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Oregon Attorney General Ellen Rosenblum is pictured here in her Portland office.
(The Associated Press)
As legal briefs go, there's not much surprising in the arguments offered by Oregon Attorney General Ellen Rosenblum's office. The filing backs Labor Commissioner Brad Avakian's finding that a Christian-owned bakery violated Oregon's anti-discrimination statute when it refused to make a wedding cake for a lesbian couple. It counters the Sweet Cakes by Melissa bakery's claims of religious freedom. And it stands behind Avakian's eyebrow-raising award of $135,000 in damages to the couple for their pain and suffering.
But deep in the filing, things go off the rails. The brief, written by Senior Assistant Attorney General Leigh Salmon, addresses a side issue in which Avakian concluded that comments by the bakery owners violated a separate state law that prohibits advertising a future intent to discriminate. In supporting Avakian, the brief contends that seemingly innocent language may be found to violate state law.
It's an astounding assertion. It's even more so when you consider that the Department of Justice, in charge of protecting free speech and Oregonians' civil rights, is the one making that assertion. The idea that the government may find you in violation of state law based on how it chooses to interpret what you say is a chilling claim.
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By now, Oregonians know the case's background by heart. A lesbian couple had hoped to order a wedding cake from Sweet Cakes by Melissa, a Gresham bakery. One of the women, Rachel Bowman-Cryer, went with her mother in 2013 to the bakery where she spoke with co-owner Aaron Klein. When Klein heard the cake would be for two brides, he apologized and told her "We don't do same-sex wedding cakes."
The denial upset Rachel Bowman-Cryer and angered her partner, Laurel. They filed a complaint with the state, not realizing a media storm would ensue. Eventually they filed a new complaint with the Bureau of Labor and Industries, which investigated whether the bakery violated the state's anti-discrimination law.
Avakian rightly concluded that the bakery had broken the law. But he opted to go further. He cobbled together comments the Kleins had made to argue the bakery was also advertising its intention to keep discriminating in the future, in violation of another state law.
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Avakian noted a sign that the Kleins posted in their store, which closed amid the uproar. In the handwritten sign, the couple shared their frustration over the state's actions and pledged to "continue to stand strong." Avakian also pointed to snippets from two interviews that Aaron Klein gave. In one, Klein, asked to recount what happened on the day he refused the wedding cake request, recalled that he apologized and told Rachel Bowman-Cryer they didn't "do same-sex marriage, same-sex wedding cakes." In an interview five months later, Klein said the couple felt they had to "stand firm" in their beliefs. Collectively, Avakian argued, the Kleins were communicating a future intention to discriminate.
Salmon defends the argument.
"Specifically, respondents noted their intent to 'stand strong' and 'stand firm' in their fight," she writes. "While those statements could refer to their legal battle, those statements also could refer to the denial of services to same-sex couples -- specifically, providing cakes for same-sex weddings generally. From those statements, then BOLI could reasonably infer a prospective intent to deny services to same-sex couples. That is a communication 'to the effect that' services would be denied based on sexual orientation within the meaning of ORS 659A.409."
There's a lot to pick on in those four sentences. First, the attorney general's office admits the comments could refer to the couple's objection to the state's case - a perfectly reasonable, nondiscriminatory statement that does not violate the law. Yet the state is arguing that it should be allowed to instead "infer" a meaning that would make the comments illegal.
That alone should sink the state's argument. But the brief also contends that it is the three statements "taken together" - not viewed individually - that allows someone to infer from them that the Kleins are advertising their intention to continue discriminating. If the government wants to punish someone for their words, it needs a stronger case than one built on vague, cherrypicked comments from incidents that occurred months apart.
What this suggests more than anything is that the attorney general's office would rather circle the wagons around Avakian than defend citizens' free speech.
This is a stand that Rosenblum did not have to take.
Certainly, Rosenblum's office should defend Avakian's valid finding that Sweet Cakes discriminated illegally against the Bowman-Cryers. Her office could even defend the exorbitant damages ordered by Avakian, even though the Bowman Cryers wanted only an apology. But instead, she chose to also endorse his constitutionally deficient conclusion that Kleins' ambiguous words violated state law.
Conceding that weak claim would require the willingness to stand for what's right, even though it would benefit an unpopular cause. But Rosenblum buckled. Oregonians lose.
The Oregonian/OregonLive Editorial Board