NO.

In the Supreme Court of the United States
MELISSA ELAINE KLEIN AND AARON WAYNE KLEIN,
v.

Petitioners,

OREGON BUREAU OF LABOR AND INDUSTRIES,
Respondent.
On Petition for Writ of Certiorari to the
Oregon Court of Appeals

PETITION FOR WRIT OF CERTIORARI
KELLY J. SHACKELFORD
HIRAM S. SASSER, III
KENNETH A. KLUKOWSKI
MICHAEL D. BERRY
STEPHANIE N. TAUB
FIRST LIBERTY INSTITUTE
2001 West Plano Pkwy.
Suite 1600
Plano, TX 75075
(972) 941-4444

kklukowski@firstliberty.org

C. BOYDEN GRAY
ADAM R.F. GUSTAFSON
Counsel of Record

JAMES R. CONDE
BOYDEN GRAY & ASSOCIATES
801 17th St. NW, Suite 350
Washington, DC 20006
(202) 955-0620

gustafson@boydengrayassociates.com

Counsel for Petitioners

HERBERT G. GREY

4800 SW Griffith Dr.
Suite 320
Beaverton, OR 97005
(503) 641-4908
Herb@greylaw.org
Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

 QUESTIONS PRESENTED
Melissa and Aaron Klein owned a bakery, which
they operated in accord with their religious
convictions. They designed and created custom
cakes—only custom cakes. And they did so without
regard to the sexual orientation of their customers,
including the complainants in this case, who had
commissioned a wedding cake from the Kleins for a
traditional wedding just two years before setting this
litigation in motion. What the Kleins could not do in
good conscience was to design and create a custom
wedding cake to celebrate a wedding ceremony that
contravened their religious belief that marriage is
the union of one man and one woman. When the
Kleins declined to contribute their art to a same-sex
wedding ritual, the Oregon Bureau of Labor and
Industries (“BOLI”) found that they had violated
Oregon’s public accommodations law. BOLI ordered
the Kleins to pay the complainants $135,000 in
damages. Sweetcakes by Melissa went out of
business. The Oregon Court of Appeals affirmed
BOLI’s order, rejecting the Kleins’ constitutional
defenses. The Oregon Supreme Court denied review.
The questions presented are:
1. Whether Oregon violated the Free Speech
and Free Exercise Clauses of the First Amendment
by compelling the Kleins to design and create a
custom wedding cake to celebrate a same-sex
wedding ritual, in violation of their sincerely held
religious beliefs.
2. Whether the Court should overrule
Employment Division, Department of Human
Resources of Oregon v. Smith, 494 U.S. 872 (1990).

 ii
3. Whether the Court should reaffirm Smith’s
hybrid rights doctrine, applying strict scrutiny to
free
exercise
claims
that
implicate
other
fundamental rights, and resolving the circuit split
over the doctrine’s precedential status.

 iii
TABLE OF CONTENTS
QUESTIONS PRESENTED ....................................... i
TABLE OF CONTENTS ........................................... iii
TABLE OF AUTHORITIES ........................................v
PETITION FOR A WRIT OF CERTIORARI ............ 1
OPINIONS BELOW ................................................... 1
JURISDICTION ......................................................... 1
CONSTITUTIONAL PROVISIONS INVOLVED ..... 1
STATUTORY PROVISIONS INVOLVED ................ 2
STATEMENT ............................................................. 2
REASONS FOR GRANTING THE PETITION ...... 14
I.

This Case Squarely Presents The Constitutional
Questions This Court Could Not Resolve In
Masterpiece Cakeshop. ...................................... 16

II.

The Decision Below Conflicts With This Court’s
Compelled Speech Jurisprudence. ................... 17

III. Courts Are Divided About The Test For
Determining Whether Commercial Art Is
Protected By The First Amendment. ............... 20
IV. The Decision Below Conflicts With This Court’s
Expressive Conduct Jurisprudence.................. 26
V.

This Court Should Reconsider Employment
Division v. Smith. ............................................. 30

VI. Courts Are Divided About The Standard For
Evaluating Hybrid Rights Claims.................... 31
VII. This Case Presents a Recurring Question of
National Importance. ........................................ 34

 iv
CONCLUSION ......................................................... 37
APPENDIX A

Order Denying Review in the
Supreme Court of the State of
Oregon (June 21, 2018) .......... App. 1

APPENDIX B

Opinion in the Court of Appeals of
the State of Oregon (December 28,
2017) ....................................... App. 3

APPENDIX C

Appellate Judgment in the Court of
Appeals of the State of Oregon (July
31, 2018) ............................... App. 88

APPENDIX D

Final Order Before the
Commissioner of the Bureau of
Labor and Industries of the State of
Oregon (July 3, 2015) ........... App. 90

 v
TABLE OF AUTHORITIES
Cases
Anderson v. City of Hermosa Beach,
621 F.3d 1051 (9th Cir. 2010).................... 22, 25, 26
Axson-Flynn v. Johnson,
356 F.3d 1277 (10th Cir. 2004)..............................34
Bery v. City of New York,
97 F.3d 689 (2d Cir. 1996) .....................................26
Buehrle v. City of Key West,
813 F.3d 973 (11th Cir. 2015).......................... 22, 25
Cantwell v. Connecticut,
310 U.S. 296 (1940) ..........................................32, 33
City of Boerne v. Flores,
521 U.S. 507 (1997) ................................................31
City of Lakewood v. Plain Dealer Publ’g Co.,
486 U.S. 750 (1988) ................................................25
Clark v. Cmty. for Creative Non-Violence,
468 U.S. 288 (1984) .................................... 11, 21, 22
Coleman v. City of Mesa,
230 Ariz. 352 (2012) ...............................................22
Combs v. Homer-Ctr. Sch. Dist.,
540 F.3d 231 (3d Cir. 2008) ...................................33

 vi
Craig v. Masterpiece Cakeshop, Inc.,
370 P.3d 272 (Colo. Ct. App. 2015) ................. 22, 26
Elane Photography, LLC v. Willock,
309 P.3d 53 (N.M. 2013) ............................ 18, 22, 26
Employment Division, Department of Human
Resources of Oregon v. Smith,
494 U.S. 872 (1990) ........................................ passim
Follett v. McCormick,
321 U.S. 573 (1944) ..........................................32, 33
Hosanna-Tabor Evangelical Lutheran Church &
Sch. v. EEOC, 565 U.S. 171 (2012) .......................32
Hurley v. Irish-American Gay, Lesbian and Bisexual
Grp. of Bos.,
515 U.S. 557 (1995) .............................. 18, 19, 21, 25
Janus v. AFSCME, Council 31,
138 S. Ct. 2448 (2018)............................................17
Kissinger v. Bd. of Trs. of Ohio State Univ.,
5 F.3d 177 (6th Cir. 1993)......................................34
Knight v. Conn. Dep’t of Pub. Health,
275 F.3d 156 (2d Cir. 2001) ...................................33
Masterpiece Cakeshop v. Colorado Civil Rights
Comm'n, 138 S. Ct. 1719 (2018) .................... passim
Mastrovincenzo v. City of New York,
435 F.3d 78 (2d Cir. 2006) .....................................23

 vii
Miami Herald Publ’g Co. v. Tornillo,
418 U.S. 241 (1974) ..........................................20, 25
Miller v. Reed,
176 F.3d 1202 (9th Cir. 1999)................................34
Murdock v. Pennsylvania,
319 U.S. 105 (1943) ..........................................32, 33
Nev. Comm’n on Ethics v. Carrigan,
564 U.S. 117 (2011) ..........................................11, 22
New York Times Co. v. Sullivan,
376 U.S. 254 (1964) ................................................25
Obergefell v. Hodges,
135 S. Ct. 2584 (2015)................................ 14, 15, 17
Pac. Gas & Elec. Co. v. Pub. Util. Comm’n of Cal.,
475 U.S. 1 (1986) ........................................ 18, 19, 20
People v. Lam,
995 N.E.2d 128 (N.Y. 2013) ...................................23
Riley v. Nat’l Fed’n of the Blind of N.C.,
487 U.S. 781 (1988) ................................................25
Spence v. Washington,
418 U.S. 405 (1974) .............................. 11, 21, 27, 28
Texas v. Johnson,
491 U.S. 397 (1989) .............................. 21, 27, 28, 30

 viii
United States v. O’Brien,
391 U.S. 367 (1968) ........................ 11, 21, 27, 28, 30
Watchtower Bible & Tract Soc’y of New York, Inc. v.
Vill. of Stratton, 240 F.3d 553 (6th Cir. 2001) ......33
W. Va. Bd. of Educ. v. Barnette,
319 U.S. 624 (1943) ..........................................15, 18
Wooley v. Maynard,
430 U.S. 705 (1977) ..........................................18, 28
Constitution and Statutes
U.S. Const. amend. I ......................................... passim
28 U.S.C. § 1257 ..........................................................1
Ore. Rev. Stat. § 659A.403 ................................ passim
Ore. Rev. Stat. § 659A.409 ..........................................7
Other Authorities
Ephesians ....................................................................4
Leviticus .......................................................... 6, 13, 29

 1
PETITION FOR WRIT OF CERTIORARI
Melissa and Aaron Klein respectfully petition for
a writ of certiorari to review the judgment of the
Oregon Court of Appeals.
OPINIONS BELOW
The opinion of the Oregon Court of Appeals
(App. 3–87) is reported at 289 Or. App. 507. The
order of the Oregon Supreme Court denying review
(App. 1–2) is unreported. The order of the Oregon
Bureau of Labor and Industries (App. 90–290) is
unreported.
JURISDICTION
The Oregon Court of Appeals rendered its
decision on December 28, 2017, and issued the
judgment to be reviewed on July 31, 2018. App. 88.
The Oregon Supreme Court denied the Kleins’
petition for review on June 21, 2018. App. 1. On
September 12, 2018, Chief Justice Roberts granted
an extension until October 19, 2018, in which to file
the petition for a writ of certiorari. This Court has
jurisdiction under 28 U.S.C. § 1257.
CONSTITUTIONAL PROVISIONS INVOLVED
The First Amendment to the United States
Constitution provides in pertinent part:
Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof; or abridging the
freedom of speech[.]
U.S. Const. amend. I.

 2
STATUTORY PROVISIONS INVOLVED
Oregon’s
public
accommodations
provides in pertinent part:

statute

(1) [A]ll 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. . . .
(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.
Ore. Rev. Stat. § 659A.403.
STATEMENT
The State of Oregon drove Melissa and Aaron
Klein out of the custom-cake business and hit them
with a $135,000 penalty, because the Kleins could
not in good conscience employ their artistic talents to
express a message celebrating a same-sex wedding
ritual. This petition presents the question whether
artists in public commerce are protected by the First
Amendment when they decline to create expression
that would violate their religious beliefs.

 3
The Oregon Bureau of Labor and Industries
(“BOLI” or “the Bureau”) rejected the Kleins’
argument that the First Amendment protects their
right to free speech and free exercise of religion. The
Oregon Court of Appeals affirmed, and the Oregon
Supreme Court denied review.
Certiorari is warranted to clarify the interaction
of the First Amendment with state public
accommodations laws. Hearing this case would allow
the Court to resolve disagreements in the lower
courts about the kinds of expression that merit First
Amendment protection, and the precedential status
of this Court’s hybrid rights doctrine, which applies
strict scrutiny in the case of free exercise claims that
implicate other fundamental rights.
1. Melissa and Aaron Klein operated their
bakery—Sweetcakes by Melissa—in Gresham,
Oregon, until Oregon put them out of business in
2013. The Kleins sold custom-designed cakes for
weddings and other celebratory events.
Each Sweetcakes wedding cake was the product
of a lengthy process that began with a consultation
with the engaged couple. App. 205. Following the
consultation, Melissa would sketch a series of
personalized designs for the couple.1 BOLI Exhibit 3,
Declaration of Melissa Klein at 3–5 (Oct. 23, 2014).
The design process alone could take hours, if not a
full day. Hearing Tr. at 598, 755 (Testimony of Laura
Widener, Melissa Klein) (Mar. 13, 2015). The design
Because multiple parties and witnesses share the same last
names, this petition uses first names for clarity.

1

 4
that best reflected the couple’s preferences, styles,
and wedding theme would be the blueprint for the
finished cake, created through a multistep creative
process of molding, cutting, and shaping. Declaration
of Melissa Klein, supra, at 3–4.
After the wedding cake was decorated, Aaron
would load it into a truck emblazoned with the words
“Sweet Cakes by Melissa” in large pink letters and
drive it to the location of the wedding ceremony.
There he would set up the cake, assembling it and
adding any remaining decorations. App. 193. In
performing these services, Aaron “often interact[ed]
with the couple or other family members, and often
place[d] cards showing that Sweetcakes created the
cake.” Id.; BOLI Exhibit 2, Declaration of Aaron
Klein at 4–5 (Oct. 23, 2014).
The Kleins opened and operated Sweetcakes as
an expression of their Christian faith. They
understand that faith to teach that God instituted
marriage as the union of one man and one woman.
App. 193. For the Kleins, marriage between a man
and a woman reflects the union between Jesus
Christ and the church. See Ephesians 5:31–32.
Because of their religious views about marriage,
custom-designed wedding cakes were central to the
Kleins’ operation of Sweetcakes. The Kleins created
these cakes, in part, because they wanted to
celebrate weddings between one man and one
woman. Declaration of Melissa Klein, supra, at 4.
The Kleins do not believe that other types of
interpersonal unions are marriages, and they believe
it is sinful to celebrate them as such. Id. Because
their religion forbids complicity with sin, they could
not design and create cakes to celebrate events that

 5
violate their religious beliefs. App. 193; Declaration
of Melissa Klein, supra, at 3. BOLI does not deny the
sincerity of the Kleins’ religious beliefs. See App. 193,
226.
The Kleins served all customers regardless of
sexual orientation. Declaration of Aaron Klein,
supra, at 5. This too was an expression of the Kleins’
faith, which teaches that all persons are made in the
image of God and are therefore deserving of dignity.
Id. Indeed, two years before the events that gave rise
to this case, the Kleins had sold a wedding cake to
Rachel Cryer and Laurel Bowman, the complainants
in this case, to celebrate the marriage of Rachel’s
mother to a man. The Kleins knew that Rachel and
Laurel were gay when they took their order. See
Supplemental Declaration of Aaron Klein at 1 (Feb.
11, 2014); Hearing Tr. at 30–33, 394, 756–57
(Testimony of Cheryl McPherson) (Mar. 12, 2015).
And Rachel and Laurel had no complaints about the
service they received. They liked the Kleins’ work so
much that they wanted to commission a custom cake
from Sweetcakes for their own wedding. App. 8, 96.
2. Rachel and her mother came to Sweetcakes
by Melissa for a wedding cake tasting in January
2013. App. 9. When Aaron asked the names of the
bride and groom, Rachel responded that there were
two brides. Id. Aaron apologized and said that,
because of their religious beliefs, he and his wife
could not create a custom-designed cake for that
purpose. App. 9.
Shortly after Rachel and her mother left the
store and started to drive away, Rachel’s mother
returned alone to confront Aaron about his religious
beliefs. Aaron listened while Rachel’s mother told

 6
him how she used to share his religious belief about
marriage, but her “truth had changed,” and she had
come to believe the Bible to be silent about same-sex
relationships. Id.; Declaration of Aaron Klein, supra,
at 6. After she finished, Aaron expressed religious
disagreement and quoted a Bible verse in support of
his position. Id.; App. 9. As BOLI found, Aaron
quoted a verse from the Book of Leviticus: “You shall
not lie with a male as one lies with a female; it is an
abomination.” App. 97. Rachel’s mother ended the
conversation, returned to her car, and told Rachel
(inaccurately) that Aaron had called her “an
abomination.” App. 9. BOLI correctly determined
that this was a misreporting of events. See App. 97,
BOLI Proposed Order at 79 n.48; App. 94 n.2.
Four days later, Rachel and her mother met
with another local baker and commissioned an
elaborate three-tiered wedding cake topped with a
hand-made, hand-painted peacock figure with tail
feathers trailing down over the tiers onto the cake
plate. App. 105. The design was based on Rachel’s
explanation of what she wanted the cake to look like.
Id. The baker who designed and created the peacock
cake testified that she considers herself an “artist”
and her wedding cakes “artistic expression[s]” that
she “want[s] to be able to share . . . with the public
and the community.” Hearing Tr. at 594, 599–600
(Testimony of Laura Widener) (Mar. 13, 2015). She
recounted how it made her “proud” that her custom
cake would “be part of [the] celebration.” Id. at 594.
A celebrity baker donated a second wedding
cake—“a Bride’s cake . . . in place of the traditional
Groom’s cake.” App. 109. The second cake was
decorated with a fairy tree, based on Laurel’s tattoo,

 7
to reflect her Irish heritage, because Laurel’s
“grandmother was going to be watching from
Ireland.” Hearing Tr. at 356 (Testimony of Laurel
Bowman-Cryer) (Mar. 12, 2015).
Laurel and Rachel filed complaints with BOLI,
alleging that the Kleins had refused to serve them
because of their sexual orientation. App. 10.
3. After conducting an investigation into
Laurel and Rachel’s complaints, BOLI issued formal
charges against the Kleins. App. 11. The Bureau
alleged that the Kleins had violated Oregon’s public
accommodations statute, which prohibits the denial
of “full and equal accommodations, advantages,
facilities and privileges of any kind” “on account of
...
sexual
orientation.”
Ore.
Rev.
Stat.
§ 659A.403(3), (1). BOLI also alleged that the Kleins
had unlawfully advertised an intention to
discriminate on account of sexual orientation in
violation of Ore. Rev. Stat. § 659A.409.
The Kleins pleaded their free speech and free
exercise claims as affirmative defenses in their
answer to BOLI’s charges. See App. 223–25.
The case was assigned to a BOLI Administrative
Law Judge (“ALJ”) who issued a Proposed Final
Order granting summary judgment in favor of BOLI
on its claim of sexual-orientation discrimination. The
Proposed Final Order rejected the Kleins’ free speech
and free exercise defenses. App. 188, 236–61.
The ALJ ruled for the Kleins on BOLI’s claim of
discriminatory advertising. App. 214–18. BOLI’s
charge rested on two statements Aaron had made to
the media, describing past events about the case.
App. 216.

 8
BOLI sought damages of $75,000 for each
complainant for “emotional, mental, and physical
suffering.” App. 69. On the question of damages, the
ALJ heard testimony from the Kleins, the
complainants, and the baker who created their
peacock wedding cake. The ALJ awarded Rachel the
full $75,000; he awarded Laurel $60,000 because he
determined Laurel’s testimony lacked credibility.
App. 71–72.
The ALJ’s proposed final order was transmitted
to BOLI Commissioner Brad Avakian, an elected
official who exercises sole authority to make final
decisions on behalf of BOLI. The parties then filed
briefs before Avakian. However, Avakian had
already expressed his views on the merits of the
Kleins’ case: before BOLI had even filed charges,
Avakian had posted a news story about the matter
on Facebook and commented that “Everyone has a
right to their religious beliefs, but that doesn’t mean
they can disobey laws already in place.” App. 159.
When the case eventually came before him, Avakian
ruled accordingly, rejecting the Kleins’ state and
federal constitutional defenses.
Avakian followed the ALJ’s proposed final order
in every respect but one. Like the ALJ, BOLI
concluded that the Kleins had violated Oregon’s
public accommodations statute. The Bureau ordered
the Kleins to stop discriminating on account of
sexual orientation and to pay $135,000 in
“compensatory damages for emotional, mental and
physical suffering.” App. 144. Departing from the
ALJ’s proposed order, Commissioner Avakian also
held that the Kleins had violated the state ban on
statements of intent to discriminate and ordered the

 9
Kleins to “cease and desist” from making such
statements. App. 144–45.
4. On appeal, the Oregon Court of Appeals
issued the order under review here. The court
reversed BOLI’s “cease and desist” order prohibiting
statements of intent to discriminate, because Aaron’s
statements recounting past events did not indicate
an intent to discriminate in the future. The court
affirmed the Bureau in every other respect.
The Kleins argued on appeal that by forcing
them to design and create custom cakes to celebrate
same-sex wedding ceremonies, BOLI’s order violates
both the Free Speech Clause and the Free Exercise
Clause. App. 15–16. The Oregon Court of Appeals
rejected these constitutional defenses.
Beginning with the Kleins’ free speech claim,
the court acknowledged that “public accommodations
law is awkwardly applied to a person whose
‘business’ is artistic expression.” App. 39.
The court conceded that “[i]f 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 [United States Supreme] Court
would regard BOLI’s order as a regulation of content,
thus subject to strict scrutiny.” Id.
The Oregon Court of Appeals also acknowledged
that this Court “has held that the First Amendment
covers various forms of artistic expression.” App. 40
(enumerating examples). Therefore, according to the
Oregon court, “the question is whether [the Kleins’]
customary practice, and its end product, are in the
nature of ‘art.’ ” App. 39.

 10
At the outset, the Oregon Court of Appeals
acknowledged that the Kleins’ handiwork bears all
the traditional hallmarks of commissioned artistic
expression, and that “the Kleins imbue each wedding
cake with their own aesthetic choices.” App. 45:
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.
App. 44.
The court rightly assumed, based on Rachel and
Laurel’s express intentions, that “any cake that the
Kleins made for them would have followed the
Kleins’ customary practice.” App. 43.
Nevertheless, the court concluded that the
Kleins’ wedding cakes were not “entitled to the same
level of constitutional protection as pure speech or
traditional forms of artistic expression.” App. 44.
The court’s decision turned on the premise that
BOLI’s order need survive only intermediate

 11
scrutiny if the Kleins’ “cake-making retail business
involves, at most, both expressive and non-expressive
components,” citing this Court’s seminal “expressive
conduct” case, United States v. O’Brien, 391 U.S. 367
(1968). App. 43. Although the Oregon Court of
Appeals acknowledged the “dignitary” aims of BOLI’s
enforcement of the public accommodations statute,
App. 50, it held that the State’s “interest . . . is
unrelated to the content of the expressive
components,” App. 43.
To determine whether the “expressive” or “nonexpressive” elements of the Kleins’ work
predominate, the Court of Appeals borrowed from
three other “expressive conduct” cases that involved
not art but improper flag display, public sleeping,
and legislative voting. App. 44–45 (citing Spence v.
Washington, 418 U.S. 405, 409 (1974) (per curiam);
Clark v. Cmty. for Creative Non-Violence, 468 U.S.
288, 293 (1984); Nev. Comm’n on Ethics v. Carrigan,
564 U.S. 117, 127 (2011)).
Departing from this Court’s precedents, which
treat even abstract art and music as fully protected
expression, the Oregon Court of Appeals held that
“[f]or 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.” App.
45.
Applying this audience-response theory of
artistic expression to the Kleins, the Court of
Appeals concluded that they had not proven their
cakes were invariably “experienced” by others
“predominantly as expression.” Id. The court
reasoned that “even when custom-designed for a

 12
ceremonial occasion, [they] are still cakes made to be
eaten.” Id.
The court thought it significant to this analysis
that custom cakes are produced through “a
collaborative process in which Melissa’s artistic
execution is subservient to a customer’s wishes and
preferences.” App. 46.
The Oregon Court of Appeals also rejected the
Kleins’ arguments that BOLI’s order violates the
Free Speech Clause by compelling them to host or
accommodate celebratory messages about same-sex
weddings, and that it violates their freedom of
association by compelling them to facilitate such
weddings. App. 46–48. The court dismissed these
arguments on the ground that “the Kleins have not
raised a nonspeculative possibility that anyone
attending the wedding will impute [the wedding
cake’s celebratory] message to the Kleins.” App. 47.
The court also suggested that the Kleins could
counteract any implicit endorsement of same-sex
marriage by “engag[ing] in their own speech that
disclaims such support.” App. 47–48.
Because the Oregon Court of Appeals
determined that the Kleins’ custom wedding cakes
are not pure expression, it reviewed BOLI’s order
under the more deferential intermediate scrutiny
standard. The court upheld it on the ground that any
burden the order imposed on the Kleins’ expression
was “no greater than essential” to further the State’s
important interests. App. 50. The court identified
two relevant state interests—first, “ensuring equal
access to publicly available goods and services,” and
second, “preventing the dignitary harm that results
from discriminatory denials of service.” Id.

 13
Turning to the Kleins’ free exercise claim, the
Oregon Court of Appeals decided that it was
foreclosed by Employment Division v. Smith, 494
U.S. 872 (1990), after concluding that Oregon’s
public accommodation statute is neutral on its face
and that BOLI did not impermissibly target religion.
The court rejected the Kleins’ argument that under
the hybrid rights doctrine described in Smith, even
neutral laws of general applicability are subject to
strict scrutiny when they are enforced in ways that
burden both free exercise and other fundamental
constitutional rights. See Smith, 494 U.S. at 881. The
court characterized this Court’s discussion of hybrid
rights in Smith as dictum and joined the other courts
that have “declined to follow it.” App. 57.
The court denied the Kleins’ request for a
religious exemption under the Oregon Constitution,
App. 59–61, and rejected their argument that their
due process rights were violated by the bias and
prejudgment that BOLI Commissioner Avakian
exhibited in his public statements about their case
and the need for “one set of rules for everybody.”
App. 61–68.
The court affirmed BOLI’s $135,000 damages
award. App. 68–82. The Court of Appeals specifically
upheld damages based on Aaron’s “quoting a biblical
verse” and on Complainants’ own religion-specific
interpretation of a particular word in that verse.
App. 74; see id. (“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.”). The court concluded approvingly that
Aaron’s quotation from Leviticus to Rachel’s mother

 14
“in the course of explaining why he was denying
service . . . underlies BOLI’s damages award.” App.
75.
The Kleins sought review in the Oregon
Supreme Court, which denied review. App. 1–2.
REASONS FOR GRANTING THE PETITION
When this Court recognized the rights of samesex couples to marry, it immediately raised “serious
questions about religious liberty.” Obergefell v.
Hodges, 135 S. Ct. 2584, 2625 (2015) (Roberts, C.J.,
dissenting); accord id. at 2638 (Thomas, J.,
dissenting). Obergefell inevitably requires this Court
to decide whether that newly recognized marriage
right can be wielded not only as a shield in defense of
same-sex unions but also—as in this case—a sword
to attack others for adhering to traditional religious
beliefs about marriage. As the Chief Justice noted in
dissent, “Many good and decent people oppose samesex marriage as a tenet of faith,” and “[h]ard
questions arise when people of faith exercise religion
in ways that may be seen to conflict with the new
right to same-sex marriage.” Id. He and the Justices
who joined his dissent anticipated that such
“questions will soon be before this Court.” Id.
The Obergefell majority also anticipated these
questions, and insisted that its opinion should not be
read to disparage those “who deem same-sex
marriage to be wrong . . . based on decent and
honorable religious or philosophical premises.” Id. at
2602. The Obergefell majority “emphasize[d]” that
“those who adhere to religious doctrines[] may
continue to advocate with utmost, sincere conviction

 15
that, by divine precepts, same-sex marriage should
not be condoned.” Id. at 2607.
This Court should grant certiorari to ensure that
the constitutionally guaranteed rights to exercise
one’s religious beliefs and to express those beliefs are
not subordinated to a new majoritarian effort to
“prescribe what shall be orthodox in . . . matters of
opinion or force citizens to confess by word or act
their faith therein.” W. Va. Bd. of Educ. v. Barnette,
319 U.S. 624, 642 (1943).
This case is an ideal vehicle for this issue: It
squarely presents the constitutional questions that
the Court did not answer in Masterpiece Cakeshop,
but without the factual uncertainties that beset that
case. The Kleins sold only custom wedding cakes;
any cake they designed and created for a same-sex
wedding would have implicated their free speech and
free exercise rights.
This Court’s review is necessary to resolve
disagreement among the courts concerning whether
a custom work of art loses its First Amendment
protection either because some observers may not
understand it as art, or because it is designed for a
commercial purpose, in collaboration with the artist’s
customer.
This Court should also grant certiorari to revisit
Employment Division v. Smith, after almost two
decades of lower court experience applying the
deferential rational basis standard of review to laws
that burden the free exercise of religion.
If Smith remains in force, the Court should
resolve confusion among the courts about the
precedential value of this Court’s hybrid rights

 16
doctrine—which applies strict scrutiny in cases like
this one that implicate both free exercise of religion
and another fundamental right.
I.

This
Case
Squarely
Presents
The
Constitutional Questions This Court Could
Not Resolve In Masterpiece Cakeshop.

This Court determined that the legal principles
at stake here were worthy of consideration when it
granted certiorari in Masterpiece Cakeshop v.
Colorado Civil Rights Commission, 138 S. Ct. 1719
(2018). But the Court was unable to resolve the core
constitutional questions in that case, because of
“uncertainties about the record. Specifically, the
parties dispute[d] whether [the baker in that case]
refused to create a custom wedding cake for the
individual respondents, or whether he refused to sell
them any wedding cake (including a premade one).”
Id. at 1740 (Thomas, J., concurring in part and
concurring in the judgment). As Justice Kennedy
observed in his opinion for the Court, “these details
might make a difference.” Id. at 1723.
No such uncertainty clouds the present case,
because the Kleins did not sell premade wedding
cakes. The Oregon Court of Appeals found that “the
Kleins do not offer such ‘standardized’ or ‘off the
shelf’ wedding cakes.” App. 42. Instead, for every
wedding cake the Kleins produced, “Melissa use[d]
her customers’ preferences to develop a custom
design” employing “her own design skills and
aesthetic judgments.” App. 44. Thus, the court found,
“the Kleins’ argument that their products entail
artistic expression is entitled to be taken seriously.”
Id. Even so, the court was “not persuaded that the

 17
Kleins’ wedding cakes are entitled to the same level
of constitutional protection as pure speech or
traditional forms of artistic expression.” Id. This case
therefore directly presents the compelled speech
question that this Court could not decide in
Masterpiece Cakeshop.
The factual uncertainties in Masterpiece
Cakeshop also presented “difficulties . . . in
determining whether a baker has a valid free
exercise claim.” 138 S. Ct. at 1723. Those difficulties
are not present in the Kleins’ case. Because they sold
only custom wedding cakes, there is no possibility
that the Kleins “refus[ed] to sell a cake that has been
baked for the public generally,” id., and the record is
clear about the Kleins’ process of designing, creating,
delivering, and assembling their cakes—a process
that the Oregon Court of Appeals held the Kleins
must perform on a “full and equal” basis for same-sex
weddings. Ore. Rev. Stat. § 659A.403(3).
Thus, this case squarely presents the question
whether the Free Exercise Clause protects an artist
from being forced to devote her talents to celebrate a
wedding ritual to which she conscientiously objects
on the basis of “decent and honorable religious . . .
premises.” Obergefell, 135 S. Ct. at 2602.
II. The Decision Below Conflicts With This
Court’s Compelled Speech Jurisprudence.
This Court recently reaffirmed that speech
compulsion is even more damaging to First
Amendment values than speech restrictions are, and
therefore compelled speech justifies a more searching
standard of review. Janus v. AFSCME, Council 31,
138 S. Ct. 2448, 2464 (2018) (“Forcing free and

 18
independent individuals to endorse ideas they find
objectionable is always demeaning, and for this
reason, one of our landmark free speech cases said
that a law commanding ‘involuntary affirmation’ of
objected-to beliefs would require ‘even more
immediate and urgent grounds’ than a law
demanding silence.” (quoting Barnette, 319 U.S. at
633)).
But the Oregon Court of Appeals dismissed as
inapposite this Court’s landmark compelled speech
cases—Barnette and Wooley v. Maynard, 430 U.S.
705 (1977). App. 34–35. According to the Oregon
Court of Appeals, these cases govern only where “the
government prescribed a specific message that the
individual was required to express.” App. 35. The
court held that Barnette and Wooley do not apply to
“content neutral regulation that is not directed at
expression at all.” Id.; accord Elane Photography,
LLC v. Willock, 309 P.3d 53, 64 (N.M. 2013).
This Court has not interpreted its precedents so
narrowly. It has applied Wooley in cases that involve
compelled non-governmental speech. See Pac. Gas &
Elec. Co. v. Pub. Util. Comm’n of Cal., 475 U.S. 1,
17–18 (1986) (plurality op.); id. at 22–24 & n.1
(Marshall, J., concurring in judgment). And it has
certainly not limited Barnette, which involved the
symbolic act of a compelled flag salute, to cases of
“specific message[s] that the individual was required
to express.” App. 35. Instead, in Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of
Boston, this Court cited Barnette in particular for the
proposition that “the Constitution looks beyond
written or spoken words” to “symbolism” as a

 19
protected medium of expression. 515 U.S. 557, 569
(1995).
And rather than insulating “content neutral
regulation” from the First Amendment’s protection
against compelled speech, App. 35, Hurley cited
Wooley and Barnette in reversing the Massachusetts
courts’ application of a facially neutral public
accommodations statute much like Oregon’s, 515
U.S. at 565, 569, 573, 579.
The Oregon Court of Appeals tried to distinguish
Hurley on the ground that the public accommodation
statute in that case was applied “outside of the usual
commercial context.” App. 33. This misreads Hurley.
What the Court found “peculiar” in that case was not
the absence of a conventional commercial context but
the complainants’ effort to hijack the parade
organizer’s
speech—the
parade—to
convey
complainants’ own message. 525 U.S. at 573. The
Court’s result in Hurley would have been the same if
the parade organizers had been operating a
traditional public accommodation rather than a
parade when the complainants sought to
commandeer their message. See 515 U.S. at 580–81.
As in Hurley, the complainants in the present case
did not seek mere access to a publicly available good
or service; they sought to force the Kleins to host a
message and to celebrate a way of life with which
they disagree. In any event, this Court has not
hesitated to protect against compelled speech in a
commercial context. See, e.g., Pac. Gas & Elec., 475
U.S. at 17–18; id. at 22–24 & n.1 (Marshall, J.,
concurring in the judgment).
The Oregon Court of Appeals suggested that the
Kleins could counteract any implicit endorsement of

 20
same-sex marriage by “engag[ing] in their own
speech that disclaims such support.” App. 47–48. As
Justice Thomas observed in Masterpiece Cakeshop,
“[t]his reasoning flouts bedrock principles of [this
Court’s] free-speech jurisprudence” and “would
justify any law compelling speech.” 138 S. Ct. at
1740, 1745 (citing Miami Herald Publ’g Co. v.
Tornillo, 418 U.S. 241, 256 (1974); Pac. Gas & Elec.,
475 U.S. at 15 n.11 (The government “cannot ‘require
speakers to affirm in one breath that which they
deny in the next.’ ”)). Moreover, posting a disclaimer
would not remedy the compelled speech injury but
only exacerbate it: Creating the need for a disclaimer
is itself a form of compelled speech. See Pac. Gas &
Elec., 475 U.S. at 16 (“[T]here can be little doubt that
[the utility company] will feel compelled to respond
to arguments and allegations made [in third-party
notices the utility was compelled to mail with its
bills]. That kind of forced response is antithetical to
the free discussion that the First Amendment seeks
to foster.”).
III. Courts Are Divided About The Test For
Determining Whether Commercial Art Is
Protected By The First Amendment.
This case reflects disagreements among the
lower courts concerning the relevant factors for
determining whether a work of commercial art is
protected expression.
1. In deciding whether the Kleins’ custom
wedding cakes are fully protected expression, the
Oregon Court of Appeals started from the premise
that “the expressive character of a thing must turn
not only on how it is subjectively perceived and

 21
experienced by its maker, but also on how it will be
perceived and experienced by others.” App. 45. To
prevail on a free speech claim, according to the court,
the Kleins would have to prove “that other people
will necessarily experience any wedding cake that
the Kleins create predominantly as ‘expression’
rather than as food.” Id.
This Court has never looked to audience
perceptions to gauge whether a work of art is fully
protected expression. The Supreme Court did not ask
whether “other people” experience Jackson Pollock
paintings and twelve-tone music as art before
declaring both to be “unquestionably shielded”
expression. See Hurley, 515 U.S. at 571–72. To the
contrary, “a narrow, succinctly articulable message is
not a condition of constitutional protection.” Id. at
569.
Only when evaluating “expressive conduct” does
this Court consider the “likelihood . . . that the
message would be understood by those who viewed
it.” Texas v. Johnson, 491 U.S. 397, 404 (1989)
(quoting Spence, 418 U.S. at 410–11). Essentially
the Oregon Court of Appeals collapsed its protected
speech analysis into an expressive conduct inquiry,
importing an audience-comprehension requirement
that finds no place in this Court’s evaluation of pure
expression.2

The Oregon Court of Appeals’ elision of the pure speech and
expressive conduct tests is evident in the court’s reliance on
O’Brien (the draft card burning case) and its progeny. App. 44
(citing O’Brien, 391 U.S. 367; Spence, 418 U.S. at 409; Clark v.
2

 22
Consistent with this Court’s free speech
jurisprudence, other courts have objectively
identified various forms of art as pure expression,
without first evaluating the public’s perception of the
artform. See, e.g., Anderson v. City of Hermosa
Beach, 621 F.3d 1051, 1059 (9th Cir. 2010) (tattoos);
Buehrle v. City of Key West, 813 F.3d 973, 976 (11th
Cir. 2015) (same); Coleman v. City of Mesa, 230 Ariz.
352, 359 (2012) (same).
The decision of the Oregon Court of Appeals is in
conflict with these cases, but it finds support in other
courts that have denied First Amendment protection
on the basis of judicial inferences about how the
public perceives the art. See Elane Photography, 309
P.3d at 68, 69 (“Whatever message Elane
Photography’s photographs may express, they
express that message only to the clients and their
loved ones, not to the public. . . . Observers are
unlikely to believe that Elane Photography’s
photograms reflect the views of either its owners or
its employees.”); Craig v. Masterpiece Cakeshop, Inc.,
370 P.3d 272, 287 (Colo. Ct. App. 2015) (“[I]t is
unlikely that the public would understand
Masterpiece’s sale of wedding cakes to same-sex
couples as endorsing a celebratory message about
same-sex marriage.”), rev’d on other grounds sub
nom. Masterpiece Cakeshop, Ltd. v. Colo. Civ. Rights
Comm’n, 138 S. Ct. 1719 (2018).

Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984);
Carrigan, 564 U.S. at 127).

 23
A third category of courts has considered public
perception to determine whether the expressive
purpose predominates in “items with common nonexpressive uses that are also sold to customers.”
Mastrovincenzo v. City of New York, 435 F.3d 78, 96
(2d Cir. 2006). But these courts have adopted an
objective test for doing so. See id. (“[C]ourts may
gauge the relative importance of the items’
expressive character by comparing the prices
charged for the decorated goods with the prices
charged for similar non-decorated goods. If a vendor
charges a substantial premium for the decorated
work and/or does not sell the item without
decoration, such facts would bolster his claim that
the items have a dominant expressive purpose.”);
accord People v. Lam, 995 N.E.2d 128, 129 (N.Y.
2013).
In any event, the Oregon Court of Appeals was
wrong to conclude that the audience for the Kleins’
custom cakes does not appreciate them as art. The
primary audience for the Kleins’ art is the couple
who commissions the cake, pays a price far in excess
of its nutritional value, App. 105, and sits for a client
consultation so that the artist can design a cake that
embodies “each customer’s personality, physical
tastes, theme and desires.” App. 205. Indeed, the
complainants discussed their own wedding cakes—
one depicting a three-dimensional peacock, the other
a fairy tree—in aesthetic and expressive, rather than
functional, terms. See Hearing Tr. at 356 (Testimony
of Laurel Bowman-Cryer) (Mar. 12, 2015) (describing
the design of each cake “on display at the wedding,”
including one that reflected Laurel’s Irish heritage
“because . . . [her] grandmother was going to be
watching from Ireland”).

 24
Wedding guests also understand “the inherent
symbolism in wedding cakes,” which communicate
the message that “a wedding has occurred, a
marriage has begun, and the couple should be
celebrated.” Masterpiece Cakeshop, 138 S. Ct. at 1743
(Thomas, J., concurring in part and concurring in the
judgment); see id. (“Although the cake is eventually
eaten, that is not its primary purpose. The cake’s
purpose is to mark the beginning of a new marriage
and to celebrate the couple.”). “[A] wedding cake
needs no particular design or written words to
communicate th[is] basic message.” Id. at 1743 n.2.
2. The opinion below also exacerbates a
disagreement among the lower courts about whether
artists forfeit First Amendment protection by
collaborating with their customers.
The Oregon Court of Appeals observed that “to
the extent the [Kleins’] 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.” App. 45–46
(emphasis added). The Court implied that the Kleins’
custom wedding cake could more easily “be
understood to fundamentally and inherently embody
the Kleins’ expression, for purposes of the First
Amendment,” if their art were “created at the baker’s
. . . own initiative and for her own purposes.” App. 46
n.9.
This theory would exclude vast swaths of art
from the protection of the First Amendment, since
throughout history art has been produced for
commercial purposes, in cooperation with patrons. It
is incompatible with this Court’s consistent teaching

 25
that speakers do not forfeit First Amendment
protection by collaborating with other speakers. See
Hurley, 515 U.S. at 569 (“[A] private speaker does
not forfeit constitutional protection simply by
combining multifarious voices.” (citing Tornillo, 418
U.S. at 258; New York Times Co. v. Sullivan, 376
U.S. 254, 265–66 (1964)); see also Masterpiece
Cakeshop, 138 S. Ct. at 1744 (Thomas, J., concurring
in part and concurring in the judgment) (“Nor does it
matter that the couple also communicates through
the cake. More than one person can be engaged in
protected speech at the same time.”).
It is also incompatible with this Court’s clear
holding that “the degree of First Amendment
protection is not diminished merely because the
[protected expression] is sold rather than given
away.” City of Lakewood v. Plain Dealer Publ’g Co.,
486 U.S. 750, 756 n.5 (1988); see also Riley v. Nat’l
Fed’n of the Blind of N.C., 487 U.S. 781, 801 (1988)
(“It is well settled that a speaker’s rights are not lost
merely because compensation is received; a speaker
is no less a speaker because he or she is paid to
speak.”).
Many lower courts have followed this Court in
holding that art produced in collaboration with a
customer is fully protected by the First Amendment.
See, e.g., Anderson, 621 F.3d at 1062 (“The fact that
both the tattooist and the person receiving the tattoo
contribute to the creative process . . . does not make
the tattooing process any less expressive activity.”);
Buehrle, 813 F.3d at 977 (“Protected artistic
expression frequently encompasses a sequence of
acts by different parties, often in relation to the same
piece of work.”).

 26
These courts have emphasized that the artist’s
commercial purpose does not dilute her right to First
Amendment protection. See, e.g., Anderson, 621 F.3d
at 1063 (“[T]he business of tattooing qualifies as
purely expressive activity rather than conduct with
an expressive component, and is therefore entitled to
full constitutional protection.”); Bery v. City of New
York, 97 F.3d 689, 695 (2d Cir. 1996) (“The sale of
protected materials is also protected.”).
But the Oregon Court of Appeals’ decision joins
a growing number of courts that have deprecated the
First Amendment status of artistic expression that is
produced in collaboration with another speaker, in a
commercial context. See Craig, 370 P.3d at 287 (“The
fact that an entity charges for its goods and services
reduces the likelihood that a reasonable observer will
believe that it supports the message expressed in its
finished product.”); Elane Photography, 309 P.3d at
66 (“It may be that Elane Photography expresses its
clients’ messages in its photographs, but only
because it is hired to do so.”); id. at 68 (“While
photography may be expressive, the operation of a
photography business is not.”), quoted in Craig, 370
P.3d at 287.
IV. The Decision Below Conflicts With This
Court’s Expressive Conduct Jurisprudence.
As discussed above, the Kleins’ custom wedding
cakes are pure expression and should not be
subjected to the tests that apply to expressive
conduct. But even if custom wedding cakes are
treated as mere expressive conduct, they are
protected by the First Amendment.

 27
The decision below conflicts with this Court’s
precedent on the application of the expressive
conduct test.
Under
O’Brien’s
“relatively
lenient”
intermediate scrutiny standard, “when ‘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.” Johnson, 491 U.S. at 407
(quoting O’Brien, 391 U.S. at 376).
Critically, though, this Court has “limited the
applicability” of the O’Brien test to those cases in
which ‘the government interest is unrelated to the
suppression of free expression.” Id. at 407 (quoting
Spence, 418, U.S. at 414). When the government’s
interest is “directly related to expression in the
context of activity,” O’Brien is “inapplicable,” id. at
410 (quoting Spence, 418 U.S. at 414 n.8), and this
Court applies “the most exacting scrutiny,” id. at
412.
BOLI’s order (and the opinion of the Oregon
Court of Appeals) are aimed at “expression in the
context of activity,” so the court erred in applying
intermediate scrutiny.
The Oregon Court of Appeals identified two
“substantial government interest[s]” that are served
by the State’s public accommodations law—“ensuring
equal access to publicly available goods and services”
and “preventing the dignitary harm that results from
discriminatory denials of service.” App. 50. But it
was the second interest—preventing dignitary

 28
harm—that the court identified as “particularly
acute” in the context of same-sex marriage. Id.
As in Wooley, “[t]he State’s second claimed
interest is not ideologically neutral. The State is
seeking to communicate to others an official view,”
430 U.S. at 717, namely the dignity it deems proper
to same-sex marriage. The State’s interest in
preventing dignitary harm is “directly related to
expression,” Spence, 418 U.S. at 414 n.8, so O’Brien’s
intermediate scrutiny standard does not apply. See
Hurley, 515 U.S. at 574 (applying strict scrutiny to
state’s use of public accommodations statute to
compel
parade
organizer
to
communicate
challengers’ “not wholly articulate . . . view that
people of their sexual orientation have as much claim
to unqualified social acceptance as heterosexuals”);
id. at 579 (If “produc[ing] . . . a society free of the
corresponding biases . . . is the point of applying the
state law to expressive conduct, it is a decidedly fatal
objective.”); see also Masterpiece Cakeshop, 138 S. Ct.
1736 (Thomas, J., concurring in part and concurring
in the judgment) (“States cannot punish protected
speech because some group finds it offensive, hurtful,
stigmatic, unreasonable, or undignified. ‘If there is a
bedrock principle underlying the First Amendment,
it is that the government may not prohibit the
expression of an idea simply because society finds
the idea itself offensive or disagreeable.’ ” (quoting
Johnson, 491 U.S. at 414)).
In addition to the Oregon Court of Appeals’
explicit identification of an expressive State purpose,
BOLI and the court both demonstrated their interest
in redressing the effects of the Kleins’ religious

 29
speech about the nature of marriage—a concern that
is directly related to expression.
BOLI awarded damages of $135,000 to
complainants,
not
to
compensate
for
the
inconvenience of having to locate an alternative
wedding cake artist, but for the harm attributable to
Aaron’s quotation of the Bible. Rachel’s mother
returned to the Kleins’ store alone and volunteered
that her “truth had changed’ as a result of having
‘two gay children.’ ” App. 9. In response, Aaron Klein
quoted Leviticus 18:22: “You shall not lie with a male
as one lies with a female; it is an abomination.” Id.
When she returned to her car, Rachel’s mother
misreported to her daughter that Aaron Klein had
called Rachel “an abomination.” Id. BOLI awarded
damages for the “shame,” “stress[],” “anxiety,”
“frustration,” “exhaustion,” “sorrow,” and “anger”
that complainants alleged as a result of this garbled
communication of competing religious views about a
subject of public controversy. App. 104, 141.
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 religion-specific interpretation
(not shared by the Kleins themselves) of a particular
word in that verse. App. 74; see id. (“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.”); App. 133.

 30
The court’s treatment of the Kleins’ religious
speech, and the resulting harm to complainants,
shows that it was the expressive purpose of
preventing dignitary harm that motivated BOLI’s
order and the Oregon Court of Appeals’ decision to
affirm that order. Because Oregon’s interest in this
case is “directly related to expression,” strict scrutiny
applies—not the permissive O’Brien test. See
Johnson, 491 U.S. at 410.
This Court should grant certiorari to clarify that
the State’s asserted interest in compelling an artist’s
speech to prevent her from “denigrating the dignity
of same-sex couples” is “completely foreign to our
free-speech jurisprudence,” and that such State
interests trigger strict scrutiny even under an
expressive
conduct
framework.
Masterpiece
Cakeshop, 138 S. Ct. at 1746 (Thomas, J., concurring
in part and concurring in the judgment).
V.

This Court Should Reconsider Employment
Division v. Smith.

The Oregon Court of Appeals rejected the
Kleins’ free exercise claim on the basis of
Employment Division, Department of Human
Resources of Oregon v. Smith, 494 U.S. 872 (1990),
which decided (by a 5-4 vote) that “if prohibiting the
exercise of religion . . . is . . . merely the incidental
effect of a generally applicable and otherwise valid
provision, the First Amendment has not been
offended.” 494 U.S. at 878. This Court should revisit
Smith.
When Smith was decided, Justice O’Connor,
joined by three of her colleagues, wrote that its
“strained reading of the First Amendment”

 31
disregards the Court’s “consistent application of free
exercise doctrine to cases involving generally
applicable regulations that burden religious
conduct.” Id. at 892. In the dissenters’ view, Smith
was “incompatible with our Nation’s fundamental
commitment to individual liberty.” Id. at 891. They
would have held that “conduct motivated by sincere
religious belief, like the belief itself, must be at least
presumptively protected by the Free Exercise
Clause.” Id. at 893.
In the intervening years, Justices have
continued to question the soundness of Smith’s
holding and to call for the Court to overrule it. See,
e.g., City of Boerne v. Flores, 521 U.S. 507, 547 (1997)
(O’Connor, J., dissenting) (“Stare decisis concerns
should not prevent us from revisiting our holding in
Smith.”); id. at 565 (Souter, J., dissenting)
(expressing “serious doubts about the precedential
value of the Smith rule and its entitlement to
adherence”); id. at 566 (Breyer, J., dissenting) (“I
agree with Justice O’Connor that the Court should
direct the parties to brief the question whether
[Smith] was correctly decided.”). In Masterpiece
Cakeshop, Justice Gorsuch—joined by Justice
Thomas—noted that “Smith remains controversial in
many quarters.” 138 S. Ct. at 1734.
VI. Courts Are Divided About The Standard
For Evaluating Hybrid Rights Claims.
As long as Smith remains in force, this Court’s
review is necessary to resolve profound confusion
about the standard of review for “hybrid rights”
claims in which free exercise and free speech rights
are both implicated. This Court has applied strict

 32
scrutiny to such claims, and the Court acknowledged
and preserved that precedent in Employment
Division v. Smith, 494 U.S. 872 (1990). Some courts
have continued to apply strict scrutiny to hybrid
rights claims, following Smith, but others—including
the Oregon Court of Appeals—have repudiated the
hybrid rights doctrine. This Court should resolve the
split.
1. In Smith, this Court adopted the general
rule that free exercise challenges to neutral,
generally applicable laws are not subject to the
“compelling interest” standard. 494 U.S. at 885. But
the Court recognized its prior decisions “that the
First Amendment bars application of a neutral,
generally applicable law to religiously motivated
action” in cases that “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.” Id. at
881 (citing Cantwell v. Connecticut, 310 U.S. 296,
304–07 (1940); Murdock v. Pennsylvania, 319 U.S.
105 (1943); Follett v. McCormick, 321 U.S. 573
(1944)). The Court did not repudiate its application
of strict scrutiny in these “hybrid situation[s].” Id. at
882. These cases were not implicated by Smith,
which involved “a free exercise claim unconnected
with any communicative activity.” Id. The hybrid
rights doctrine remains in force. See Hosanna-Tabor
Evangelical Lutheran Church & Sch. v. EEOC, 565
U.S. 171, 200 (2012) (Alito, J., concurring) (“[T]he
constitutional interest in freedom of association may
be ‘reinforced by Free Exercise Clause concerns.’ ”
(quoting Smith, 494 U.S. at 882)).

 33
The present case is controlled by the hybrid
rights cases that the Smith Court distinguished. As
in Cantwell, Murdock, and Follet, BOLI’s application
of the Oregon public accommodations statute limits
not just their ability to live and work in accord with
their religious beliefs but also their freedom to
speak—or to refrain from speaking. “[I]n the light of
the constitutional guarantees” involved, such state
action is unlawful, “in the absence of a statute
narrowly drawn to [avoid] a clear and present danger
to a substantial interest of the State.” Cantwell, 310
U.S. at 296.
2. In this case, the Oregon Court of Appeals
joined a growing list of courts that have labeled
Smith’s discussion of hybrid rights “dictum and have
declined to follow it.” App. 57 (citing Combs v.
Homer-Ctr. Sch. Dist., 540 F.3d 231, 247 (3d Cir.
2008) (“Until the Supreme Court provides direction,
we believe the hybrid-rights theory to be dicta.”);
Watchtower Bible & Tract Soc’y of New York, Inc. v.
Vill. of Stratton, 240 F.3d 553, 561 (6th Cir. 2001)
(“That language was dicta and therefore not
binding.”), rev’d on other grounds, 536 U.S. 150
(2002); Knight v. Conn. Dep’t of Pub. Health, 275
F.3d 156, 167 (2d Cir. 2001) (“[T]he language
relating to hybrid claims is dicta and not binding on
this court.”).
The Oregon Court of Appeals adopted the Sixth
Circuit’s wait-and-see approach to the hybrid rights
doctrine: “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 stricter
standard than that used in Smith to evaluate

 34
generally applicable, exceptionless state regulations
under the Free Exercise Clause.” App. 58 (quoting
Kissinger v. Bd. of Trs. of Ohio State Univ., 5 F.3d
177, 180 (6th Cir. 1993).
3. The Oregon Court of Appeals noted its
disagreement with two federal appellate courts that
have followed this Court’s hybrid rights doctrine. See
App. 57 (citing Miller v. Reed, 176 F.3d 1202, 1207
(9th Cir. 1999); accord Axson-Flynn v. Johnson, 356
F.3d 1277, 1295 (10th Cir. 2004)). Both courts apply
a “colorable claim” approach whereby strict scrutiny
applies to the free exercise claim if the additional
constitutional claim has a “fair probability or
likelihood, but not a certitude, of success on the
merits.” Miller, 176 F.3d at 1207, quoted in AxsonFlynn, 356 F.3d at 1295. The Kleins’ free speech
claim is certainly colorable. As the Oregon Court of
Appeals acknowledged, “the Kleins’ argument that
their products entail artistic expression is entitled to
be taken seriously.” App. 44. Therefore, under the
hybrid rights doctrine, the Kleins’ free exercise claim
should be subject to strict scrutiny.
If this Court does not overrule Smith itself, it
should grant certiorari to resolve the circuit split and
reaffirm the hybrid rights doctrine.
VII. This Case Presents a Recurring Question
of National Importance.
The legal issues raised in this petition are not
confined to cake. If decisions like the Oregon Court of
Appeals’ are allowed to stand, their coercive
application of public accommodation statutes will
extend beyond mandatory participation in same-sex
wedding ceremonies. In addition to their

 35
constitutional defenses, the Kleins argued that they
had not violated Oregon’s public accommodations
statute, because they had not declined to design a
cake “on account of . . . sexual orientation,” Ore. Rev.
Stat. § 659A.403, but rather on account of their
unwillingness to participate in the conduct of samesex marriage.
The Oregon Court of Appeals rejected this
distinction between conduct and protected status.
Under the reasoning of the decision below, any
“public accommodation,” broadly defined, must
contribute its creative services to promote any
conduct, so long as there is a “close relationship”
between that conduct and a protected status. App.
24. According to the opinion below, this compulsion
is in force, even for entrepreneurs who offer customdesigned products and imbue each product “with
their own aesthetic choices,” unless those works meet
an ill-defined and subjective test for what is
“inherently ‘art.’ ” App. 45.
States that adopt this reasoning can compel any
for-profit speaker to broadcast messages that the
state deems deserving of dignity, as long as the
conduct to which the speaker objects is related to a
statutorily protected class. On this logic, a Christian
videographer can be compelled to document a Wiccan
ritual, because there is a “close relationship” between
Wiccan rituals (the conduct) and practitioners of the
Wiccan religion (a protected class). A feminist T-shirt
printer can be compelled to design shirts for a
fraternity initiation, because there is a close
relationship between fraternity initiations and the
male sex. A Jewish DJ can be compelled to perform

 36
for a Nazi rally, because there is a close relationship
between Nazi rallies and “the Aryan race.”
Unless this Court enforces the First
Amendment, similar cases will continue to arise, as
creative entrepreneurs are compelled, under the
guise of public accommodations statutes, to
participate in same-sex marriage rituals that violate
their sincerely held religious beliefs, or—as the
Kleins did—to sacrifice their livelihood.
These issues matter, not just to religious
business owners, but to the population at large,
which benefits from robust protections for free
speech and free exercise, and from the public
exchange of ideas that those freedoms promote. If it
is allowed to stand, the decision below and others
like it will chill expression and enlarge the power of
bureaucrats to force unwilling speakers to
participate in rituals and to promote ideologies of all
kinds that violate their creeds and their consciences.

 37
CONCLUSION
The petition for certiorari should be granted.
Respectfully submitted,

KELLY J. SHACKELFORD
HIRAM S. SASSER, III
KENNETH A. KLUKOWSKI
MICHAEL D. BERRY
STEPHANIE N. TAUB
FIRST LIBERTY INSTITUTE
2001 West Plano Pkwy.
Suite 1600
Plano, TX 75075
(972) 941-4444

kklukowski@firstliberty.org

HERBERT G. GREY
4800 SW Griffith Dr.,
Suite 320
Beaverton, OR 97005
(503) 641-4908
Herb@greylaw.org

October 19, 2018

C. BOYDEN GRAY
ADAM R.F. GUSTAFSON
Counsel of Record
JAMES R. CONDE
BOYDEN GRAY & ASSOCIATES
801 17th St. NW, Suite 350
Washington, DC 20006
(202) 955-0620
gustafson@boydengray
associates.com
Counsel for Petitioners

 i
APPENDIX
TABLE OF CONTENTS
Appendix A Order Denying Review in the Supreme
Court of the State of Oregon
(June 21, 2018) . . . . . . . . . . . . . . . App. 1
Appendix B Opinion in the Court of Appeals of the
State of Oregon
(December 28, 2017) . . . . . . . . . . App. 3
Appendix C Appellate Judgment in the Court of
Appeals of the State of Oregon
(July 31, 2018) . . . . . . . . . . . . . . App. 88
Appendix D Final Order Before the Commissioner
of the Bureau of Labor and Industries
of the State of Oregon
(July 3, 2015) . . . . . . . . . . . . . . . App. 90

 App. 1

APPENDIX A
IN THE SUPREME COURT OF THE
STATE OF OREGON
S065744
[Filed June 21, 2018]
________________________________
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,
)
Petitioner on Review,
)
)
v.
)
)
OREGON BUREAU OF LABOR
)
AND INDUSTRIES,
)
Respondent,
)
Respondent on Review. )
________________________________ )
Court of Appeals
A159899
ORDER DENYING REVIEW
Upon consideration by the court.

 App. 2
The court has considered the petition for review and
orders that it be denied.
Duncan, J., not participating.
/s/Thomas A. Balmer
THOMAS A. BALMER
CHIEF JUSTICE, SUPREME COURT
6/21/2018 2:52 PM

c: Tyler D Smith
Herbert G Grey
Leigh A Salmon
Carson L Whitehead
Stefan Johnson
jr

ORDER DENYING REVIEW
REPLIES SHOULD BE DIRECTED TO:
State Court Administrator, Records Section
Supreme Court Building, 1163 State Street,
Salem OR 97301-2563

 App. 3

APPENDIX B
289 Or. App. 507 (2017)
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
A159899
[Filed December 28, 2017]
________________________________
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;

 App. 4
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 BowmanCryer, 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, Michelle N. Deutchman, David L. Barkley,
Anti-Defamation League, New York, filed the brief
amicus curiae for Anti-Defamation 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.

 App. 5
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.

 App. 6
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.

 App. 7
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 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

 App. 8
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, 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.

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.

 App. 9
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.”

 App. 10
When Rachel and Cheryl arrived home, Cheryl told
Laurel what had happened. Laurel, who had been
raised 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 samesex 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

 App. 11
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.’”
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

 App. 12
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.
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

 App. 13
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 crossmotions, 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.

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.

 App. 14
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 asked that the ALJ
award damages for the distress that the complainants
suffered as a result of media and social-media 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

 App. 15
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 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

 App. 16
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 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

 App. 17
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

 App. 18
“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 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”
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).

 App. 19
(first emphasis in original; second emphasis added));
Elk Creek Management Co. v. Gilbert, 353 Or 565, 58081, 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 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.”

 App. 20
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

 App. 21
domestic partnership, related in a specified way
to another individual.”
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

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.

 App. 22
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
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

 App. 23
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.

 App. 24
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

 App. 25
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 * * * 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

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).

 App. 26
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
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,

 App. 27
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

 App. 28
service, like cake-making, that is asserted to involve
artistic expression.7
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
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 same-sex couple. Craig v. Masterpiece
Cakeshop, Inc., 370 P3d 272 (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).

 App. 29
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, 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

 App. 30
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 which the
Massachusetts legislature had “broaden[ed] the scope
of” the state’s public accommodations law); Roberts v.

 App. 31
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

 App. 32
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 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

 App. 33
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.
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

 App. 34
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 publicschool 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).

 App. 35
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 contentneutral regulation that is not directed at expression at
all. It does not even regulate cake-making; 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

 App. 36
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 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 highereducation 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 5253.
The Court rejected FAIR’s compelled-speech
argument, reasoning that the Solomon Amendment

 App. 37
“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 6364 (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.
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

 App. 38
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 freespeech challenge to the application of a public

 App. 39
accommodations law to a retail establishment selling
highly customized, creative goods and services that
arguably are in the nature of art or other expression.
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

 App. 40
(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, 795-98, 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 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
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.

 App. 41
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’ cake-making activity is sufficiently expressive,
communicative, 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.

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.

 App. 42
(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

 App. 43
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.”
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,

 App. 44
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.
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

 App. 45
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 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,

 App. 46
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 content-neutral 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

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.

 App. 47
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
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
same-sex marriage is worthy of celebration, the Kleins

 App. 48
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 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

 App. 49
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’ cakemaking 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.

 App. 50
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 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

 App. 51
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
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

 App. 52
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.
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

 App. 53
unless it can survive strict scrutiny. See Church of the
Lukumi Babalu Aye, Inc. v. Hialeah, 508 US 520, 54647, 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

 App. 54
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 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

 App. 55
“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 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

 App. 56
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
claim is successfully asserted, then the rule of
Smith becomes mere surplusage, as the church

 App. 57
already would win under
constitutional theory.”

the

alternate

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
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 “hybrid-rights doctrine”

 App. 58
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
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’ “hybridrights 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
“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.”).
11

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.”

 App. 59
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 that was
“not neutral toward religion,”12 which the Supreme
Court distinguished from a “general” and “neutral”
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.”

 App. 60
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, 41516, 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.

 App. 61
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 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 samesex 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

 App. 62
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 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.

 App. 63
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 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)

 App. 64
(“[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

 App. 65
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
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.”
13

“Ace of Cakes” refers to a television show, the host of which
provided the complainants with a free wedding cake.

 App. 66
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 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

 App. 67
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 to a fair and thorough
investigation to determine whether there’s substantial
evidence of unlawful discrimination.’”

 App. 68
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

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.

 App. 69
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 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

 App. 70
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.)
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

 App. 71
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 overdramatize 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

 App. 72
about specific incidents” and otherwise credited her
testimony only “when it was either (a) undisputed, or
(b) disputed but corroborated by other credible
testimony.”
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

 App. 73
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 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

 App. 74
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 by God, not created with a soul.
They are unworthy of holy love. They are not worthy of
life.’ “

 App. 75
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

 App. 76
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 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

 App. 77
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 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

15

The ALJ’s order states, “The Formal Charges seek damages for
emotional, mental and physical suffering in the amount of ‘at least

 App. 78
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.

$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.”

 App. 79
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 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

 App. 80
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”)).
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

 App. 81
(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, 28485, 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, 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

 App. 82
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

 App. 83
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.
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

 App. 84
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 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

 App. 85
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:

 App. 86
“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

 App. 87
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.

 App. 88

APPENDIX C
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
A159899
[Filed July 31, 2018]
________________________________
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
APPELLATE JUDGMENT
Argued and submitted on March 2, 2017.
Adam R.F. Gustafson, Washington DC, argued the
cause for petitioners.

 App. 89
Whitehead, Assistant Attorney General, argued the
cause for respondent.
Before DeVore, Presiding Judge; Garrett, Judge; and
James, Judge.
Reversed as to BOLI’s conclusion that the Kleins
violated ORS 659A.409 and the related grant of
injunctive relief; otherwise affirmed.
DESIGNATION OF PREVAILING PARTY AND
AWARD OF COSTS
Prevailing party: Petitioners
[ ] No costs allowed.
Appellate Judgment
Effective Date: July 31, 2018

COURT OF APPEALS
(seal)

fmc

APPELLATE JUDGMENT
REPLIES SHOULD BE DIRECTED TO:
State Court Administrator, Records Section
Supreme Court Building, 1163 State St,
Salem OR 97301-2563

 App. 90

APPENDIX D

BRAD AVAKIAN
COMMISSIONER

CHRISTIE HAMMOND
DEPUTY COMMISSIONER

BUREAU OF LABOR AND INDUSTRIES
BEFORE THE COMMISSIONER OF THE
BUREAU OF LABOR AND INDUSTRIES
OF THE STATE OF OREGON
Case Nos. 44-14 & 45-14
[Issued July 3, 2015]
_____________________________
In the Matter of:
)
)
MELISSA and AARON KLEIN )
dba Sweetcakes by Melissa,
)
)
and
)
)
AARON WAYNE KLEIN,
)
dba SWEEKCAKES BY
)
MELISSA, and, in the
)
alternative, individually as
)
an aider and abettor
)
under ORS 659A.406,
)
)
Respondents.
)
_____________________________ )

 App. 91
FINDINGS OF FACT
ULTIMATE FINDINGS OF FACT
CONCLUSIONS OF LAW
OPINION
ORDER
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.

 App. 92
800 NE OREGON ST., SUITE 1045 PORTLAND OR
97232-2180 TELEPHONE (971) 673-0781 FAX (971)
673-0762 OREGON RELAY TTY (800) 735-2900
NOTE: The procedural history of this case is extensive
and includes the ALJ’s lengthy ruling on Respondents’
motion and the Agency’s cross-motion for summary
judgment. For ease of reading, all procedural facts, prehearing motions, and rulings on those motions are
included as an Appendix to this Final Order. The
Appendix immediately follows the “Order” section of
this Final Order that bears the Commissioner’s
signature.
IMPORTANT: The Judicial Review Notice that
customarily follows the “Order section of
Commissioner’s Final Orders may be found on the
last page of this Final 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

 App. 93
throughout the hearing. Complainants Rachel
Bowman-Cryer and Laurel Bowman-Cryer 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.
Respondent called the following witnesses: Aaron
Klein, Melissa Klein, and Rachel Bowman-Cryer.
At hearing, the forum received into evidence:
a) Administrative exhibits X1 through X95.
b) Agency exhibits A1 through A12, A23 (pp. 1-4),
A25, and A27 through A29 were received. Exhibit A30
was offered but not received.
c) Respondents’ exhibits R2 (selected “posts” on pp.
3 and 9), R2 through R5, R6 (pp. 1-2), R7 through R12,
R13 (pp. 7-18), R15, R16, R18 through R24, R26, R27,
R28 (pp. 1-3, part of p. 4, pp. 14-28), R29, R30, R32,
R33 (pp. 5-8), and R34 through R41 were received.
Exhibits R1, R14, and R17 were offered but not
received.
Having fully considered the entire record in this
matter, I, Brad Avakian, Commissioner of the Bureau
of Labor and Industries, hereby make the following
Findings of Fact (Procedural and on the Merits),

 App. 94
Ultimate Findings of Fact,1 Conclusions of Law,
Opinion, and Order.
FINDINGS OF FACT – THE MERITS2
1) 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 Portland, Oregon, and
have lived together continuously since moving to
Portland. (Testimony of LBC, RBC, McPherson)
2) LBC first asked RBC to marry her soon after
they met and was turned down. LBC continued to
propose on a regular basis until October 2012, when
RBC finally agreed to marry her. (Testimony of RBC,
LBC)
3) Before October 2012, RBC did not want to get
married because of her personal experience of failed
marriages that “tended to do more damage than good.”
(Testimony of RBC, LBC, McPherson)

1

The Ultimate Findings of Fact required by OAR 839-0500370(1)(b)(B) are subsumed within the Findings of Fact – The
Merits.

2

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.

 App. 95
4) In November 2011, Complainants became foster
parents for “E” and “A,”3 two disabled children with
very high special needs, after the death of their mother,
LBC’s best friend. At the time, Complainants were
already the children’s godparents. When they became
the children’s foster parents, Complainants decided
that they wanted to adopt the children. Subsequently,
Complainants became involved in a bitter and
emotional custody battle for the children with the
children’s great-grandparents that continued until
sometime after December 2013, when Complainants’
December 2013 adoption application was formally
approved by the state of Oregon.4 (Testimony of LBC,
RBC, McPherson)
5) In October 2012, RBC decided that she and LBC
should get married in order to give their foster children
“permanency and commitment” by showing them how
much she and LBC loved one another and were
committed to one another. RBC told LBC that she
wanted to get married, which made LBC “extremely
happy.” After her long-standing matrimonial reticence,
RBC then became excited to get married and to start
planning the wedding, wanting a wedding that was as
“big and grand” as they could afford. (Testimony of
RBC, LBC)

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.

 App. 96
6) Sometime between October 2012 and January
17, 2013, RBC and Cheryl McPherson (“CM”), RBC’s
mother, attended a Portland bridal show. MK had a
booth at the show to advertise wedding cakes made by
Sweetcakes by Melissa (“Sweetcakes”). Two years
earlier, Sweetcakes had designed, created, and
decorated a wedding cake for CM and RBC that RBC
really liked. At the show, RBC and CM visited
Sweetcakes’s booth and told MK they would like to
order a cake from her. After the show, RBC made an
appointment via email for a cake tasting at
Sweetcakes. (Testimony of RBC, CM, MK; Ex. R16)
7) Complainants were both excited about the cake
tasting at Sweetcakes because the cake Respondents
had made for CM’s wedding had been so good and RBC
wanted to order a cake like CM’s cake. (Testimony of
RBC, A. Cryer)
9) On January 17, 2013, RBC and CM visited
Sweetcakes’s bakery shop in Gresham, Oregon for their
cake tasting appointment, intending to order a cake for
RBC’s wedding to LBC. (Respondents’ Admission;
Affidavit of AK; Testimony of RBC, CM, AK)
9) In January 2013, AK and MK were alternately
caring for their infant twins at their home. At the time
of the tasting, MK was at home and AK conducted the
tasting. During the tasting, AK asked for the names of
the bride and groom, and RBC told him there would be
two brides and their names were “Rachel and Laurel.”
At that point, AK stated that he was sorry, but that
Sweetcakes did not make wedding cakes for same-sex
ceremonies because of AK’s and MK’s religious
convictions. In response, RBC began crying. She felt
that she had humiliated her mother and was anxious

 App. 97
whether CM was ashamed of her, in that CM had
believed that being a homosexual was wrong until only
a few years earlier. CM then took RBC by the arm and
walked her out of Sweetcakes to their car. On the way
out to their car and in the car, RBC became hysterical
and kept telling CM “I’m sorry” because she felt that
she had humiliated CM. (Respondents’ Admission;
Affidavit of AK; Testimony of RBC, CM)
10)
In the car, CM hugged RBC and assured her
they would find someone to make a wedding cake. CM
drove a short distance, then returned to Sweetcakes
and reentered Sweetcakes by herself to talk to AK.
During their subsequent conversation, CM told AK
that she used to think like him, but her “truth had
changed” as a result of having “two gay children.” AK
quoted Leviticus 18:22 to CM, saying “You shall not lie
with a male as one lies with a female; it is an
abomination.” CM then left Sweetcakes and returned
to the car. While CM was in Sweetcakes, RBC
remained sitting in the car, “holding [her] head in her
hands, just bawling.” (Affidavit of AK; Testimony of
RBC, CM)
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)
12)
When CM told RBC that AK had called her
“an abomination,” this made RBC cry even more. RBC
was raised as a Southern Baptist. The denial of service
in this manner made her feel as if God made a mistake
when he made her, that she wasn’t supposed to be, and
that she wasn’t supposed to love or be loved, have a
family, or go to heaven. (Testimony of RBC)

 App. 98
13)
CM and RBC then drove home. RBC was
crying when they arrived home and immediately went
upstairs to her bedroom, followed by LBC and CM,
where she lay in her bed, crying.5 In the bedroom, LBC
asked CM what had happened, and CM told her that
AK had told them that Sweetcakes did “not do samesex weddings” and that AK had told CM that “your
children are an abomination.” LBC was “flabbergasted”
at AK’s statement about same-sex weddings. This
upset her and made her very angry. (Testimony of
RBC, LBC, CM)
14)
LBC, who was raised as a Catholic,
recognized Klein’s statement as a reference from
Leviticus. She was “shocked” to hear that AK had
referred to her as an “abomination,” and thought CM
may have heard wrong. She took the denial of service
in this manner to mean “…this is a creature not
created by God, not created with a soul; they are
unworthy of holy love; they are not worthy of life.” She
immediately thought that this never would have
happened if she had not asked RBC to marry her and
felt shame because of it. She also worried that this
might negatively impact CM’s acceptance of RBC’s
sexual orientation. (Testimony of LBC)
15)
LBC, who had always viewed herself as
RBC’s protector, got into bed with RBC and tried to

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.”

 App. 99
soothe her. RBC became even more upset and pushed
RBC away. In response, LBC lost her temper and
started yelling that she “could not believe this had
happened” and that she could “fix” things if RBC would
just let her. After LBC left the room, RBC continued
crying and spent much of that evening in bed.
(Testimony of RBC, LBC, CM)
16)
Back downstairs, E, the older of
Complainants’ foster daughters was extremely agitated
from events at school that day. LBC tried to calm her,
but she refused to be calmed, repeatedly calling out for
RBC, with whom she had a special bond. Eventually, E
cried herself to sleep. LBC’s inability to calm E was
very frustrating to her. She felt overwhelmed because
she didn’t know how to handle the situation. That
night, LBC was very upset, cried a lot, and was hurt
and angry. (Testimony LBC, A. Cryer)
17)
After CM returned home on January 17,
2013, she telephoned “Lauren” at the West End
Ballroom (“WEB”), the venue where Complainants
planned to have their commitment ceremony, and told
Lauren that Sweetcakes had refused them cake service
for their wedding. CM also posted a review on
Sweetcakes Facebook wedding page and on another
wedding website with a message stating: “If you’re a
gay couple and having a commitment ceremony or
wedding, don’t go to this place because they
discriminate against gay people.” (Testimony of CM;
Ex. R22)
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)

 App. 100
19)
At 9:10 p.m. on January 17, 2013, RBC sent
a return email to Lauren at WEB in which she stated:
“Hi Lauren,
“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

 App. 101
Texas so that my brother and I could be more
accepted in the community.
“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.
“My fiancé 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.
“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.
“Sincerely,
Rachel Cryer & Laurel Bowman”
(Testimony of LBC; Ex. R32)

 App. 102
20)
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 name,
address, phone number and email address,
Sweetcakes’s name, address, and phone number. On
the first page, immediately above the space where LBC
wrote her name, the following text was printed:
“By submitting this complaint, I understand a) this
complaint will become part of DOJ’s permanent
records and is subject to Oregon’s Public Records
Law; b) this complaint may be released to the
business or person about whom I am complaining;
c) this complaint may be referred to another
governmental agency. By submitting this complaint,
I authorize any party to release to the DOJ any
information and documentation relative to this
complaint.”
This public records disclaimer was not visible on LBC’s
smart phone view of DOJ’s form. On the second page,
LBC described the details of her complaint as follows:
“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
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.

 App. 103
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
fiancé reduced to tears. This is absolutely
unacceptable.”
(Testimony of LBC; Exhibit R3)
21)
Aaron Cryer, RBC’s brother, also lived with
Complainants at this time. Later on the evening of
January 17, 2013, he arrived home from school and
work and he and Complainants had a 30 minute
conversation about what happened at Sweetcakes that
day. (Testimony of A. Cryer)
22)
On January 18, 2013, RBC felt depressed and
questioned whether there was something inherently
wrong with the sexual orientation she was born with
and if she and LBC deserved to be married like a
heterosexual couple. She spent most of her day in her
room, trying to sleep. (Testimony of RBC)
23)
In the days following January 17, 2013, RBC
had difficulty controlling her emotions and cried a lot,
and Complainants argued because of RBC’s inability to
control her emotions. They had not argued previously
since moving to Oregon. RBC also became more
introverted and distant in her family relationships. She
and A. Cryer, have always been very close, and their
connection was not as close “for a little bit” after
January 17, 2013. RBC questioned whether she had
the ability to be a good mother because of the difficulty

 App. 104
she was having in controlling her emotions. A week
later, RBC still felt “very sad and stressed,” felt
concerned about still having to plan her wedding, and
felt less exuberant about the wedding. Previous to that
time, she had been “very friendly and happy” in her
communications with Candice Ericksen, A and E’s
great aunt, about her wedding. After January 17, 2013,
although RBC relied on CM to contact potential
wedding vendors, she experienced anxiety over possible
rejection because her wedding was a same-sex wedding.
(Testimony of RBC, LBC, CM, A. Cryer, Ericksen)
24)
In the days following January 17, 2013, LBC
experienced extreme anger, outrage, embarrassment,
exhaustion, frustration, intense sorrow, and shame as
a reaction to AK’s refusal to provide a cake. She felt
sorrow because she couldn’t console E, she could not
protect RBC, and because RBC was no longer sure she
wanted be married. Her excitement about getting
married was also lessened because she was not sure
she could protect RBC if any similar incidents occurred.
(Testimony of RBC, LBC, Ericksen)
25)
After January 17, 2013, CM assumed the
responsibility for contacting the vendors who would be
needed for Complainants’ ceremony. Shortly thereafter,
she arranged for a cake tasting at Pastry Girl (“PG”),
another local bakery. While making the appointment,
CM asked Laura Widener, PG’s owner/baker, if she
was okay with providing a cake for a same-sex wedding
ceremony. Widener assured her that this was not a
problem. (Testimony of RBC, CM, Widener; Ex. R4)
26)
On January 21, 2013, CM and RBC went to
PG and met with Widener. While at PG, CM and RBC
were both anxious, and CM did most of the talking,

 App. 105
while RBC tried not to cry until they started talking
about the design of the cake. At that point, RBC
became more animated and was able to explain the
design she wanted on the cake. By the end of the
meeting, the design they settled on was a cake with
three tiers that had a peacock’s body on top and the
peacock’s tail feathers trailing down over tiers to the
cake plate. When completed, the peacock and its
feathers were hand-created and hand-painted by
Widener. Widener charged Complainants $250 for the
cake. (Testimony of Widener, RBC, CM)
27)
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:
“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-

 App. 106
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 “[t]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)
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 Paul Thompson, Complainants’ attorney in this
proceeding. Later that day, the posting was removed.
(Testimony of LBC, AK)
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 were playing.
While in the hospital, she became aware that AK’s
refusal to make their wedding cake was on the news.
This made her very upset and she cried when she was
examined by a doctor, telling the doctor that she had
an “unpleasant interaction with a business owner, and
now this information is on the news.” (Testimony of
LBC; Exs. A6, R7)
31)
On February 1, 2013, RBC became aware
that the media was aware of AK’s refusal to make a
wedding cake for Complainants when she received a
telephone call from Lars Larson, an American
conservative talk radio show host based in Portland,
Oregon, who told her that he had spoken with AK and

 App. 107
wanted to see what RBC “had to say about the pending
case.” RBC refused to talk with Larson and called LBC,
who was at the hospital having her shoulder examined.
(Testimony of RBC, LBC)
32)
As soon as they became aware that LBC’s
DOJ complaint had become public knowledge through
the media, both Complainants greatly feared that E
and A would be taken away from them by the state of
Oregon’s foster care system.7 Earlier, they had been

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?”
A: “No, ma’am. That fear was paramount to everything.”
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.”
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.”

 App. 108
instructed that it was their responsibility to make sure
that the girls’ information was protected and that the
state would “have to readdress placement” of the girls
with Complainants if any information was released
concerning the girls. (Testimony of RBC, LBC)
33)
Based on the media or potential media
exposure about the case after February 1, 2013, LBC’s
headaches increased. She felt intimidated and became
fearful. (Testimony of LBC; Ex. A12)
34)
At some point after February 1, 2013, one of
RBC’s Facebook “friends” saw an article about the case
in her local Florida paper and posted it on Facebook,
adding in her comments that RBC and LBC had
children. RBC immediately responded, writing:
“Jessica – I know you were trying to defend us, but you
released information about our kids. The public doesn’t
know we have kids; that is the whole point of being
silent. Please remove your comment immediately.”
RBC’s “friend” responded and said she removed her
comment as soon as she read RBC’s response.
(Testimony of RBC; Ex. A26)
35)
On February 8, 2013, Paul Thompson sent a
letter regarding Complainants and their situation to
the following media sources: KGW, KOIN, The
Oregonian, OPB, KATU, KPTV, the Lars Larson Radio
Show, The Wall Street Journal, Willamette Week, and
Reuters. The letter read as follows:
“Members of the Media:
“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

 App. 109
not be printed in regards to this statement, as they
would appreciate privacy in this matter.
“The Press Release reads:
“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.

 App. 110
“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)
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 identified themselves as the persons who
sought the wedding cake and thanked people for their
support. (Exs. R9, R13)
37)
On February 8, 2013, Herbert Grey,
Respondents’ lead counsel in this case, sent a letter to
DOJ that responded to LBC’s January 17, 2013,
consumer complaint. In the letter, Grey identified
himself as representing Respondents concerning the
complaint filed by “Laurel Bowman” and addressed the
issues raised in the complaint. Grey also cc’d a copy of
his letter to LBC. (Ex. R10)

 App. 111
38)
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:
“Hey everyone,
“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.”
On February 13, 2013, this email was forwarded to
Herb Grey, Respondents’ attorney, by Tony King, the
executive producer of the Lars Larson Show. (Ex. R15)
39)
After LBC’s DOJ complaint was publicized in
the media, Complainants both had negative
confrontations from relatives who learned about their
complaint against Respondents through the media. In
January 2013, LBC had just begun to re-establish a
relationship with an aunt who had physically and
emotionally abused her as a child and also owned all of
the family property. Shortly after LBC’s complaint
became public, the aunt insisted through social media
that LBC drop the complaint. She also called LBC and
told her she was not welcome on family property and
she would shoot LBC “in the face” if LBC ever set foot
on the family’s property in Ireland or the United
States. This threat “devastated” LBC, as it meant she
could not visit her mother or grandmother, both of

 App. 112
whom lived on family property. RBC’s sister, who
believed that homosexuals should not be allowed to get
married, wrote a Facebook message to the Kleins to tell
them that she supported them. This was a “crushing
blow” to RBC, and it hurt her and made her very angry
at her sister. (Testimony of LBC, RBC, CM; Ex. A16)
40)
On June 27, 2013, Complainants had a
commitment ceremony at the West End Ballroom, a
venue located at 1220 S.W. Taylor in downtown
Portland. On the day of the ceremony, the words
“ROMANCE BY CANDLELIGHT – STARRING
RACHEL AND LAUREL – JUNE 27, 2013” were
posted on a large billboard on the street-facing wall of
the WEB. Only invited guests were allowed to attend
the ceremony. Just prior to the ceremony, Duff
Goldman’s free cake was delivered by an incognito
motorcyclist. At the ceremony, Complainants and their
guests celebrated with their cakes from Pastry Girl and
Goldman. After the ceremony, Complainants
considered themselves to be married even though they
could not be legally married in the state of Oregon at
that time. (Testimony of RBC, LBC, Widener; Exs. R18,
R19)
41)
On August 8, 2013, RBC filed a verified
complaint with BOLI alleged that Sweetcakes by
Melissa had discriminated against her by refusing to
make her a wedding cake because of her sexual
orientation. (Testimony of RBC; Ex. A27)
42)
On August 14, 2013, BOLI’s Communications
Director issued a press release related to RBC’s
complaint. The first paragraph read: “Portland, OR – A
same-sex couple has filed an anti-discrimination
complaint with the Oregon Bureau of Labor and

 App. 113
Industries (BOLI) against a Gresham bakery, Sweet
Cakes by Melissa, for allegedly refusing service based
on sexual orientation.” (Ex. R20)
43)
During the CBN video interview described in
Finding of Fact #12 in the ALJ’s Summary Judgment
Ruling, CBN broadcast a picture of a handwritten note
taped on the inside of a front window at Sweetcakes’
bakery in Gresham. The note read:
“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-I, Respondents’ Motion for Summary Judgment)
44)
On November 7, 2013, LBC filed a verified
complaint with BOLI alleging that Sweetcakes by
Melissa had discriminated against her by refusing to
make her a wedding cake because of her sexual
orientation. (Testimony of LBC; Ex. A28)
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

 App. 114
“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.
* * *”
(Ex. R24)
46)
Complainants were legally married by
signing a “legal document of marriage” in 2014, a few
days after Oregon’s ban on same-sex marriage was
struck down in federal court. (Testimony of RBC)
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 various websites that were supportive of
Respondents and critical of or threatening to
Complainants. These comments and the media
attention caused RBC stress, anger, pain, frustration,
suffering, torture, shame, humiliation, degradation,
fear that she would be harassed at home because the
DOJ complaint with Complainants’ home address had
been posted on Facebook, and the feeling that her
reputation was being destroyed. (Testimony of RBC,
LBC, CM; Ex. A24)

 App. 115
48)
The publicity from the case and
accompanying threats from third parties on social
media made RBC “scared” for the lives of A, E, LBC,
and herself. (Testimony of RBC)
49)
Although AK has been interviewed by the
media on a number of occasions about the case, he did
not initiate any contacts with the media. Other than
posting LBC’s DOJ complaint on his Facebook page,
there is no evidence that AK gave Complainants’
names to the media. Finally, there is no evidence in the
record of any untruthful statements that AK or MK
made to public media regarding their case.8 (Testimony
of AK; Entire Record)
50)
Except for Paul Thompson’s February 8,
2013, press release, Complainants have never solicited
media attention nor been interviewed by the media
with regard to this case. (Testimony of RBC, LBC)
51)
Candice Ericksen, Laura Widener, Melissa
Klein, Jessica Ponaman, and Aaron Cryer were
credible witnesses and the forum has credited their
testimony in its entirety. (Testimony of Ericksen,
Widener, M. Klein, RBC, Ponaman)
52)
For the most part, CM’s testimony was
credible, even though her answers frequently strayed
from the subject of the questions. However, the forum
did not believe her earlier statements to Ponaman that

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.

 App. 116
RBC was “throwing up” because she was so nervous
and that “for days [RBC] couldn’t get out of bed”
because RBC did not testify to those facts and because
RBC spent 30 minutes talking with LBC and A. Cryer
the night of January 17, 2013, and went to a cake
tasting at Pastry Girl on January 21, 2013. Due to
these exaggerations, the forum has only credited CM’s
testimony when it was either (a) undisputed, or
(b) disputed but corroborated by other credible
testimony. (Testimony of CM)
53)
AK was a credible witness except for his
testimony that he did not realize that LBC’s name and
address were on the DOJ complaint that he posted on
his Facebook page. LBC’s name, address, and phone
number are conspicuously printed on the complaint
immediately above Sweetcakes’s name, address, and
phone number, and the forum finds it extremely
unlikely that AK would have posted the complaint
without reading it, particularly since he posted a
comment immediately above it that read: “This is what
happens when you tell gay people you won’t do their
‘wedding’ cake.” Apart from that testimony, the forum
has credited AK’s testimony in its entirety. (Testimony
of AK)
54)
RBC was an extremely emotional witness
who was in tears or close to tears during most of her
testimony. Despite her emotional state, she answered
questions directly in a forthright manner. She did not
try to minimize the effect of media exposure on her
emotional state as compared to how the denial of
service affected her. The forum has credited RBC’s
testimony about her emotional suffering in its entirety.
However, the forum has only credited her testimony

 App. 117
about media exposure when she testified about specific
incidents. (Testimony of RBC)
55)
LBC was a very bitter and angry witness who
had a strong tendency to exaggerate and overdramatize events. On cross examination, she argued
repeatedly with Respondents’ counsel and had to be
counseled by the ALJ to answer the questions asked of
her instead of editorializing about the denial of service
and how it affected her. Her testimony was
inconsistent in several respects with more credible
evidence. First, she testified that she had a “major
blowout” and “really bad fight” with A. Cryer between
January 17 and January 21, 2013. In contrast, A. Cryer
testified, when asked if he fought with LBC, “I wouldn’t
say we fought.” He also testified that this case did not
affect his relationship with LBC. Second, she testified
that her blood pressure spiked in the hospital to
210/165 on February 1, 2013, when she learned that
her DOJ complaint had hit the media, requiring the
immediate attention of a doctor and four nurses. Her
treating doctor’s report notes that she was upset and
crying about her situation hitting the news, but there
is no mention of a blood pressure spike. Third, she
testified that the media were standing outside her and
RBC’s apartment on February 1, 2013, when she talked
to RBC from the hospital. RBC, who was at the
apartment at that time, testified that the media were
not outside their apartment at that time. Fourth, LBC
testified that RBC stayed in bed the rest of the day
after she returned from the cake tasting at Sweetcakes.
In contrast, A. Cryer testified that he, LBC, and RBC
had a 30 minute conversation that evening. Like RBC,
the forum has only credited her testimony about media
exposure when she testified about specific incidents.

 App. 118
The forum has only credited LBC’s testimony when it
was either (a) undisputed, or (b) disputed but
corroborated by other credible testimony. (Testimony of
LBC)
CONCLUSIONS OF LAW
1) At all times material herein, Respondents AK
and MK owned and operated a bakery in Gresham,
Oregon as a partnership under the assumed business
name of Sweetcakes by Melissa.
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 privileges of Sweetcakes by
Melissa to Complainants based on their sexual
orientation, thereby violating ORS 659A.403.
6) AK did not violate ORS 659A.406.
7) AK and MK violated ORS 659A.409.
8) Complainants suffered emotional and mental
suffering as a result of AK’s 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

 App. 119
10)
The Commissioner of the Bureau of Labor
and Industries has jurisdiction over the persons and of
the subject matter herein and the authority to
eliminate the effects of any unlawful practices found.
ORS 659A.800 to ORS 659A.865.
11)
Pursuant to ORS 659A.850 and ORS
659A.855, the Commissioner of the Bureau of Labor
and Industries has the authority under the facts and
circumstances of this case to issue an appropriate cease
and desist order. The sum of money awarded to
Complainants and the orders to cease and desist
violating ORS 659A.403 and ORS 659A.409 are an
appropriate exercise of that authority.
OPINION
Introduction
In his ruling on Respondents’ motion and the
Agency’s cross-motion for summary 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:
“* * * [I]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
9

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.

 App. 120
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[.]”
The first paragraph in section IV of the Agency’s
Charges10 alleges that “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, and
on the radio on February 13, 2014, that allegedly
communicated an intent to discriminate based on
sexual orientation. The full text of the relevant part of
the CBN broadcast is reprinted below:
A. Klein: ‘I didn’t want to be a part of her marriage,
which I think is wrong.’

10

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.”

 App. 121
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)
The Agency’s cross-motion for summary judgment also
singles out the text on a handwritten sign that was
shown taped to the inside of Sweetcakes’ front window
during the CBN broadcast:
“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:
Perkins: ‘* * * Tell us how this unfolded and your
reaction to that.’
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

 App. 122
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.’
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?’
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

 App. 123
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 * * *.’
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:
“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.”

 App. 124
In contrast, the Agency argues that the Klein’s
statements are a prospective communication:
“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.’”
As stated earlier, the Agency asserts that the three
incidents described above – the two interviews and the
note -- show Respondents’ prospective intent to
discriminate. Although the Agency did not include the
text or specifically allege the existence of the note in its
Formal Charges and the Perkins’ interview occurred
after the Agency had completed its initial investigation
of the complaint and issued its Substantial Evidence
Determination, this does not preclude the Agency from
pursuing those incidents at hearing. The Agency’s
investigation may continue past its substantial
evidence determination and charges may include
evidence not discovered by the investigator. See In the
Matter of Sears, Roebuck and Company, 18 BOLI 47, 78
(1999). The only limitation is that the charges be
“reasonably related” to the allegations of the initial
complaint. Id. The allegations and theories of the
specific charges define those to be adjudicated through
the hearing, whether or not those allegations and
theories are consistent with or even based on those in
the administrative determination. See In the Matter of
Jake’s Truck Stop, 7 BOLI 199, 211 (1988). Also, the

 App. 125
only limitation on charges is that the complainant must
have had standing to raise the issues and those issues
must encompass discrimination only like or reasonably
related to the allegations in the complaint. See In the
Matter of Sapp’s Realty, Inc., 4 BOLI 93, 94 (1981).
In the present case, both the note and Perkins
interview are not only “reasonably related’ but, directly
related to the allegations and theories of both the
original complaint and charges. Whether corroborating
evidence or included as a fact underlying a specific
charge, they may be considered as evidence to
determine whether a violation of ORS 659A.409
occurred.
Whatever Respondents’ intentions may have been
or may still be with regard to providing wedding cake
services for same-sex weddings, the Commissioner
finds that AK’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 addition, they also constitute
notice that discrimination will be made in the future by
refusing such services. In the Perkins’ interview, AK
stated “…We don’t do same-sex marriage, same-sex
wedding cakes….” He continued that in discussing
Washington’s same-sex marriage law with MK, “we can
see this becoming an issue and we have to stand firm.”
The note similarly said “…This fight is not over. We
will continue to stand strong….” On their face, these
statements are not constrained to a singular incident
or time. They reference past, present and future
conduct. AK 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.

 App. 126
Respondents’ joint statement that they will “continue”
to stand strong relates to their denial of service and is
prospective in nature. The statements, therefore,
indicate Respondents’ clear intent to discriminate in
the future just as they had done with Complainants.
The Commissioner concludes that, through the
communications described above, AK and MK both
violated ORS 659A.409.11 However, the Commissioner
awards no damages to Complainants based on
Respondents’ unlawful practice because there is no
evidence in the record that Complainants experienced
any mental, emotional, or physical suffering because of
it.
In their Answers to the Formal Charges,
Respondents raised the affirmative defenses that ORS
659A.409 is unconstitutional on its face and as applied.
Their defense is set out with particularity in Finding of
Fact #7 – Procedural. The forum did not address these
defenses in the ALJ’s Summary Judgment ruling
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 “Authentic
South African Apartheid Nigger ‘Black’ Handcuffs Directions Drive
Through Wrists and Bend Over Tips” on the back).

 App. 127
because the ALJ concluded that Respondents did not
violate ORS 659A.409. The Commissioner now
addresses them without duplicating the extensive
analysis in the ALJ’s Summary Judgment ruling.
Oregon Constitution -- Article I, Sections 2 and 3
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.
“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 religious
beliefs. Id. at 153. Furthermore, the Oregon Supreme
Court has held, in the context of Article I, section 8,
that engagement in constitutionally protected
expression while engaging in otherwise punishable
conduct does not insulate the unlawful conduct from
the usual consequences that accompany it. See, e.g.,
Hoffman and Wright Logging Co. v. Wade, 317 Or 445,

 App. 128
452, 857 P2d 101 (1993)(“a person’s reason for engaging
in punishable conduct does not transform conduct into
expression under Article I, section 8 [and] speech
accompanying punishable conduct does not transform
conduct into expression[.]); State v. Plowman, 314 Or
157, 165, 838 P2d 558 (1992) (“One may hate members
of a specified group all one wishes, but still be punished
constitutionally if one acts together with another to
cause physical injury to a person because of that
person’s perceived membership in the hated group”).
The same should hold true with regard to the
protections afforded by Article I, sections 2 and 3.12
United States Constitution – First Amendment:
Unlawfully Infringing on Respondents’ right of
conscience and right to free exercise of religion
The Commissioner finds ORS 659A.409
constitutional, both facially and as 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:
“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

12

This reasoning also applies to the ALJ’s analysis of the
constitutionality of ORS 659A.403 in the summary judgment
ruling.

 App. 129
print freely on any subject whatever; but every
person shall be responsible for the abuse of this
right.”
In State v. Robertson, 293 Or 402, 649 P2d 569 (1982),
the Oregon Supreme Court established a basic
framework, with three categories, for determining
whether a law violates Article I, Section 8. ORS
659A.409 falls within Robertson’s second category
because it is “directed in terms against the pursuit of a
forbidden effect” and “the proscribed means [of causing
that effect] include speech or writing.” Id. at 417-18.13
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.” State v. Babson, 355 Or 383,
391, 326 P3d 559, 566 (2014).
Respondents assert that ORS 659A.409 prohibits
Respondents from “express[ing] their own position” and
that ORS 659A.409 amounts to “a speech code.” To the
contrary, the language of ORS 659A.409 focuses on the
discriminatory effect that accompanies certain speech
“published, circulated, issued or displayed” on behalf
of a place of public accommodation. It does not cover
expressions of personal opinion, political commentary,
or other privileged communications unrelated to the
business of a place of public accommodation, and its

13

In its cross-motion for summary judgment, the Agency concedes
that ORS 659A.409 “falls within the second Robertson category of
laws.”

 App. 130
breadth is narrowly tailored to address the effects of
the speech at issue. As such, it is facially constitutional
under Article I, Section 8.14
A statute that falls within Robertson category two
is not subject to an as-applied challenge. See Leppanen
v. Lane Transit Dist., 181 Or App 136, 142-43, 45 P3d
501, 504-05 (2002), citing City of Eugene v. Lee, 177 Or
App 492, 497, 34 P3d 690 (2001).
U.S. Constitution – First Amendment: Unlawfully
infringing on Respondents’ right to free speech
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 was “speech” that violated the First
Amendment. 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 antidiscrimination public accommodation laws in ORS
chapter 659A. The forum first interpreted this statute
nearly 30 years ago, when it was numbered as ORS

14

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).

 App. 131
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 matter,
violate the First or Fourteenth Amendments.”15 In
conclusion, ORS 659A.409 is constitutional on its face.
It is also constitutional as applied because the
Commissioner only applies it to Respondents’ language
that indicate Respondents’ clear intent to discriminate
in future just as they had done with Complainants.
Damages
This case is not about a wedding cake or a marriage.
It is about a business’s refusal to serve someone
because of their sexual orientation. Under Oregon law,
that is illegal.
Free enterprise provides great opportunity for
entrepreneurs to take an idea, create a business and
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”)

 App. 132
achieve whatever success they can. It is a system open
to all but, to participate fairly, businesses must follow
the laws that apply to each of them equally. A business
that disregards the law erodes the free marketplace for
both law abiding businesses and patrons alike.
Respondents’ claim they are not denying service
because of Complainants’ sexual orientation but rather
because they do not wish to participate in their same
sex wedding ceremony. The forum has already found
there to be no distinction between the two. Further, to
allow Respondents, a for profit business, to deny any
services to people because of their protected class,
would be tantamount to allowing legal separation of
people based on their sexual orientation from at least
some portion of the public marketplace. This would
clearly be contrary to Oregon law as well as any
standard by which people in a free society should
choose to treat each other.
Within Oregon’s public accommodations law is the
basic principle of human decency that every person,
regardless of their sexual orientation, has the freedom
to fully participate in society. The ability to enter
public places, to shop, to dine, to move about unfettered
by bigotry.
When Respondents denied RBC and LBC a wedding
cake, their act was more than the denial of the product.
It was, and is, a denial of RBC’s and LBC’s freedom to
participate equally. It is the epitome of being told there
are places you cannot go, things you cannot do…or be.
Respondent’s conduct was a clear and direct statement
that RBC and LBC lacked an identity worthy of being
recognized.

 App. 133
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 emotional responses,
RBC described that being raised a Christian in the
Southern Baptist Church, Respondent’s denial of
service made her feel as if God made a mistake when
he made her, that she wasn’t supposed to be, and that
she wasn’t supposed to love or be loved, have a family,
or go to heaven. LBC, who was raised Catholic,
interpreted the denial to represent that she was not a
creature created by god, not created with a soul and
unworthy of holy love and life. She felt anger, intense
sorrow and shame. These are the reasonable and very
real responses to not being allowed to participate in
society like everyone else. The personal harm in being
subjected to such separation is felt deeply and severely,
as the evidence in this case indicated.
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
(“denial of service”), the Agency also seeks damages for
suffering caused to Complainants by media publicity
and social media responses to this case.
In order, the forum considers the extent of
Complainants’ emotional suffering and the cause of
that suffering; and the appropriate amount of damages.
Any damages awarded do not constitute a fine or civil
penalty, which the Commissioner has no authority to

 App. 134
impose in a case such as this. Instead, any damages
fairly compensate RBC and LBC for the harm they
suffered and which was proven at hearing. This is an
important distinction as this order does not punish
respondents for their illegal conduct but, rather makes
whole those subjected to the harm their conduct
caused.
1. Extent and Cause of Complainants’ Emotional
Suffering
A. R. Bowman-Cryer
a. Emotional suffering from the denial of service
Prior to the cake tasting, LBC had been asking RBC
to marry her for nine years. Until October 2012, RBC
did not want to be married because of her personal
experience of failed marriages. At that time, RBC
decided that they should get married to give their
foster children a sense of “permanency and
commitment.” After her long-standing matrimonial
reticence, RBC became excited to get married and to
start planning the wedding,16 wanting a wedding that
was as “big and grand” as they could afford. Obtaining
a cake from Sweetcakes like the one purchased for
CM’s wedding two years earlier was part of that grand
scheme, and both Complainants were excited about the
cake tasting at Sweetcakes because of how much they
liked the cake Respondents had made for CM’s
wedding.

16

The forum acknowledges that Complainants’ “wedding” on June
27, 2013, was only a commitment ceremony, not a legal “marriage.”
See footnote 58, infra.

 App. 135
RBC’s emotional suffering began at the January 17,
2013, cake tasting when AK told RBC and CM that
Sweetcakes did not make wedding cakes for same-sex
ceremonies. In response, RBC began to cry. She felt
that she had humiliated her mother and was concerned
that CM, who had believed that homosexuality was
wrong until only a few years earlier, was ashamed of
her. Walking out to the car and in the car, RBC became
hysterical and kept apologizing to CM. When CM
returned to the car after talking with AK, RBC was
still “bawling” in the car. When CM told her that AK
had called her “an abomination,” this made RBC cry
even more. RBC, who was brought up as a Southern
Baptist, interpreted AK’s use of the word
“abomination” her 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, have a
family, or go to heaven. She continued to cry all the
way home and after she arrived at home, where she
immediately went upstairs to her bedroom and lay in
her bed, crying.
On January 18, 2013, RBC felt depressed and
questioned whether there was something inherently
wrong with the sexual orientation she was born with
and if she and LBC deserved to be married like a
heterosexual couple. She spent most of that day in her
room, trying to sleep.
In the days following January 17, 2013, RBC had
difficulty controlling her emotions and cried a lot, and
Complainants argued with each other because of RBC’s
inability to control her emotions. They had not argued
previously since moving to Oregon. In addition, RBC
also became more introverted and distant in her family

 App. 136
relationships. She and A. Cryer have always been very
close, and their connection was not as close “for a little
bit” after January 17, 2013. A week later, RBC still felt
“very sad and stressed,” felt concerned about still
having to plan her wedding, and felt less exuberant
about the wedding. On January 21, 2013, she
experienced anxiety during her cake tasting at Pastry
Girl because of AK’s January 17, 2013, refusal and her
fear of subsequent refusals. After January 17, 2013,
although RBC relied on CM to contact potential
wedding vendors, RBC still experienced some anxiety
over possible rejection because her wedding was a
same-sex wedding. During this same period of time, A.
Cryer credibly analogized RBC’s demeanor as similar
to that of a dog who had been abused.
b. Emotional suffering from publicity about the
case
On February 1, 2013, RBC became aware that the
media was aware of AK’s refusal to make a wedding
cake for Complainants when she received a telephone
call from Lars Larson, an American conservative talk
radio show host based in Portland, Oregon, who told
her that he had spoken with AK and wanted to see
what RBC “had to say about the pending case.” This
upset RBC, and she became greatly concerned that E
and A would be taken away from them by the foster
care system because they had been told that the girls’
information had to be protected and that the state
would “have to readdress placement” of the girls with
Complainants if any information was released
concerning the girls. This concern continued until their
adoption became final sometime after December 2013.

 App. 137
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 various websites that were supportive of
Respondents and critical of or threatening to
Complainants. These comments and the media
attention caused RBC stress, anger, pain, frustration,
suffering, torture, shame, humiliation, degradation,
fear that she would be harassed at home because the
DOJ complaint with Complainants’ home address had
been posted on Facebook, and the feeling that her
reputation was being destroyed. The publicity from the
case and accompanying threats on social media from
third parties made RBC “scared” for the lives of A, E,
LBC, and herself. In addition, RBC was also upset by
a confrontation with her sister who learned about the
DOJ complaint through the media and posted a
comment in support of Respondents on Respondents’
Facebook.
Without giving any specific examples, RBC credibly
testified that, in a general sense,17 the denial of service

17

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:
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?”
“* * * * *

 App. 138
has caused her continued emotional suffering up to the
time of hearing.
B. L. Bowman-Cryer
a. Emotional suffering from the denial of service
LBC had been asking RBC to marry her for nine
years before RBC finally accepted in October 2012.
RBC’s acceptance in October 2012 of LBC’s marriage
proposal made LBC “extremely happy.” Both
Complainants were excited about the cake tasting at
Sweetcakes because of how much they liked the cake
Respondents had made for CM’s earlier wedding.
However, LBC, unlike RBC, did not go to the cake
tasting.
When CM and RBC arrived home on January 17,
2013, after their cake tasting at Sweetcakes, CM told
LBC that AK had told them that Sweetcakes did “not
do same-sex weddings” and that AK had told CM that
“your children are an abomination.” LBC was
“flabbergasted” and she became very upset and very
angry. LBC, who was raised as a Roman Catholic,
recognized AK’s statement as a reference from
Leviticus. She was “shocked” to hear that AK had
referred to her as an “abomination.” Based on her
religious background, she understood the term
A. “Yes, I still experience that.”
Q. “Was the primary harm, the harm that resulted from the
refusal of service itself, persistent throughout the times where you
experienced media attention?”
“* * * * *
A. “Yes, the harm was still present during the media attention.”

 App. 139
“abomination” to mean “this is a creature not created
by God, not created with a soul. They are unworthy of
holy love. They are not worthy of life.” Her immediate
thought was that this never would have happened, had
she had not asked RBC to marry her. Because of that,
she felt shame. Like RBC, she also worried about how
it would affect CM’s relatively recent acceptance of
RBC’s sexual orientation.
LBC views herself as RBC’s protector. After RBC
climbed into bed, crying, LBC got into bed with RBC
and tried to soothe her. RBC became even more upset
and pushed RBC away. In response, LBC lost her
temper because she could not “fix” things.
When LBC went back downstairs, E, the older of
Complainants’ foster daughters was extremely agitated
from events at school that day. LBC tried to calm her,
but she refused to be calmed, repeatedly calling out for
RBC, with whom she had a special bond. Eventually, E
cried herself to sleep. LBC’s inability to calm E was
very frustrating to her. That night, LBC was very
upset, cried a lot, and was hurt and angry. Later that
same evening, she filed her DOJ complaint.
In the days immediately following January 17,
2013, LBC experienced anger, outrage, embarrassment,
exhaustion, frustration, sorrow, and shame as a
reaction to AK’s denial of service. She felt sorrow
because she couldn’t console E, she could not protect
RBC, and because RBC was no longer sure she wanted
to be married. Her excitement about getting married
was also lessened because she was not sure she could
protect RBC if any similar incidents occurred.

 App. 140
b. Emotional suffering from publicity about the
case
On February 1, 2013, LBC went to the emergency
room of a local hospital because of pain from a shoulder
injury that she had suffered three weeks earlier and
her concern that she might have a broken shoulder.
While in the hospital, she heard that AK’s refusal to
make their wedding cake was on the news. This made
her very upset and she was crying when she was
examined by a doctor. Based on the media, potential
media exposure, and social media attention related to
her DOJ complaint after February 1, 2013, LBC’s
headaches increased. She also felt intimidated and
became fearful.
After LBC’s DOJ complaint was publicized in the
media, LBC also had an “devastating” confrontation
with her aunt who had learned about her DOJ
complaint against Respondents through the media and
threatened to shoot LBC in the face if she ever set foot
on LBC’s family’s property again.18
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.
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

18

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

See footnote 7, supra. LBC testified in the past tense.

 App. 141
2. Emotional suffering damages based on media
and social media attention
In its closing argument, the Agency asked the forum
to award Complainants $75,000 each in emotional
suffering damages stemming directly from the denial of
service, In addition, the Agency asked the forum to
award damages to Complainants for emotional
suffering they experienced as a result of the media and
social media attention generated by the case from
January 29, 2013, the date AK posted LBC’s DOJ
complaint on his Facebook page, up to the date of
hearing. The Agency’s theory of liability is that since
Respondents brought the case to the media’s attention
and kept it there by repeatedly appearing in public to
make statements deriding Complainants, it was
foreseeable that this attention would negatively impact
Complainants, making Respondents liable for any
resultant emotional suffering experienced by
Complainants. The Agency also argues that
Respondents are liable for negative third party social
media directed at Complainants because it was a
foreseeable consequence of the media attention.
The Commissioner concludes 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. No further analysis
regarding the media attention as a causative factor is,
therefore, necessary.

 App. 142
3. 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.
In determining an award for emotional and mental
suffering, the forum considers 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 aggrieved persons. The actual
amount depends on the facts presented by each
aggrieved person. An aggrieved person’s testimony, if
believed, is sufficient to support a claim for mental
suffering damages. In the Matter of C. C. Slaughters,
Ltd., 26 BOLI 186, 196 (2005). In public
accommodation cases, “the duration of the
discrimination does not determine either the degree or
duration of the effects of discrimination.” In the Matter
of Westwind Group of Oregon, Inc., 17 BOLI 46, 53
(1998).
In this case, the ALJ proposed that $75,000 and
$60,000, are appropriate awards to compensate
Complainants RBC and LBC, respectively, for the
emotional suffering they experienced from
Respondents’ denial of service. The proposal for LBC 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
and extent of the harm that was felt by RBC and LBC.
As such, the Commissioner defers to the ALJ’s

 App. 143
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.20
ORDER
A. NOW, THEREFORE, as authorized by ORS
659A.850(4), and to eliminate the effects of the
violation of ORS 659A.403 by Respondent Aaron
Klein, and as payment of the damages awarded, the
Commissioner of the Bureau of Labor and Industries
hereby orders Respondents Aaron Klein and
Melissa Klein to deliver to the Administrative
Prosecution Unit of the Bureau of Labor and
Industries, 1045 State Office Building, 800 NE Oregon
Street, Portland, Oregon 97232-2180, a certified check

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, Inc.,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).

 App. 144
payable to the Bureau of Labor and Industries in trust
for Complainants Rachel 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:
Rachel Bowman-Cryer: $75,000
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 Respondent 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 orders
Respondents Aaron Klein and Melissa Klein to
cease and desist from publishing, circulating, issuing or

 App. 145
displaying, or causing 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 a 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.
DATED this 2 day of July, 2015.
/s/

Brad Avakian, Commissioner
Bureau of Labor and Industries

Issued ON: July 2, 2015

 App. 146
APPENDIX
FINDINGS OF FACT – PROCEDURAL
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

 App. 147
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;
(c)
On January 17, 2013, RBC and her mother
went to Sweetcakes for a cake tasting related to
RBC’s wedding ceremony to LBC;
(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”;
(e)
Complainants were injured by Respondents’
refusal to provide them with a wedding cake;
(f)
MK discriminated against Complainants
based on their sexual orientation, in violation of
ORS 659A.403(3) and ORS 659.409;
(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;
(h)
Complainants are each entitled to damages
for emotional, mental, and physical suffering in the

 App. 148
amount of “at least $75,000” and out-of-pocket
expenses “to be proven at hearing.”
(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.
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. X8, 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)

 App. 149
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 same-sex
ceremonies not recognized by the state of Oregon
contrary to their fundamental rights,
consciences and convictions.”
• 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

 App. 150
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.
Respondents also raised four Counterclaims, including:

 App. 151
• 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
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.
• 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

 App. 152
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.”
(Ex. X10)
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
“Respondents’ Putative Election to Circuit
Court
“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:
‘(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
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 “^” symbol.

 App. 153
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.’
“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 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.
“ORS 659A.145 is titled ‘Discrimination
against individual with disability in real

 App. 154
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.
“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.
“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

 App. 155
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 reelection 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 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 bias^ 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).
“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

 App. 156
posts during the Commissioner’s candidacy for reelection and as Commissioner. Summarized, those
exhibits include the following statements:
“E-Mails sent to Respondents’ attorney Herb
Grey by ‘Avakian for Labor Commissioner’
• “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 Non-Discrimination 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

 App. 157
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 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

 App. 158
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.’
“Independent Media
• “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.

 App. 159
% ‘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.’
“Facebook Posts on Commissioner Avakian’s
Facebook Page
• “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.’
• “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.kgw.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.’

 App. 160
• “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 O.
Hatfield Courthouse in downtown Portland at
5pm. Join us!’
• “June 8, 2013: ‘Proud to support Sen. Jeff
Merkley’s fight for the Non-Discrimination 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

 App. 161
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 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!’
“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

 App. 162
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.
“ORS chapter 659A contains Oregon’s antidiscrimination 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:
‘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.’
“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

 App. 163
Legislature,^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.’^ 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.’
“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.kgw.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
22

See footnote 21.

 App. 164
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:
• ‘“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

 App. 165
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:
‘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.’
“To show that the Commissioner has prejudged
the cases before the Forum, Respondents quote the
Commissioner’s two ‘second category’ statements as

 App. 166
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 anti-discrimination 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.
“RESPONDENTS’ ADDITIONAL ARGUMENTS
“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 litigation23 and
Oregon’s Code of Judicial Ethics.^

23

Commissioner Avakian is an attorney and a member of the
Oregon State Bar.

 App. 167
“Ethical Standards for Public Officials – ORS
chapter 244 & Conflict of Interest
“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 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.’

 App. 168
“‘Conflict of interest’” is defined under ORS chapter
244 in ORS 244.020:
‘(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.
‘* * * * *
‘(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[.]’
“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.

 App. 169
“ORPC & Canons of Judicial Ethics
“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 Commissioner because he is
not ‘an officer of a judicial system performing
judicial functions.’24
“Conclusion
“Respondents’
motion
to
disqualify
Commissioner Avakian from deciding the issues
presented in the Formal Charges and issuing a
Final Order is DENIED.”
(Ex. X12)
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 )
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.

 App. 170
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 )
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
minor redactions unrelated to LBC’s medical diagnosis
and released the records to Respondents, accompanied
by a Protective Order. (Exs. X27, X44 )

 App. 171
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 )
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:
“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 Toltec, 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

 App. 172
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).
A. “Interrogatories
“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).
“Interrogatory No. 7
“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 know more specifically what physical
damages have been allegedly sustained. I order the
Agency to have Complainants, through the Agency,
respond to this interrogatory.
“Interrogatory No. 8
“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

 App. 173
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.
“Interrogatory 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

 App. 174
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.”
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
“Respondents have requested an explanation ‘in
detail [of] any involvement or communication

 App. 175
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.
“B. Production of Documents
“* * * * *
“Request No. 2
“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

 App. 176
evidence^; (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.
“Request No. 7
“This request seeks medical records for any
medical visits relating to Complainants’ request for
emotional, mental or physical damages.
Respondents’ motion is GRANTED. * * *
“Request No. 9
“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.
“Request No. 10
“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

 App. 177
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.
“Request No. 11
“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.
“Request No. 12
“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 Complainants,
Respondents may renew their motion for a
discovery order regarding this request.

 App. 178
“Request No. 16
“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.
“Request No. 17
“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.
“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.

 App. 179
“Request No. 22
“Request No. 22 seeks ‘[a]ll posting by
Complainants or Cheryl McPherson to any social
media website, including but not limited to
Facebook, Twitter, LinkedIn, MySpace, Instagram,
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.
“Request No. 23
“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.

 App. 180
B. “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.
“Requests Nos. 7 & 8
“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.
“Request No. 9
“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

 App. 181
information. This request is DENIED for the same
reasons set out in my denial to Request for
Production No. 2.
(Ex. X41)
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:
“Complainants Laurel Bowman-Cryer and
Rachel Cryer
“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

 App. 182
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-of-town 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.
“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.

 App. 183
“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.”
“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)
19)
On September 25, 2014, the ALJ issued a
discovery order requiring Respondents to produce

 App. 184
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:
“(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.
“(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

 App. 185
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.
“(6) Case Summaries must be filed no later than
February 24, 2015.
“(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

 App. 186
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.
“(8) The Agency stipulated that it is not seeking
reimbursement for the out-of-pocket expenses listed
in response to Respondents’ Interrogatory #16. In
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)
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

 App. 187
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)

 App. 188
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):
“Introduction
“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 samesex wedding.
“As an initial matter, the forum notes
Respondents’ request for oral argument with regard
to their motion. Respondents’ request for oral
argument is DENIED.
“Procedural History
“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
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.

 App. 189
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.
“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.
“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 ALJ granted the

 App. 190
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.
“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
“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
26

The Agency’s amended Charges did not allege that A. Klein
violated ORS 659A.409.

 App. 191
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.
“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.
“Summary Judgment Standard
“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)(B). The
standard for determining if a genuine issue of
material fact exists and the evidentiary burden on
the participants is as follows:

 App. 192
‘* * * 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.
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.
“Analysis
A. Facts of the Case
“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.
Findings of Fact
1)

27

“Complainants Cryer and Bowman-Cryer are
both female persons.27 (Formal Charges)

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.

 App. 193
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)

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
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.

 App. 194
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)

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 same-sex ceremonies
because of A. and M. Klein’s religious
convictions. In response, Cryer and
McPherson walked out of Sweetcakes.

 App. 195
(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)

“On February 1, 2013, Sweetcakes by Melissa
was registered as an assumed 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 A1, p.
2, Agency Response to Motion for Summary
Judgment and Cross-Motion for Summary
Judgment)

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)

 App. 196
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
secon ds l ong p r es entati on 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
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.’30

28

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.
29

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.

 App. 197
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.’
(Exhibit 1-I, Respondents’ Motion for
Summary Judgment)
13)

“In 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)

14)

“On February 13, 2014, A. Klein was
interviewed live on a radio show by Tony
Perkins called ‘Washington Watch.’ Perkins’s
show lasted approximately 15 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
Perkins: ‘* * * Tell us how this unfolded
and your reaction to that.’
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.

31

See footnote 29.

 App. 198
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.’
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?’
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

 App. 199
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.’
(Exhibit 1-I, Respondents’ Motion for
Summary Judgment)
“B. 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
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

 App. 200
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

 App. 201
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 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.’
“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

 App. 202
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 839-0050003(16). The forum infers32 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.
“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.
“C. Failure to State Ultimate Facts Sufficient
to Constitute a Claim
“Before determining the merits of the Agency’s
ORS 659A.403(3) allegations, the forum first
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 BOLI 18, 39 (2010).

 App. 203
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 as an
affirmative defense.33 As argued by Respondents in
their motion for summary judgment, this defense
goes to two issues. First, whether Bowman-Cryer’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
“It is undisputed is the fact that Complainants
sought a wedding cake from Sweetcakes based on
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 by Oregon courts include discharge in
bankruptcy, duress, fraud, payment, release, statute of frauds,
unconstitutionality, and waiver. ORCP 19B. 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.

 App. 204
Cryer’s previous experience in purchasing a
wedding cake from Sweetcakes for McPherson’s
wedding. It is also undisputed that Bowman-Cryer
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

 App. 205
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 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

 App. 206
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 Non-organizer
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

 App. 207
wedding cake to Cryer for her mother’s wedding
proves Respondents’ lack of animus towards
Complainant’s sexual orientation. Second,
Respondents attempt to isolate Complainants’
sexual orientation from their proposed34 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.
“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.
“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.’

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.

 App. 208
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

 App. 209
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.
“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, ‘[t]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.’
“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:

 App. 210
‘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.

 App. 211
“D. Respondent A. Klein violated 659A.403
With regard to its ORS 659A.403 claims, the
Agency alleges the following in paragraph III.12 in
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:
‘(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,

 App. 212
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:
“(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.’
“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

 App. 213
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.
“E. ORS 659A.406 -- Aiding and Abetting a
Violation of ORS 659A.403(3)
“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.
“ORS 659A.406 provides, in pertinent part:
“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

 App. 214
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.”
In the previous section, the forum concluded that M.
Klein did not violate ORS 659A.403(3) as alleged in
paragraph III.12.a and that A. Klein, the joint
owner of Sweetcakes, violated ORS 659A.403(3) as
alleged in paragraph II.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
“F. Notice that Discrimination will be made in
Place of Public Accommodation – ORS
659A.409
“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
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.
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.”

 App. 215
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.’
“In its Charges, the Agency alleges in
paragraphs II.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 proof that
Respondents violated ORS 659A.409.37
“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
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.

 App. 216
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 * * *.’
The alleged unlawful statements made by A. Klein
were:
‘I didn’t want to be a part of her marriage, which
I think is wrong.’ (September 2, 2013 CBN
interview)
‘I said “I’m very sorry, I feel like you may have
wasted your time. You know we don’t do samesex 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 samesex 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)
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:

 App. 217
‘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.’
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:
‘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.”’
Whatever Respondents’ post-January 2013
intentions may have been or may still be with
regard to providing wedding cake services for samesex weddings, the forum finds that A. Klein’s abovequoted 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

 App. 218
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
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
“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.

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.
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).

 App. 219
“G. Respondents’ Counterclaims
“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.
“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

 App. 220
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 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
“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
“H. Respondents’ Affirmative Defenses
“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

40

41

See ORS 659A.850(1)(b)(B).

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).

 App. 221
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
Nutbrown 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
“Estoppel
“In their answers, Respondents phrase their
estoppel defense as follows:
“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.”

42

Eppler, Cooper, and Nutbrown 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
Nutbrown 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.

 App. 222
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
“Here, Respondents do not identify any false
representation made by 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.
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).

 App. 223
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
“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.
“Respondents’
Introduction

Constitutional

Defenses

–

“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:
• “The statutes underlying the Charges are
unconstitutional as applied in that they violate
Respondents’ fundamental rights arising under
the Oregon Constitution by: (a) unlawfully
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 same-sex 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.”

 App. 224
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

 App. 225
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.
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.
“Oregon Constitution
“Article I, Sections 2 and 3: Freedom of
worship and conscience; Freedom of religious
opinion
“The forum addresses these interrelated
defenses together. 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

 App. 226
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.’
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

 App. 227
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 2-7, 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, 306-07 (1986),
the court stated:
‘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.

 App. 228
“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

 App. 229
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.
‘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 FUTA’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,

 App. 230
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
environment.’ Id. at 139. As Respondents note, the
court introduced its 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

 App. 231
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 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

 App. 232
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.’
Id. at 150-51.
“Next, the Meltebeke court analyzed whether the
BOLI rule, as applied, violated Article I, sections 2
and 3. Following Smith, the court stated:
‘Because sections 2 and 3 of Article I are
expressly designed to prevent governmentcreated 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

 App. 233
conduct created an intimidating, hostile, or
offensive 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
contrast, here Respondents’ affidavits establish that
their refusal to make a wedding cake for
Complainants was not a religious practice, but

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

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.

 App. 234
conduct motivated by their religious beliefs.47
Accordingly, Meltebeke does not aid Respondents.
“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:
‘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 * * *.’
“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

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.”)

 App. 235
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
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 Lobby49
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).

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 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 SCt 2751 (June 30,
2014).

 App. 236
“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.
“United States Constitution
“First Amendment: Unlawfully infringing on
Respondents’ right of conscience and right to
free exercise of religion
“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
* * *.’
“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

 App. 237
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 SCt 694 (2012), Gonzalez v. O
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.
“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:
• “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

 App. 238
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:
“[I]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 warrelated task that he opposed based on his religious
beliefs. In upholding appellant’s claim, the court
stated:

 App. 239
‘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
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

 App. 240
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

 App. 241
of general applicability on the ground that the law
proscribes (or prescribes) conduct that his religion
prescribes (or proscribes).”’ Id. at 879, citing United
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

50

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 school-attendance 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

 App. 242
“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.
Using the Smith test, the Supreme Court found that
the ordinances were neither neutral51 nor of general

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

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

 App. 243
applicability52 and held that ‘a law burdening
religious 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 546-47.
“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

killings; and the ordinances suppress much more religious
conduct than is necessary in order to achieve the legitimate
ends asserted in their defense. These 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.

 App. 244
are independently viable53 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.
“Oregon Constitution
“Article I, Section 8: freedom of speech
“Article I, Section 8 of the Oregon Constitution
provides:
‘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.’
ORS 659A.403 provides, in pertinent part:
‘(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
53

54

See discussion in “free speech” section, infra.

See Elane Photography, LLC v. Willock, 309 P3d 53 (2013), cert.
den. ___ US ___ , 134 SCt 1787 (2014).

 App. 245
restriction on account of * * * sexual orientation
* * *.
‘* * * * *
‘(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:
(1) Is ORS 659A.403 facially unconstitutional?
(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?
“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

 App. 246
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)
“Robertson Category One
“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

 App. 247
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.
“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

 App. 248
unconstitutional under Article I, Section 8. This is
not what the court held in Robertson and Babson.55
“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.
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”).

 App. 249
“Robertson Category Two
“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 41718. 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.
“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

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.

 App. 250
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.
“Respondents’ argument resembles defendants’
argument in Babson, which the court characterized
in the following words:
‘Defendants instead argue that, even if the [law]
targets some harm—rather 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.’
Babson at 398. The Babson court rejected this
argument, stating:
‘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

 App. 251
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 abovequoted statement, did not ‘extend Article I, section
8, scrutiny [under the first two Robertson

 App. 252
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 expression within the meaning of Moyle,
it is not subject to an overbreadth challenge
under the second category of Robertson.’
Babson at 403-04. This case, like Babson and IlligRenn, does not involve a statute that ‘obviously’
prohibits expression. Rather, it is a ‘speech-neutral’

 App. 253
statute as described in Illig-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.
“Robertson Category Three Does Not Apply to
Respondents’ claim of ‘compelled speech.’
“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

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.’”)

 App. 254
of Oregon case law, the forum turns to those
decisions for guidance.
“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
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
58

In January 2013, Article XV, 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.”

 App. 255
the state of Oregon, or, for that matter, that
Complainants were ever married.59
“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 63334.
“In Miami Herald Publishing Company v.
Tornillo, 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
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.

 App. 256
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.
“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:
‘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.’
Id. at 713.
“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

 App. 257
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.
“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

 App. 258
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)
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.
“In Rumsfeld v. Forum for Academic and
Institutional Rights, Inc. (‘FAIR’), 547 U.S. 47
60

Hurley v. Irish-American GLIB, 515 U.S. 557, 572-73 (1995).

 App. 259
(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, Tornillo, 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:
‘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.’
Id. at 65.
“Wooley and Barnette do not support
Respondents because Respondents are under no
compulsion to publicly ‘speak the government’s

 App. 260
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.
“Tornillo and Pacific Gas are distinctly different
from this case. In both cases, the government
commandeered a speaker’s means of reaching its
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.

61

Rumsfeld v. Forum for Academic and Institutional Rights, Inc.,
547 U.S. 47, 62 (2006).

 App. 261
“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.
“United States Constitution
“First Amendment: Unlawfully infringing on
Respondents’ right to free speech.
“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 * * *.’
“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.

 App. 262
“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.
“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.
“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 BowmanCryer 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.

 App. 263
“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.
“Case Status
“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.
IT IS SO ORDERED”
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)
29)
On February 4, 2015, the ALJ granted the
Agency’s second motion for a protective order. (Ex. X65)
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 filed a
renewed motion to depose Complainants. On

 App. 264
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.
“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.’
“Discussion
“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:

 App. 265
‘[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.’
“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

 App. 266
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

 App. 267
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’ 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

 App. 268
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:

 App. 269
‘1. Respondents are allowed a maximum of three
hours, not counting breaks, to question each
Complainant.
‘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.
‘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.
‘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.
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.’”
(Ex. X72)

 App. 270
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)
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)
34)
Respondents and Agency timely submitted
case summaries. (Exs. X76, 77)
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

 App. 271
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, LinkedIn, MySpace, Instagram, 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

 App. 272
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 Agency’s failure to comply with this
order may result in the sanction described in
OAR 839-050-0200(11).’
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.
“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

 App. 273
rules, OAR 839-050-000 et seq. The ALJ’s authority
to impose sanctions for violations of discovery
orders is set out in OAR 839-050-0020(11):^
‘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.”
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.’

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).

 App. 274
“OAR 839-050-0020(16) provides:
‘“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.’
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 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.’
“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’

 App. 275
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.
“ORDER
“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.
“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 839-0500020(11) if an issue arises regarding an alleged
failure by the Agency to produce such records in a
timely manner.

 App. 276
“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. * * *”
“5. Respondents’ request to ‘reopen discovery to
allow for depositions of Complainants and other
BOLI witnesses with knowledge of these matters’ is
DENIED.
“6.
Respondents’ request that the cases be
dismissed or that the Agency’s claim for damages of
Complainants’ behalf be dismissed is DENIED.
“7.
Respondents’
DENIED.

request

for

costs

is

“8.
Respondents’ request for any other
sanctions not specifically discussed in this interim
order is DENIED.”
(Exs. X81, X83, X86, X87)
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

 App. 277
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 commitment63 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)
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

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.

 App. 278
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.”
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.”
(Statement of Grey)
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:

 App. 279
“Pursuant to OAR 839-050-0410, Respondents
filed a motion to reopen the contested case record on
May 29, 2015.
“OAR 839-050-0410 provides:
‘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 the participant had no control. “Good
cause” does not include a lack of knowledge of
the law, including these rules.’ OAR 839-0500020(16).
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.’
“In support of their motion, Respondents
attached documentation of the following: (1) emails
beginning April 11, 2014, and ending January 31,

 App. 280
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 BowmanCryer 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.
“Specifically, Respondents ask that the record be
reopened so that they 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;

 App. 281
“(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.
“Discussion
“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 Ashlanders 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.
Ashlanders, citing In the Matter of 60 Minute Tune,

 App. 282
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.
A. The Harkness Records
“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

 App. 283
their failure to pursue the Harkness records before
the hearing and offer them as evidence at hearing.64

64

There are no Commissioner’s Final Orders interpreting “good
cause” in the context of a motion to reopen a contested case
proceeding. Besides Ashlanders, 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 Matter 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 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

 App. 284

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 hearing issued in this case and
respondent’s counsel knew of the possible conflict for 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’s failure to
show good cause when respondent based his motion on assertions
that 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

 App. 285
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
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 (2010)(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).

 App. 286
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 casein-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

 App. 287
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 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 839-0500020(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

 App. 288
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

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).

 App. 289
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 landuse 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 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,

 App. 290
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
“Respondents’ motion to Reopen the Contested
Case Record is DENIED.”
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.
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.

 App. 291
JUDICIAL REVIEW NOTICE
Pursuant to ORS 183.482, you are entitled to
judicial review of this Final Order. To obtain judicial
review, you must file a Petition for Judicial Review
with the Court of Appeals in Salem, Oregon, within
sixty (60) days of the service of this Order.
If you file a Petition for Judicial Review, YOU
MUST ALSO SERVE A COPY OF THE PETITION ON
the BUREAU OF LABOR AND INDUSTRIES and
THE DEPARTMENT OF JUSTICE - APPELLATE
DIVISION
AT THE FOLLOWING ADDRESSES:
BUREAU OF LABOR AND INDUSTRIES
CONTESTED CASE COORDINATOR
1045 STATE OFFICE BUILDING
800 NE OREGON STREET
PORTLAND, OREGON 97232-2180
DEPARTMENT OF JUSTICE
APPELLATE DIVISION
1162 COURT STREET NE
SALEM, OREGON 97301-4096
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.

 App. 292
CERTIFIED TO BE A TRUE AND
CORRECT COPY OF THE ORIGINAL
AND OF A WHOLE THEREOF.
/s/Diane M. Anicker

FO-CRD/Sweetcakes, ##44-14 & 45-14.doc

FINAL ORDER (Sweetcakes, ##44-14 & 45-14) - 122