5 until only a few years earlier, was ashamed of her. Walking out to the car and in the 6 car, RBC became hysterical and kept apologizing to CM. When CM returned to the car 7 after talking with AK, RBC was still "bawling" in the car. When CM told her that AK had 8 called her "an abomination," this made RBC cry even more. RBC, who was brought up 9 as a Southern Baptist, interpreted AK's use of the word "abomination" her mean that 1O God made a mistake when he made her, that she wasn't supposed to exist, and that 11 she had no right to love or be loved, have a family, or go to heaven. She continued to 12 cry all the way home and after she arrived at home, where she immediately went 13 upstairs to her bedroom and lay in her bed, crying. In response, RBC began to cry. She felt that she had humiliated her 14 On January 18, 2013, RBC felt depressed and questioned whether there was 15 something inherently wrong with the sexual orientation she was born with and if she and 16 LBC deserved to be married like a heterosexual couple. She spent most of that day in 17 her room, trying to sleep. 18 In the days following January 17, 2013, RBC had difficulty controlling her 19 emotions and cried a lot, and Complainants argued with each other because of RBC's 20 inability to control her emotions. 21 Oregon. 22 relationships. She and A. Cryer have always been very close, and their connection was 23 not as close "for a little bit" after January 17, 2013. A week later, RBC still felt "very sad 24 and stressed," felt concerned about still having to plan her wedding, and felt less 25 exuberant about the wedding. On January 21, 2013, she experienced anxiety during They had not argued previously since moving to In addition, RBC also became more introverted and distant in her family FINAL ORDER (Swee/cakes, ##44-14 & 45-14) -35 ER-98 1 her cake tasting at Pastry Girl because of AK's January 17, 2013, refusal and her fear of 2 subsequent refusals. After January 17, 2013, although RBC relied on CM to contact 3 potential wedding vendors, RBC still experienced some anxiety over possible rejection 4 because her wedding was a same-sex wedding. 5 Cryer credibly analogized RBC's demeanor as similar to that of a dog who had been 6 abused. During this same period of time, A. 7 b. Emotional suffering from publicity about the case 8 On February 1, 2013, RBC became aware that the media was aware of AK's 9 refusal to make a wedding cake for Complainants when she received a telephone call 10 from Lars Larson, an American conservative talk radio show host based in Portland, 11 Oregon, who told her that he had spoken with AK and wanted to see what RBC "had to 12 say about the pending case." This upset RBC, and she became greatly concerned that 13 E and A would be taken away from them by the foster care system because they had 14 been told that the girls' information had to be protected and that the state would "have to 15 readdress placement" of the girls with Complainants if any information was released 16 concerning the girls. This concern continued until their adoption became final sometime 17 after December 2013. 18 From February 1, 2013, until the time of the hearing, many people have made 19 "hate-filled" comments through social media and in the comments sections of various 20 websites that were supportive of Respondents and critical of or threatening to 21 Complainants. 22 pain, frustration, suffering, torture, shame, humiliation, degradation, fear that she would 23 be harassed at home because the DOJ complaint with Complainants' home address 24 had been posted on Facebook, and the feeling that her reputation was being destroyed. 25 The publicity from the case and accompanying threats on social media from third parties These comments and the media attention caused RBC stress, anger, FINAL ORDER (Swee/cakes, .##44-14 & 45-14) - 36 ER-99 1 made RBC "scared" for the lives of A, E, LBC, and herself. In addition, RBC was also 2 upset by a confrontation with her sister who learned about the DOJ complaint through 3 the media and posted a comment in support of Respondents on Respondents' 4 Facebook. 5 Without giving any specific examples, RBC credibly testified that, in a general 6 sense, 17 the denial of service has caused her continued emotional suffering up to the 7 time of hearing. 8 B. L. Bowman-Cryer 9 a. Emotional suffering from the denial of service 10 LBC had been asking RBC to marry her for nine years before RBC finally RBC's acceptance in October 2012 of LBC's marriage 11 accepted in October 2012. 12 proposal made LBC "extremely happy." 13 cake tasting at Sweetcakes because of how much they liked the cake Respondents had 14 made for CM's earlier wedding. 15 tasting. Both Complainants were excited about the However, LBC, unlike RBC, did not go to the cake 16 When CM and RBC arrived home on January 17, 2013, after their cake tasting at 17 Sweetcakes, CM told LBC that AK had told them that Sweetcakes did "not do same-sex 18 17 19 The following is RBC's only testimony about her emotional suffering due to the denial of service after the case began to be publicized. It occurred during the Agency's redirect examination: 20 Q: "You testified earlier about the media attention being sort of a secondary layer of stress, and I believe that that term you used during Mr. Smith's cross examination of you. During my examination of you, you testified at length as to the emotional harm that you suffered directly from the refusal of service alone. Do you still feel that harm from the refusal itself -- the January 17, 2013 refusal?" 21 22 "* * * * * 23 A. "Yes, I still experience that." 24 Q. "Was the primary harm, the harm that resulted from the refusal of service itself, persistent throughout the times where you experienced media attention?" 25 "***** A. "Yes, the harm was still present during the media attention." FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -37 ER-100 1 weddings" and that AK had told CM that "your children are an abomination." LBC was 2 "flabbergasted" and she became very upset and very angry. LBC, who was raised as a 3 Roman Catholic, recognized AK's statement as a reference from Leviticus. She was 4 "shocked" to hear that AK had referred to her as an "abomination." 5 religious background, she understood the term "abomination" to mean "this is a creature 6 not created by God, not created with a soul. They are unworthy of holy love. They are 7 not worthy of life." Her immediate thought was that this never would have happened, 8 had she had not asked RBC to marry her. Because of that, she felt shame. Like RBC, 9 she also worried about how it would affect CM's relatively recent acceptance of RBC's 10 Based on her sexual orientation. 11 LBC views herself as RBC's protector. After RBC climbed into bed, crying, LBC 12 got into bed with RBC and tried to soothe her. 13 pushed RBC away. 14 things. RBC became even more upset and In response, LBC lost her temper because she could not "fix" 15 When LBC went back downstairs, E, the older of Complainants' foster daughters 16 was extremely agitated from events at school that day. LBC tried to calm her, but she 17 refused to be calmed, repeatedly calling out for RBC, with whom she had a special 18 bond. Eventually, E cried herself to sleep. LBC's inability to calm E was very frustrating 19 to her. That night, LBC was very upset, cried a lot, and was hurt and angry. Later that 20 same evening, she filed her DOJ complaint. 21 In the days immediately following January 17, 2013, LBC experienced anger, 22 outrage, embarrassment, exhaustion, frustration, sorrow, and shame as a reaction to 23 AK's denial of service. She felt sorrow because she couldn't console E, she could not 24 protect RBC, and because RBC was no longer sure she wanted to be married. Her 25 FINAL ORDER (Sweetcakes, 11#44-14 & 45-14) -38 ER-101 1 excitement about getting married was also lessened because she was not sure she 2 could protect RBC if any similar incidents occurred. Emotional suffering from publicity about the case 3 b. 4 On February 1, 2013, LBC went to the emergency room of a local hospital 5 because of pain from a shoulder injury that she had suffered three weeks earlier and 6 her concern that she might have a broken shoulder. 7 that AK's refusal to make their wedding cake was on the news. This made her very 8 upset and she was crying when she was examined by a doctor. Based on the media, 9 potential media exposure, and social media attention related to her DOJ complaint after 10 February 1, 2013, LBC's headaches increased. She also felt intimidated and became 11 fearful. While in the hospital, she heard 12 After LBC's DOJ complaint was publicized in the media, LBC also had an 13 "devastating" confrontation with her aunt who had learned about her DOJ complaint 14 against Respondents through the media and threatened to shoot LBC in the face if she 15 ever set foot on LBC's family's property again. 18 16 17 After February 1, 2013, LBC, like RBC, was also greatly concerned that their foster children would be taken away from them because of media exposure. 18 19 LBC testified that she still feels emotional effects from the denial of service because E, A, and RBC "were" still suffering and that "was" tearing me apart. 19 20 21 22 23 18 24 LBC's intense and visceral display of emotions while testifying about her aunt's behavior made it clear that her aunt's behavior caused her extreme upset. 19 25 See footnote 7, supra. LBC testified in the past tense. FINAL ORDER (Swee/cakes, ##44-14 & 45-14) - 39 ER-102 1 2. Emotional suffering damages based on media and social media attention 2 In its closing argument, the Agency asked the forum to award Complainants 3 $75,000 each in emotional suffering damages stemming directly from the denial of 4 service, In addition, the Agency asked the forum to award damages to Complainants for 5 emotional suffering they experienced as a result of the media and social media attention 6 generated by the case from January 29, 2013, the date AK posted LBC's DOJ 7 complaint on his Facebook page, up to the date of hearing. The Agency's theory of 8 liability is that since Respondents brought the case to the media's attention and kept it 9 there by repeatedly appearing in public to make statements deriding Complainants, it 10 was foreseeable that this attention would negatively impact Complainants, making 11 Respondents liable for any resultant emotional suffering experienced by Complainants. 12 The Agency also argues that Respondents are liable for negative third party social 13 media directed at Complainants because it was a foreseeable consequence of the 14 media attention. 15 The Commissioner concludes that complainants' emotional harm related to the 16 denial of service continued throughout the period of media attention and that the facts 17 related solely to emotional harm resulting from media attention do not adequately 18 support an award of damages. No further analysis regarding the media attention as a 19 causative factor is, therefore, necessary. 20 3. 21 22 Amount of Damages There is ample evidence in the record of specific, identifiable types of emotional suffering both Complainants experienced because of the denial of service. 23 In determining an award for emotional and mental suffering, the forum considers 24 the type of discriminatory conduct, and the duration, frequency, and severity of the 25 conduct. It also considers the type and duration of the mental distress and the FINAL ORDER (Swee/cakes, ##44-14 & 45-14) -40 ER-103 1 vulnerability of the aggrieved persons. The actual amount depends on the facts 2 presented by each aggrieved person. An aggrieved person's testimony, if believed, is 3 sufficient to support a claim for mental suffering damages. 4 Slaughters, Ltd., 26 BOLi 186, 196 (2005). 5 duration of the discrimination does not determine either the degree or duration of the 6 effects of discrimination." In the Matter of Westwind Group of Oregon, Inc., 17 BOLi 46, 7 53 (1998). In the Matter of C. C. In public accommodation cases, "the 8 In this case, the ALJ proposed that $75,000 and $60,000, are appropriate awards 9 to compensate Complainants RBC and LBC, respectively, for the emotional suffering 10 they experienced from Respondents' denial of service. The proposal for LBC is less 11 because she was not present at the denial and the ALJ found her testimony about the 12 extent and severity of her emotional suffering to be exaggerated in some respects. In 13 this particular case, the demeanor of the witnesses was critical in determining both the 14 sincerity and extent of the harm that was felt by RBC and LBC. As such, the 15 Commissioner defers to the ALJ's perception of the witnesses and evidence presented 16 at hearing and adopts the noneconomic award as proposed, finding also that this 17 noneconomic award is consistent with the forum's prior orders. 20 18 19 20 21 22 23 24 25 20 See, In the Matter of Andrew W. Engel, DMD, 32 BOLi 94 (2012) (Complainant, a Christian, subjected to harassment based on her religious belief including the job requirement of attending Scientology trainings suffered anxiety, stress, insomnia, gastrointestinal problems and weight loss requiring medical treatment awarded $350,000); In the Matter of From The Wilderness, lnc.,30 BOLi 227 (2009) (Complainant subjected to verbal and physical sexual harassment for two months before being fired and then retaliated against after termination suffered panic attacks requiring medical treatment awarded $125,000); In the Matter of Maltby Biocontrol, Inc., 33 BOLi 121 (2014) (Complainants subjected to racially hostile environment including assault, threats with a firearm, racial epithets and retaliation for reports to police suffered fear, sleeplessness and physical injuries requiring medical treatment awarded $50,000 and $100,000 each); In the Matter of Charles Edward Minor, 31 BOLi 88 (2010) (Complainant subjected to verbal and physical sexual harassment including respondent striking her in the head with his fist suffered anxiety, reclusiveness and fear awarded $50,000). FINAL ORDER (Sweetcakes,##44-14& 45-14) -41 ER-104 ORDER 1 A. 2 NOW, THEREFORE, as authorized by ORS 659A.850(4), and to eliminate 3 the effects of the violation of ORS 659A.403 by Respondent Aaron Klein, and as 4 payment of the damages awarded, the Commissioner of the Bureau of Labor and 5 Industries hereby orders Respondents Aaron Klein and Melissa Klein to deliver to 6 the Administrative Prosecution Unit of the Bureau of Labor and Industries, 1045 State 7 Office Building, 800 NE Oregon Street, Portland, Oregon 97232-2180, a certified check 8 payable to the Bureau of Labor and Industries in trust for Complainants Rachel 9 10 11 Bowman-Cryer and Laurel Bowman-Cryer in the amount of: 1) ONE HUNDRED THIRTY FIVE THOUSAND DOLLARS ($135,000), representing compensatory damages for emotional, mental and physical suffering, to be apportioned as follows: 12 Rachel Bowman-Cryer: $75,000 13 14 15 16 17 18 19 20 21 22 23 24 25 Laurel. Bowman-Cryer: $60,000 plus, 2) Interest at the legal rate on the sum of $135,000 from the date of issuance of the Final Order until Respondents comply with the requirements of the Order herein. B. NOW, THEREFORE, as authorized by ORS 659A.850(4), and to further eliminate the effect of the violation of ORS 659A.403 by Resp.ondent Aaron Klein, the Commissioner of the Bureau of Labor and Industries hereby orders Respondents Aaron Klein and Melissa Klein to cease and desist from denying the full and equal accommodations, advantages, facilities and privileges of Sweetcakes by Melissa to any person based on that person's sexual orientation. C. NOW, THEREFORE, as authorized by ORS 659A.850(4), and to further eliminate the effect of the violations of ORS 659A.409 by Respondents Aaron Klein and Melissa Klein, the Commissioner of the Bureau of Labor and Industries hereby FINAL ORDER (Swee/cakes, ##44-14 & 45-14) -42 ER-105 1 orders Respondents Aaron Klein and Melissa Klein to cease and desist from 2 publishing, circulating , issuing or displaying, or causing to be published, circulated, 3 issued or displayed , any communication , notice , advertisement or sign of any kind to the 4 effect that any of the accommodations, advantages , facilities, services or privileges of a 5 place of public accommodation will be refused, withheld from or denied to, or that any 6 discrimination will be made against, any person on account of sexual orientation. 7 8 9 DATED this 2 day of _....;;.. J,--= "'-/.___ y ___ 7 , 2015. 10 11 Brad Avakian, Commissioner Bureau of Labor and Industries 12 13 14 15 Issued ON: -- -~-- __,q;;;;;. ___; Jc.....,. /--=J._D _____. /.--=> __ _______ 16 17 18 19 20 21 22 23 24 25 FINAL ORDER (Sweetcakes, ##44- 14 & 45-14) - 43 _ ER-106 1 2 APPENDIX FINDINGS OF FACT - PROCEDURAL 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 1) On August 8, 2013, R. Bowman-Cryer ("RBC") filed a verified complaint with the Agency's Civil Rights Division ("CRD") alleging that Aaron Klein and Melissa Klein, dba Sweetcakes by Melissa, refused to make her a wedding cake based on her sexual orientation and published and displayed a communication to that effect, in violation of ORS 659A.403 and ORS 659A.409. RBC's complaint was subsequently amended to name both Kleins as aiders and abettors under ORS 659A.406. (Ex. A-27) 2) On November 7, 2013, L. Bowman-Cryer ("LBC") filed a verified complaint with the Agency's Civil Rights Division ("CRD") alleging that Aaron Klein ("AK") and Melissa Klein ("MK"), dba Sweetcakes by Melissa, refused to make her a wedding cake based on her sexual orientation and published and displayed a communication to that effect, in violation of ORS 659A.403 and ORS 659A.409. LBC's complaint was subsequently amended to name AK and MK as aiders and abettors under ORS 659A.406. (Ex. A-28) 3) On January 15, 2014, after investigating RBC's and LBC's complaints, the CRD issued a Notice of Substantial Evidence Determination in each case in which the CRD found substantial evidence of unlawful discrimination in public accommodation against Respondents in violation of ORS 659A.403, ORS 659A.406, and ORS 659A.409 (Ex. A29) 4) On June 4, 2014, the Agency issued two sets of Formal Charges, one alleging unlawful discrimination against RBC (case no. 44-14) and the other alleging unlawful discrimination against LBC (case no. 45-14) that alleged the following: (a) At all times material, Sweetcakes by Melissa ("Sweetcakes") was an assumed business name of Respondent MK doing business in Gresham, Oregon, that offered goods and services to the public, including wedding cakes; (b) At all times material, AK was registered with the Oregon Sec. of State Business Registry as the authorized representative of MK, dba Sweetcakes by Melissa; 21 (c) On January 17, 2013, RBC and her mother went to Sweetcakes for a cake tasting related to RBC's wedding ceremony to LBC; 22 24 (d) AK conducted the tasting and asked for the names of a bride and groom. RBC said there would be two brides for her ceremony and gave her name and LBC's name. AK told RBC that Sweetcakes did not do "same-sex couples" because it "goes against our religion"; 25 (e) Complainants were injured by Respondents' refusal to provide them with a wedding cake; 23 FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -44 ER-107 1 (f) MK discriminated against Complainants based on their sexual orientation, in violation of ORS 659A.403(3) and ORS 659.409; 2 (g) AK aided or abetted MK as the owner of Sweetcakes in MK's violation of ORS 659A.403(3) and ORS 659.409; thereby violating ORS 659A.406; 3 (h) Complainants are each entitled to damages for emotional, mental, and physical suffering in the amount of "at least $75,000" and out-of-pocket expenses "to be proven at hearing." 4 5 (i) Respondents published or issued a communication, notice that its accommodation, advantages would be refused, withheld from or denied to, or that discrimination would be made against, a person on account of his or her sexual orientation, in violation of ORS 659A.409. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 On the same day, BOLi's Contested Case Coordinator issued Notices of Hearing in both cases stating the time and place of the hearing as August 5, 2014, beginning at 9:00 a.m., at BOLi's Portland, Oregon office. (Exs. X2, X4) 4) On June 6, 2014, Respondents filed a motion to postpone the hearing because Respondent's attorney Herbert Grey had "pre-paid non-refundable vacation plans" during the time scheduled for hearing. The forum granted Respondents' motion. (Ex. X5) 5) On June 18, 2014, Respondents, through attorneys Grey, Tyler Smith, and Anna Adams, filed an "Election to Remove to Circuit Court (ORS 659A.870(4)(b))" and "Alternative Motion to Disqualify BOLi Commissioner Brad Avakian" from deciding issues in these cases. Respondents requested oral argument on both issues. On June 25, 2014, the Agency filed objections to Respondents' motions. On June 26, 2014, the ALJ denied Respondents' request for oral argument. (Exs. XS, X11) 6) On June 19, 2014, the ALJ held a prehearing conference and rescheduled the hearing to start on October 6, 2014. The ALJ also consolidated the cases for hearing. (Ex. X7) 7) On June 24, 2014, Respondents timely filed an answer and response to both sets of Formal Charges. Respondent admitted that AK had declined RBC's request to design and provide a cake for Complainants' same-sex ceremony but denied that any unlawful discrimination occurred. Respondents raised numerous affirmative defenses, including: • The Formal Charges fail to state ultimate facts sufficient to constitute a claim. • Because the Oregon Constitution did not provide for or recognize same-sex unions in January 2013 and the state of Oregon did not issue marriage licenses to same-sex couples at that time, BOLi lacks "any legitimate authority to compel Respondents to engage in creative expression or otherwise participate in samesex ceremonies not recognized by the state of Oregon contrary to their fundamental rights, consciences and convictions." FINAL ORDER (Swee/cakes, ##44-14 & 45-14) -45 ER-108 1 • BOLi is estopped from compelling Respondents to engage in free expression or otherwise participate in same-sex ceremonies not recognized by the state of Oregon contrary to their fundamental rights, consciences and convictions. • The statutes underlying the Formal Charges are unconstitutional as applied to Respondents to the extent they do not protect the fundamental rights of Respondents and persons similarly situated arising under the First and Fourteenth Amendments to the United States Constitution, as applied to the state of Oregon under the Fourteenth Amendment, in one or more of the following particulars, by unlawfully: (a) infringing on Respondents' right of conscience; (b) infringing on Respondents' right to free exercise of religion; (c) infringing on Respondents' right to free speech; (d) compelling Respondents to engage in expression of a message they do not want to express; (e) denying Respondents' right to due process; and (f) denying Respondents the equal protection of the laws. • The statutes underlying the Formal Charges, as applied, violate Respondents fundamental rights arising under the Oregon Constitution in one or more of the following particulars, by unlawfully: (a) violating Respondents' freedom of worship and conscience under Article I, §2; (b) violating Respondents' freedom of religious opinion under Article I, §3; (c) violating Respondents' freedom of speech under Article I, §8; (d) compelling Respondents to engage in expression of a message they did not want to express; (e) violating Respondents' privileges and immunities under Article I, §20; and (f) violating Article XV, §3. • The statutes underlying the Formal Charges are facially unconstitutional in that they violate Respondents' fundamental rights arising under the Oregon Constitution to the extent there is no religious exemption to protect or acknowledge the fundamental rights of Respondents and persons similarly situated. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Respondents also raised four Counterclaims, including: • Respondents are entitled to costs and attorney fees if they are determined to be the prevailing party. • The State of Oregon, acting by and through BOLi, has knowingly and selectively acted under color of state law to deprive Respondents of their fundamental constitutional and statutory rights in the basis of religion without taking similar action against county clerks and other state of Oregon officials similarly denying same-sex couples goods and services related to same-sex unions, disparately impacting Respondents, causing economic damages to Respondents in an amount not less than $100,000. BOLi has knowingly and selectively acted under color of state law to deprive Respondents of their fundamental constitutional and statutory rights in the basis of religion without taking similar action against county 20 21 22 23 24 25 FINAL ORDER (Swee/cakes, ##44-14 & 45-14) -46 ER-109 clerks and other state of Oregon officials similarly denying same-sex couples goods and services related to same-sex unions, disparately impacting Respondents and causing economic damages to Respondents in an amount not less than $100,000. 1 2 3 • During the period from February 5, 2013 to the present, BOLi's Commissioner published, circulated, issued, displayed, or cause to be published, circulated, issued, displayed, communications on Facebook and in print media to the effect that its accommodations, advantages, facilities, services or privileges would be refused, withheld from or denied to, or that discrimination would be made against Respondents and other persons similarly situated on the basis of religion in violation of ORS 659A.409. • Under 42 USC§ 1983, BOLi is liable to Respondents for depriving Respondents of their rights and protections guaranteed by the United States Constitution "under color of any statute, ordinance, regulation, custom or usage of any State." 4 5 6 7 8 9 10 11 (Ex. X1 O) 8) On July 2, 2014, the ALJ issued an interim order ruling on Respondents' June 18, 2014, motions. That order is reprinted below in pertinent part.21 12 "Respondents' Putative Election to Circuit Court 13 "Respondents assert that they have a 'unqualified right to have these matters removed to the circuit court of either Clackamas, Marion or Multnomah Counties pursuant to ORS 659A.870(4)(b).' ORS 659A.870(4)(b) provides, in pertinent part: 14 15 16 '(b) A respondent or complainant named in a complaint filed under ORS 659A.820 or 659A.825 alleging an unlawful practice under ORS 659A.145 or 659A.421 or discrimination under federal housing law may elect to have the matter heard in circuit court under ORS 659A.885. The election must be made in writing and received by the commissioner within 20 days after service of formal charges under ORS 659A.845. If the respondent or the complainant makes the election, the commissioner shall pursue the matter in court on behalf of the complainant at no cost to the complainant.' 17 18 19 20 21 "To establish jurisdiction, the Agency's Formal Charges each allege: (1) both cases originated as verified complaints filed by Complainants Rachel Cryer and Laurel Bowman-Cryer; (2) both Complainants were authorized to file their complaints under the provisions of ORS 659A.820; and (3) that the Agency 22 23 24 25 21 Footnotes from this interim order and other interim orders quoted at length in the Proposed Findings of Fact - Procedural that are not critical to an understanding of the order have been deleted. The deletions are indicated by a "A" symbol. FINAL ORDER (Sweetcakes, ##44-14 & 45-14)-47 ER-110 1 2 3 4 5 issued a Notice of Substantial Evidence Determination in both cases. Respondents deny that they engaged in discrimination based on sexual orientation or any other grounds set forth in ORS chapter 659A but do not dispute these jurisdictional allegations. Accordingly, the forum concludes that respondents were named in a complaint filed under ORS 659A.820. Under ORS 659A.870(4}(b}, if the Formal Charges allege an unlawful practice under ORS 659A.145 or 659A.421 or discrimination under federal housing law, Respondents are entitled to elect to have the matter heard in circuit court under ORS 659A.885, subject to the. requirement that such election must be made in writing within 20 days of service of the Formal Charges. 6 7 8 9 10 11 "ORS 659A.145 is titled 'Discrimination against individual with disability in real property transactions prohibited; advertising discriminatory preference prohibited; allowance for reasonable modification; assisting discriminatory practices prohibited.' As indicated by its title, the provisions of ORS 659A.145 are exclusively limited to real property transactions involving people with disabilities. ORS 659A.421 is titled 'Discrimination in selling, renting or leasing real property prohibited' and prohibits discrimination in real property transactions based on the race, color, religion, sex, sexual orientation, national origin, marital status, familial status or source of income of any person. 12 13 14 15 16 17 "In contrast, these cases allege violations of ORS 659A.403(3), ORS 659A.406, and ORS 659A.409. All three of these statutes appear in a section of ORS chapter 659A titled 'ACCESS TO PUBLIC ACCOMMODATIONS' that includes ORS 659A.400 to ORS 659A.415. Neither of the Formal Charges contains any allegations related to discrimination under federal housing law or discrimination based on real property transactions. Rather, the Formal Charges both identify Respondent Melissa Klein's business as a 'place of public accommodation' and allege that Respondent Melissa Klein's business, as a public accommodation, discriminated against Complainants based on their sexual orientation. 18 19 20 21 22 23 24 25 "Since the Formal Charges do not allege an unlawful practice under ORS 659A.145 or 659A.421 or discrimination under federal housing law, they are not subject to the provisions of ORS 659A.870(4}(b} and Respondents have no statutory right to elect to have the matter heard in circuit court. "MOTION TO DISQUALIFY BOLi COMMISSIONER AVAKIAN BASED ON AVAKIAN'S ACTUAL BIAS "Respondents ask that Commissioner Avakian be disqualified from deciding the issues presented in the Formal Charges because he has 'publicly demonstrated actual bias against Respondents and others similarly situated, both as a candidate for re-election and as Commissioner.' Based on that alleged actual bias, Respondents contend that the Commissioner's fulfillment of his statutory role by deciding and issuing a Final Order in these cases will deprive FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -48 ER-111 Respondents of due process and other constitutional rights. Respondents concede that BOLi administrative rules OAR 839-050-000 et seq contain no provision related to the disqualification of a BOLi Commissioner deciding and issuing a Final Order. However, both Respondents and the Agency acknowledge that procedural due process requires a decision maker free of actual biasA and that Respondents have the burden of showing that bias. See Teledyne Wah Chang v. Energy Facility Siting Council, 298 Or 240, 262 (1985), citing Boughan v. Board of Engineering Examiners, 46 Or App 287, 611 P.2d 670, rev den 289 Or 588 (1980). 1 2 3 4 5 6 "To show the Commissioner's actual bias and demonstrate that he has already pre-judged this case, Respondents submitted exhibits containing numerous copies of statements made by Commissioner Avakian to the media, in e-mails sent to Respondents' attorney Herb Grey, or on Facebook posts during the Commissioner's candidacy for re-election and as Commissioner. Summarized, those exhibits include the following statements: 7 8 9 "E-Mails sent to Respondents' attorney Herb Grey by 'Avakian for Labor Commissioner' 10 11 • 12 13 14 15 • 16 • 17 18 • 19 20 21 • • 22 23 24 25 • "February 16, 2013, in which the Commissioner identified himself as 'Oregon's chief civil rights enforcer,' and (1) noting his effort to convince the Veterans Affairs Department to grant a waiver to retired Air Force Lt. Col. Linda Campbell and her spouse, Nancy Campbell, making them the 'first same-sex couple to receive equal military burial rights' and endorsing the 'Oregonians United for Marriage*** campaign to bring full marriage equality to Oregon.' "April 4, 2013, again noting the Commissioner's efforts on behalf of Linda Campbell, and quoting the comments made by Campbell on the steps of the U.S. Supreme Court a week earlier during the debate on marriage equality. "December 10, 2013, in which Commissioner Avakian urged Grey to co-sign his letter to House Speaker Jon Boehner to bring the Employment NonDiscrimination Act up for a vote. "December 19, 2013, in which Commissioner Avakian notes his 'progressive' priorities and states '[t]hat's why I defend public education, take on unlawful discrimination, and stand up for equal rights for every last Oregonian.' "January 10, 2014, in which Commissioner Avakian stated '[a]t the Bureau of Labor and Industries, it's my job to protect rights of Oregonians in the workplace* * * and protect everyone's civil rights in housing and public accommodations.' "March 4, 2014, in which Commissioner Avakian stated: 'I believe in an Oregon where everyone has the opportunity to get married, raise a family and get ahead. Gay or straight, male or female, white, black, or brown -- everyone deserves an equal shot at making it in Oregon. That's why I will continue to fight for marriage equality, a woman's right to choose, better wages, and robust non-discrimination laws that protect gays and lesbians.' "March 12, 2014, in which Commissioner Avakian noted that no one filed to run against him as Labor Commissioner and stated, among other things: 'We built a FINAL ORDER (Sweetcakes, ##44-14 & 45-14)-49 ER-112 1 2 3 • 4 5 6 7 8 9 10 11 12 13 14 "Independent Media • 15 16 17 19 20 21 "Facebook Posts on Commissioner Avakian's Facebook Page 22 24 25 "August 14, 2013, Oregonian article written by Maxine Bernstein entitled 'Lesbian couple refused wedding cake files state discrimination complaint' that contains quotes by Complainant Cryer, Respondent Melissa Klein, and Commissioner Avakian. Commissioner Avakian was quoted as follows: 'We are committed to a fair and thorough investigation to determine whether there is substantial evidence of unlawful discrimination,' said Labor Commissioner Brad Avakian. 'Everybody's entitled to their own beliefs, but that doesn't mean that folks have the right to discriminate,' Avakian said, speaking generally. 'The goal is never to shut down a business. The goal is to rehabilitate,' Avakian said. 'For those who do violate the law, we want them to learn from that experience and have a good, successful business in Oregon.' 18 23 coalition of civil rights champions, business leaders, educators, working families and labor leaders, and many, many more. Just think - it wasn't very long ago that right-wing activists were calling for my head because of our strong support for civil rights and equality laws in Oregon.' "May 19, 2014, in which Commissioner Avakian stated: 'A few minutes ago, we received word that all Oregonians, including same-sex couples, will now have the freedom to marry the person they love. As many had hoped, our federal court ruled Oregon's ban on same-sex marriage unconstitutional under the United States Constitution. This is an important moment in our state's history. The ruling also reflects what so many others have felt all along -- that Oregonians always eventually open their hearts to equality and freedom. The victory is a testament to the strength and energy of so many who dedicated themselves to making our laws match our highest ideals. Thank you. The win comes after news earlier this month that the Oregon Family Council has abandoned its campaign for a ballot measure to allow corporations to discriminate against loving same-sex couples. As a result, Oregon's law will continue to say that no corporation can deny service, housing or employment based on sexual orientation or gender identity. And as always, I will continue to hold those responsible that violate the rights of Oregonians and enthusiastically support those that go the extra mile for fairness. Here's to two significant victories that expand freedom for Oregonians - and the incredible efforts by friends and neighbors that made today possible. It's been a remarkable journey.' • "April 26, 2012: 'Today, Basic Rights Oregon honored me with the 2012 Equality Advocate Award. I appreciate this recognition, but I am far more appreciative of all the efforts and accomplishments that BRO has made for Oregon's LGBT community. Thank you for including me in the incredible work that you do.' FINAL ORDER (Swee/cakes, ##44-14 & 45-14) - 50 ER-113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 • "February 15, 2013, with the same text included in February 16, 2013, e-mail to Herb Grey. • "February 5, 2013, with a link to 'Ace of Cakes offers free wedding cake for Ore. gay couple www.kqw.com:' 'Everyone has a right to their religious beliefs, but that doesn't mean they can disobey laws already in place. Having one set of rules for everybody assures that people are treated fairly as they go about their daily lives. The Oregon Department of Justice is looking into a complaint that a Gresham bakery refused to make a wedding cake for a same-sex marriage. It started when a mother and daughter showed up at Sweet Cakes by Melissa looking for a wedding cake.' • "March 13, 2013: 'Tomorrow morning, I'll be testifying before the U.S. Senate about Oregon Lt. Col. Linda Campbell; she made history when she was the first person to ever get approval to bury her same-sex spouse in a national cemetery .. .' • "March 22, 2013, with a link to 'Speakers announced for marriage equality rally in D.C.-Breaking News-Wisconsin Gazette - Lesbian www.wisconsingazette.com:' 'Thrilled to see Lt. Col. Linda Campbell among the headliners for next week's rally in front of the U.S. Supreme Court. LIKE this status if you support marriage equality for all loving, caring couples.' • "March 26, 2013: 'Our country is on a journey of understanding. As more and more people talk to gay and lesbian friends and family about why marriage matters, they're coming to realize that this is not a political issue. This is about love, commitment and family. I'll be joining Oregon United for Marriage for a rally at the Mark 0. Hatfield Courthouse in downtown Portland at 5pm. Join us!' • "June 8, 2013: 'Proud to support Sen. Jeff Merkley's fight for the NonDiscrimination Act in Congress. All Americans deserve a fair shot at a good job and the opportunity for a better life. - at Q Center.' • "June 26, 2013: 'Huge day for equality across America! In a few minutes, I'm heading to a celebration rally with Oregon United for Marriage at Terry Schrunk Plaza in downtown Portland - see you there?' • "March 27, 2013: Link to Commissioner Avakian speaking 'on the importance of people gathering in front of the Hatfield Courthouse on the day the Supreme Court heard arguments on Prop. 8.' and statement 'I just got off the phone with Lt. Col. Linda Campbell, who said that the crowd in front of the Supreme Court was awesome and absolutely electric.' • "May 9, 2013, with a link to 'Victory! Discrimination measure Withdrawn - Oregon United for Marriage:' 'Really great news. It's also a tribute to the fact that Oregonians are fundamentally fair and have little stomach for such a needlessly divisive fight.' • "March 12, 2014, shared link: 'Conservative Christian group's call for Labor Commissioner Brad Avakian's ouster falls flat. www.oregonlive.com. Oregon Labor Commissioner Brad Avakian, despite criticism of his enforcement action against a Gresham bakery that refused to serve a lesbian wedding, wound up with no opponent in this year's election.' • "May 19, 2014: 'Today's victory is a testament to the strength and energy of so many who dedicated themselves to making our laws match our highest ideals. If FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -51 ER-114 you've talk to your neighbors, collected signatures, or attended a marriage rally, you've played an important role in Oregon's story. Thank you -- and congratulations!' 1 2 "Summarized, these exhibits fall into two categories: (1) the Commissioner's e-mails and Facebook posts generally opposing discrimination against gays and lesbians and advocating the legality of same-sex marriage in Oregon and not addressed to these cases; and (2) remarks specific to the present cases. The vast majority of exhibits fall into the first category. Only two exhibits fall into the second category-- the Commissioner's February 5, 2013, Facebook post and the August 14, 2013, Oregonian article. 3 4 5 6 7 "ORS chapter 659A contains Oregon's anti-discrimination laws related to employment, public accommodations, and real property transactions and delegates the enforcement of those laws to BOLi's Commissioner. The Legislature's purpose in adopting the provisions of ORS chapter 659A is set out in ORS 659A.003. In pertinent part, ORS 659A.003 provides that: 8 9 10 'The purpose of this chapter is * * * to ensure the human dignity of all people within this state and protect their health, safety and morals from the consequences of intergroup hostility, tensions and practices of unlawful discrimination of any kind based on race, color, religion, sex, sexual orientation, national origin, marital status, age, disability or familial status.' 11 12 13 14 "ORS 651.030(1) provides that '[t]he Bureau of Labor and Industries shall be under the control of the Commissioner of the Bureau of Labor and Industries * * *.' As such, BOLi's Commissioner has the duty to see that the stated purpose of ORS chapter 659A is carried out. In addition to enforcing the various statutes contained in that chapter through the administrative process created by the Legislature,A 22 the Commissioner's duties include, among other things, initiating programs of 'public education calculated to eliminate attitudes upon which practices of unlawful discrimination because of * * * sexual orientation * * * are based.'A In short, the Commissioner has been instructed by the Legislature itself to raise public awareness about practices that the Legislature has declared to be unlawful discrimination in ORS chapter 659A. The forum finds that all of the Commissioner's remarks contained in the first category - remarks generally opposing discrimination against gays and lesbians and advocating the legality of same-sex marriage in Oregon - fall within the scope of this particular job duty. As more articulately stated by the Agency in its objections, '[n]one of this material is inconsistent with the exercise of the commissioner's statutory obligations as an elected official.' 15 16 17 18 19 20 21 22 23 24 25 22 See footnote 21. FINAL ORDER (Swee/cakes, ##44-14 & 45-14) -52 ER-115 1 2 3 4 5 6 7 8 9 10 11 "The forum next examines the two exhibits that fall within the second category that contain remarks specific to the present cases - the Commissioner's February 5, 2013, Facebook post and the August 14, 2013, Oregonian article. The Commissioner's February 5, 2013, Facebook post contains the following content, consisting of a link to 'Ace of Cakes offers free wedding cake for Ore. gay couple www.kqw.com' and the following remark by the Commissioner that Respondents contend shows actual bias: 'Everyone has a right to their religious beliefs, but that doesn't mean they can disobey laws already in place. Having one set of rules for everybody assures that people are treated fairly as they go about their daily lives. The Oregon Department of Justice is looking into a complaint that a Gresham bakery refused to make a wedding cake for a same-sex marriage. It started when a mother and daughter showed up at Sweet Cakes by Melissa looking for a wedding cake.' "The Oregonian article, printed six days after the two Complainants filed their complaints with BOLi's CRD, contains two remarks attributed to the Commissioner that Respondents contend demonstrate his actual bias against Respondents. Those remarks are: 12 • 13 • 14 15 16 17 18 19 20 21 22 23 24 25 '"Everyone is entitled to their own beliefs, but that doesn't mean that folks have the right to discriminate," Avakian said, speaking generally.' "'The goal is never to shut down a business. The goal is to rehabilitate," Avakian said. "For those who do violate the law, we want them to learn from that experience and have a good, successful business in Oregon."' "In Samuel v. Board of Chiropractic Examiners, 77 Or App 53, 712 P2d 132 (1985), Samuel, a chiropractor, had his chiropractor's license suspended and his right to perform minor surgery permanently revoked by the Board of Chiropractic Examiners after he performed a vasectomy on a patient. The issue before the Board was whether Samuels had exceeded the scope of his license by performing 'major' surgery, whereas chiropractors are only allowed to perform 'minor' surgery. In their decision, the Oregon Court of Appeals, after determining that a vasectomy was 'major' surgery, considered whether the Board's decision should be overturned based on the alleged bias of two members of the Board, Bolin and Camerer, who participated in the disciplinary hearing and resulting decision to suspend Samuels. Prior to Samuels's hearing, Bolin opined that a vasectomy was not minor surgery. The Court, citing Trade Comm'n v. Cement Institute, 333 U.S. 683 (1948), held that Bolin's expression of opinion, which the Court characterized as 'a preconceived point of view concerning an issue of law' -- was 'not an independent basis for disqualification' of Bolin. Camerer, in contrast, met with four chiropractors at a restaurant, brought the Board's file on Samuels, and allowed the other chiropractors to examine it. Prior to the Board's suspension decision, Samuels sought censure against Camerer and sued Camerer for disclosing the contents of the file. The Court held: FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -53 ER-116 1 'As a defendant in the lawsuit which arose out of the very matter pending before the Board, Camerer may have harbored some animosity towards [Samuels]. The possibility of personal animosity and the appearance of a substantial basis for bias is sufficient that, under the circumstances, he should have disqualified himself.' 2 3 4 11 "To show that the Commissioner has prejudged the cases before the Forum, Respondents quote the Commissioner's two 'second category' statements as follows: 'Respondents are "disobey[ing] laws" and need to be "rehabilitated.'" However, this 'quote' combines selected portions of remarks made at two different times and misquotes the latter. Respondents seek to create an inference of bias that cannot reasonably be drawn from Respondents' exhibits as a whole. The Forum finds that the accurately quoted 'second category' remarks, while made in the context of Respondents' alleged discriminatory actions and the Complainants' complaints, are remarks reflecting the Commissioner's attitude generally about enforcing Oregon's antidiscrimination laws and, at most, show 'a preconceived point of view concerning an issue of law' that, under Samuels, is not a basis for disqualification due to bias. 12 "RESPONDENTS' ADDITIONAL ARGUMENTS 13 "In addition to their 'actual bias' argument, Respondents contend that the Commissioner should be disqualified for two other reasons: (1) The Commissioner's participation as a decision maker in these cases would violate the policy expressed in ORS 244.010 regarding ethical standards for public officials because of his conflict of interest; and (2) His participation as a decision maker in these cases would violate Oregon Rules of Professional Conduct (ORPC) 3.6 related to lawyers making public statements about matters in litigation 23 and Oregon's Code of Judicial Ethics.A 5 6 7 8 9 10 14 15 16 17 18 "Ethical Standards for Public Officials - ORS chapter 244 & Conflict of Interest 19 "Respondents contend that the Commissioner's actual bias and conflict of interest demonstrate a partiality towards these cases that requires the Commissioner to disqualify himself from this case. As noted earlier, Respondents have not demonstrated actual bias on the Commissioner's part. Respondents assert that, under ORS chapter 244, 'the state of Oregon and its respective agencies, including BOLi, cannot ethically sit in judgment of Respondents for conduct of which it may be legally culpable,' and cite the 20 21 22 23 24 25 23 Commissioner Avakian is an attorney and a member of the Oregon State Bar. FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -54 ER-117 1 2 3 4 5 6 7 8 9 following 'multiple conflicts of interest on the part of the Commissioner and BOLi as grounds for disqualification: '( 1) [T]he Oregon Constitution and ORS 659A.003, et seq, not to mention the U.S. Constitution, require BOLi to respect and protect Respondents' constitutionally-protected religion, conscience and speech rights to an even greater degree than it does complainants' statutory rights; and '(2) [T]he State of Oregon, including BOLi itself, has potential legal liability as a place of public accommodation under ORS 659A.400(1)(b) and (c) because, at the time of the original defense and the filing of complaints by complainants, the state of Oregon itself refused to recognize same sex marriage relationships, just as Respondents have chosen not to participate in complainants' same-sex ceremony.' "'Conflict of interest"' is defined under ORS chapter 244 in ORS 244.020: 13 '(1) "Actual conflict of interest" means any action or any decision or recommendation by a person acting in a capacity as a public official, the effect of which would be to the private pecuniary benefit or detriment of the person or the person's relative or any business with which the person or a relative of the person is associated unless the pecuniary benefit or detriment arises out of circumstances described in subsection (12) of this section. 14 '* 10 11 12 15 16 17 **** '(12) "Potential conflict of interest" means any action or any decision or recommendation by a person acting in a capacity as a public official, the effect of which could be to the private pecuniary benefit or detriment of the person or the person's relative, or a business with which the person or the person's relative is associated[.]' 18 19 20 21 "Respondents identify no conflict of interest by the Commissioner based on a pecuniary benefit or detriment that fits within these definitions. As noted by the Agency in its response, the Oregon Government Ethics Commission, not the Administrative Law Judge, is responsible for determining the Commissioner's ethical obligations under ORS chapter 244. ORS 244.250 et seq. 22 "ORPC & Canons of Judicial Ethics 23 "The Administrative Law Judge does not have the authority to enforce the ORPC or Code of Judicial Ethics. However, I note that Respondents have not shown that any of Commissioner Avakian's remarks contained in Respondents' exhibits 'will have a substantial likelihood of materially prejudicing' this contested case proceeding. ORPC 3.6. The Code of Judicial Ethics does not apply to the 24 25 FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -55 ER-118 Commissioner because he is not 'an officer of a judicial system performing judicial functions.' 24 1 2 "Conclusion 3 "Respondents' motion to disqualify Commissioner Avakian from deciding the issues presented in the Formal Charges and issuing a Final Order is DENIED." 4 5 (Ex. X12) 6 7 8 9 10 11 9) On August 13, 2014, the ALJ issued an interim order that reset the hearing to begin on October 6, 2013, noting that the Agency and Respondents had both stated in an earlier prehearing conference it might take up to a week to complete the hearing. The same day, the ALJ issued an interim order requiring case summaries and setting a filing deadline of September 22, 2014. (Ex. X14 ) 10) On August 25, 2014, Respondents moved to postpone the hearing based on Respondents' prescheduled plans to be out of town on October 6, 2014. The Agency did not object and the ALJ reset the hearing to begin on October 7, 2014. (Ex. X17,X18) 12 13 14 15 16 17 18 19 20 21 22 11) On September 4, 2014, Respondents filed motions to depose Complainants and Cheryl McPherson and for a discovery order related to the Agency's objections to Respondents' informal discovery request for admissions, interrogatory responses, and documents. The Agency filed timely objections to both motions. (Exs. X20 through X24) 12) On September 11, 2014, the Agency moved for a discovery order for the production of four types of documents. (Ex. X25 ) 13) On September 15, 2014, Respondents filed a motion for summary judgment "on each or all of the claims asserted against them." (Ex. X26) 14) On September 16, 2014, the Agency moved for a Protective Order regarding Complainants' medical records both informally requested by Respondents and in Respondents' motion for a discovery order. The Agency attached five pages of medical records related to LBC and asked that the forum conduct an in camera inspection "to determine what, if any, of the information contained within these records is relevant or calculated to lead to the discovery of admissible evidence and must be turned over to Respondents." After conducting an in camera review, the ALJ made 23 24 25 24 See ORS 1.210- "Judicial officer defined. A judicial officer is a person authorized to act as a judge in a court of justice." BOLi does not operate a "court of justice," but is an administrative agency whose contested case proceedings are regulated by the Administrative Procedures Act, ORS 183.411 to ORS 183.470. FINAL ORDER (Sweetcakes, ##44-14 & 45-14)-56 ER-119 1 2 3 4 5 minor redactions unrelated to LBC's medical diagnosis and released the records to Respondents, accompanied by a Protective Order. (Exs. X27, X44 ) 15) The ALJ held a prehearing conference on September 18, 2014. After the conference, the ALJ issued an interim order summarizing his oral rulings, including his decision to postpone the hearing to give him time to rule on Respondents' motion for summary judgment before the hearing began. (Ex. X32) 16) On September 24, 2014, the Agency filed Amended Formal Charges in both cases. (Ex. X38) 6 7 8 17) On September 25, 2014, the ALJ issued an interim order ruling on Respondents' motion for a discovery order for documents, interrogatory responses, and admissions. In pertinent part, the ruling read: 17 "As an initial matter, the Agency argues that Complainants are not subject to discovery rules under OAR 839-050-0020 because they are not 'parties' and therefore are not 'participants' under OAR 839-050-0200( 1). In numerous prior cases with the forum * * * a respondent has been allowed to request a discovery order to obtain documents and information from a complainant through the Agency that are discoverable under OAR 839-050-0020(7). See In the Matter of To/tee, 8 BOLi at 152 (noting that although the complainant was not a party, complainant still was 'a compellable witness' and the Agency was ordered to produce evidence over which it had power or authority). See also In the Matter of Columbia Components, Inc., 32 BOLi 257, 259-61 (2013)(requiring complainant to verify that the interrogatory responses were true, and that complainant respond to a specific interrogatory request to which the Agency had objected); In the Matter of Dr. Andrew Engel, DMD, PC, 32 BOLi 94, 100 (2012) (requiring the Agency to produce any documents responsive to respondents' requests that appeared reasonably likely to produce information generally relevant to the case, including complainant's tax returns for relevant years). 18 A. 9 10 11 12 13 14 15 16 19 "Interrogatories 21 "Respondents requested an order requiring the Agency to fully respond to four separate interrogatories. To the extent this order requires Complainants. through the Agency. to respond to the interrogatories. Complainants must sign them under oath as required by OAR 839-050-0200(6). 22 "Interrogatory No. 7 23 "Respondents requested that the Agency explain in detail the nature of the physical harm Complainants allege in the Formal Charges ('Charges'). The Agency responded that both Complainants experienced 'varying physical manifestations of stress' and that '[a]ny further medical information will be provided pursuant to a protective order.' I agree that Respondents are entitled to 20 24 25 FINAL ORDER (Swee/cakes, ##44-14 & 45-14) - 57 ER-120 1 2 know more specifically what physical damages have been allegedly sustained. I order the Agency to have Complainants, through the Agency, respond to this interrogatory. 3 "Interrogatory No. 8 4 "Respondents requested an explanation 'in detail [of] the nature of the mental harm Complainants alleged resulted from the events alleged in the Complaint.' The Agency objected on the grounds that the request was redundant and vague, as it was unclear how the interrogatory differed from the interrogatory asking for information as to emotional harm allegedly suffered by Complainants. In its response to the motion, the Agency 'stipulates' that 'emotional, mental' suffering is any suffering not attributed to physical suffering, and that information was provided in response to Interrogatory No. 6. Based on the Agency's stipulation that 'emotional [and] mental' suffering are the same, the response to this Interrogatory appears to be sufficient and, therefore, I DENY Respondents' request for additional information in response to this interrogatory. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 '1nterrogatory No. 11 "This interrogatory also relates to damages. With this interrogatory, Respondents requested an explanation as to the actions taken by Complainants to remove their public social media profiles after a complaint was filed with the Department of Justice on January 18, 2013. The Agency objected on the basis of relevancy. Respondents assert that this request is relevant because '[m]uch, if not all of the damage Complainants have alleged to this point revolve around the media attention they received as a result of Complainant Laurel Bowman-Cryer's filing a Complaint with the Department of Justice.' Respondents further assert that Complainants have told Respondents they had to travel out of town because of attention and publicity. Respondents claim that the removal of social media profiles is relevant to the assessment of damages or mitigation of damages. In its response to the motion, the Agency reiterates its objection on the basis of relevance, but does not directly address the arguments made in Respondents' motion as to damages allegedly caused by publicity and media attention. On September 22, 2014, the Agency timely filed a statement addressing this issue. In pertinent part, the Agency stated: "Respondents caused substantial harm to Complainants, in part, through their intentional posting of the Department of Justice complaint on their social media website, which included Complainants' home address. This affected Complainants by exposing them to unwanted and, sometimes, unnerving contact from the public. * * * Complainants have had little to no contact with media, except through their attorney Mr. Paul Thompson. * * * The agency's position is that Complainants' damages were a direct result of Respondents intentionally posting the DOJ complaint on the Internet." FINAL ORDER (Sweetcakes, ##44-14 & 45-14)-58 ER-121 1 2 3 4 Based on the information and representations before me, I am unable to determine at this time if Interrogatory No. 11 is 'reasonably likely to produce information that is generally relevant to the case.' Therefore, the Agency is not required to respond to this interrogatory. If Respondents establish the relevance of this interrogatory in their depositions of Complainants, Respondents may renew their motion for a discovery order regarding this interrogatory. "Interrogatory No. 12 5 6 7 8 9 10 11 "Respondents have requested an explanation 'in detail [of] any involvement or communication Complainants had with any group involved in boycotting Respondents' business.' The Agency objected on the basis of relevance, over breadth, and because the requested information is outside the possession or control of the agency. As to relevancy, I view this request as similar to Interrogatory No. 11. Based on the information and representations before me, I am unable to determine at this time if Interrogatory No. 12 is reasonably likely to produce information that is generally relevant to the case. Therefore, the Agency is not required to respond to this interrogatory. If Respondents establish the relevance of this interrogatory in their depositions of Complainants, Respondents may renew their motion for a discovery order regarding this interrogatory. 12 13 "B. Production of Documents 14 "* 15 "Request No. 2 16 "Respondents requested a copy of records 'in the Agency's possession' as to the state policy in January of 2013 for issuing marriage licenses to same sex couples. The Agency objected on the basis of relevance and also states that such documents are not within the possession or control of the Agency. Respondents claim such documents are relevant to show whether the "Agency is aware" that same sex marriage was not recognized in Oregon at the time of the acts in question in this case. I deny Respondents' motion because (1) the Agency's awareness of the status of same sex marriage in Oregon is not likely to lead to relevant evidenceA; (2) the same sex marriage laws in Oregon are a matter of public record; and (3) the Agency has indicated it has no such documents in its possession. 17 18 19 20 21 22 **** 23 "Request No. 7 24 "This request seeks medical records for any medical visits relating to Complainants' request for emotional, mental or physical damages. Respondents' motion is GRANTED. * * * 25 FINAL ORDER (Sweetcakes, ##44-14 & 45-14) - 59 ER-122 1 "Request No. 9 2 7 "Each of these requests for production seeks documentation and photographs of the actual wedding cake served at Complainants' wedding ceremony. The Agency objected to these requests on the basis of relevancy. The fact that a cake was purchased from another cake baker is likely relevant and, thus, I grant this motion only as to a receipt or invoice for showing the purchase of the cake and one photograph of the cake. Any other requested information is overly broad. Furthermore, for the reasons set forth below regarding Request for Production No. 10, the Agency need not produce photographs of Complainants, their families, and the actual wedding ceremony. 8 "Request No. 10 3 4 5 6 9 10 11 12 13 14 "In this request, Respondents have asked for photos, videos, or audio recordings of Complainants' wedding ceremony. The Agency has objected on the grounds that the requested documents are irrelevant. The Agency further explains that Complainants are wary of turning over these materials to Respondents because Respondents previously posted Complainants' home address on a social media site. Unless the Agency is intending to offer photos, videos or audio recordings as evidence at the hearing, then I agree with the Agency's objections and DENY the motion as to these documents. If the Agency intends to offer them as evidence at hearing, then the Agency must turn them over to Respondents. 15 ''Request No. 11 16 19 "Request No. 11 seeks communications made by Complainants to the media or on social media sites 'relating to Respondents and the events leading to the filing of Formal Charges against Respondents.' I find that this request is reasonably likely to produce information that is generally relevant to the case. * * * Respondents' request is GRANTED. 20 ''Request No. 12 17 18 21 22 23 24 25 "Request No. 12 seeks '[a]ny social media posts, blog posts, emails, text messages, or other record or communication showing Complainant's involvement with a boycott of Respondents or their business.' Based on the information and representations currently before me, I am unable to determine at this time if this request is reasonably likely to produce information that is generally relevant to the case. Therefore, Respondents' request is DENIED. If Respondents establish the relevance of this request in their depositions of FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -60 ER-123 1 2 Complainants, Respondents may renew their motion for a discovery order regarding this request. "Request No. 16 3 7 "Request No. 16 seeks the "names and addresses of any person, media outlet, or other entity with whom Complainants or Cheryl McPherson spoke regarding the events leading to this Complaint or the Complaint filed with the Department of Justice." I find that Respondents' request, with respect to Complainants, is reasonably likely to produce information that is generally relevant to the case, and is GRANTED. Respondents' request with regard to Cheryl McPherson is DENIED. 8 "Request No. 17 4 5 6 9 10 11 "Request No. 17 seeks the production of '[a]ny receipt, invoice, contract, or other writing memorializing the purchase of the cake by Complainants from Respondent for Cheryl McPherson's wedding.' I find that Respondents' request is not reasonably likely to produce information that is generally relevant to the case. Respondents' request is DENIED. 12 13 14 15 16 17 "Request No. 18 "Request No. 18 seeks the production of '[a]ny photos, videos, or other record of the cake Complainants purchased from Respondent for Cheryl McPherson's wedding.' I find that Respondents' request is not reasonably likely to produce information that is generally relevant to the case. Respondents' request is DENIED. "Request No. 22 18 19 20 21 22 23 "Request No. 22 seeks '[a]II posting by Complainants or Cheryl McPherson to any social media website, including but not limited to Facebook, Twitter, Linked In, MySpace, lnstagram, and SnapChat from January 2013 to the present.' I find that this request, with respect to Complainants, is reasonably likely to produce information that is generally relevant to the case. * * * However, Complainants are only required to provide postings that contain comments about the facts of this case, comments about Respondents, or comments that relate to their alleged damages. Respondents' request with regard to Cheryl McPherson is DENIED. 24 25 FINAL ORDER (Swee/cakes, ##44-14 & 45-14) -61 ER-124 1 "Request No. 23 2 6 "Request No. 23 seeks '[a]ny recording or documents showing that Complainants ever removed any public social media profiles or caused to be hidden from public view.' Based on the information and representations currently before me, I am unable to determine at this time if this request is reasonably likely to produce information that is generally relevant to the case. Therefore, Respondents' request is DENIED. If Respondents establish the relevance of this request in their depositions of Complainants, Respondents may renew their motion for a discovery order regarding this request. 7 B. 3 4 5 8 9 10 11 "Requests for Admissions "* **** "Request No. 4 "Respondents ask the Agency to admit that the State of Oregon did not recognize same sex marriage on or about January 17 and 18, 2013. The Agency objected on the basis of relevancy. For the reasons set forth above in regards to Request for Production No. 2, Respondents' request is DENIED. 12 13 "Requests Nos. 7 & 8 18 "Respondents ask the Agency to admit that Complainants Laurel Bowman-Cryer and Rachel Cryer 'did not at any time on or after January 17, 2013, delete or remove her public Facebook profile.' The Agency objects on the basis of relevance. Based on the information and representations currently before me, I am unable to determine at this time if this request is reasonably likely to produce information that is generally relevant to the case. Therefore, Respondents' request is DENIED. If Respondents establish the relevance of this request in their depositions of Complainants, Respondents may renew their motion for a discovery order regarding this request. 19 "Request No. 9 14 15 16 17 20 21 22 "Respondents ask the Agency to admit that Complainants were not issued a marriage license between January 17, 2013, and May 18, 2014. The Agency objects for the same reasons it objected to Request for Production No. 2, which sought similar information. This request is DENIED for the same reasons set out in my denial to Request for Production No. 2. 23 (Ex. X41) 24 25 FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -62 ER-125 1 2 18) On September 25, 2014, the ALJ issued an interim order ruling on Respondents' motion for a discovery order for depositions. In pertinent part, the ruling read: 3 "Complainants Laurel Bowman-Cryer and Rachel Cryer 4 "I agree with the Agency that, given the availability of other discovery methods, the forum typically does not allow for depositions, as well as the fact that the Agency typically produces an investigative file with detailed notes of interviews of witnesses. However, this case poses two unique circumstances. First, based on the information I have received to date from Respondents and the Agency, I have been unable to determine whether or not information and documents sought in response to Interrogatories Nos. 11 and 12 and Requests for Production Nos. 12 and 23 are reasonably likely to produce information that is generally relevant to the case. If so, it may result in the production of evidence that bears a significant relationship to Complainants' alleged damages. Respondents should be able to ascertain this in a deposition and, as stated in my interim order related to those Interrogatories and Requests for the Production, may renew their request for a discovery order if they can show that testimony given during the depositions shows those requests are reasonably likely to produce information is generally relevant to the case. I also note that there appears to be a unique damages claim for reimbursement of expenses for out-oftown trips to Seattle, Tacoma (two trips), and Lincoln City, with expenses for lodging, gas, and food at a number of establishments. As Respondents point out in their motion, they 'would use all of their 25 interrogatories just trying to determine exactly how one or two of these alleged expenses was at all related to Respondents' alleged unlawful conduct.' I am persuaded by Respondents that they have sought informal discovery on the issue of damages through other methods and do not have adequate information as to damages. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 "In this unusual set of circumstances, I find that Respondents should be permitted to briefly depose Complainants, with the scope of the depositions limited to Complainants' claim for damages. Unless unexpected circumstances arise that require an ALJ's intervention, the depositions should take no longer than 90 minutes per Complainant. After the scheduled September 29, 2014, prehearing conference in this matter, the forum will issue a subsequent order stating a deadline for when the depositions should be completed. The Agency and Complainants' counsel are instructed to cooperate with Respondents so that the depositions can be conducted by that deadline. Respondents are responsible for any court reporter costs associated with the deposition, and Respondents and the Agency must each pay for their own copy of transcripts if transcripts are prepared. 24 25 FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -63 ER-126 1 2 3 "Cheryl McPherson "Respondents argue that they are entitled to depose Cheryl McPherson, a material witness in this case, because they: "strongly dispute some of the factual claims made by the complainants, Respondents need to know whether Cheryl McPherson will validate complainant's (sic) testimony under oath before the hearing. * * * In this case, multiple parties to the same conversations recall substantially different events, and subtle differences in retelling will substantially affect a credibility determination that Administrative Law Judge must make. Without being able to compare such testimony prior to hearing, the Respondents are substantially prejudiced." 4 5 6 7 8 9 10 11 12 13 "I do not find that Respondents have demonstrated the need to depose witness Cheryl McPherson. I note that Respondents are typically provided with notes from investigative interviews of witnesses. Neither the Agency nor Respondents have provided information as to whether that occurred in this case. However, unless Respondents did not receive the usual investigative notes of the Agency's interview with Cheryl McPherson or no such notes exist because McPherson was never interviewed, I deny Respondents' request to take her deposition." (Ex. X42) 14 15 16 17 18 19) On September 25, 2014, the ALJ issued a discovery order requrnng Respondents to produce documents in three of the four categories sought by the Agency in its September 11, 2014, motion. (Ex. X43) 20) On September 29, 2014, the ALJ held a prehearing conference. During the conference, mutually acceptable new hearing dates, discovery status and a possible alternative to depositions, and filing deadlines were discussed and the ALJ made several rulings, summarized in a September 30, 2014 interim order that stated: 19 20 21 22 23 24 "(1) Subject to the availability of Respondents and Complainants, the hearing is reset to begin at 9:00 a.m. on Tuesday, March 10, 2015, at the Tualatin Office of Administrative Hearings. If the hearing is not concluded by late afternoon on Friday, March 13, the hearing will reconvene at 9:00 a.m. on Tuesday, March 17, 2015, at the same location. The Agency and Respondents' counsel will let me know this week of the availability of Respondents and Complainants on those dates. "(2) Respondents have until October 2, 2014, to file answers to the Amended Formal Charges. 25 FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -64 ER-127 1 2 3 4 5 6 7 8 9 "(3) The Discovery ordered in my rulings on the Agency's and Respondents' motions for Discovery Orders must be mailed or hand-delivered no later than October 14, 2014. This does not include Complainants' depositions. "(4) My order requiring Complainants to submit to depositions by Respondents is 'on hold' for the present. "(5) As a potential means for avoiding the necessity of depositions, Respondents proposed that they be allowed to serve 30 additional interrogatories to the Agency for Complainants' responses. The Agency objected to 30 but agreed to 25. I agreed and ruled that Respondents could serve 25 additional interrogatories to the Agency for Complainants' response, with the responses due 14 days after the date of service. At the Agency's request, I also ruled that, should they elect to do so, the Agency may also serve up to 25 interrogatories to Respondents' counsel for Respondents' response, noting that the Agency is also entitled to do that under the rules since they have issued no prior interrogatories. 1o "(6) 11 "(7) We also discussed the most efficient means of procedure regarding Respondents' motion for summary judgment and the Agency's pending response, considering the fact that the Agency has filed Amended Formal Charges since Respondents filed a motion for summary judgment. Respondents' counsel stated their intention in filing the motion was to resolve both cases in their entirety, if possible. After discussion, I ruled that the Agency did not need to respond to Respondents' pending motion for summary judgment and I will not rule on that motion. Rather, Respondents will file another motion for summary judgment that will incorporate the matters raised in the Amended Formal Charges so that all outstanding issues can be addressed in my ruling on Respondents' motion. It was mutually agreed that Respondents could have until October 24, 2014, to file an amended motion for summary judgment and that the Agency would have until November 21, 2014, to file its written response. Accordingly, I order that Respondents must file their amended motion for summary judgment no later than October 24, 2014, and the Agency must file its response no later than November 21, 2014. Respondents' counsel asked if oral argument would be allowed on the motion and I ruled that it would not. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case Summaries must be filed no later than February 24, 2015. "(8) The Agency stipulated that it is not seeking reimbursement for the out-ofIn pocket expenses listed in response to Respondents' Interrogatory #16. response to my question, the Agency stated that it is not willing to stipulate that those trips are not relevant to the issue of damages." (Ex. X50 ) 21) On October 2, 2014, Respondents filed Answers to the Agency's Amended Formal Charges. (Ex. X51) FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -65 ER-128 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22) On October 24, 2014, Respondents re-filed their motions for summary judgment. (Ex. X53) 23) On November 21, 2014, the Agency filed a response to Respondents' motion for summary judgment and a cross-motion for partial summary judgment "on the same issues moved upon by Respondents." (Ex. X54) 24) On December 8, 2014, the Agency filed a second motion for a discovery order. On December 15, 2014, Respondents filed a response stating that they had "now provided the Agency with all responsive documents * * * not subject to the attorney-client privilege." On December 18, 2014, the Agency withdrew its motion for a discovery order, stating that Respondents had satisfied the Agency's request for production. (Ex. X57) 25) On December 19, 2014, Respondents filed a response to the Agency's cross-motion for summary judgment. (Ex. X61) 26) On January 15, 2015, the Agency moved for a Protective Order regarding "additional medical documentation from Complainants that is subject to discovery." The Agency attached 13 pages of medical records, dated September 30, 2014, through January 20, 2015, related to LBC and asked that the forum conduct an in camera inspection "to determine what, if any, of the information contained within these records is relevant or calculated to lead to the discovery of admissible evidence and must be turned over to Respondents." Before ruling, the ALJ instructed the Agency to tell the forum whether the Agency contended "that Bowman-Cryer continued to experience "emotional, mental, and physical suffering" caused by Respondents' alleged unlawful actions during the period of time covered by these records. (Ex. X64) 27) On January 15, 2014, Respondents renewed their motion to depose Complainants, based on part on Complainant's alleged inadequate responses to Respondents second set of interrogatories. On January 22, 2014, the Agency objected to Respondents' motion. On January 29, 2014, the ALJ issued an interim order instructing Respondents to provide a copy of the interrogatories and the Agency's responses before the ALJ ruled on Respondents' motion. (Exs. X62, X63, X66) 28) On January 29, 2015, the ALJ issued an interim order ruling on Respondents' re-filed motion for summary judgment and the Agency's cross-motion for summary judgment. The interim order is reprinted verbatim below, pursuant to OAR 839-050-0150( 4 )(b ): 22 23 24 25 FINAL ORDER (Swee/cakes, ##44-14 & 45-14)-66 ER-129 1 "Introduction 2 "Respondents operate a bakery under the name of Sweetcakes by Melissa.25 These cases arise from Respondents' refusal to provide a wedding cake for Complainants Rachel Cryer ('Cryer') and Laurel Bowman-Cryer ('Bowman-Cryer') after Respondents Aaron Klein ('A. Klein') and Melissa Klein ('M. Klein') learned that the wedding would be a same-sex wedding. 3 4 5 "As an initial matter, the forum notes Respondents' request for oral argument with regard to their motion. Respondents' request for oral argument is DENIED. 6 7 "Procedural History 8 "On June 4, 2014, the Civil Rights Division of the Oregon Bureau of Labor and Industries ('Agency') issued two sets of Formal Charges alleging that M. Klein violated ORS 659A.403(3) by refusing to provide Complainants a wedding cake for their same-sex wedding based on their sexual orientation and that A. Klein aided and abetted M. Klein, thereby violating ORS 659A.406. The Charges further alleged that M. Klein and A. Klein, who was acting on behalf of M. Klein, 'published, circulated, issued or displayed or caused to be published, circulated, issued or displayed, a communication, notice, advertisement or sign to the effect that its accommodations, advantages, facilities, services or privileges would be refused, withheld from or denied to, or that discrimination would be made against, a person on account of his or her sexual orientation,' causing M. Klein to violate ORS 659A.409 and A. Klein to violate ORS 659A.406 by aiding and abetting M. Klein in her violation of ORS 659A.409. The Agency sought $75,000 in damages for 'emotional, mental, and physical suffering' for each Complainant, plus 'out of pocket expenses to be proven at hearing.' On June 19, 2014, the ALJ consolidated the two cases for hearing. 9 10 11 12 13 14 15 16 17 18 "Respondents, through joint counsel Herbert Grey, Tyler Smith, and Anna Adams (now Anna Harmon), timely filed Answers to both sets of Formal Charges, raising numerous affirmative defenses and four counterclaims. 19 20 "On September 15, 2014, Respondents filed a motion for summary judgment with respect to both sets of Charges, based primarily on legal argument supporting the constitutional affirmative defenses raised in their Answers. On September 16, 2014, the Agency moved for an extension of time to respond to Respondents' motion until September 26, 2014. On September 17, 2014, the 21 22 23 24 25 25 At the time of the alleged discrimination, Sweetcakes by Melissa was an inactive assumed business name. On February 1, 2013, Sweetcakes by Melissa was re-registered as an assumed business name with the Oregon Secretary of State Business Registry, with M. Klein listed as the registrant and A. Klein listed as the authorized representative. FINAL ORDER (Swee/cakes, ##44-14 & 45-14) -67 ER-130 ALJ granted the Agency's motion. On September 17, 2014, the ALJ held a prehearing conference in which it became apparent that he had ruled on the Agency's motion before Respondents had seen the motion. Accordingly, the ALJ gave Respondents an opportunity to file objections. On September 18, 2014, Respondents filed objections to Agency's motion for extension. On September 22, 2014, the ALJ issued an interim order that sustained his September 17, 2014, order. 1 2 3 4 5 "On September 24, 2014, the Agency amended both sets of Charges to allege that M. Klein and A. Klein both violated ORS 659A.403(3) and that A. Klein, 'in the alternative,' aided and abetted M. Klein in her violation of ORS 659A.403(3), thereby violating ORS 659A.406. Additionally, the Agency alleged that, 'in the alternative,' A. Klein aided and abetted M. Klein's violation of ORS 659A.409. 26 6 7 8 "On September 29, 2014, the ALJ held a prehearing conference. During the conference, the participants discussed the most efficient means of proceeding regarding Respondents' motion for summary judgment and the Agency's pending response, considering the fact that the Agency had filed Amended Formal Charges ('Charges') since Respondents filed their motion for summary judgment. After discussion, it was agreed that, instead of the Agency filing a response to Respondents' original motion, it would be more efficient for Respondents to file an amended motion for summary judgment that would incorporate the matters raised in the Charges so that all outstanding issues could be addressed in the ALJ's ruling on Respondents' motion. It was mutually agreed that Respondents could have until October 24, 2014, to file an amended motion for summary judgment and that the Agency would have until November 21, 2014, to file its response. 9 10 11 12 13 14 15 16 "On October 2, 2014, Respondents filed Amended Answers ('Answers') to the Charges. On October 24, 2014, Respondents timely filed an amended motion for summary judgment. On November 21, 2014, the Agency timely filed a response and cross motion asking that Respondents' motion be denied in its entirety and that the Agency be granted partial summary judgment as to the issues on which Respondents sought summary judgment. On November 25, 2014, the forum granted Respondents' unopposed motion for an extension of time until December 19, 2014, to respond to the Agency's cross motion. Respondents filed a response on December 19, 2014. 17 18 19 20 21 "Summary Judgment Standard 22 "A motion for summary judgment may be granted where no genuine issue as to any material fact exists and a participant is entitled to a judgment as a matter of law, as to all or any part of the proceedings. OAR 839-050-0150(4)(8). 23 24 25 26 The Agency's amended Charges did not allege that A Klein violated ORS 659A.409. FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -68 ER-131 The standard for determining if a genuine issue of material fact exists and the evidentiary burden on the participants is as follows: 1 2 '* * * No genuine issue as to a material fact exists if, based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment. The adverse party has the burden of producing evidence on any issue raised in the motion as to which the adverse party would have the burden of persuasion at [hearing].' ORCP 47C. 3 4 5 6 The 'record' considered by the forum consists of: (1) the amended Formal Charges and Respondents' amended Answers to those Charges; (2) Respondents' motion, with attached exhibits; (3) the Agency's response and cross-motion to Respondents' motion, with an attached exhibit; and (4) Respondents' response to the Agency's motion. 7 8 9 10 "Analysis 11 A. 12 "The undisputed material facts of this case relevant to show whether Respondents violated ORS chapter 659A as alleged in the Charges are set out below. 13 14 Facts of the Case Findings of Fact 15 1) "Complainants Cryer and Bowman-Cryer are both female persons.27 (Formal Charges) 16 2) "In January 2013, Sweetcakes by Melissa ('Sweetcakes') was a business owned and operated as an unregistered assumed business name by Respondents M. Klein and A. Klein. At all material times, Sweetcakes was a place or service that offered custom designed wedding cakes for sale to the public. (Respondents' Admission; Affidavits of A. Klein, M. Klein) 17 18 19 20 3) "Before and throughout the operation of Sweetcakes, Respondents M. Klein and A. Klein have been jointly committed to live their lives and operate their business according to their Christian religious convictions. Based on specific passages from the Bible, they have a sincerely held belief that that God 'uniquely and purposefully designed the institution of marriage exclusively as the union of one man and one woman' and that 'the Bible forbids us from 21 22 23 24 25 27 The Charges do not identify either Complainant as a female, but the forum infers from their names and the Agency's reference to each Complainant as "her" that Complainants are both female. FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -69 ER-132 1 2 3 4 5 6 7 8 9 proclaiming messages or participating in activities contrary to Biblical principles, including celebrations or ceremonies for uniting same-sex couples.' (Affidavits of A. Klein, M. Klein) 4) "In the operation of Sweetcakes, A. Klein bakes the cakes, cuts the layers, adds filling, and applies a base layer of frosting. M. Klein then does the design and decorating. A. Klein delivers the cake to the wedding or reception site in a vehicle that has 'Sweet Cakes by Melissa' written in large pink letters on the side and assembles the cake as necessary. A. Klein also sets up the cake and finalizes any remaining decorations after final assembly and placement. In that capacity, he often interacts with the couple or other family members and often places cards showing that Sweetcakes created the cake. (Affidavits of A. Klein, M. Klein) 5) "In or around November 2010, Respondents designed, created, and decorated a wedding cake for Cryer's mother, Cheryl McPherson, for which Cryer paid. (Affidavit of M. Klein) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6) "On January 17, 2013, Cryer and McPherson visited Sweetcakes for a previously scheduled cake tasting appointment, intending to order a cake for Cryer's wedding ceremony to Bowman-Cryer. (Respondents' Admission; Affidavit of A. Klein) 7) "A. Klein conducted the cake tasting at Sweetcakes' bakery shop located in Gresham, Oregon. M. Klein was not present during the tasting. During the tasting, A. Klein asked for the names of the bride and groom, and Cryer told him there would be two brides and their names were 'Rachel and Laurel.' (Respondents' Admission; Affidavit of A. Klein) 8) "A. Klein told Cryer that Sweetcakes did not make wedding cakes for sameIn sex ceremonies because of A. and M. Klein's religious convictions. response, Cryer and McPherson walked out of Sweetcakes. (Respondents' Admission; Affidavit of A. Klein) 9) "Before driving off, McPherson re-entered Sweetcakes by herself to talk to A. Klein. During their subsequent conversation, McPherson told A. Klein that she used to think like him, but her 'truth had changed' as a result of having 'two gay children.' A. Klein quoted Leviticus 18:22 to McPherson, saying 'You shall not lie with a male as one lies with a female; it is an abomination.' McPherson then left Sweetcakes. (Affidavit of A. Klein) 10)"0n February 1, 2013, Sweetcakes by Melissa was registered as an as.sumed business name with the Oregon Secretary of State, with the 'Registrant/Owner' listed as Melissa Elaine Klein and the 'Authorized Representative' listed as Aaron Wayne Klein. (Exhibit A 1, p. 2, Agency FINAL ORDER (Swee/cakes, ##44-14 & 45-14) - 70 ER-133 Response to Motion for Summary Judgment and Cross-Motion for Summary Judgment) 1 2 11)"On August 8, 2013, both Complainants filed verified written complaints with BOLi's Civil Rights Division ('CRD') alleging unlawful discrimination by Respondents on the basis of sexual orientation. After investigation, the CRD issued a Notice of Substantial Evidence Determination on January 15, 2014, in both cases, and sent copies to Respondents. (Respondents' Admission) 3 4 5 12)"At some time prior to September 2, 2013, A. Klein and M. Klein took part in a video interview with Christian Broadcast Network (CBN) in which A. Klein explained the reasons for declining to provide a wedding cake for Complainants. On September 2, 2013, CBN broadcast a one minute, five seconds long presentation about Complainants' complaints. The broadcast begins and ends with a CBN announcer describing the complaints filed by Cryer and Bowman-Cryer against Respondents while pictures of the bakery are broadcast. A. and M. Klein appear midway in the broadcast, standing together outdoors, and make the following statements: 28 29 6 7 8 9 10 11 A. Klein: 'I didn't want to be a part of her marriage, which I think is wrong.' 12 M. Klein: 'I am who I am and I want to live my life the way I want to live my life and, you know, I choose to serve God.' 30 13 A. Klein: 'It's one of those things where you never want to see something you've put so much work into go belly up, but on the other hand, um, I have faith in the Lord and he's taken care of us up to this point and I'm sure he will in the future.' 14 15 16 (Exhibit 1-I, Respondents' Motion for Summary Judgment) 17 13)"1n September 2013, M. and A. Klein closed their bakery shop in Gresham and moved their business to their home, where they continued to offer custom designed wedding cakes for sale to the public. (Affidavits of A. Klein, M. Klein) 18 19 14)"0n February 13, 2014, A. Klein was interviewed live on a radio show by Tony Perkins called 'Washington Watch.' Perkins's show lasted approximately 15 20 21 22 28 23 29 24 25 There is nothing in the video to show whether these statements were made in response to a question or if it was part of a longer interview. This transcript was made by the ALJ from a DVD provided to the forum by Respondents. The DVD includes the September 2, 2013, CBN video, and an mp4 recording of a February 13, 2014, interview with Tony Perkins. 30 M. Klein's statement is only included to provide context, as the Agency did not allege that her statement was a violation of Oregon law. FINAL ORDER (Swee/cakes, ##44-14 & 45-14) - 71 ER-134 minutes. In pertinent part, the interview included the following exchange that occurred, starting at four minutes, 30 seconds into the interview and ending at six minutes, twenty-two seconds into the interview: 31 1 2 3 Perkins: '***Tell 4 Klein: 'Well, as far as how it unfolded, it was just, you know, business as usual. We had a bride come in. She wanted to try some wedding cake. Return customer. Came in, sat down. I simply asked the bride and groom's first name and date of the wedding. She kind of giggled and informed me it was two brides. At that point, I apologized. I said "I'm very sorry, I feel like you may have wasted your time. You know we don't do same-sex marriage, same-sex wedding cakes.'' And she got upset, noticeably, and I understand that. Got up, walked out, and you know, that was, I figured the end of it.' 5 6 7 8 us how this unfolded and your reaction to that.' Perkins: 'Aaron, let me stop you for a moment. Had you and your wife, had you talked about this before; is this something that you had discussed? Did you think, you know, this might occur and had you thought through how you might respond or did this kind of catch you off guard?' 9 10 11 18 Klein: 'You know, it was something I had a feeling was going to become an issue and I discussed it with my wife when the state of Washington, which is right across the river from us, legalized same-sex marriage and we watched Masterpiece Bakery going through the same issue that we ended up going through. But, you know, it was one of those situations where we said "well I can see it is going to become an issue but we have to stand firm. It's our belief and we have a right to it, you know.'' I could totally understand the backlash from the gay and lesbian community. I could see that; what I don't understand is the government sponsorship of religious persecution. That is something that just kind of boggles my mind as to how a government that is under the jurisdiction of the Constitution can decide, you know, that these people's rights overtake these people's rights or even opinion, that this person's opinion is more valid than this person's; it kind of blows my mind.' 19 (Exhibit 1-I, Respondents' Motion for Summary Judgment) 12 13 14 15 16 17 20 "B. 21 Analysis of Complainants' Claims on the Merits "The forum first analyzes whether Respondents' actions violated the applicable public accommodation statutes. If so, the forum moves on to a determination of whether Respondents have established one or more of their affirmative defenses that rely on the Oregon and U. S. Constitution. See Tanner v. OHSU, 157 Or App 502, 513 (1998), rev den 329 Or 528, citing Planned 22 23 24 25 31 See footnote 29. FINAL ORDER (Swee/cakes, ##44-14 & 45-14) - 72 ER-135 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Parenthood Assn. v. Dept. of Human Resources, 297 Or 562, 564, 687 P2d 785 (1984); Young v. Alongi, 123 Or App 74, 77-78, 858 P2d 1339 (1993). See also Meltebeke v. Bureau of Labor and Industries, 322 Or 132, 138-39 (1995)(before considering constitutional issues, court must first consider pertinent subconstitutional issues). "In its Charges, the Agency alleged that Respondents operated Sweetcakes, a place of public accommodation under ORS 659A.400, and violated ORS 659A.403, 659A.406, and 659A.409 by refusing to provide Complainants a wedding cake based on their sexual orientation, by aiding and abetting that refusal, and by communicating their intent to discriminate based on sexual orientation. "Although Respondents' affirmative defenses apply to the forum's ultimate disposition of each alleged statutory violation, the forum is able to draw several legal conclusions from the undisputed material facts relevant to the Agency's allegations that are unaffected by those affirmative defenses. "First, at all times material, A. Klein and M. Klein owned and operated Sweetcakes as a partnership. ORS 67.055 provides, in pertinent part: '(1) Except as otherwise provided in subsection (3) of this section, the association of two or more persons to carry on as co-owners a business for profit creates a partnership, whether or not the persons intend to create a partnership. '* **** '(d) It is a rebuttable presumption that a person who receives a share of the profits of a business is a partner in the business* * *.' In affidavits dated October 23, 2014, signed by M. Klein and A. Klein and submitted in support of Respondent's motion for summary judgment, they both aver: 'Together we have operated Sweetcakes by Melissa as a business since we opened in 2007. * * * Until recent months, we both worked actively in the business, primarily derived our family income from the operation of the business, and jointly shared the profits of the business.' The Agency does not dispute the factual accuracy of these statements. Accordingly, the forum concludes that M. Klein and A. Klein were joint owners of Sweetcakes and operated it as a partnership and unregistered assumed business name in January 2013, and as a registered assumed business name since February 1, 2013. As such, they are jointly and severally liable for any violations of ORS chapter 659A related to Sweetcakes. · "Second, ORS 659A.403, 659A.406, and 659A.409 all require that discrimination must be made by a 'person' acting on behalf of a 'place of public accommodation.' 'Person' includes '[o]ne or more individuals.' ORS FINAL ORDER (Sweetcakes, ##44-14 & 45-14)- 73 ER-136 659A.001(9)(a). The undisputed facts establish that A. Klein and M. Klein are 'individual[s]' and 'person[s].' A 'place of public accommodation' is defined in ORS 659A.400 as '(a) Any place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements, transportation or otherwise.' The undisputed facts show that, at all material times, Sweetcakes was a place or service offering goods and services - wedding cakes and the design of those cakes - to the public. Accordingly, the forum concludes that Sweetcakes, at all material times, was a 'place of public accommodation.' 1 2 3 4 5 6 "Third, as germane to this case, ORS 659A.403 and 659A.406 prohibit any 'distinction, discrimination or restriction' based on Complainants' 'sexual orientation.' This requires the forum to determine Complainants' actual or perceived sexual orientation. As used in ORS chapter 659A, 'sexual orientation' is defined as 'an individual's actual or perceived heterosexuality, homosexuality, bisexuality, or gender identity, regardless of whether the individual's gender identity, appearance, expression or behavior differs from that traditionally associated with the individual's assigned sex at birth.' OAR 839-005-0003(16). 32 The forum infers that Complainants' sexual orientation is homosexual and that A. Klein perceived they were homosexual from four undisputed facts: (a) Complainants were planning to have a same-sex marriage; (b) A. Klein told Cryer and McPherson that Respondents do not make wedding cakes for same-sex ceremonies; (c) McPherson told A. Klein that she had 'two gay children'; and (d) In response to McPherson's statement, A. Klein quoted a reference from Leviticus related to male homosexual behavior. 7 8 9 10 11 12 13 14 16 "Fourth, A. Klein's verbal statements made in the CBN and Tony Perkins interviews that were publicly broadcast constitute a 'communication' that was 'published' under ORS 659A.409. 17 lie. 15 18 "Before determining the merits of the Agency's ORS 659A.403(3) allegations, the forum first evaluates Respondents' pleading - 'fail[ure] to state ultimate facts sufficient to constitute a claim' -- that Respondents categorize as their first 'affirmative defense.' As a procedural matter, the forum views this defense as a straightforward denial of the allegations in the pleadings rather than 33 As argued by Respondents in their motion for as an affirmative defense. 19 20 21 22 23 24 25 Failure to State Ultimate Facts Sufficient to Constitute a Claim 32 Evidence includes inferences. There may be more than one inference to be drawn from the basic fact found; it is the forum's task to decide which inference to draw. See, e.g., In the Matter of Income Property Management, 31 BOU 18, 39 (2010). 33 In general, an affirmative defense is a defense setting up new matter that provides a defense against the Agency's case, assuming all the facts in the complaint to be true. See, e.g. Pacificorp v. Union Pacific Railroad, 118 Or App 712, 717, 848 P2d 1249 (1993). A few examples of affirmative defenses previously recognized by this forum include statute of limitations, claim and issue preclusion, bona fide occupational requirement, undue hardship, laches, and unclean hands. Some other affirmative defenses recognized FINAL ORDER (Sweetcakes, ##44-14 & 45-14) - 74 ER-137 1 2 3 4 summary judgment, this defense goes to two issues. First, whether BowmanCryer's absence when A. Klein made his alleged discriminatory statement on January 13, 2013, deprives her of a cause of action under ORS 659A.403 and 659A.406. Second, whether Respondents' refusal to provide a wedding cake for Complainants was on account of their sexual orientation. "Bowman-Cryer's absence on January 13, 2013 does not deprive her of standing 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 "It is undisputed is the fact that Complainants sought a wedding cake from Sweetcakes based on Cryer's previous experience in purchasing a wedding cake from Sweetcakes for McPherson's wedding. It is also undisputed that BowmanCryer was not present at Sweetcakes on January 13, 2013, when A. Klein told Cryer and McPherson that Sweetcakes would not make a wedding cake for a same-sex wedding. "Respondents argue as follows: 'Additionally, if as it appears on the face of the pleadings, one or more of the complainants were not actually potential customers requesting a wedding cake issue, and they were also not the ones denied services, and their claims must fail as a matter of law. In particular, the record is Laurel Bowman-Cryer was not present for the cake tasting and was never denied services. Therefore, either Rachel Cryer or Cheryl McPherson was the only person who was denied services according to Complainants['] own record. Claims made by anyone else must fail.' The forum rejects this argument, as it relies on the false premise that a person cannot be discriminated against unless they are physically present to witness an alleged act of discrimination perpetrated against them. In this case, the 'full and equal accommodation' sought by both Complainants was a wedding cake to celebrate their same-sex wedding, an occasion in which they would be joint celebrants. The forum takes judicial notice that a wedding cake has long been considered a customary and important tradition in weddings in the United States. Respondents themselves acknowledge the special significance of wedding cakes in their affidavits, in which A. Klein and M. Klein each aver: 'The process of designing, creating and decorating a cake for a wedding goes far beyond the basics of baking a cake and putting frosting on it. Our customary practice involves meeting with customers to determine who 23 24 25 by Oregon courts include discharge in bankruptcy, duress, fraud, payment, release, statute of frauds, unconstitutionality, and waiver. ORCP 198. In contrast, a defense that admits or denies facts constituting elements of the Agency's prima facie case that are alleged in the Agency's charging document is not an affirmative defense. FINAL ORDER (Swee/cakes, ##44-14 & 45-14)- 75 ER-138 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 they are, what their personalities are, how they are planning a wedding, finding out what their wishes and expectations concerning size, number of layers, colors, style and other decorative detail, which often includes looking at a variety of design alternatives before conceiving, sketching, and custom crafting a variety of decorating suggestions and ultimately finalizing the design. Our clients expect, and we intend, that each cake will be uniquely crafted to be a statement of each customer's personality, physical tastes, theme and desires, as well as their palate so it is a special part of their holy union.' Because the wedding cake was intended to equally benefit both Cryer and Bowman-Cryer, the forum finds that Bowman-Cryer has the same cause of action against Respondents under ORS 659A.403 and .406 as Cryer. Macedonia Church v. Lancaster Hotel Ltd., 498 F. Supp 2d 494 (2007), though not binding on this forum, illustrates this point. In Macedonia, a group of individuals associated with Macedonia Church, a predominantly AfricanAmerican congregation, alleged that they were denied accommodations because of their race. Defendants moved to dismiss the complaint as to all but four plaintiffs on the grounds that the only plaintiffs who had standing to pursue the complaint were the four who actually visited defendants' facility. As stated by the court, 'the defendants' argument appears to assume that unless each plaintiff had a first-hand contact with the defendants, he or she could not [have] suffered any "personal and individual" injury.' The court denied defendants' motion, holding: 'Whether there was first-hand contact between the individual plaintiffs and the defendants is not material to the question of whether the individual plaintiffs suffered a personal and individual injury. Each of the Nonorganizer Plaintiffs alleges that he or she was denied accommodations on the basis of race or color. The fact that the defendants informed the plaintiffs that their refusal to provide them with accommodations by communicating with the Organizers instead of with each of the Nonorganizer plaintiffs does not alter the fact that those plaintiffs were denied accommodations. Nor is it material that the plaintiffs were unaware of the discrimination until sometime after it occurred.' "Nexus between Complainants' sexual orientation and Respondents' refusal to provide a wedding cake for their same-sex wedding "Respondents argue that there is no evidence of any connection between Complainants' sexual orientation and Respondents' alleged discriminatory action. Respondents' argument is two-pronged. First, Respondents argue that their prior sale of a wedding cake to Cryer for her mother's wedding proves Respondents' lack of animus towards Complainant's sexual orientation. Second, Respondents 25 FINAL ORDER (Swee/cakes, ##44-14 & 45-14) - 76 ER-139 attempt to isolate Complainants' sexual orientation from their proposed 34 wedding, arguing that their decision was not on account of Complainants' sexual orientation, but on Respondents' objection to participation in the event for which the cake would be prepared. 1 2 3 "Respondents' first argument fails for the reason that there is no evidence in the record that A. Klein, the person who refused to make a cake for Complainants while acting on Sweetcakes' behalf, had any knowledge of Complainants' sexual orientation in November 2010 when Cryer purchased a cake for her mother's wedding. Even if A. Klein was aware of Cryer's sexual orientation in November 2010, not discriminating on one occasion does not inevitably lead to the conclusion that A. Klein did not discriminate on a subsequent occasion. 4 5 6 7 8 "Respondents rely on Tanner v. OHSU to support their second argument. In Tanner, OHSU, in accordance with State Employees' Benefits Board (SEBB) eligibility criteria, permitted employees to purchase insurance coverage for 'family members.' Under the SEBB criteria, unmarried domestic partners of employees were not 'family members' who were entitled to insurance coverage. Plaintiffs, three lesbian nursing professionals with domestic partners, applied for insurance coverage and were denied on the ground that the domestic partners did not meet the SEBB eligibility criteria. Plaintiffs sued, alleging disparate impact sex discrimination in violation of then ORS 659.030(1)(b) in that OHSU's policy had the effect of discriminating against homosexual couples because, unlike heterosexual couples, they could not marry and become eligible for insurance benefits. Significant to this case, the court stated that plaintiffs were a member of a protected class under ORS 659.030 and that they made out a disparate impact claim because 'OHSU's practice of denying insurance benefits to unmarried domestic partners, while facially neutral as to homosexual couples, effectively screens out 100 percent of them from obtaining full coverage for both partners. That is because, under Oregon law, homosexual couples may not marry.' Id. at 516. The court then held that OHSU did not violate then ORS 659.030(1)(b) because plaintiffs did not prove that OHSU engaged 'in a subterfuge to evade the purposes of this chapter' under then ORS 659.028. Id. at 517-19. The language that Respondents quote to support their argument is not the holding of the case, but merely a bridge between the court's evaluation of plaintiffs' case based on different treatment and disparate impact theories. Accordingly, Tanner does not assist Respondents. Also significant to this case, plaintiffs alleged a violation of Article I, section 20, of the Oregon Constitution. The court found that plaintiffs, as homosexual couples, were members of a 'true class,' and also members of a 'suspect class' based on their sexual orientation. Id. at 524. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 34 The forum uses the term "proposed" because there is no evidence in the record to show whether Complainants were actually ever married. [NOTE: At hearing, evidence was presented that Complainant's were legally married in 2014, a few days after Oregon's ban on same-sex marriage was struck down in federal court. See Proposed Finding of Fact #47 -- The Merits, infra. FINAL ORDER (Swee/cakes, ##44-14 & 45-14) - 77 ER-140 1 2 3 4 "Respondents' attempt to divorce their refusal to provide a cake for Complainants' same-sex wedding from Complainants' sexual orientation is neither novel nor supported by case law. As the Agency argues in support of its cross-motion, '[!]here is simply no reason to distinguish between services for a wedding ceremony between two persons of the same sex and the sexual orientation of that couple. The conduct, a marriage ceremony, is inextricably linked to a person's sexual orientation.' 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 "The U. S. Supreme Court has rejected similar attempts to distinguish between a protected status and conduct closely correlated with that status. In Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez, 561 U.S. 661, 130 S. Ct. 2971 (2010), students at Hastings College of the Law formed a chapter of the Christian Legal Society ('CLS') and sought formal recognition from the school. The CLS required its members to affirm their belief in the divinity of Jesus Christ and to refrain from 'unrepentant homosexual conduct.' Id. at 2980. Hastings refused to recognize the organization on the ground that it violated Hastings' nondiscrimination policy, which prohibited exclusion based on religion or sexual orientation. The CLS argued that 'it does not exclude individuals because of sexual orientation, but rather "on the basis of a conjunction of conduct and the belief that the conduct is not wrong."' Id. at 2990. The Court rejected this argument, stating: 'Our decisions have declined to distinguish between status and conduct in this context. See Lawrence v. Texas, 539 U.S. 558, 575, 123 S Ct 2472, 156 L.Ed.2d 508 (2003) ("When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination." (emphasis added)); id., at 583, 123 S.Ct. 2472 (O'Connor, J., concurring in judgment) ("While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class."); cf. Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 270, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993) ("A tax on wearing yarmulkes is a tax on Jews.").' In conclusion, the forum holds that when a law prohibits discrimination on the basis of sexual orientation, that law similarly protects conduct that is inextricably tied to sexual orientation. See Elane Photography, LLC v. Willock, 309 P3d 53, 62 (2013), cert den 134 S. Ct. 1787 (2014). Applied to this case, the forum finds that Respondents' refusal to provide a wedding cake for Complainants because it was for their same-sex wedding was synonymous with refusing to provide a cake because of Complainants' sexual orientation. 24 25 FINAL ORDER (Swee/cakes, ##44-14 & 45-14) - 78 ER-141 1 2 3 4 5 6 7 8 9 10 11 12 13 "D. Respondent A. Klein violated 659A.403 With regard to its ORS 659A.403 claims, the Agency alleges the following in paragraph 111.12in both sets of Charges: '12. Respondents discriminated against Complainant because of her sexual orientation. a. Melissa Elaine Klein denied full and equal accommodations, advantages, facilities and privileges of her business to [Complainant] based on her sexual orientation, in violation of ORS 659A.403(3). b. Respondent Aaron Wayne Klein, dba Sweetcakes by Melissa denied full and equal accommodations, advantages, facilities and privileges of her [sic] business to [Complainant] based on her sexual orientation, in violation of ORS 659A.403(3). c. In the alternative, Respondent Aaron Wayne Klein aided or abetted Melissa Elaine Klein in violating ORS 659A.403(3), in violation of ORS 659A.406.' (emphasis bolded by Agency in its Amended Formal Charges to show amendments to original Formal Charges) ORS 659A.403 provides, in pertinent part: 14 15 16 17 18 '(1) Except as provided in subsection (2) of this section, all persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older. '(2) Subsection (1) of this section does not prohibit: 19 20 21 22 23 24 25 "(a) The enforcement of laws governing the consumption of alcoholic beverages by minors and the frequenting by minors of places of public accommodation where alcoholic beverages are served; or "(b) The offering of special rates or services to persons 50 years of age or older. '(3) It is an unlawful practice for any person to deny full and equal accommodations, advantages, facilities and privileges of any place of public accommodation in violation of this section.' FINAL ORDER (Swee/cakes, ##44-14 & 45-14) - 79 ER-142 "The prima facie elements of the Agency's 659A.403 case are: 1) Complainants were a homosexual couple and were perceived as such by A Klein and M. Klein; 2) Sweetcakes was a place of public accommodation; 3a) A Klein, a person acting on behalf of Sweetcakes, denied full and equal accommodations to Complainants; 3b) M. Klein, a person acting on behalf of Sweetcakes, denied full and equal accommodations to Complainants; and 4) the denials were on account of Complainants' sexual orientation. Elements 1, 2, 3a are established by undisputed facts. Element 4 is established in the preceding section's discussion of 'Nexus.' Accordingly, the forum concludes that A Klein violated ORS 659A.403 and that the Agency is entitled to summary judgment on the merits as to Cryer's and Bowman-Cryer's 659A.403 claims against A Klein. Since there is no evidence that M. Klein took any action to deny the full and equal accommodations, advantages, facilities and privileges of Sweetcakes to Complainants, the forum concludes that M. Klein did not violate ORS 659A.403. However, M. Klein, as a joint owner of Sweetcakes with A Klein, is jointly and severally liable for any damages awarded to Complainants stemming from A Klein's violation. 1 2 3 4 5 6 7 8 9 10 "E. ORS 659A.406 ·- Aiding and Abetting a Violation of ORS 659A.403(3) 11 "The Agency seeks to hold A Klein liable as an aider and abettor under ORS 659A.406 for M. Klein's alleged violation of ORS 659A.403(3). Respondents assert that A Klein cannot be held liable as an aider and abettor under ORS 659A.406 because he is a co-owner of Sweetcakes and, as a matter of law, cannot aid and abet himself. The Agency argues to the contrary, based on the 'plain text' of the statute. 12 13 14 15 "ORS 659A.406 provides, in pertinent part: 16 "Except as otherwise authorized by ORS 659A.403, it is an unlawful practice for any person to aid or abet any place of public accommodation, as defined in ORS 659A.400, or any employee or person acting on behalf of the place of public accommodation to make any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older." 17 18 19 20 In the previous section, the forum concluded that M. Klein did not violate ORS 659A.403(3) as alleged in paragraph 111.12.aand that A Klein, the joint owner of Sweetcakes, violated ORS 659A.403(3) as alleged in paragraph 11.12.b. Since M. Klein did not violate ORS 659A.403, A Klein cannot be held liable to have aided and abetted her violation. 35 21 22 23 24 25 35 As pointed out in the previous section, there is a difference between committing a violation and being liable for the consequences of that violation. In this case, M. Klein's liability stems from her partnership status, not from any violation that she committed. FINAL ORDER (Swee/cakes,##44-14 & 45-14)-80 ER-143 1 "F. Notice that Discrimination will Accommodation - ORS 659A.409 2 be made in Place of Public "In section IV of its Charges, 36 the Agency alleges: (a) Respondent M. Klein 'published, issued * * * a communication, notice * * * that its accommodation, advantages * * * would be refused, withheld from or denied to, or that discrimination would be made against, a person on account of his or her sexual orientation, in violation of ORS 659A.409'; (b) Respondent A. Klein, 'dba Sweetcakes by Melissa, denied full and equal accommodations, advantages, facilities and privileges of her business to [Complainant] based on her sexual orientation, in violation of ORS 659A.403(3)'; and (c) In the alternative, Respondent A. Klein 'aided or abetted M. Klein in violating ORS 659A.409, in violation of ORS 659A.406.' 3 4 5 6 7 8 12 "In its Charges, the Agency alleges in paragraphs 11.8& 9 that A. Klein made statements that were broadcast on television on September 2, 2013, and on the radio on February 13, 2014, that communicate an intent to discriminate based on sexual orientation. The full text of the relevant part of those broadcasts is set out in Findings of Fact ##12 and 14, supra. The Agency's cross-motion for summary judgment singles out the statements made on those two occasions as 37 proof that Respondents violated ORS 659A.409. 13 "ORS 659A.409 provides, in pertinent part: 9 10 11 14 '* * * it is an unlawful practice for any person acting on behalf of any place of public accommodation as defined in ORS 659A.400 to publish, circulate, issue or display, or cause to be published, circulated, issued or displayed, any communication, notice, advertisement or sign of any kind to the effect that any of the accommodations, advantages, facilities, services or privileges of the place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of*** sexual orientation * * *.' 15 16 17 18 19 The alleged unlawful statements made by A. Klein were: 20 'I didn't want to be a part of her marriage, which I think is wrong.' (September 2, 2013 CBN interview) 21 22 23 24 25 36 Section IV is prefaced by the caption "UNLAWFUL PRACTICE: DISCRIMINATION BY PUBLICATION, CIRCULATION, ISSUANCE, OR DISPLAY OF A COMMUNICATION, NOTICE, ADVERTISEMENT, OR SIGN OF A DENIAL OF ACCOMMODATIONS, ADVANTAGES, FACILITIES, SERVICES OR PRIVILEGES BY A PLACE OF PUBLIC ACCOMMODATION BASED ON SEXUAL ORIENTATION." 37 The Agency's cross-motion also discusses the sign on Sweetcakes' door after it closed for business, but since the Agency did not allege the existence or contents of the sign as a violation, the forum does not consider it. FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -81 ER-144 1 'I said "I'm very sorry, I feel like you may have wasted your time. You know we don't do same-sex marriage, same-sex wedding cakes." ***You know, it was something I had a feeling was going to become an issue and I discussed it with my wife when the state of Washington, which is right across the river from us, legalized same-sex marriage and we watched Masterpiece Bakery going through the same issue that we ended up going through. But, you know, it was one of those situations where we said "well I can see it is going to become an issue but we have to stand firm. It's our belief and we have a right to it, you know."' (February 13, 2014, Tony Perkins interview) 2 3 4 5 6 7 In their motion for summary judgment, Respondents argue that 'ORS 659A.409 by its terms requires a statement of future intention that is entirely absent in this instance.' Respondents further argue that: 8 9 'A review of the videotape record of the CBN broadcast * * * clearly shows that Aaron Klein spoke only of the reason why he and his wife declined to participate in complainants' ceremony. The same is true of the Perkins radio broadcast. * * * A statement of future intention in either media event is conspicuously absent.' 10 11 12 The Agency does not dispute the correctness of Respondents' argument that ORS 659A.409 is directed towards communications relating a prospective intent to discriminate, but argues that A. Klein's statements are a prospective communication: 13 14 15 'Reviewed in context, Respondents communicated quite clearly that same-sex couples would not be provided wedding cake services at their bakery. These are not descriptions of past events as alleged by Respondents. Respondents stated their position in these communications and notify the public that they "don't do same sex weddings," they "stand firm," are "still in business" and will "continue to stay strong."' 16 17 18 19 Whatever Respondents' post-January 2013 intentions may have been or may still be with regard to providing wedding cake services for same-sex weddings, the forum finds that A. Klein's above-quoted statements, evaluated both for text and context, are properly construed as the recounting of past events that led to the present Charges being filed. In other words, these statements described what occurred on January 17, 2013, and thoughts and discussions the Kleins had before January 2013, not what the Kleins intended to do in the future. 38 To arrive at the conclusion sought by the Agency requires drawing an inference of future 20 21 22 23 24 25 38 In contrast, had A. Klein told Perkins "I said 'I'm very sorry * * * You know we don't do same-sex marriage, same-sex wedding cakes' and we take the same stand today," the forum's ruling would be different, assuming the Agency had plead a violation of ORS 659A.409 by A. Klein. FINAL ORDER (Swee/cakes, ##44-14 & 45-14) - 82 ER-145 intent from the Kleins's statements of religious belief that the forum is not willing to draw. Accordingly, the forum concludes that A. Klein's communication did not violate ORS 659A.409. 39 1 2 "In addition, the forum notes that M. Klein cannot be held to have violated ORS 659A.409 because she made no communication. Therefore, the forum finds that A. Klein did not aid or abet M. Klein to commit a violation of that statute and Respondents are entitled to summary judgment on this issue. 3 4 5 "G. Respondents' Counterclaims 6 "Before addressing Respondents' affirmative defenses, the forum addresses Respondents' counterclaims. First, Respondents allege that BOLi, through its actions in prosecuting this case, has 'knowingly and selectively acted under color of state law to deprive Respondents of their fundamental constitutional and statutory rights on the basis of religion' in violation of ORS 659A.403 and 'deprive[d] the Respondents of fundamental rights and protections guaranteed by the First and Fourteenth amendments to the United States Constitution,' thereby generating liability under 42 USC § 1983. Second, Respondents allege that the BOLi's Commissioner violated ORS 659A.409 by publishing, circulating, issuing, or displaying communications on Facebook and in print media 'to the effect that its accommodations, advantages, facilities, services or privileges would be refused, withheld from or denied to, or the discrimination would be made against Respondents and other persons similarly situated on the basis of religion in violation of ORS 659A.409.' Respondents seek damages in the amount of $100,000 for economic damages, $100,000 for non-economic damages, court costs, and reasonable attorney fees. 7 8 9 10 11 12 13 14 15 "The authority of state agencies is limited to that granted to them by the legislature. See SAIF Corp. v. Shipley, 326 Or 557, 561, 955 P2d 244 (1998) ('an agency has only those powers that the legislature grants and cannot exercise authority that it does not have'). ORS 659A.850(4) gives the Commissioner the authority to award compensatory damages to complainants as an element of a cease and desist order within a contested case proceeding. There is no corresponding statute that authorizes the Commissioner to award the damages sought by Respondents in their counterclaims. With regard to attorney 16 17 18 19 20 21 22 23 24 25 39 Compare In the Matter of Blachana, LLC, 32 BOLi 220 (2013), appeal pending (Respondent found to have violated ORS 659A.409 when member of the LLC left a telephone message with the organizer of a group of transgender individuals who had visited the LLC's nightclub regularly on Friday nights during the previous 18 months asking "not to come back on Friday nights."); In the Matter of The Pub, 6 BOLi 270, 282-83 (1987)(Respondent found to have violated ORS 659.037, the predecessor of ORS 659A.409, by posting a on front door of pub, immediately under another sign that said "VIVA APARTHEID," a sign that said "NO SHOES, SHIRTS, SERVICE, NIGGERS," and a sign inside the pub, with chain and spikes attached at each end, that read "Discrimination. Webster - to use good judgment" on the front and "Authentic South African Apartheid Nigger 'Black' Handcuffs Directions Drive Through Wrists and Bend Over Tips" on the back). FINAL ORDER (Swee/cakes. ##44-14 & 45-14) - 83 ER-146 fees or court costs, the legislature has only granted authority to the Commissioner to award these in contested case proceedings to interveners in a real property case brought under ORS 659A.145 or ORS 659A.421. 40 1 2 "In conclusion, the forum lacks jurisdiction to adjudicate Respondents' counterclaims and may neither grant nor deny them. The only relief available to Respondents through this forum is dismissal of any Charges not proven by the Agency under ORS 659A.850(3). 41 3 4 5 "H. Respondents' Affirmative Defenses 6 13 "Respondents' affirmative defenses include estoppel and the unconstitutionality of ORS 659A.403, .406, and .409, both facially and as applied. As an initial matter, the forum notes that the Oregon Court of Appeals has held that an Agency has the authority to decide the constitutionality of statutes. See Eppler v. Board of Tax Service Examiners, 189 Or App 216, 75 P3d 900 (2003), citing Cooper v. Eugene Sch. Dist. No. 4J, 301 Or. 358, 362-65, 723 P.2d 298 (1986) and Nu/brown v. Munn, 311 Or. 328,346,811 P.2d 131 (1991). In BOLi contested cases, the Commissioner has delegated to the ALJ the authority to rule on motions for summary judgment, with the decision 'set forth in the Proposed Order' and subject to ratification by the Commissioner in the Final Order. OAR 839-050-0150(4). Accordingly, the ALJ has the initial authority to rule on the constitutional issues raised by Respondents in their motion for summary judgment. 42 14 "Estoppel 7 8 9 10 11 12 15 "In their answers, Respondents phrase their estoppel defense as follows: 16 "The state of Oregon, including the Bureau of Labor and Industries[,] is estopped from compelling Respondents to engage in creative expression or otherwise participate in same-sex ceremonies not recognized by the state of Oregon contrary to their fundamental rights, consciences and convictions." 17 18 19 20 21 22 23 24 25 40 See ORS 659A.850(1)(b)(B). 41 See, e.g., Wallace v. PERB, 245 Or App 16, 30, 263 P3d 1010 (2011) (when plaintiff sought compensatory damages in an APA contested case proceeding based on alleged financial loss after PERS placed a limit on how often he could transfer funds he had invested in the Oregon Savings Growth Plan, the court held that, since it had no authority under ORS 183.486(1 )(b) to award compensatory damages to plaintiff, plaintiff was also unable to recover those damages in the contested case proceeding). 42 Eppler, Cooper, and Nu/brown impliedly overruled the forum's holding in the case of In the Matter of Doyle's Shoes, 1 BOLi 295 (1980), a Final Order issued before the Eppler, Cooper, and Nu/brown decisions in which the forum held that it was beyond the Commissioner's discretion to determine the constitutionality of legislative enactments. The forum now explicitly overrules that holding. FINAL ORDER (Sweetcakes,##44-14& 45-14) -84 ER-147 1 Estoppel is a legal doctrine whereby one party is foreclosed from proceeding against another when one party has made 'a false representation, (1) of which the other party was ignorant, (2) made with the knowledge of the facts, (3) made with the intention that it would induce action by the other party, and (4) that induced the other party to act upon it.' State ex rel. State Offices for Services to Children and Families v. Dennis, 173 Or App 604, 611, 25 P3d 341 (2001 ), citing Keppinger v. Hanson Crushing, Inc., 161 Or App 424, 428, 983 P.2d 1084 (1999). In order to establish estoppel against a state agency, a party must have relied on the agency's representations and the party's reliance must have been reasonable. Id., citing Dept. of Transportation v. Hewett Professional Group, 321 Or 118,126,895 P2d 755 (1995).43 2 3 4 5 6 7 "Here, Respondents do not identify any false representation made by 8 BOLi or any other state agency upon which Respondents relied in refusing to provide a wedding cake to Complainants. Although it is undisputed that the Oregon Constitution did not recognize same-sex marriages in January 2013, the affidavits of A. Klein and M. Klein establish that the refusal was because of Respondents' religious convictions stemming from Biblical authority, not on their reliance on Oregon's Constitutional provision rejecting same-sex marriage or their attempt to enforce that provision.44 9 10 11 12 "In conclusion, Respondents present no facts, articulate no legal theory, and cite no case law to support their argument that BOLi should be estopped from litigating this case based on the doctrine of estoppel. The Agency is entitled to summary judgment on this issue. 13 14 15 "Respondents' Constitutional Defenses - Introduction 16 "Due to the number and complexity of Respondents' constitutional defenses, the forum summarizes them, as plead in Respondents' answers, before analyzing them. They include the following: 17 18 19 20 21 22 23 24 25 43 See also In the Matter of Sunnyside Inn, 11 BOLi 151, 162 (1993) (Equitable estoppel may exist when one party (1) has made a false representation; (2) the false representation is made with knowledge of the facts; (3) the other party is ignorant of the truth; (4) the false representation is made with the intention that it should be relied upon by the other party; and (5) the other party is induced to act upon it to that party's detriment); In the Matter of Portland Electric & Plumbing Company, 4 BOLi 82, 98-99 (1983) (estoppel only protects those who materially change their position in reliance on another's acts or representations). 44 In A. Klein's affidavit, he states that, after Cryer told him "something to the effect 'Well, there are two brides, and their names are Rachel and Laurel,"' he "indicated we did not create wedding cakes for samesex ceremonies because of our religious convictions, and they left the shop." In the same paragraph, he states "I believed that I was acting within the bounds of the Oregon Constitution and the laws of the State of Oregon which, at that time, explicitly defined marriage as the union of one man and prohibited recognition of any other type of union as marriage." FINAL ORDER (Sweetcakes, ##44-14 & 45-14)-85 ER-148 1 • "The statutes underlying the Charges are unconstitutional as applied in that they violate Respondents' fundamental rights arising under the Oregon Constitution by: (a) unlawfully violating Respondents' freedom of worship and conscience under Article I, §2; (b) unlawfully violating Respondents' freedom of religious opinion under Article I, §3; (c) unlawfully violating Respondents' freedom of speech under Article I, §8; (d) unlawfully compelling Respondents to engage expression of a message they did not want to express; (e) unlawfully violating Respondents' privileges and immunities under Article I, §20; and (f) violating Article XV, §5a. • "The statutes underlying the Charges are facially unconstitutional under the Oregon Constitution in that they violate Respondents' fundamental rights arising under the Oregon Constitution to the extent there is no religious exemption to protect or acknowledge the fundamental rights of Respondents and persons similarly situated. • "The statutes underlying the Charges are unconstitutional as applied to Respondents to the extent they do not protect the fundamental rights of Respondents and persons similarly situated arising under the First and Fourteenth Amendments to the United States Constitution, as applied to the State of Oregon under the Fourteenth Amendment, by: (a) unlawfully infringing on Respondents' right of conscience, right to free exercise of religion, and right to free speech; (b) unlawfully compelling Respondents to engage expression of a message they did not want to express; and (c) unlawfully denying Respondents' right to due process and equal protection of the laws. • "The statutes underlying the Charges are facially unconstitutional to the extent there is no religious exemption to protect or acknowledge the fundamental rights of Respondents and persons similarly situated arising under the First and Fourteenth Amendments to the United States Constitution, as applied to the State of Oregon under the Fourteenth Amendment. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 When both state and federal constitutional claims are raised, Oregon courts first evaluate the state claim. Sterling v. Cupp, 290 Or 611, 614, 625 P2d 123 (1981 ). The forum does likewise. For continuity's sake, the forum follows the analysis of each state claim with an analysis of the parallel federal claim. The forum only addresses the constitutionality of ORS 659A.403, since the forum has already concluded, on a subconstitutional level, that Respondents did not violate ORS 659A.406 and 659A.409. 23 24 25 FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -86 ER-149 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 "Oregon Constitution "Article I. Sections 2 and 3: Freedom of worship and conscience: Freedom of religious opinion "The forum addresses these interrelated defenses together. Sections 2 and 3 of the Oregon Constitution provide: Article I, 'Section 2. Freedom of worship. All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their own consciences.' 'Section 3. Freedom of religious opm1on. No law shall in any case whatever control the free exercise, and enjoyment of religeous [sic] opinions, or interfere with the rights of conscience.' Respondents, who are Christians, have a sincerely held belief that the Bible 'forbids us from proclaiming messages or participating in activities contrary to Biblical principles, including celebrations or ceremonies for uniting same-sex couples.' They argue that Article I, sections 2 and 3 gave them the unfettered right to refuse to provide a cake for Complainants' same-sex wedding ceremony because doing so would have compelled them to act contrary to their sincerely held religious beliefs. "The forum first analyzes a series of Oregon Supreme Court cases interpreting Article I, sections 2 and 3, then applies them to ORS 659A.403. Beginning with City of Portland v. Thornton, 174 Or 508, 149 P2d 972 (1944), the Oregon Supreme Court applied U.S. Supreme Court precedents under the First Amendment to the U.S. Constitution when interpreting Article I, Sections 2 and 3 of the Oregon Constitution. In Salem College & Academy, Inc. v. Emp. Div., 298 Or 471, 486-87, 695 P2d 25 (1985), an inter-denominational Christian school argued that the state's requirement that it pay unemployment tax violated Article I, sections 2 and 3. The court held that 'the state had not infringed upon the school's right to religious freedom when all similarly situated employers in the state were subject to [unemployment tax].' Significant to this case, the Salem court interpreted Article I, sections 2 and 3 in light of the text and historical context in which they arose, without reference to U.S. Supreme Court decisions and without reference to its own prior decisions that had relied on federal First Amendment precedent. Id. at 484. "In 1986, in the next case involving the application of Article I, sections 27, the Oregon Supreme Court made explicit what was implicit in Salem College. In Cooper v. Eugene Sch. Dist. No. 4J, 301 Or. 358, 369-70, 723 P2d 298, 30607 (1986), the court stated: 25 FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -87 ER-150 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 'This court sometimes has treated these guarantees and the First Amendment's ban on laws prohibiting the free exercise of religion (footnote omitted) as "identical in meaning," City of Portland v. Thornton, 174 Or. 508, 512, 149 P.2d 972 (1942); but identity of 'meaning' or even of text does not imply that the state's laws will not be tested against the state's own constitutional guarantees before reaching the federal constraints imposed by the Fourtenth [sic] Amendment, or that verbal formulas developed by the United States Supreme Court in applying the federal text also govern application of the state's comparable clauses.' (footnote omitted). Since Cooper, the Oregon Supreme Court has decided a trio of cases interpreting Article I, sections 2 and 3 that are relevant to the present case. "In Smith v. Employment Div., Dept. of Human Resources, 301 Or 209, 721 P2d 445 (1986), vacated on other grounds sub nom., Employment Div. v. Smith, 485 US 660 (1988), a drug counselor was fired for misconduct based on his ingestion of peyote, a sacrament in the Native American Church, during a Native American Church service and denied unemployment benefits. Smith claimed that the denial of unemployment benefits placed 'a burden on his freedom to worship according to the dictates of his conscience' under the Oregon Constitution, Article I, sections 2 and 3. Citing Salem College, the court held that there was no violation of Article I, sections 2 and 3 because the statute and rule defining misconduct were 'completely neutral toward religious motivations for misconduct' and '[claimant] was denied benefits through the operation of a statute that is neutral both on its face and as applied.' Id. at 215-16. "In Employment Div., Department of Human Resources v. Rogue Valley Youth for Christ, 307 Or 490, 498-99, 770 P2d 588 (1989), the court rejected a religious organization's claim that payment of unemployment tax would violate its rights under Article I, sections 2 and 3. Relying on United States v. Lee, 455 U.S. 252, 256-57, 102 S.Ct. 1051, 1054-55, 71 L.Ed.2d 127, 132 (1982), the court stated: 'When governmental action is challenged as a violation of the Free Exercise Clause of the First Amendment it must first be shown that the governmental action imposes a burden on the party's religion. Assuming that imposing unemployment payroll taxes on all religious organizations will burden at least some of those groups, (although not necessarily their freedom of belief or worship), that assumption "is only the beginning, however, and not the end of the inquiry. Not all burdens on religious liberty are unconstitutional. * * * The state may justify a limitation on religion by showing that it is essential to accomplish an overriding governmental interest." In the present case the State of Oregon has two governmental interests which, when taken together, are sufficiently important to support the burden on religion represented by unemployment payroll taxes. FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -88 ER-151 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 'There are few governmental tasks as important as providing for the economic security of its citizens. A strong unemployment compensation system plays a significant role in providing this security. * * * [A]ny state's unemployment tax must, as a practical matter, comply with FUT A's (Federal Unemployment Tax Act) requirements or the state's employers would face a double tax. Such a double tax would, in turn, create a very undesirable business climate in the state. This, combined with Oregon's constitutional interest in treating all religious organizations equally, creates an overriding state interest in applying the unemployment payroll taxes to all religious organizations. Our construction of the coverage of Oregon's unemployment compensation taxation scheme does not offend the First Amendment's Free Exercise Clause or Article I, section 3 of the Oregon Constitution.' (internal citations and footnotes omitted) Rogue Valley, at 498-99. "In Meltebeke v. Bureau of Labor and Industries, 322 Or 132, 903 P2d 351 (1995), the court considered a constitutional challenge to BOLi's rule that 'verbal or physical conduct of a religious nature' in the workplace was unlawful if it had 'the purpose or effect of unreasonably interfering with the subject's work performance or creating an intimidating, hostile or offensive working Id. at 139. As Respondents note, the court introduced its environment.' discussion of Article I, sections 2 and 3, with this sweeping statement: 'These provisions are obviously worded more broadly than the federal First Amendment, and are remarkable in the inclusiveness and adamancy with which rights of conscience are to be protected from governmental interference.' Id. at 146. The court then launched into a brief history of governmental intolerance towards religion enforced by criminal laws in England before summarizing its Salem College decision and concluding: 'A general scheme prohibiting religious discrimination in employment, including religious harassment, does not conflict with any of the underpinnings of the Oregon constitutional guarantees of religious freedom identified in Salem College: It does not infringe on the right of an employer independently to develop or to practice his or her own religious opinions or exercise his or her rights of conscience, short of the employer's imposing them on employees holding other forms of belief or nonbelief; it does not discourage the multiplicity of religious sects; and it applies equally to all employers and thereby does not choose among · religions or beliefs. 'The law prohibiting religious discrimination, including religious harassment, honors the constitutional commitment to religious pluralism FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -89 ER-152 1 2 3 4 5 6 7 8 9 10 11 12 13 by ensuring that employees can earn a living regardless of their religious beliefs. The statutory prohibition against religious discrimination in employment and, in particular, the BOLi rule at issue, when properly applied, will promote the '[n]atural right' of employees to 'be secure in' their 'worship [of] Almighty God according to the dictates of their own consciences,' Or. Const. Art. I, § 2, and will not be a law controlling religious rights of conscience or their free exercise.' Meltebeke at 148-49. The court then moved on to a review of Smith, stating that Smith stood for the principle that '[a] law that is neutral toward religion or nonreligion as such, that is neutral among religions, and that is part of a general regulatory scheme having no purpose to control or interfere with rights of conscience or with religious opinions does not violate the guarantees of religious freedom in Article I, sections 2 and 3.' Meltebeke at 149. The court held as follows: 'We conclude that, under established principles of state constitutional law concerning freedom of religion, discussed above, BOLi's rule is constitutional on its face. The law prohibiting employment discrimination, including the regulatory prohibition against religious harassment, is a law that is part of a general regulatory scheme, expressly neutral toward religion as such and neutral among religions. Indeed, its purpose is to support the values protected by Article I, sections 2 and 3, not to impede them.' 14 Id. at 150-51. 15 "Next, the Meltebeke court analyzed whether the BOLi rule, as applied, violated Article I, sections 2 and 3. Following Smith, the court stated: 16 17 18 19 20 21 22 23 'Because sections 2 and 3 of Article I are expressly designed to prevent government-created homogeneity of religion, the government may not constitutionally impose sanctions on an employer for engaging in a religious practice without knowledge that the practice has a harmful effect on the employees intended to be protected. If the rule were otherwise, fear of unwarranted government punishment would stifle or make insecure the employer's enjoyment and exercise of religion, seriously eroding the very values that the constitution expressly exempts from government control.' (emphasis added) Id. at 153. Based on facts set out in BOLi's Final Order, the court found that the employer's complained-of conduct constituted a 'religious practice,' that the employer did not know his conduct created an intimidating, hostile, or offensive 24 25 FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -90 ER-153 working environment, 45 and that the employer had established an affirmative defense under Article I, sections 2 and 3 because BOLi's rule did not require that the employer 'knew in fact that his actions in exercise of his religious practice had an effect forbidden by the rule.'46 Id. In cqntrast, here Respondents' affidavits establish that their refusal to make a wedding cake for Complainants was not a religious practice, but conduct motivated by their religious beliefs. 47 Accordingly, Meltebeke does not aid Respondents. 1 2 3 4 "The general principle that emerges from these cases is that a law that is part of a general regulatory scheme, expressly neutral and neutral among religions, is constitutional under Article I, sections 2 and 3. ORS 659A.403 is such a law. Additionally, there is also "an overriding governmental interest" present, explicitly expressed by Oregon's legislature in ORS 659A.003 in the following words: 5 6 7 8 'The purpose of this chapter is * * * to ensure the human dignity of all people within this state and protect their health, safety and morals from the consequences of intergroup hostility, tensions and practices of unlawful discrimination of any kind based on*** sexual orientation***.' 9 10 11 "Respondents further contend that 'the statutes underlying the Charges are facially unconstitutional under the Oregon Constitution in that they violate Respondents' fundamental rights arising under the Oregon Constitution to the extent there is no religious exemption to protect or acknowledge the fundamental rights of Respondents and persons similarly situated.' There is no requirement under the Oregon Constitution for such an exemption. 48 The exclusions and 12 13 14 15 16 17 45 See In the Matter of James Meltebeke, 10 BOLi 102, 105-07 (1992) (BOLi Commissioner's Findings of Fact included detailed findings that employer believed he was commanded to preach his beliefs to others under "any and all circumstances" or "he would be lost"). 46 18 19 20 21 22 23 24 25 In a footnote, the court distinguished "a religious practice" from "conduct that may be motivated by one's religious beliefs" in stating: "Conduct that may be motivated by one's religious beliefs is not the same as conduct that constitutes a religious practice. The knowledge standard is considered here only in relation to the latter category. In this case, no distinction between those categories is called into play, because a fair reading of BOLi's revised final order is that BOLi found that all of Employer's religious activity respecting Complainant is part of Employer's religious practice." Meltebeke at 153, fn. 19. 47 Cf. State v. Beagley, 257 Or App 220, 226, 305 P3d 147 (2013) ("First, we conclude that, regardless of where the line between religious practice and religiously motivated conduct is drawn, there are some behaviors that fall clearly to one side or the other. A Catholic taking communion at mass is clearly and unambiguously engaging in a religious practice; on the other side of the line, allowing a child to die for lack of life-saving medical care is clearly and unambiguously-and, as a matter of law-conduct that may be motivated by one's religious beliefs.") 48 The legislature did choose to enact certain exemptions to civil rights laws. Actions by bona fide churches or other religious institutions regarding housing and use of facilities are not unlawful practices if based on a bona fide religious belief about sexual orientation. Actions by bona fide churches or other religious institutions regarding employment are not unlawful practices if based on a bona fide religious belief about sexual orientation if the actions fall under one of three specific circumstances. Preference for FINAL ORDER (Swee/cakes,##44-14 & 45-14) -91 ER-154 prohibitions in ORS 659A.400(2) and 659A.403(2) do not lead to the conclusion that the law is not neutral. Respondents' reliance on Hobby Lobby 49 fails because Hobby Lobby was not decided on constitutional grounds, but decided under the Religious Freedom Restoration Act ("RFRA") of 1993 and because the RFRA does not apply to the states. City of Boerne v. Flores, 521 US 507 ( 1997). 1 2 3 "Based on the above, the forum finds ORS 659A.403 to be constitutional with respect to Article I, sections 2 and 3 of the Oregon Constitution. With respect to whether ORS 659A.403 is constitutional 'as applied,' Meltebeke does not aid Respondents for the reason that Respondents' refusal to make a wedding cake for Complainants was not a 'religious practice,' but conduct motivated by their 'religious beliefs.' Meltebeke at 153. 4 5 6 7 "United States Constitution 8 "First Amendment: Unlawfully infringing on Respondents' right of conscience and right to free exercise of religion 9 10 "Respondents contend that the First Amendment to the U.S. Constitution, as applied to the State of Oregon under the Fourteenth Amendment, prohibits BOLi from enforcing the provisions of ORS 659A.403 against Respondents because that statute, on its face and as applied, unlawfully infringes on Respondents' right of conscience and right to free exercise of religion. In pertinent part, the First Amendment provides: 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof* * 11 12 13 14 *' 15 "Respondents argue that the forum should apply the 'strict scrutiny' test set out by the U.S. Supreme Court in Sherbert v. Verneer, 374 US 398 (1963), claiming that Sherbert and the U.S. Supreme Court's subsequent decisions in Wisconsin v. Yoder, 406 US 205 (1972), Thomas v. Review Board, 450 US 707 (1981), Pacific Gas and Elec. Co. v. Public Utilities Commissioner., 475 US 1 (1986), Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 US 520 (1993), Hosanna-Tabor Ev. Lutheran Church & School v. EEOC, 132 set 694 (2012), Gonzalez v. 0 Centro, 546 US 418 (2006), Brown v. Entertainment Merchants Assn., 131 SCt 2729 (2011), and Wooley v. Maynard, 430 US 705 (1977) compel the application of that test. 16 17 18 19 20 21 22 23 24 25 employment applicants of a particular religion is not an unlawful practice by a bona fide church or other religious institution if it passes a three part test. The housing, use of facilities and employment exemptions do not apply to commercial or business activities of the church or institution. See ORS 659A.006. The existence of this statute, last amended in 2007, does not support Respondents' argument that the public accommodation statutes are unconstitutional because they do not contain such exemptions. Rather, it supports the Agency. If the legislature intended such exemptions be applied to the public accommodation statutes it would have enacted them. 49 Burwell v. Hobby Lobby, 573 US_, 134 set 2751 (June 30, 2014). FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -92 ER-155 1 2 3 "The forum begins its analysis by noting that Wooley Pacific Gas, Hosanna-Tabor, Gonzalez, and Brown are inapplicable to Respondents' free exercise claim for the following reasons: • 4 • 5 6 7 8 9 10 11 12 13 14 15 • • "Wooley and Pacific Gas involved religion but were decided exclusively upon free speech grounds. "Hosanna-Tabor was an employment discrimination suit brought by the EEOC on behalf of a minister challenging the church's decision to fire her as an ADA violation in which the court held only that 'the ministerial exception bars such a suit.' Hosanna-Tabor at 710. "Gonzalez, like Hobby Lobby, is inapplicable to this case because it was decided under the RFRA and because the RFRA does not apply to the states. "Brown was a free speech case that did not involve a free exercise claim. "In Sherbert, a Seventh Day Adventist ('appellant') was denied unemployment benefits because she refused to work on Saturdays based on her religious beliefs. She appealed on the grounds that South Carolina's law violated the free exercise clause of the First Amendment. The court held that the law was constitutionally invalid because it imposed a burden on appellant's free exercise of her religion and there was no 'compelling state interest enforced in the eligibility provisions of the South Carolina statute [that] justifies the substantial infringement of appellant's First Amendment rights.' Id. at 404, 406-07. "In Wisconsin, the Supreme Court held that the state of Wisconsin could not compel Amish students to attend school beyond the eighth grade when that requirement conflicted with Amish religious beliefs, stating: 16 17 18 19 20 21 22 23 24 "[l]n order for Wisconsin to compel school attendance beyond the eighth grade against a claim that such attendance interferes with the practice of a legitimate religious belief, it must appear either that the State does not deny the free exercise of religious belief by its requirement, or that there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause." "Relying on Sherbert and Wisconsin, the Thomas court reversed the denial of unemployment benefits to a Jehovah's Witnesses who quit his job because his job duties changed from working with sheet metal to manufacturing turrets for tanks, a war-related task that he opposed based on his religious beliefs. In upholding appellant's claim, the court stated: 'The mere fact that the petitioner's religious practice is burdened by a governmental program does not mean that an exemption accommodating his practice must be granted. The state may justify an inroad on religious 25 FINAL ORDER (Sweetcakes, ##44-14 & 45-14) - 93 ER-156 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 liberty by showing that it is the least restrictive means of achieving some compelling state interest.' Thomas, at 718. "In 1990, the Smith case, upon which both the Agency and Respondents rely, came before the court on appeal from the Oregon Supreme Court. The Oregon Supreme Court held that the state's denial of unemployment benefits based on the prohibition of sacramental peyote use was valid under the Oregon Constitution but invalid under the free exercise clause in the First Amendment of the U. S. Constitution based on Sherbert and Thomas. The U.S. Supreme Court characterized the issue before it as follows: "This case requires us to decide whether the Free Exercise Clause of the First Amendment permits the State of Oregon to include religiously inspired peyote use within the reach of its general criminal prohibition on use of that drug, and thus permits the State to deny unemployment benefits to persons dismissed from their jobs because of such religiously inspired use." Smith at 874. Smith argued that 'prohibiting the free exercise [of religion]' includes requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires).' Id. at 878. The court rejected Smith's argument, holding that the State of Oregon, 'consistent with the free exercise clause,' could deny Smith unemployment benefits when Smith's dismissal resulted from the use of peyote, a use that was constitutionally prohibited under Oregon law. Id. at 890. The court specifically declined to apply Sherbert's 'compelling interest' test, stating: 'Although, as noted earlier, we have sometimes used the Sherbert test to analyze free exercise challenges to * * * laws, we have never applied the test to invalidate one. We conclude today that the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the test inapplicable to such challenges. The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, "cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development." To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is compelling - permitting him, by virtue of his beliefs, "to become a law unto himself," - contradicts both constitutional tradition and common sense.' (internal citations omitted) Id. at 884-85. The court concluded that 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 (or prescribes) conduct that his religion prescribes (or proscribes).'" Id. at 879, citing United FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -94 ER-157 States v. Lee, 455 U.S. 252, at 263, n. 3. Related to one of Respondents' arguments here, the court also discussed the concept of 'hybrid' cases and concluded that Smith was not a 'hybrid' case. 50 1 2 "In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 US 520 (1993), the Church of the Lukumi Babalu Aye, Inc. ('church') and its congregants practiced the Santeria religion, a religion that employed animal sacrifice as one of its principal forms of devotion. During that devotion, animals are killed by cutting their carotid arteries, then cooked and eaten following Santeria rituals. After the church leased land in Hialeah and announced plans to establish a house of worship and other facilities there, the city council held an emergency public session and passed a resolution which noted city residents' 'concern' over religious practices inconsistent With public morals, peace, or safety, and adopted three substantive ordinances addressing the issue of religious animal sacrifice. 3 4 5 6 7 8 Using the Smith test, the Supreme Court found that the ordinances were neither neutral 51 nor of general applicability 52 and held that 'a law burdening religious 9 10 11 50 12 13 14 15 16 17 18 19 20 21 22 With respect to "hybrid claims," the Smith court stated: "The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, see Cantwell v. Connecticut, 310 U.S., at 304-307, 60 S.Ct., at 903-905 (invalidating a licensing system for religious and charitable solicitations under which the administrator had discretion to deny a license to any cause he deemed nonreligious); Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943) (invalidating a flat tax on solicitation as applied to the dissemination of religious ideas); Follett v. McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938 (1944) (same), or the right of parents, acknowledged in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), to direct the education of their children, see Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (invalidating compulsory schoolattendance laws as applied to Amish parents who refused on religious grounds to send their children to school). Some of our cases prohibiting compelled expression, decided exclusively upon free speech grounds, have also involved freedom of religion, cf. Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (invalidating compelled display of a license plate slogan that offended individual religious beliefs); West Virginia Bd. of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (invalidating compulsory flag salute statute challenged by religious objectors). And it is easy to envision a case in which a challenge on freedom of association grounds would likewise be reinforced by Free Exercise Clause concerns. Cf. Roberts v. United States Jaycees, 468 U.S. 609, 622, 104 S.Ct. 3244, 3251-52, 82 L.Ed.2d 462 (1984) ("An individual's freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State [if] a correlative freedom to engage in group effort toward those ends were not also guaranteed.") (footnotes omitted) 51 23 24 25 The court examined the history behind the ordinances before concluding: "In sum, the neutrality inquiry leads to one conclusion: The ordinances had as their object the suppression of religion. The pattern we have recited discloses animosity to Santeria adherents and their religious practices; the ordinances by their own terms target this religious exercise; the texts of the ordinances were gerrymandered with care to proscribe religious killings of animals but to exclude almost all secular killings; and the ordinances suppress much more religious conduct than is necessary in order to achieve the legitimate ends asserted in their defense. These FINAL ORDER (Sweetcakes,##44-14 & 45-14)-95 ER-158 practice that is not neutral or not of general application' can only survive if there is a 'compelling' governmental interest and the law is 'narrowly tailored in pursuit of those interests.' Id. at 546-4 7. 1 2 "Respondents argue that the Smith 'neutrality' test should not be applied here for two reasons. First, this is a 'hybrid' case in which the law 'substantially burden[s] multiple rights combining religion and speech' that the Smith court distinguished from cases that only involve free exercise claims. This argument fails because neither Respondents' free exercise nor free speech claims are independently viable 53 and the two claims together are not greater than the sum of their parts. 54 Second, Respondents argue that ORS 659A.403 is neither 'neutral' nor of 'general applicability.' Applying the Smith test, the forum finds that ORS 659A.403 is a 'valid and neutral law of general applicability.' As such, it is constitutional under the First Amendment's free exercise clause, both facially and as applied. 3 4 5 6 7 8 9 "Oregon Constitution 10 "Article /, Section 8: freedom of speech 11 "Article I, Section 8 of the Oregon Constitution provides: 12 'Section 8. Freedom of speech and press. No laws shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.' 13 14 15 ORS 659A.403 provides, in pertinent part: 16 '(1) Except as provided in subsection (2) of this section, all persons within the jurisdiction of this state are entitled to the full and equal 17 18 19 20 21 22 23 24 25 ordinances are not neutral, and the court below committed clear error in failing to reach this conclusion." Lukumi at 542. 52 In concluding that Hialeah's ordinances were not of "general applicability," the court found that the ordinances "were drafted with care to forbid few killings but those occasioned by religious sacrifice," that they did not prohibit and approved many kinds of "animal deaths or kills for nonreligious reason," that the city's purported concern for public health resulting from improper disposal of animal carcasses only addressed religious sacrifice and not disposal by restaurants or hunters, that more rigorous standards of inspection were imposed on animals killed for religious sacrifice and eaten than animals killed by hunters or fishermen, and that small commercial slaughterhouses were not subject to similar requirements related to the city's "professed desire to prevent cruelty to animals and preserve the public health." Id. at 543-45. 53 See discussion in "free speech" section, infra. 54 See Elane Photography, LLC v. Willock, 309 P3d 53 (2013), cert. den. (2014). FINAL ORDER (Swee/cakes, ##44-14 & 45-14) -96 us , 134 set 1787 ER-159 1 2 3 4 5 6 accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of*** sexual orientation * * *. I* * * * * '(3) It is an unlawful practice for any person to deny full and equal accommodations, advantages, facilities and privileges of any place of public accommodation in violation of this section.' The issues considered by the forum are: 7 (1) Is ORS 659A.403 facially unconstitutional? 8 (2) If ORS 659A.403 is facially constitutional, is it unconstitutional by requiring Respondents to participate in 'compelled speech' by making and providing a wedding cake for Complainants? 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 "State v. Robertson, 293 Or 402, 649 P.2d 569 (1982), is the seminal Oregon case in this area. Robertson involved an Article I, Section 8 challenge to ORS 163.275, a statute defining the crime of coercion, in which 'speech [was] a statutory element in the definition of the offense.' Id. at 415. In Robertson, the Oregon Supreme Court established a basic framework, comprised of three categories, for determining whether a law violates Article I, section 8. That framework was most recently described in State v. Babson, 355 Or 383, 391, 326 P3d 559, 566 (2014). 'Under the first category, the court begins by determining whether a law is "written in terms directed to the substance of any 'opinion' or any 'subject' of communication." If it is, then the law is unconstitutional, unless the scope of the restraint is "wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach.'' If the law survives that inquiry, then the court determines whether the law focuses on forbidden effects and "the proscribed means [of causing those effects] include speech or writing," or whether it is "directed only against causing the forbidden effects.'' If the law focuses on forbidden effects, and the proscribed means of causing those effects include expression, then the law is analyzed under the second Robertson category. Under that category, the court determines whether the law is overbroad, and, if so, whether it is capable of being narrowed. If, on the other hand, the law focuses only on forbidden effects, then the law is in the third Robertson category, and an individual can challenge the law as applied to that individual's circumstances.' (internal citations omitted) 25 FINAL ORDER (Swee/cakes, ##44-14 & 45-14)-97 ER-160 "Robertson Category One 1 "In analyzing a law under Robertson's first category, Oregon courts have looked to the text of the law to see whether it expressly regulates expression. Babson at 395. In Babson, the issue was the constitutionality of a guideline adopted by the Legislation Administration Committee ('LAC') that prohibited all overnight use of the capitol steps, including protests like defendants' vigil. Defendants and the LAC agreed that a person could violate the guideline without engaging in expressive activities, if, for example, a person used the steps as a shortcut while crossing the capitol grounds after 11:00 p.m. when there were no hearings or floor sessions taking place. Id. at 396-97. The court held that the guideline was not unconstitutional under Robertson's first category because it was not 'written in terms directed to the substance of any "opinion" or any "subject" of communication.' Id. ORS 659A.403, like the LAC guideline in Babson, is not "written in terms directed to the substance of any 'opinion' or any "subject" of communication.'' Rather, it is a law focused on proscribing the pursuit or accomplishment of a forbidden result - in this case, discrimination by places of public accommodations against individuals belonging to specifically enumerated protected classes. As such, it is not susceptible to a Robertson category one facial challenge. 2 3 4 5 6 7 8 9 10 11 12 "Respondents argue that ORS 659A.403 expressly regulates expression because the word 'deny' in section (3) shows that, when properly interpreted, 'the statute prohibits communication that services are being denied for a prohibited reason, which implicates both speech and opinion.' (emphasis in original). Under Respondents' expansive interpretation, all laws implicating any form of communication whatsoever would be facially unconstitutional under Article I, Section 8. This is not what the court held in Robertson and Babson. 55 13 14 15 16 17 18 19 20 21 22 23 24 25 55 See State v. Robertson, 293 Or 402, 416-417, 649 P.2d 569 (1982) ("As stated above, article I, section 8, prohibits lawmakers from enacting restrictions that focus on the content of speech or writing, either because that content itself is deemed socially undesirable or offensive, or because it is thought to have adverse consequences. * * * It means that laws must focus on proscribing the pursuit or accomplishment of forbidden results rather than on the suppression of speech or writing either as an end in itself or as a means to some other legislative end.") See also State v. Garcias, 296 Or 688,697,679 P.2d 1354, 1359 (1984) (menacing statute held constitutional under Robertson category one analysis even though it prohibited threatening words because "[t]he fact that the harm may be brought about by use of words, even by words unaccompanied by a physical act, does not alter the focus of the statute, which remains directed against attempts to cause an identified harm, rather than prohibiting the use of words as such"); State v. Moyle, 299 Or 691, 701, 705 P2d 740 (1985)(statute criminalizing telephonic or written threats held constitutional under Robertson category one analysis because "the effect that it proscribes, causing fear of injury to persons or property, merely mirrors a prohibition of words themselves"); City of Eugene v. Miller, 318 Or 480, 489, 871 P2d 454 (1994)(defendant, who sold joke books on the city sidewalk, was convicted of violating an ordinance prohibiting vendors from selling merchandise on city sidewalks; ordinance held valid under first category of Robertson because it banned the sale of all expressive material on the sidewalk and therefore was content neutral); State v. Illig-Renn, 341 Or 228, 237, 142 P3d 62 (2006)("[t]he fact that persons seek to convey a message by their conduct, that words accompany their conduct, or that the very reason for their conduct is expressive, does not transform prohibited conduct into protected expression or assembly"). FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -98 ER-161 1 "Based on the above, the. forum concludes that ORS 659A.403 is not subject to a Robertson category one Article I, Section 8 facial challenge. 2 3 "Robertson Category Two 4 "A law falls under the second category of Robertson if it is 'directed in terms against the pursuit of a forbidden effect' and 'the proscribed means [of causing that effect] include speech or writing.' Babson at 397, quoting Robertson at 417-18. Oregon courts examine a statute in the second category for 'overbreadth' to determine if 'the terms of [the] law exceed constitutional boundaries, purporting to reach conduct protected by guarantees such as * * * [A]rticle I, section 8. * * * If a statute is overbroad, the court then must determine whether it can be interpreted to avoid such overbreadth.' Id. at 397-98, quoting Robertson at 410, 412. 5 6 7 8 9 "In State v. Illig Renn, 341 Or 228 (2006), the defendant challenged as overbroad a statute that made it a crime to '[r]efuse[ ] to obey a lawful order by [a] peace officer' if the person knew that the person giving the order was a peace officer. In addressing the state's argument that the statute was not subject to an overbreadth challenge because it did not 'expressly' restrict expression, the court stated that a statute is subject to a facial challenge under the first or second category of Robertson if it 'expressly or obviously proscribes expression,' leaving statutes with '[m]arginal and unforeseen applications to speech and expression' to as-applied challenges under the third category. 56 Illig-Renn, at 234. The court went on to state that facial challenges generally would not be permitted 'if the statute's application to protected speech [was] not traceable to the statute's express terms.' Id. at 236. Based on that interpretation of Article I, section 8, the court concluded that the defendant could challenge the statute that prohibited interfering with a peace officer only as applied, under the third category of Robertson, and not on its face, under the other two categories. Id. at 237. 10 11 12 13 14 15 16 17 "Respondents' argument resembles defendants' argument in Babson, which the court characterized in the following words: 18 19 'Defendants instead argue that, even if the [law] targets some harmrather than targeting expression-the [law] has an "obvious and foreseeable" application to speech, and it is overbroad. That is, defendants argue that the text of the statute does not have to refer to expression or include expression as an element to fall under category two, as long as it has an obvious application to expression.' 20 21 22 23 Babson at 398. The Babson court rejected this argument, stating: 24 25 56 The court referred to this type of statute as a "speech-neutral" statute, one that "doe[s] not by its terms forbid particular forms of expression." Illig-Renn at 233-34. FINAL ORDER (Swee/cakes, ##44-14 & 45-14) -99 ER-162 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 'We agree with the state that the statement in Robertson on which defendants rely does not extend Article I, section 8, overbreadth analysis to every law that the legislature enacts. When expression is a proscribed means of causing the harm prohibited in a statute, it is apparent that the law will restrict expression in some way because expression is an element of the law. For that type of law, the legislature must narrow the law to eliminate apparent applications to protected expression. See Robertson, 293 Or. at 417-18, 649 P2d 569 (noting that when a law focused on harmful effects includes expression as a proscribed means of causing those effects, the court must determine whether the law "appears to reach privileged communication" (emphasis added)). However, if expression is not a proscribed means of causing harm, and is not described in the terms of the statute, the possible or plausible application of the statute to protected expression is less apparent. That is, in the former situation, every time the statute is enforced, expression will be implicated, leading to the possibility that the law will be considered overbroad; in the latter situation, the statute may never be enforced in a way that implicates expression, even if it is possible, or even apparent, that it could be applied to reach protected expression. When a law does not expressly or obviously refer to expression, the legislature is not required to consider all apparent applications of that law to protected expression and narrow the law to eliminate them. The court's statement in Robertson, on which defendants rely, does not extend the second category overbreadth analysis to statutes that do not, by their terms, expressly or obviously refer to protected expression.' Id. at 400. The Babson court went on to explain that 'obviously,' as used in the last sentence of the above-quoted statement, did not 'extend Article I, section 8, scrutiny [under the first two Robertson categories] to any statute that could have an apparent application to speech; rather, the [Robertson] court used the word 'obviously' to make it clear that creative wording that does not refer directly to expression, but which could only be applied to expression, would be scrutinized under the first two categories of Robertson.' Id. at 403. The Babson court concluded its Robertson category two analysis by stating: 'Similarly, here, although the guideline does not directly refer to speech, the guideline does have apparent applications to speech, as defendants contend. A restriction on use of the capitol steps will prevent people like defendants from protesting or otherwise engaging in expressive activities on the capitol steps overnight. That fact alone, however, does not subject the guideline to Article I, section 8, scrutiny under the second category of Robertson. The guideline is not simply a mirror of a prohibition on words. The guideline also bars skateboarding, sitting, sleeping, walking, storing equipment, and all other possible uses of the capitol steps during certain hours. Thus, because the guideline does not expressly refer to expression as a means of causing some harm, and it does not "obviously'' prohibit FINAL ORDER (Swee/cakes, ##44-14 & 45-14) -100 ER-163 expression within the meaning of Moyle, it is not subject to an overbreadth challenge under the second category of Robertson.' 1 2 Babson at 403-04. This case, like Babson and Illig-Renn, does not involve a statute that 'obviously' prohibits expression. Rather, it is a 'speech-neutral' statute as described in 11/ig-Renn.57 Furthermore, the legislature's use of the challenged word 'deny' in ORS 659A.403 is contextually similar to the challenged word 'refuse' in Illig-Renn, as both terms prohibit specific actions that may involve expression without specifying a particular form of expression. In conclusion, the forum finds that ORS 659A.403 is not subject to Article I, section 8 overbreadth scrutiny as set out in Robertson, category two. 3 4 5 6 7 "Robertson Category Three Does Not Apply to Respondents' claim of 'compelled speech.' 8 9 "Respondents contend that their Article I, section 8, rights were violated by the Agency's application of ORS 659A.403 because that application, in requiring them to provide a wedding cake to Complainants, 'unlawfully compel[s] Respondents to engage in expression of a message they did not want to express.' The Robertson framework was developed in a series of cases involving prohibited speech, and there are no Oregon cases that have come to the forum's attention in which compelled speech was the issue. However, the U.S. Supreme Court has addressed that issue in a line of cases involving the First Amendment and compelled speech. In the absence of Oregon case law, the forum turns to those decisions for guidance. 10 11 12 13 14 15 "As a preliminary matter, the forum addresses Respondents' argument, made in their response to the Agency's cross-motions for summary judgment, that the 'forbidden effect' involved in a Robertson category three analysis of the constitutionality of ORS 659A.403 is 'Respondents' choice not to be involved in Complainants' same-sex ceremony, which is alleged to be a denial of services based on sexual orientation.' Respondents argue that their 'choice not to be involved' cannot be a 'forbidden effect' because Article XV, section 5a of the Oregon Constitution expressly prohibited legal recognition of same-sex marriages in January 2013, 58 making it 'clear [that] opposition to same-sex marriage is not a 'forbidden effect.'" Respondents misread Babson, Robertson, and the statute. The 'forbidden effect' under ORS 659A.403 is not its impact on 16 17 18 19 20 21 22 23 24 25 57 Cf. State v. Babson, 355 Or 383, 405, 326 P3d 559, 566 (2014), quoting Miller at 489-90 (Robertson category two analysis did not apply because. contested ordinance "was directed at a harm - street and . sidewalk congestion - that the city legitimately could seek to prevent, and did not, 'by [its] terms, purport to proscribe speech or writing as a means to avoid a forbidden effect."') 58 In January 2013, Article X:v, section 5a, of the Oregon Constitution provided: "It is the policy of Oregon, and its political subdivisions, that only a marriage between one man and one woman shall be valid or legally recognized as a marriage." FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -101 ER-164 Respondents, but Respondents' denial of services to Complainants based on their sexual orientation. Respondents were not asked to issue a marriage license, perform a wedding ceremony, or in any way legally recognize Complainants' planned same-sex wedding in contravention of Article XV, Section 5a. Furthermore, there is no evidence in the record, as submitted for summary judgment, that they communicated to Respondents where they intended to be married, that they intended to be married in the state of Oregon, or, for that matter, that Complainants were ever married. 59 1 2 3 4 5 "The right to refrain from speaking was established in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), in which the U. S. Supreme Court held that the State of West Virginia could not constitutionally require students to salute the American flag and recite the Pledge of Allegiance. The Court held that a state could not require 'affirmation of a belief and an attitude of mind,' noting that 'the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.' Id. at 633-34. 6 7 8 9 10 "In Miami Herald Publishing Company v. Tomi/lo, 418 U.S. 241 (1974), the Court considered whether a Florida statute that required newspapers that 'assailed' the 'personal character or official record' of any political candidate to give that candidate the 'right to demand that the newspaper print, free of cost to the candidate, any reply the candidate may make to the newspaper's charges,' and to print the reply 'in as conspicuous a place and in the same kind of type as the charges which prompted the reply.' Id. at 243. The Court found the statute was unconstitutional because it deprived the newspaper and its editors of the fundamental right to decide what to print or omit. Id. at 258. 11 12 13 14 15 "In 1977, the Court was asked to decide whether the State of New Hampshire could constitutionally enforce criminal sanctions against persons who covered the motto 'Live Free or Die' on their passenger vehicle license plates because that motto was repugnant to their moral and religious beliefs. Wooley v. Maynard, 430 U.S. 705 (1977). In its discussion of the nature of compelled speech, the Court noted that New Hampshire's statute 'in effect requires that appellees used their private property as a "mobile billboard" for the State's ideological message or suffer a penalty' and that driving an automobile was a 'virtual necessity for most Americans.' Id. at 715. The Court found New Hampshire's statute unconstitutional, holding as follows: 16 17 18 19 20 21 22 23 24 25 59 The forum takes judicial notice that a law granting full marriage rights for same-sex couples in the state of Washington, which is immediately adjacent to the State of Oregon and only separated from the City of Portland by the Columbia River, took effect on December 6, 2012. See Revised Code of Washington 26.04.010. A. Klein was aware of that on January 17, 2013, as shown by his statement during the Perkins interview, quoted in Finding of Fact #14. FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -102 ER-165 1 2 3 'We are thus faced with the question of whether the State may constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public. We hold that the State may not do so.' 4 Id. at 713. 5 "In 1986, the Court was asked to decide whether a regulated public utility company that had traditionally distributed a company newsletter in its quarterly billing statements was required to enclose newsletters published by TURN, a group expressing views opposite to the utility, in the same billing statements. Pacific Gas & Electric Co. v. Public Utilities Commission of California ("PUC"), 475 U.S. 1 (1986). The Court held that the PUC's requirement unconstitutionally compelled Pacific Gas to accommodate TURN's speech by requiring it to disseminate messages hostile to Pacific's own interests. Id. at 20-21. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 "Hurley v. Irish-American GLIB, 515 U.S. 557 (1995), presented the question of whether private citizens in Massachusetts who organized a St. Patrick's Day parade were required to include GLIB, a group 'celebrat[ing] its members' identity as openly gay, lesbian, and bisexual descendants of the Irish immigrants,' thereby imparting a message that the organizers did not wish to convey among the marchers. Id. at 570. The requirement was based on a provision of Massachusetts' public accommodation law that included a prohibition on discrimination on the basis of sexual orientation. The Court found that a parade is a form of expression, stating that a 'parade' indicates 'marchers who are making some sort of collective point, not just to each other but to bystanders along the way. Indeed, a parade's dependence on watchers is so extreme that nowadays, as with Bishop Berkeley's celebrated tree, "if a parade or demonstration receives no media coverage, it may as well not have happened."' Id. at 568. The Court also determined that: '[GLIB]'s participation as a unit in the parade was equally expressive. GLIB was formed for the very purpose of marching in it, as the trial court found, in order to celebrate its members' identity as openly gay, lesbian, and bisexual descendants of the Irish immigrants, to show that there are such individuals in the community, and to support the like men and women who sought to march in the New York parade. The organization distributed a fact sheet describing the members' intentions, and the record otherwise corroborates the expressive nature of GLIB's participation. In 1993, members of GLIB marched behind a shamrock-strewn banner with the simple inscription "Irish American Gay, Lesbian and Bisexual Group of Boston." GLIB understandably seeks to communicate its ideas as part of the existing parade, rather than staging one of its own.' (internal citations omitted) 25 FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -103 ER-166 Id. at 570. The Court further determined that '[s]ince every participating unit affects the message conveyed by the private organizers, the state courts' application of the statute produced an order essentially requiring petitioners to alter the expressive content of their parade' 60 and held the state's application of the statute unconstitutional because 'this use of the State's power violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.' Id. at 573. 1 2 3 4 5 "In Rumsfeld v. Forum for Academic and Institutional Rights, Inc. ('FAIR'), 547 U.S. 47 (2006), a group of law school associations objected to the application of the Solomon Amendment, which required campuses receiving federal funds to provide equal access to military recruiters. The Court held that there was no First Amendment violation, distinguishing Hurley, Tomi/lo, and Pacific Gas because in those cases 'the complaining speaker's own message was affected by the speech it was forced to accommodate' or 'interfere[d] with a speaker's desired message.' Id. at 63-64. The Court noted that '[c]ompelling a law school that sends scheduling e-mails for other recruiters to send one for a military recruiter is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah's Witness to display the motto 'Live Free or Die,' and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.' Id. at 62. Of additional significance to this case, the Court stated: 6 7 8 9 10 11 12 'Nothing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military's policies. We have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy.' 13 14 15 16 Id. at 65. 17 "Wooley and Barnette do not support Respondents because Respondents are under no compulsion to publicly 'speak the government's message' 61 in an affirmative manner that demonstrates their support for same-sex marriage. Unlike the laws at issue in Wooley and Barnette, ORS 659A.403 does not require Respondents to recite or display any message. It only mandates that if Respondents operate a business as a place of public accommodation, they cannot discriminate against potential clients based on their sexual orientation. Elane Photography at 64. 18 19 20 21 22 "Tomi/lo and Pacific Gas are distinctly different from this case. In both cases, the government commandeered a speaker's means of reaching its 23 24 25 60 Hurley v. Irish-American GLIB, 515 U.S. 557, 572-73 (1995). 61 Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 62 (2006). FINAL ORDER (Sweetcakes,##44-14 & 45-14)-104 ER-167 1 2 3 4 5 6 7 8 9 10 11 12 audience and required the speaker to disseminate an opposing point of view. Here, the state has not compelled Respondents to publish or distribute anything expressing a view. "Hurley is distinguishable because Respondents' provision of a wedding cake for Complainants was not for a public event, but for a private event. Whatever message the cake conveyed was expressed only to Complainants and the persons they invited to their wedding ceremony, not to the public at large. In addition, the forum notes that, whether or not making a wedding cake may be expressive, the operation of Respondents' bakery, including Respondents' decision not to offer services to a protected class of persons, is not. Elane Photography at 68. "Finally, Rumsfeld does not aid Respondents because it rejected the law schools' arguments that they were forced to speak the government's message and that they were required to host the recruiters' speech in a way that violated compelled speech principles. Rumsfeld at 64-65. "For the reasons stated above, the forum concludes that the application of ORS 659A.403 to Respondents so as to require them to provide a wedding cake for Complainants does not constitute compelled speech that violates Article I, section 8 of the Oregon Constitution. 13 "United States Constitution 14 "First Amendment: Unlawfully infringing on Respondents' right to free speech. 15 16 17 18 "Respondents contend that the First Amendment to the U. S. Constitution, as applied to the State of Oregon under the Fourteenth Amendment, prohibits BOLi from enforcing the provisions of ORS 659A.403 against Respondents because that statute unlawfully infringes on Respondents' free speech rights. In pertinent part, the First Amendment provides: 'Congress shall make no law* * * abridging the freedom of speech * * *.' 19 20 21 22 23 24 25 "Based on the discussion in the previous section, the forum concludes that the requirement in ORS 659A.403 that Respondents bake a wedding cake for Complainants is not 'compelled speech' that violates the free speech clause of the First Amendment to the U. S. Constitution. "CONCLUSION "Respondents' motion for summary judgment is GRANTED with respect to the Agency's allegations in the Amended Formal Charges that Respondent M. Klein violated ORS 659A.403 by denying full and equal accommodations, advantages, facilities and privileges to Complainants Rachel Cryer and Laurel Bowman-Cryer. FINAL ORDER (Swee/cakes, ##44-14 & 45-14)-105 ER-168 1 2 3 4 "Respondents' motion for summary judgment is GRANTED with respect to the Agency's allegations in the Amended Formal Charges that Respondent A. Klein violated ORS 659A.406. "Respondents' motion for summary judgment is GRANTED with respect to the Agency's allegations in the Amended Formal Charges that Respondents violated ORS 659A.409. 5 6 7 8 9 10 11 12 13 14 15 "The Agency's cross-motion for summary judgment is GRANTED with respect to the Agency's allegations in the Amended Formal Charges that Respondent A. Klein violated ORS 659A.403 by denying the full and equal accommodations, advantages, facilities and privileges of a place of public accommodation to Complainants Rachel Cryer and Laurel Bowman-Cryer based on their sexual orientation. "The Agency's cross-motion for summary judgment is GRANTED with respect to the Agency's allegations in the Formal Charges that Respondents A. Klein and M. Klein are jointly and severally liable for A. Klein's violation of ORS 659A.403. "The Agency's cross-motion for summary judgment is GRANTED with respect to Respondents' affirmative defenses. "The Forum has NO JURISDICTION to adjudicate the counterclaims raised by Respondents in paragraphs ##31-42 in Respondents' Amended Answers. 16 "Case Status 17 18 "The hearing will convene as currently scheduled. The scope of the evidentiary portion of the hearing will be limited to the damages, if any, suffered by Complainants as a result of A. Klein's ORS 659A.403 violation. 19 IT IS SO ORDERED" 20 21 22 The ALJ's rulings on Respondents' motion for summary judgment and the Agency's cross-motion for summary judgment are AFFIRMED, except for the ruling on Respondents' violation of ORS 659A.409, which is REVERSED for reasons set out in the Opinion section of this Final Order and as noted in the Conclusions of Law in this Final Order. (Ex. X65) 23 24 29) On February 4, 2015, the ALJ granted the Agency's second motion for a protective order. (Ex. X65) 25 FINAL ORDER (Sweetcakes, ##44-14 & 45-14) - 106 ER-169 1 2 3 4 5 6 7 8 9 30) On February 5, 2015, the ALJ granted Respondents' renewed motion to depose Complainants. The ALJ's interim order read as follows: "Introduction "On January 15, 2015, Respondents flied a renewed motion to depose Complainants. On January 22, 2015, the Agency timely filed objections. Respondents' motion is based on part on their assertion that (1) the 25 additional interrogatories they were allowed to serve on the Agency pursuant to my September 29, 2014, interim order that allowed Respondents to serve additional interrogatories as a potential means of eliminating the need for a deposition, (2) coupled with the Agency's responses to Respondents' prior interrogatories and the Agency's answers to the 25 additional interrogatories, (3) are inadequate to address Complainants' damages, leaving Respondents substantially prejudiced as a result. 12 "On January 22, 2015, the Agency filed objections, arguing that Respondents' have not clearly articulated how they will be substantially prejudiced in the absence of depositions, that Complainants should not be subjected to depositions 'due to Respondents' inability to adequately craft their interrogatories,' and that Respondents' 'discovery tactics are an abuse of process.' 13 "Discussion 14 "On October 14, 2014, the Agency complied with the forum's September 25, 2014, discovery order requiring the Agency to answer Respondents' August 5, 2014, interrogatory seeking a detailed explanation of Complainants' emotional, physical and mental suffering caused by Respondents' actions. The Agency's interrogatory response listed a total of 88 discrete types of harm suffered by Complainant Cryer and 90 discrete types of harm suffered by Complainant Bowman-Cryer. In support of their motion, Respondents argue that: 10 11 15 16 17 18 19 20 21 22 23 24 '[The listed symptoms], some of which are inconsistent with each other, raise more questions than they answer. Respondents attempted to address some of these nearly 200 symptoms in their 25 interrogatories, but were unable to even begin to address the questions raised by this exhaustive list of symptoms, much less get clear answers from Complainants.' Among its objections to Respondents' motion for depositions, the Agency asserts that 'many of the listed symptoms are interrelated to one another and would hardly require Respondents to explore them individually.' The Agency further notes that Respondents will have an adequate opportunity to 'cross-examine Complainants on all symptoms at hearing.' 25 FINAL ORDER (Swee/cakes, ##44-14 & 45-14) -107 ER-170 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "To more clearly illustrate the points raised by Respondents and the Agency, the types of harm alleged by each Complainant are reprinted below in their entirety. As will be seen, they permeate all aspects of Complainants' lives. Complainant Rachel Cryer '[88 symptoms listed] Complainant Laurel Bowman-Cryer '[90 symptoms listed] OAR 839-050-0200(3) governs depositions in this forum. It provides: 'Depositions are strongly disfavored and will be allowed only when the requesting participant demonstrates that other methods of discovery are so inadequate that the participant will be substantially prejudiced by the denial of the motion to depose a particular witness.' "Since OAR 839-050-0200(3) was adopted, the forum has been extremely reluctant to grant depositions, and has uniformly denied respondents' requests for depositions when respondents have not first sought informal discovery through interrogatories. See, e.g., In the Matter of Oak Harbor Freight Lines, Inc., 33 BOLi 1 (2014), In the Matter of Columbia Components, Inc., 32 BOLi 257 (2013), In the Matter of Blachana, LLC, 32 BOLi 220 (2013), In the Matter of From the Wilderness, Inc., 30 BOLi 227 (2009). The only occasion when the forum has allowed a deposition to take place was in the Columbia Components case, under the following circumstances: 'During the hearing it became clear that Complainant possessed documents either requested by Respondent and/or set out in the [ALJ's] discovery order that Complainant did not provide until Respondent was able to ascertain existence of those documents during Complainant's testimony** * [and] that Complainant had been less than forthcoming with regard to the existence of those documents.' "In this case, Respondents have satisfied the forum's requirement of seeking discovery by means of informal request before requesting a deposition. Before initially requesting a deposition, Respondents made informal document discovery requests, requested admissions, and served 25 interrogatories on the Agency, all before Respondents received the Agency's interrogatory answer setting out the alleged 178 types of harm suffered by Complainants as a result of Respondents' actions. "On September 25, 2014, the forum granted Respondents' motion to depose Complainants, with the scope of the depositions limited to 'Complainants' FINAL ORDER (Sweetcakes, ##44-14 & 45-14)-108 ER-171 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 claim for damages.' That ruling was predicated on my conclusion that Respondents '[had] sought informal discovery on the issue of damages through other methods and do not have adequate information on damages.' "At a prehearing conference held on September 29, 2014, discovery was discussed at length. As noted earlier, it was agreed that Respondents would be allowed to serve 25 additional interrogatories on the Agency as a potential means of eliminating the need for a deposition. On October 14, 2014, the Agency sent Respondents its interrogatory response listing the 178 types of alleged harm. In the absence of depositions, that left 25 interrogatories for Respondents to explore those 178 listed harms. On December 31, 2014, Respondents served the interrogatories that were allowed in my September 29, 2014, ruling. The Agency timely responded on January 13, 2015. "Since Respondents filed their motion on January 15, 2015, the Agency was granted summary judgment as to Respondents' alleged ORS 659A.403 violation. In the interim order granting summary judgment, I ruled that the only evidentiary issue at hearing will be the amount of damages, if any, to which Complainants are entitled. The amount of damages sought on Complainants' behalf is 'at least $75,000' for each Complainant. In addition, it appears from the Agency's February 3, 2015, filing in response to the forum's inquiry regarding a Protective Order sought by the Agency that the Agency may intend to present evidence at hearing that Complainants are entitled to damages for mental and emotional suffering up to the present day, more than two years after the date of discrimination. "I have reviewed prior BOLi Final Orders in which damages were awarded for emotional and mental suffering and find that this case stands well apart from all its predecessors in the exhaustive list of harms alleged by Complainants for which the Agency seeks damages. No other case comes even remotely close. In defending themselves, Respondents have a right to inquire into each type of harm alleged by Complainants to determine the extent of the harm and whether Complainants' physical, mental, and emotional suffering was caused, at least in part, if not in whole, by events and circumstances that were unrelated to Aaron Klein's ORS 659A.403 violation. Based on the sheer number and variety of types of alleged harm, there is no practical way Respondents can accomplish an effective inquiry using interrogatories. I find that Respondents will be substantially prejudiced if they are not allowed to depose Complainants. "Based on the above, Respondents' motion to depose Complainants is GRANTED, with the following limitations: '1. Respondents are allowed a maximum of three hours, not counting breaks, to question each Complainant. 25 FINAL ORDER (Swee/cakes, ##44-14 & 45-14) -109 ER-172 '2. The Agency may choose where the depositions are to be conducted and is instructed to cooperate in making Complainants available for deposition as soon as practical, given that the hearing is scheduled to begin next month. If the Agency and Respondents cannot agree on a date, they are instructed to contact me and I will choose a date. I do not intend to postpone this hearing again because of a discovery issue. 1 2 3 4 5 '3. Respondents are responsible for any costs associated with conducting the deposition. Respondents and Agency must each pay for their own copy of the transcript if a transcript is prepared. 6 7 '4. Respondents and the Agency are ordered to notify me at least seven days in advance of the date and time for the depositions so that I can be available if necessary. As of today, the only dates I will be unavailable between now and March 1 are the afternoon of February 11 and all day February 16. 8 9 10 5. The scope of Respondents' questioning is limited to damages. Respondents may not engage in a fishing expedition by inquiring into matters totally irrelevant to the issue of physical, emotional, and mental suffering. m 11 12 13 (Ex. X72) 14 31) On February 11, 2015, "in view of the national attention and attendant publicity these cases have already received and the likelihood that Complainants will be questioned about the protected health information in the records produced under the protective order," the ALJ issued a protective order regarding Complainants' depositions. The order prohibited the deposition transcripts or notes made of the deposition testimony from being made available to "non-qualified" persons or from being used "for any other purpose than the preparation for litigation of [the] proceeding." (Ex. X74) 15 16 17 18 19 20 21 22 32) On February 17, 2015, Respondents filed a motion for reconsideration of the ALJ's ruling on summary judgment. The ALJ denied Respondents' motion. (Exs. X73, X75, X79) 33) On February 23, 2015, the Agency issued Second Amended Formal Charges in both cases. Respondents filed answers on February 27, 2015. (Exs. X78, X82) 23 24 34) Respondents and Agency timely submitted case summaries. (Exs. X76, 77) 25 FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -110 ER-173 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 35) On February 26, 2015, Respondents filed a motion for discovery sanctions that was opposed by the Agency. On March 5, 2015, the ALJ ruled on Respondents' motion as follows: "On February 26, 2015, Respondents filed a motion requesting discovery sanctions related to the Agency's failure to provide discovery subject to my Discovery Order dated September 25, 2014, until February 24, 2015. The Agency filed a response on February 27, 2015, and Respondents supplemented their motion on March 3, 2015. "The discovery in question relates to my September 25, 2014, Order requiring that the Agency provide Respondents with: 'all posting by Complainants to any social media website, including but not limited to Facebook, Twitter, Linkedln, MySpace, lnstagram, and SnapChat from January 2013 to the present that contain comments about the facts of this case, comments about Respondents, or comments that relate to their alleged damages.' "Specifically, Respondents allege that on February 24, 2015, less than three hours before the Agency filed its case summary, the Agency turned over 109 pages of documents ('subject documents') to Respondents that were subject to my discovery order. Respondents further allege that the 109 pages were included in the Agency's case summary. The Agency does not dispute these allegations, acknowledges it received the subject documents from Complainants in August 2014, and attempts to explain the reason for its late disclosure in its response. After reviewing the subject documents, I conclude that they contain Complainants' social media conversations that fall within the scope of my September 25, 2014, Discovery Order. "Respondents allege that the Agency's untimely disclosure of these documents establishes bad faith on the part of the Agency and/or Complainants, particularly since the disclosure occurred after Respondents completed their depositions of Complainants, and that Respondents are irreparably prejudiced as a result. Respondents ask that the forum sanction the Agency in a number of different ways. "In my September 25, 2014, Discovery Order, I ruled as follows: 'After the scheduled September 29, 2014, prehearing conference in this matter, the forum will issue a subsequent order stating the Agency's deadline for complying with the terms of this order. The Agency has a continuing obligation, through the close of the hearing, to provide Respondents' counsel with any newly discovered material that responds to the responses and production ordered in this interim order. The 25 FINAL ORDER (Swee/cakes, ##44-14 & 45-14) -111 ER-174 Agency's failure to comply with this order may result in the sanction described in OAR 839-050-0200(11 ).' 1 2 In the interim order I issued on September 30, 2014, that summarized the September 29, 2014, prehearing conference, I ordered that "[t]he Discovery ordered in my rulings on * * * Respondents' motions for Discovery Orders must be mailed or hand-delivered no later than October 14, 2014." That was not done. 3 4 5 "As a prelude to my ruling, I note that the forum has no authority to impose the vast majority of sanctions sought by Respondents. The forum's authority in this matter is not derived from the ORCP, but from provisions in the Oregon APA, the Oregon Attorney General's Administrative Rules (OAR 137-003-0000 to 0092), and the forum's own rules, OAR 839-050-000 et seq. The ALJ's authority to impose sanctions for violations of discovery orders is set out in OAR 839-0500020(11 ):A 6 7 8 9 'The administrative law judge may refuse to admit evidence that has not been disclosed in response to a discovery order or subpoena, unless the participant that failed to provide discovery shows good cause for having failed to do so or unless excluding the evidence would violate the duty to conduct a full and fair inquiry under ORS 183.415(10) 62 . If the administrative law judge admits evidence that was not disclosed as ordered or subpoenaed, the administrative law judge may grant a continuance to allow an opportunity for the other participant(s) to respond." 10 11 12 13 14 In brief, the Agency frankly admits that it 'cannot determine why the [subject records] were not produced [earlier] in discovery, but they were in a location unlikely to be accessed' and characterizes its 'oversight' as an 'inadvertent error.' The Agency also notes, in a supporting declaration by * * * the Agency's Chief Prosecutor, that '[i]t appears that on or about October 3, 2014, in anticipation of discovery, the subject documents were partially redacted. I have no other recollection as to why they were not provided in discovery.' 15 16 17 18 19 "OAR 839-050-0020(16) provides: 20 "'Good cause" means, unless otherwise specifically stated, that a participant failed to perform a required act due to an excusable mistake or a circumstance over which the participant had no control. "Good cause" does not include a lack of knowledge of the law, including these rules.' 21 22 For the reasons stated below, the forum concludes that the Agency's failure to provide the subject records by October 14, 2014, as ordered by the forum, does 23 24 25 62 This statutory reference in the current rule is in error. The APA was amended in 2007 and the "full and fair inquiry" requirement was moved to ORS 183.417(8). FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -112 ER-175 1 2 3 4 5 not meet the 'good cause' standard. Participants in all cases are responsible for keeping track of documents that constitute potential evidence, particularly documents subject to an existing discovery order. In this case, the subject records were accessed by BOLi's Administrative Prosecutions Unit on October 3, 2014, eight days after a discovery order was issued requiring the production of those records, and only 11 days before their production was due pursuant to the forum's September 30, 2014, order. The Agency's 'oversight' or storage of the documents in a place where they were 'unlikely to be accessed' does not constitute 'an excusable mistake or a circumstance over which the [Agency] had no control.' 6 10 "Ordinarily, the forum's sanction for failing to provide documents pursuant to a discovery order would be to prohibit the introduction of the documents as evidence." However, Respondents assert that some of the subject records will potentially assist Respondents' defense and explain why in their motion. Based on Respondents' assertion, it appears that a blanket prohibition on the introduction of the subject records may prejudice Respondents and prevent a 'full and fair inquiry' by the forum. The forum's order is crafted with this in mind. 11 "ORDER 12 "1. Sanctions: (a) The Agency may not offer or otherwise utilize any of the subject documents as evidence until such time as Respondents have offered the subject documents into evidence or otherwise utilized them during the hearing while eliciting testimony in support of their case; (b) Respondents, should they elect to do so, may offer or utilize the subject documents in support of their case. 7 8 9 13 14 15 16 17 18 19 20 21 22 23 24 25 "2. Discovery Order "To the extent these records have not already been provided, the forum hereby issues a discovery order requiring the Agency to provide responsive documents to items ##1, 5-6, 8, 13-15, and 21 listed on pages 9 and 10 of Respondents' Motion for Discovery Sanctions, with the caveat that the Agency is not required to produce statements made to Ms. Gaddis or Ms. Casey, the Agency's administrative prosecutors in this case, in any response to item #5. The Agency's responsibility to produce any such records begins as soon as this order is issued and continues until the hearing is concluded. The forum will apply OAR 839-050-0020(11) if an issue arises regarding an alleged failure by the Agency to produce such records in a timely manner. "3. Respondents' request that the forum dismiss the Agency's Second Amended Formal Charges is DENIED. "4. Respondents may amend their Case Summary witness list and exhibit list. * * *" FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -113 ER-176 1 "5. Respondents' request to 'reopen discovery to allow for depositions of Complainants and other BOLi witnesses with knowledge of these matters' is DENIED. 2 3 "6. Respondents' request that the cases be dismissed or that the Agency's claim for damages of Complainants' behalf be dismissed is DENIED. 4 "7. 5 6 Respondents' request for costs is DENIED. "8. Respondents' request for any other sanctions not specifically discussed in this interim order is DENIED." 7 (Exs. X81, X83, X86, X87) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 36) The general public was allowed to attend the hearing. Because of this and potential security issues, the ALJ issued guidelines prior to the hearing that, among other things: prohibited the public from bringing backpacks, briefcases, satchels, carrying cases any type, or handbags into the building in which the hearing was held; prohibited the use of audio recorders and cameras, including cell phone cameras and recorders; and required cell phones to be turned off during the hearing. (Ex. X85; Statement of ALJ) 37) At the start of the hearing, the ALJ orally advised the Agency and Respondents of the issues to be addressed, the matters to be proved, and the procedures governing the conduct of the hearing. (Statement of ALJ) 38) During the hearing, the Agency offered Exhibits A24 and A26. Respondents objected to their admission and the ALJ reserved ruling on their admissibility for the Proposed Order. Respondents objected on the basis of relevancy. Exhibits A24 and A26 are received because they are relevant to show the impact that the media exposure spawned by this case had on Complainants. (Exs. A24, A26) 39) During the hearing, the ALJ stated he would consider LBC's testimony about the "handfasting cord" used in LBC's and RBC's commitment 63 ceremony as an offer of proof and rule on its admissibility in the Proposed Order. That testimony is admitted because it is not evidence that was required to be disclosed by the ALJ's discovery orders and it is relevant to show the extent of Complainants' commitment to their relationship. (Testimony of LBC; Statement of ALJ) 22 23 24 25 63 The forum uses the term "commitment" because the handfasting cord was used in Complainants' June 27, 2013, ceremony at the West End Ballroom, when same-sex marriage was not yet permitted in the state of Oregon. FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -114 ER-177 1 2 3 4 40) On March 16, after the Agency had concluded its case-in-chief, Respondents filed a motion for an order to Dismiss or Reopen Discovery and Keep Record Open. Respondents argued that this was necessary in order: "to allow Respondents a full and fair opportunity to reopen discovery concerning possible undisclosed collusion among Complainants, Basic Rights Oregon and/or the Agency in light of the testimony of Agency witness Aaron Cryer elicited at the hearing on Friday, March 13, 2015." 5 6 7 8 9 10 11 12 The ALJ allowed Respondents and the Agency to present oral argument on Respondents' motion when the hearing re-convened on March 17, 2015, then denied Respondents' motion. (Ex. X94; Statement of ALJ) 41) Respondents called AK, MK, and RBC as witnesses in support of their case in chief. At the conclusion of RBC's testimony on March 17, 2015, Respondents' counsel Grey made the following statement: "That's all of the witnesses that we have to present at this time. However, for purposes of the record I'd like to make it clear that Respondents did not intend to rest their case in chief for the reasons we discussed in connection with the motion that we presented this morning, which the forum denied. So simply for purposes of the record, we are not planning on closing our case in chief." 13 (Statement of Grey) 14 42) On May 28, 2015, Respondents filed a motion to Reopen the Contested Case Record. The Agency filed a response on June 2, then supplemented its response on June 5, 2015. On June 22, 2015, the ALJ issued an interim order that denied Respondents' motion. The ALJ's ruling is reprinted in its entirety below: 15 16 17 "Pursuant to OAR 839-050-0410, Respondents filed a motion to reopen the contested case record on May 29, 2015. 18 "OAR 839-050-041 O provides: 19 20 21 22 23 24 25 'On the administrative law judge's own motion or on the motion of a participant, the administrative law judge will reopen the record when the administrative law judge determines additional evidence is necessary to fully and fairly adjudicate the case. A participant requesting that the record be reopened to offer additional evidence must show good cause for not having provided the evidence before the record closed.' "Good cause" means: '[U]nless otherwise specifically stated, that a participant failed to perform a required act due to an excusable mistake or a circumstance over which FINAL ORDER (Sweetcakes, ##44-14 & 45-14) - 115 ER-178 the participant had no control. "Good cause" does not include a lack of knowledge of the law, including these rules.' OAR 839-050-0020(16). 1 2 3 4 Respondents' motion, like their earlier motion to Disqualify BOLi Commissioner Brad Avakian, is predicated on their argument that Commissioner Avakian's alleged bias 'has effectively precluded Respondents from receiving due process in this case.' 12 "In support of their motion, Respondents attached documentation of the following: (1) emails beginning April 11, 2014, and ending January 31, 2015, primarily containing conversations between Charlie Burr, BOLi's Communications Director and Strategy Works NW, LLC, Basic Rights of Oregon ('BRO'), and Senator Jeff Merkley's office, that were forwarded to Respondents' counsel by email by on May 20, 2015, by Kelsey Harkness, a reporter for the Daily Signal, pursuant to a public records request made by Harkness (the 'Harkness records'); (2) testimony of both Rachel and Laurel Bowman-Cryer from their February 17, 2015, depositions; and (3) selected hearing testimony of Aaron Cryer, brother of Complainant Rachel Bowman-Cryer. Respondents contend that the above shows 'hitherto undisclosed collusion between complainants, BOLi and Basic Rights Oregon * * * sufficient to taint the integrity of the proceedings and deny Respondents fundamental due process or a fair hearing" and 'unfairly prejudice Respondents['] rights herein. 13 "Specifically, Respondents ask that the record be reopened so that they 5 6 7 8 9 10 11 14 15 16 17 18 19 20 21 22 23 24 can: "(1) Depose Aaron Cryer; "(2) Request, obtain and review additional documents from BOLi, BRO, and others and to issue interrogatories through subpoena duces tecum upon non-participants including but not limited to Commissioner Brad Avakian, the Commissioner's assistant Jesse Bontecou, Charlie Burr, Jeanna Frazzini, Amy Ruiz, Diane Goodwin, Emily McLain, Joe LeBlanc and Maura Roche, all of whom are identified in the emails provided to Respondents by Harkness; "(3) Depose Avakian, Bontecou, Burr, Frazzini, Ruiz, Goodwin, McLain, LeBlanc and Roche; and "(4) Depending on the information obtained, renew their motion to disqualify the Commissioner "and other BOLi personnel shown to have been involved in this political agenda from any role in deciding the case." On June 2, 2015, the Agency timely filed a response to Respondents' motion, then supplemented it with an amended response on June 5, 2015. 25 FINAL ORDER (Swee/cakes, ##44-14 & 45-14)-116 ER-179 1 "Discussion 2 "Under OAR 839-050-0410, Respondents have the burden of showing 'good cause' within the meaning of OAR 839-050-0020(16) for reopening the contested case record. To show good cause, Respondents must demonstrate an excusable mistake or a circumstance over which Respondents had no control. The excusable mistake or circumstances over Respondents had no control means 'there must be a superseding or intervening event which prevents timely compliance.' In the Matter of Ash/anders Senior Foster Care, Inc., 14 BOLi 54, 61-62 (1996), citing In the Matter of City of Umatilla, 9 BOLi 91 (1990), affirmed without opinion, City of Umatilla v. Bureau of Labor and Industries, 110 151, 821 P2d 1134 (1991 ). The mistaken act or failure to act is excusable if a party mistakenly acts or fails to act due to being misled by facts or circumstances that would mislead a reasonable person under similar circumstances. Ash/anders, citing In the Matter of 60 Minute Tune, 9 BOLi 191 (1991), affirmed without opinion, Nida v. Bureau of Labor and Industries, 119 Or App 174, 822 P2d 974 (1993). The forum examines the three different types of supporting documentation provided by Respondents against these standards. 3 4 5 6 7 8 9 10 11 A. The Harkness Records 12 "The emails provided to Respondents by Harkness are dated April 11, 2014, to January 31, 2015, well before the hearing began. Respondents do not assert that BOLi did not cooperate promptly in providing these documents to Harkness when she made her public records request. Respondents' June 18, 2014, motion to disqualify Commissioner Avakian due to bias makes it apparent that Respondents considered the Commissioner's alleged bias to be a relevant issue at least nine months before the hearing began. Despite this, there is no evidence in the record that Respondents made a discovery request or public records request for the records that were provided to Harkness. This is a circumstance that was under Respondents' control, and Respondents provide no explanation for their own failure to make a pre-hearing request for these records that they now claim are relevant and probative of the Commissioner's bias. In addition, Respondents have failed to show a superseding or intervening event that prevented them obtaining the Harkness Records before the hearing or that they were misled by facts or circumstances that would mislead a reasonable person under similar circumstances. Accordingly, the forum concludes that Respondents have not shown good cause for their failure to pursue the Harkness records before the hearing and offer them as evidence at hearing.64 13 14 15 16 17 18 19 20 21 22 23 64 24 25 There are no Commissioner's Final Orders interpreting "good cause" in the context of a motion to reopen a contested case proceeding. Besides Ash/anders, City of Umatilla, and 60 Minute Tune, there have been numerous Final Orders interpreting the definition of "good cause" in OAR 839-050-0020(16) in other contexts. None of them support Respondents' claim that their supporting documentation shows "good cause." Cf. In the Matier of From the Wilderness, Inc., 30 BOLi 227, 240 (2009)(when respondents sought a postponement so they could complete discovery and respondents' previous motion for a postponement had been granted to give respondents' newly FINAL ORDER (Swee/cakes, ##44-14 & 45-14) -117 ER-180 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 retained attorney time to prepare for the hearing, respondents delayed three months after the forum granted the first postponement before seeking discovery, the agency was not responsible for respondent's delay, and respondents' need for an another postponement could have been obviated if respondents had timely sought discovery, the forum denied respondents' motion, finding that respondents had not shown "good cause"); In the Matter of Logan International, Ltd., 26 BOLi 254, 257-58 (2005)(the ALJ denied respondent's motion to reset the hearing based on the agency's alleged failure to provide complete discovery, stating that respondent had not established "good cause" because it had not shown that the agency had withheld discoverable information nor that respondent was entitled to a deposition of the complainant); In the Matter of Orion Driftboat and Watercraft Company, LLC, 26 BOLi 137, 139 (2005)(when respondents moved for a postponement 12 days before the hearing date based on respondents' need to be represented by an attorney and current inability to afford an attorney, because the agency had refused to accept respondents' settlement offers, and because respondents needed more time to file a discovery order, the agency objected on the basis that it had lined up its witnesses and was prepared to proceed, and because respondents had agreed three months earlier to the date set for hearing and the forum denied respondents' motion because respondents had not shown good cause); In the Matter of Adesina Adeniji, 25 BOLi 162, 164-65 (2004)(respondent's failure to comply with discovery order because he believed the case would settle and because he had provided some of the documents subject to discovery order exhibits with his answer was not "good cause" and the ALJ sustained the agency's objection to respondent's attempted reliance at hearing on exhibits subject to discovery order that were not provided before hearing); In the Matter of Barbara Coleman, 19 BOLi 230, 238-39 (2000)(respondent's attorney's assertion that respondent's medical condition of depression made it difficult for her to gather information did not present good cause for postponement of the hearing when "nothing filed with this forum * * * comes close to establishing that respondent is legally incompetent, and respondent has made no such claim. As the forum stated in [an earlier] order, respondent spoke lucidly and logically during the * * * teleconference, stated that she was able to work at her business several hours each day, and was able to recall details of events that occurred many months ago"); In the Matter of Sabas Gonzalez, 19 BOLi 1, 5-6 (1999)(respondent's motion for postponement, based in part on a scheduling conflict of respondent's counsel, was denied based on respondent's failure to show good cause when there was no evidence that the matter on respondent's counsel's schedule that conflicted with the hearing had been set before the notice of hearingissued in this case and respondent'scounsel knew of the possibleconflictfor weeks before filing the motion and did not respond to the attempts the agency made at that time to resolve the conflict); In the Matter of Troy R. Johnson, 17 BOLi 285, 287-88 (1999)(respondent's motion to postpone the hearing was denied based on respondent'sfailure to show good cause when respondentbased his motionon assertionsthat he had not received the notice of hearing until one week before a scheduled hearing date and did not have time to prepare for the hearing, but his delay in receiving the notice of hearing was due to his failure to notify the forum of his change of address; he was out of town on a hunting trip; and he was amazed the case had been set for hearing); In the Matter of Jewel Schmidt, 15 BOLi 236, 237 (1997)(when respondent requested a postponement of the hearing because she had an adult care home and could not find a relief person for the date of hearing or successive days, and the agency opposed the request because it was ready to proceed and had subpoenaed witnesses, the ALJ denied the request because respondent had not shown good cause for a postponement, noting that there were over 30 days between the date the notice of hearing was issued and the date of the scheduled hearing, and this should have been ample time to find a relief person for the expected one-day hearing). Compare In the Matter of Computer Products Unlimited, Inc., 31 BOLi 209, 212-13 (2011) (respondent's motion for postponement granted based on emergency medical treatment required by the wife of respondent's authorized representative that could not be put off); In the Matter of Spud Cellar Deli, Inc., 31 BOLi 106, 111 (201 O)(forum granted the agency's motion for a hearing postponement based on the fact that respondent's counsel had been traveling out of state due to a death in her family and was unable to adequately prepare for hearing); In the Matter of Northwestern Title Loans LLC, 30 BOLi 1, 3, (2008)(forum granted respondent's motion for postponement based on unavailability of respondent's key witness on the date set for hearing); In the Matter of Captain Hooks, LLP, 27 BOLi 211, 213 (2006)(respondent's motion for postponement granted based on respondent's documented emergency medical condition); In the Matter of SQDL Co., 22 BOLi 223, 227-28 (2001)(when respondent retained substitute counsel after its original counsel was suspended from the practice of law and substitute counsel filed a motion for postponement five days before the hearing based on the complexity of the case and his corresponding need for more time to prepare for the hearing, the ALJ concluded that respondent had shown good cause and granted the motion); In the Matter of Ann L. Swanger, 19 BOLi 42, 44 (1999)(respondent's motion for postponement, based on the fact that respondent would be having major dental surgery the day before the hearing was set to commence, making it extremely difficult for her to attend or communicate at the hearing, was granted). 24 25 FINAL ORDER (Sweetcakes, 1#144-14& 45-14)-118 ER-181 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 B. Complainants' Deposition Testimony "Respondents allege that Aaron Cryer's testimony and the Harkness records show that Complainants' deposition testimony is not credible regarding their alleged 'collusion' with BOLi 'in using this case against Respondents for a political agenda rather than a good faith claim for recovery of damages to Complainants.' This is merely a repeat of Respondents' March 16, 2015, argument made in their Motion to Dismiss or Reopen Discovery and Keep Record Open that the ALJ denied at hearing. The deposition testimony given by Complainants that Respondents now argue justifies reopening the case was given on February 17, 2015, almost a month before the hearing commenced. In their depositions, Complainants were asked questions and gave answers regarding Jeanna Frazzini, Amy Ruiz, BRO, and their involvement with Frazzini, Ruiz, and BRO, as reflected in the attachments to Exhibit X94. Despite that deposition testimony, there is no evidence that Respondents attempted to follow up on the collusion that Respondents now alleges existed between these individuals, Complainants, BRO, and BOLi. Further, Respondents could have questioned Complainants about Cryer's testimony in their case-in-chief, but did not do so. These opportunities were both circumstances that were under Respondents' control. Likewise, Respondents have not shown a superseding or intervening event that prevented them from pursuing further discovery before the hearing based on Complainants' deposition testimony or that they were misled by facts or circumstances that would mislead a reasonable person under similar circumstances. Accordingly, Respondents have not established good cause to support their argument that Complainants' deposition testimony, coupled with Aaron Cryer's hearing testimony and the Harkness records, constitute grounds for reopening the contested case record to pursue the additional discovery that Respondents seek in this motion. C. Aaron Cryer's Testimony "Respondents' proffered characterization of Cryer's quoted testimony as 'directly implicat[ing] BOLi and Complainants in using this case against Respondents for a political agenda rather than a good faith claim for recovery of damages to Complainants' is simply inaccurate. As noted above, Respondents were aware of communications between Complainants, BRO, BOLi, Frazzini, and Ruiz before the hearing, but elected not to pursue the defense they now assert by requesting additional discovery or by calling Complainants as witnesses in their case in chief to explore the alleged political agenda. This was a choice made by Respondents' legal team, not a circumstance beyond Respondents' control, and Respondents have not shown any superseding or intervening event that prevented them seeking additional discovery or that they were misled by facts or circumstances that would mislead a reasonable person 24 25 FINAL ORDER (Sweetcakes, ##44-14 & 45-14) - 119 ER-182 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 under similar circumstances. Accordingly, Cryer's testimony that Respondents rely on is not good cause within the meaning of OAR 839-050-0410 and OAR 839-050-0020( 16). D. The Additional Evidence Sought by Respondents is Unnecessary to Fully and Fairly Adjudicate This Case "Notwithstanding the lack of 'good cause,' the forum also concludes that additional evidence on the issues raised in Respondent's motion is unnecessary to fully and fairly adjudicate this case, as the forum has fully and carefully considered and ruled on these matters, which are incorporated herein and made a part hereof by this reference. See Ex. X12 (ALJ's July 2, 2014, Interim Order entitled Ruling on Respondents' Election to Remove Cases to Circuit Court and Alternative Motion to Disqualify BOLi Commissioner Brad Avakian). 65 "Furthermore, since these prior rulings the Oregon Court of Appeals issued an opinion in Columbia Riverkeeper v. Clatsop County, 267 Or App 578, 341 P3d 790 (2014) that supports those rulings. Respondents' earlier motions sought to disqualify Commissioner Avakian due to 'actual bias.' In Columbia, Huhtala, a Clatsop County Commissioner, ran for election on the platform of not allowing a LNG business to be established in Astoria, then voted to deny in a land use decision that denied a pipeline company's application to build an LNG pipeline originating in Astoria. Prior to his election, Huhtala had made many public statements opposing construction of an LNG pipeline. In reversing the Land Use Board of Appeals' (LUBA) decision that Huhtala's bias had deprived the pipeline company of an impartial tribunal, the court stated: 'All told, no single case in Oregon establishes what is necessary for a party to prove actual bias by an elected official in quasi-judicial land-use proceedings such as this one. Generally, we can glean the following. The bar for disqualification is high; no published case has concluded that disqualification was required in quasi-judicial land-use proceedings. An elected local official's 'intense involvement in the affairs of the community' or 'political predisposition' is not grounds for disqualification. Involvement with other governmental organizations that may have an interest in the decision does not require disqualification. An elected local official is not expected to have no appearance of having views on matters of community 65 Cf. In the Matter of Mountain Forestry, Inc., 29 BOLi 11, 48-50 (2007), affirmed without opinion, Mountain Forestry, Inc. v. Bureau of Labor and Industries, 229 Or App 504, 213 P3d 590 (2009)(when respondents moved to reopen the record to admit a federal audit that purportedly showed the prevalence of records discrepancies throughout the firefighting industry and that the Oregon Department of Forestry did not have specific training requirements prior to 2003, and that purportedly negated certain inferences drawn from witness testimony, the forum found that, notwithstanding respondents' failure to submit an affidavit showing they had no knowledge of the audit prior to its release in March 2006, the audit did not contain any information relevant to the issues in the case or that mitigated respondents' violations and therefore the additional evidence was not necessary to fully and fairly adjudicate the case). FINAL ORDER (Swee/cakes, ##44-14 & 45-14) -120 ER-183 1 2 3 4 5 6 7 8 9 10 11 12 interest when a decision on the matter is to be made by an adjudicatory procedure. 'In addition to those general observations, there are three salient principles from the case law that define and drive our analysis in this case. First, the scope of the "matter" and "question at issue" is narrowly limited to the specific decision that is before the tribunal. Second, because of the nature of elected local officials making decisions in quasi-judicial proceedings, the bias must be actual, not merely apparent. And third, the substantive standard for actual bias is that the decision maker has so prejudged the particular matter as to be incapable of determining its merits on the basis of the evidence and arguments presented.' Columbia Riverkeeper at 602-03. "Under this standard, none of the "evidence" that Respondents have proffered previously or in support of their Motion to Reopen the Contested Case Record is probative to show "actual bias" on Commissioner Avakian's part. Therefore, notwithstanding the lack of "good cause" shown for not providing the proffered "evidence" before the record closed, the Motion is denied on the merits. E. Conclusion 13 "Respondents' motion to Reopen the Contested Case Record is DENIED." 14 43) On April 24, 2015, the ALJ issued a proposed order that notified the participants they were entitled to file exceptions to the proposed order within ten days of its issuance. The Agency and Respondents both timely filed exceptions. 15 16 17 44) Respondents' exceptions are DENIED in their entirety as lacking merit. The Agency's exceptions as to the alleged violations of ORS 659A.409 are GRANTED. Otherwise, the Agency's exceptions are DENIED. 18 19 20 21 22 23 24 25 FINAL ORDER (Sweetcakes, ##44-14 & 45-14) -121 ER-184 1 JUDICIAL REVIEW NOTICE 2 Pursuant to ORS 183.482, you are entitled to judicial review of this Final Order. 3 To obtain judicial review, you must file a Petition for Judicial Review with the Court of 4 Appeals in Salem, Oregon, within sixty (60) days of the service of this Order. 5 If you file a Petition for Judicial Review, YOU MUST ALSO SERVE A COPY OF 6 THE PETITION ON the BUREAU OF LABOR AND INDUSTRIES and THE 7 DEPARTMENT OF JUSTICE -APPELLATE DIVISION 8 9 10 11 12 AT THE FOLLOWING ADDRESSES: BUREAUOF LABORAND INDUSTRIES CONTESTEDCASECOORDINATOR 1045 STATEOFFICEBUILDING 800 NE OREGONSTREET PORTLAND,OREGON 97232-2180 DEPARTMENTOF JUSTICE APPELLATEDIVISION 1162 COURTSTREETNE SALEM,OREGON97301-4096 13 14 15 16 If you file a Petition for Judicial Review and if you wish to stay the enforcement of this final order pending judicial review, you must file a request with the Bureau of Labor and Industries, at the address above. Your request must contain the information described in ORS 183.482(3) and OAR 137-003-0090 to OAR 137-003-0092. 17 18 19 CERTIFIED TO BE A TRUE AND CORRECT COPY OF THE ORIGINAL AND OF A WHOLE THEREOF. 20 21 22 23 FO-CRD/Sweetcakes , ##44-14 & 45-14.doc 24 25 FINAL ORDER (Sweetcakes, ##44-14 & 45-14) - 122 ER-185 BEFORE THE COMMISSIONER OF THE BUREAU OF LABOR AND INDUSTRIES OF THE STATE OF OREGON In the Matter of: Oregon Bureau of Labor and Industries on behalf of RACHEL CRYER, Complainant, Case No. 44-14 DECLARATION OF RESPONDENT MELISSA KLEIN V. MELISSA KLEIN, dba SWEET CAKES BY MELISSA, and AARON WAYNE KLEIN, individually) as an Aider and Abettor under ORS 65 9A.406, Respondents. In the Matter of: Oregon Bureau of Labor and Industries on behalf of LAUREL BOWMAN CRYER, Complainant, Case No. 44?15 DECLARATION OF RESPONDENT MELISSA KLEIN V. MELISSA KLEIN, dba SWEET CAKES BY MELISSA, and AARON WAYNE KLEIN, individually) as an Aider and Abettor under ORS 65 9A.406, . Respondents. Page 1 DECLARATION OF MELISSA KLEIN HERBERT G. GREY Attorney At Law 4800 SW Grif?th Drive, Suite 320 Beaverton, OR 97005-8716 (503)641-4908 $35.11;: ??30 ER-186 alternatives before conceiving, sketching, and custom crafting a variety of decorating suggestions and ultimately ?nalizing the design. Our clients expect, and we intend, that each cake will be uniquely crafted to be a statement of each customer?s personality, physical tastes, theme and desires, as well as their palate so it is a .special part of their holy union. 4. This entire design and decoration process is, for us not only a labor of love, but an expression of our Christian faith. The process typically begins with a customer?s request to set up a tasting, which can be conducted by one of us. After obtaining the names of the bride and groom and the wedding date, it is customary to show each customer a book of our previous designs as inspiration, but almost no one picks one of those designs. I often personally sketch various designs on sheets of paper to help start the process of directing the design. I routinely draw multiple custom designs for each client until we together come to exactly the design they envision. Once that is ?nalized, the parties sign a contract and I collect a deposit. However, it is also not uncommon for people to change their design after the contract is signed, which is ?nalized about 10 days prior to the wedding date and secured by ?nal payment. Aaron does most of the baking and preparation work. I do most or all of the design and crafting of the decorations because I am an artist, and I am the one who typically conceives of and understands what the customer wants. This business is my passion. As an artist, I love meeting people, learning their story, and designing a custom piece that will be suit their day perfectly. I spend individual time and effort on each wedding cake I design and craft. No two cakes are alike, and I almost never make a cake without creating a unique element of style and Page 4 DECLARATION OF MELISSA KLEIN HERBERT G. GREY Attorney At Law 4800 SW Grif?th Drive, Suite 320 Beaverton, OR 97005-8716 EXHIBIT (503) 641-4908 PAGE 3 Uli87 '22 customization for my customers. I have created cakes for a client as far away as Ashland, Oregon. That particular couple saw my designs and paid extra just to have me design and create their cake, even though it would be an additional cost to deliver the cake so far-away. As I decorate, it is customary for me to listen to Christian music and to pray speci?cally for the couple being married as I believe marriage is a special and unique relationship created and blessed by God. I 6. I put my heart and soul into every unique cake I create. In my View, if designing and creating a wedding cake were a simple process requiring no artistic talent or personal attention, I people would simply choose to buy sheet cakes from Costco or other retailers for their weddings or other events. When a client comes to my shop, they are paying me to use my artistic talent and skill to design something Special and unique. For all these reasons, we have not created, nor chosen to create, cakes with messages honoring or celebrating ceremonies uniting same-sex couples under any legal framework, nor have we or will we create cakes for a variety of other events, including a celebration of divorce, any message including profanity or coarse language, or any message that advocates harm or ill will toward any person. 7. We do, have, and would, design cakes for any person irrespective of that person?s sexual orientation as long as the design requested does not require us to promote, encourage, support, or participate in an event or activity which violates our religious beliefs and practices. It is important to note that we have previously designed a cake for and provided services-to Rachel Cryer and Laurel Bowman-Cryer on multiple occasions before January 17, 2013. In particular, Page 5 DECLARATION OF MELISSA KLEIN HERBERT G. GREY Attorney At Law 4800 SW Grif?th Drive, Suite 320 Beaverton, OR 97005-8716 EXHIEFF (503)641?4908 PAGE 01185 "25 Rachel Bowman?Cryer RACHEL NELENE was called as a witness in behalf of the Agency and, being first given the oath by the Administrative Law Judge, was examined and testified as follows: DIRECT EXAMINATION BY MS. CASEY: Q. Ms. did you file a complaint with BOLI's Civil Rights Division alleging unlawful discrimination based on sexual orientation? A. Yes, I did. Q. What is your sexual orientation? A. I'm a homosexual. Q. Are you in a relationship? A. I'm married. Q. And who is your spouse? A. Laurel Bowman?Cryer. Q. And how long have the two of you been together? A. We have been together since we were both 19. I believe that's 11 years. Q. And when did ALJ: Hold on just a second.- Ms. Zaro, can you hear all right? THE COURT REPORTER: I can. But if you would keep your voice up a bit. BY MS. CASEY: REALTIME REPORTING 23 "25 ER-189 Rachel Bowman?Cryer A. She said, "Let's call Melissa." Q. Melissa Klein? A. (Nods head.) And why did your mom say that? A. We had purchased my mother's cake from Sweet Cakes, and we just absolutely loved the cake, and it was also a bonding moment for my mom and I when we went through the tasting and the planning of her weddingconnection between each of us. I wanted to have the same cake she had so that we would have that forever, that we could remember that we had that. Q. So your mom had her wedding cake from Sweet Cakes by Melissa; is that correct? A. (Nods head.) Q. When was that purchased? A. I don't recall the exact date. Q. Okay. Do you recall approximate year or approximately A. I believe she was married in November of 2011, I believe. Q. Okay. A. So it would have been previous to that. We didn't plan the wedding for too terribly long. Q. Okay. Did you ALJ: Let me interrupt. What is your mother's REALTIME REPORTING 30 _;25 Rachel Bowman?Cryer name? THE WITNESS: Cheryl Cryer. ALJ: Thank you. BY MS. CASEY: Q. Is your mother also known as Cheryl McPherson? A. Yes. Q. So recently she has gone through a name change; is that correct? Or can you explain we know of her as "Cheryl IMcPherson." You just identified her as "Cheryl Cryer." A. My understanding is that she never actually changed her name to McPherson Q. Okay. A. after they were married. And now they are separated and in the process of a divorce. So she has reverted back from McPherson to Cryer. Q. 'So for purposes of the record, it's fair to say that Cheryl McPherson and Cheryl Cryer are the same person? A. Yes. Q. Okay. So when you were helping your mom plan her wedding, did the two of you have a cake?tasting at Sweet Cakes by Melissa? A. Yes. Q. Was it just you and your mom, or was Laurel present with you? A. Laurel was present, as well. 31 '25 ER-191 Rachel Bowman?Cryer Q. Was it just the three of you? A. Yes. Q. Can you describe for us how that cake?tasting went? A. We arrived at Sweet Cakes, and Melissa was very friendly when she greeted us. She led us to an office in the back room where there was a table and chairs for us to sit at. And she brought us a plate of samples of cakes out, set them on the table in front of us, and then we started the the cake?tasting process.? She said, "Go ahead and eat while we talk. That's fine. That way afterwards, you will know what you liked and what you didn't like." And so we ate cake while she asked us questions. Q. What sorts of questions did she ask you? MR. SMITH: Object. Irrelevant. We are in 2000 what, '10? MS. CASEY: This is 2011. We are showing that the cake?tasting that the Complainant Rachel Cryer attended with her mother in 2013 is very distinguished from.the cake?tasting that she went to for her mother's wedding, to show that it was planned that they were not going to serve her in 2013. ALJ: Overruled. Go ahead and ask your question. THE WITNESS: Can you repeat your question? I'm sorry. I don't recall it after all of that. BY MS. CASEY: REALTIME REPORTING 32 :25 Rachel Bowman?Cryer Q. Yes. You had mentioned that Melissa had said, "Go ahead and taste the cake while we are chatting." What did she ask you about? What sort of conversation did you have? A. She asked about the bride and groom's names and what kind of cake we were looking for, as far as how many people we needed to serve, how large we wanted it to be. Q. Did you identify yourself? A. (No response.) Q. Did you introduce yourself to Melissa? A. Yes. Q. And did you introduce Laurel? A. Yes. I believe I introduced everybody. Q. At any time during this cake?tasting, did you tell Melissa Klein that you and Laurel were a couple? A. Yes. Q. And you ultimately chose to purchase a cake for you and your mother? A. Yes. Q. Was it you that purchased the cake? Your mom? Laurel? How did that work? A. It was Laurel and I together that purchased the cake. Q. Okay. So taking us back to the future, you are at the bridal expo with your mom; she had previously told you, know just where we are going to get the cake." Did you see Sweet Cakes by Melissa at the bridal expo? REALTIME REPORTING 33 '25 ?31,193 Cheryl Cryer McPherson ALJ: Would anybody like to take a five?minute break before she comes on? MS. GADDIS: Sure. (BRIEF RECESS: 11:09 a.m. to 11:17 ALJ: All right. We are back on the record in Sweet Cakes, Case Nos. 44?14 and 45?15. It's 11:15 March 11. The Agency has called Cheryl McPherson. CHERYL CRYER MCPHERSON was called as a witness in behalf of the Agency and, being first given the oath by the Administrative Law Judge, was eXamined and testified as follows: DIRECT EXAMINATION BY MS. GADDIS: Q. Ms. McPherson, what is your relationship to the Complainants in this case? A. Rachel is my daughter, and Laurie is my daughter?in?law. Q. Do you have any other children besides Rachel? A. Yes, I have a daughter an older daughter and a son younger than Rachel. Q. So Rachel is the middle child? A. Mm?hmm. Q. Can you tell us, if you know, about what age the Complainants met? REALTIME REPORTING 250 '25 Cheryl Cryer McPherson BY MR. GREY: Q. Have you had a chance to review it? A. Mm?hmm. Q. Okay. Starting at the bottom of page 1 of Exhibit and continuing on to the top of page 2, there is a discussion about some interactions at the time that apparently you were getting married in November of 2010? A. Mm?hmm. Q. Do you see what I'm referring to? A. Mm?hmm. ALJ: Please say "yes" or no. THE I'm sorry. Yes. BY MR. GREYpage 2, there's a statement "Melissa knew that whom I will represent to you is Rachel Cryer "was in a same?sex relationship. They talked about how they were together for eight years at that time." A. And this was at my tasting? Am I am I correct on that? Correct. A. Mm?hmm. Do you recall saying something to that effect? A Yes. Q. So, to your knowledge, whoever prepared this accurately recorded what you said at the time? REALTIME REPORTING 294 '25 Laurel Bowman?Cryer A. I don't know. MS. GADDIS: Those are all the questions I have. Thank you. I ALJ: Thank you. You are excused for now. THE WITNESS: Okay. Thank you. ALJ: Let's go off the record. Come back at 3:10, then. (BRIEF RECESS: 2:42 p.m. to 3:19 ALJ: We are back on the record again in the matter of Sweet Cakes, Case 45?14 and Case 45?14. It's approximately 3:20 and the Agency has called Laurel Bowman?Cryer as their next witness. LAUREL LYNN was called as a witness in behalf of the Agency and, being first given the oath by the Administrative Law Judge, was examined and testified as follows: DIRECT EXAMINATION BY MS. GADDIS: Q. Laurel, if it's all right, I'm going to refer to you by your first name, just for purposes of the record. I think it might be easier. Rachel is your wife, correct? A. Yes. Q. Can you tell us how you met? A. I was about 19 years old, and we had a mutual friend, REALTIME REPORTING 324 ER-196 Laurel Bowman?Cryer A. It was solely between my lawyer and Duff. Q. Okay. That was going to be my question. A. I apologize. Q. No problem. What kind of cake did he end up making, then? A. Duff made a cake based on a tattoo on my body, and it is an Irish tattoo of a fairy tree on a knoll. It's for my Irish heritageIrish family. Q. And was it a cake that was used at the wedding? A. It was on display at the wedding, but it was not a wedding cake. We called it a quote, unquote, "bride's cake." It would generally be called a "groom's cake." We didn't consider it that; we considered it a cake based on my Irish heritage. Rachel was trying to incorporate my family being from Ireland into the wedding because she knew my grandmother was going to be watching from Ireland. Q. How was she watching from Ireland? A. The West End Ballroom there's a few things they do. that is unusual. They have a marquee on the outside of their- building that every single wedding or event that takes place there, they basically broadcast it on the building so that people know what's happening in that building off the street side. On the inside of the building, it's set up with cameras a closed?circuit system that it does not record REALTIME REPORTING 356 '25 Laura Widener Widener. LAURA MARIE WIDENER was called-as a witness in behalf of the Agency and, being first given the oath by the Administrative Law Judge, was examined and testified as follows: BY MS. Q. Q. DIRECT EXAMINATION CASEY: Ms. Widener, do you know Rachel Bowman?Cryer? Yes. And do you know Laurel Bowman?Cryer? Yes. How do you know them? They ordered a wedding cake from me. And do you own Yes. And that's a bakery? Yes. You do wedding cakes; is that correct? Yes. If I could direct your attention to the booklet up-in front of you, Respondents' Exhibit There will be nUmbers in the bottom right?hand corner A. This one right here? MR. GREY: The small one. MS. CASEY: Yes, the small one. REALTIME REPORTING 579 '25 Laura Widener about this cake or about our wedding." They just to me, it's about at this point it was about my artistic expression and being able to share that. Q. About "being able to share that" can you explain that? What do you mean about your artistic expression and how to share that? A. Cakes are an artistic expression for me. And, as an artist, you want to be able to share that with the public and the community. And this was one of my artistic creations, and I wanted to share it with the public. Q. So on that note, let's go back to Exhibit page 4 out of 5. And I'm going to read to you about halfway down the page it's part of the quote that you referenced earlier. A. Mm?hmm. Q. I'll just wait a second until everybody is on the same page. So you were just telling us a second ago that cakes are an artistic expression for you, and you like the 'public to know what you are doing and what you are expressing, and on that line you said am I quoting correctly in this article you said, "It's all about the love and commitment these two people share. They want to declare that commitment in the company of their friends and family, and I'm proud that my cake will be a part of that celebration"; is that right? A. Yeah. REALTIME REPORTING 594 '25 Laura Widener Q. So you felt that your cake was part of the celebration? A. Oh, yeah. Q. It was a big part of the celebration? A. Any cake is. It's either when someone is designing their wedding, it's dress and then cake. So, yeah, it's a big part in any wedding celebration. Q. All right. I'm going to jump back to what we were Italking about your post on Facebook. So you posted a photo of the cake on Facebook, and then you also posted kind of a commentary sort of your own commentary about it; is that right? A. I usually will say something about the cake, yes. Q. Okay. And this commentary was specifically about the kind of more of the facts of this case, letting.everybody know that this who they were and what your cake was for and that, you know, it wasn't just a picture of a cake; it was kind 'of an explanation. Is that right? A. Yeah, I'm sure it was. Q. Okay. And, again, that was on your Facebook page, which was publicly viewable by anyone? A. Yeah. Q. And the Complainants were okay with that being up there? A. Yes. REALTIME REPORTING 595 )25 Laura Widener 13111-200 the tears, yeah. Q. And they appeared to be happy with the design of your cake? A. Yeah, I think they she was excited about the possibility. She wasn't familiar with me. She had familiarity with Sweet Cakes and was excited about what they could do. I was a brand?new client or vendor. And Q. Okay. A. She wasn't familiar with my work, and I think, with that, there's always some trepidation. Q. Sure. Just nervousness that maybe you are not going to do what she wants or A. Yeah, I'm sure, yeah. Q. Okay. So you told us earlier that she started explaining the peacock design, and it was exciting for you to hear an idea that she wanted. A. Mm?hmm. Q. Did this sound like something that she had been thinking about for a while? A. Yeah, it sounded like something she had been thinking about. I don't know about for a while, but it was certainly an idea that she had, yeah. Q. And she definitely had the specifics, as she was telling you what she wanted? A. Yes. But we also talked back and forth. So we came REALTIME REPORTING 599 '24 25' Laura Widener ER-ZOI to when she would give me an idea we collaborated. So the give and take and the back and forth ?m like, this is what she was thinking of; I could put it in a design like, I sketched out a design, and we went back and forth, and I said, "Do you want this? Do you want it to look like this? Do you want the tail to swoop this way? Do you want the jewels to do this? Do you want the flowers to look like this?" Q. So we are not talking about she came with a picture to yOu; she kind of gave you words, and then you turned that into some kind of art? A. Exactly, yes. MS. HARMON: Okay. No further questions for this witness, Your Honor. ALJ: Redirect? REDIRECT EXAMINATION BY MS. CASEY: Q. Do you regularly post pictures of cakes that you make on your Facebook page? A. Yes. Q. Why is that? A. Because peOple are very visual consumers, and when they can see the quality of product, they are more likely to give me a call to find out if I can do a cake for them. It's it's part of doing business. It's part of showing what I can do REALTIME REPORTING 600 _25 ER-ZOZ Melissa Klein was going to come up. If you heard the Complainants' testimony, they visited the Sweet Cakes page prior to January 17th Q. I'm just going to ask you to answer the question. ALJ: You can just answer the question "yes" or "no. THE WITNESS: NO, I did not provide it. BY MS. GADDIS: Q. And you never engaged in an interview with the investigator in this case, did you?- A. No. MS. GADDIS: Nothing further. Thank you. ALJ: Redirect, Mr. Grey? MR. GREY: No questions. ALJ: Mr. Klein, you can go back to your seat. THE WITNESS: All right. ALJ: Next witness? MR. GREY: The Respondents call Melissa Klein. MELISSA KLEIN was called as a witness in behalf of the Respondents and, being first given the oath by the Administrative Law Judge, was examined and testified as follows: DIRECT EXAMINATION BY MR. GREY: Q. -Ms. Klein, what's your connection to Sweet Cakes by REALTIME REPORTING 749 nun-Melissa Klein wedding, and I'd really want to know everything about their wedding the details you know, the dress, the decorations, everything. Because when it came time to design the cake, I wanted to kind of have a full scope of what their wedding looked like so that way their cake could match perfectly with their day. Q. And when you talk about the cake matching the other elements of the wedding, what does can you be more specific about what that means to you? A. Can you say that again? I'm sorry. Q. In other words, why is it important for you to know about dress and flowers and the other stuff that you described in terms of the design of a wedding cake? A. Well, for me personally it's, you know, I I just I want to know everything. You know, their cake is their it's their centerpiece. It's you know, it's where the bride and groom.stand in front of their guests and usually do the traditional, you know, feeding each other their cake. You know, it's just it's just really important to me. I I just want everything to, like, come together and just be perfect for them. Q. So once you have all that information about the wedding, how is that reflected in the design of a wedding cake? A. Well, the way that I do it is, like, I sit down with them, and I kind of have them.give me ideas. We kind of bounce back off each other, and, you know, they tell me what they like. REALTIME REPORTING 752 Melissa Klein A. Yeah. Q. Okay. Can I turn your attention to Exhibit Have you seen Exhibit before? A. Yes. Q. And you heard your husband?s testimony about Exhibit did you not? A. Yes. Q. Do you generally agree with what he said? A. Yes. Q. Okay. And he testified to certain information he was able to draw off of page 1 of Exhibit Would you say that you also can discern the same information from that? A. Yes. Q. Okay. Do you have a recollection of dealing with either Complainant back in 2010? A. With the tasting for Cheryl's cake? Q. Yes. A. Yes. Q. Okay. And do you recall who was involved in that tasting process at the time? A. I remember it to be Cheryl and Laurel and Rachel. Q. And what makes them_stand out in your mind going back that far? Why do you remember that? A. To be honest, like, it didn?t click in my mind until after we got the complaint. REALTIME REPORTING 756 Melissa Klein Q. Okay. And can you point to anything that made them click in your mind after you got the complaint? A. No. Q. Okay. And do you recall who ordered the cake back in November of 2010? A. Yes. Laurel and Rachel. Q. Do you recall who paid for the cake? A. They did. Q. Okay. So you didn't have any problems serving them at that point in time? A. Absolutely not. Q. Okay. Now, there has been testimony about the Portland Bridal Show in January of 2013. A. Mm?hmm. Q. Do you remember being at the bridal showthat you were at the bridal show? A. - Because, basically, I'm the only one that does the bridal show, and I do, like, a display of cakes and, you know, pretty much represent, you know, Sweet Cakes, and I pretty much I we bake tons of sheet cakes, and I basically cut the cakes and serve them to all the people that are coming to taste the cake. Q. Okay. So would it be accurate to say that the Portland Bridal Show is basically a marketing opportunity? REALTIME REPORTING 757