Last week both Raw Story and New Civil Rights Movement published articles about Oregon cake bakers Aaron and Melissa Klein. There are varying degrees of inaccuracies in each. NCRM titled its piece: “Almost Everything You’ve Heard About The Anti-Gay Sweet Cakes Wedding Cake Case Is (Probably) Wrong.” It is a gold medal of biased writing.
The full finding against Aaron and Melissa Klein, owners and operators of Sweet Cakes by Melissa, is available through the Oregon Bureau Of Labor And Industries website. The complainants are the now matrimonially-joined Rachel and Laurel Bowman-Cryer. (Sweet Cakes is often written as Sweetcakes.)
This post is not about the merits or morality of gay marriage or lack thereof. It isn’t an analysis of the Supreme Court’s decision. It is a look at the BOLI report compared to what has been published by some Left leaning media outlets.
1. The complainants name, phone number and home address was a public record in Oregon. “The Kleins published the couple’s personal information online” is a claim repeatedly made. NCRM made it again yesterday. It implies the Kleins’ posting a piece of their own mail to social media fomented threats and harassment against the Bowman-Cryers. This is unlikely (see below).
Some articles portray a difficulty seeing the complaint form’s disclaimer when filing via smartphone. The disclaimer, which plainly mentions the Oregon public records law, is the second paragraph of the form. A footnote on page 9 of the Labor Commission’s Order reads:
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 the Respondents received. The forum relies on that copy in describing the contents and format of the complaint.
In other words, the BOLI could not confirm that the disclaimer was not visible on the screen when Laurel Bowman-Cryer filed her complaint. (p. 9, 10)
The state’s difficulty in confirming the screen view is to be expected. As shown below on screenshots from my smartphone the disclaimer appears before you reach the personal information boxes, which is before the complaint text box. It reads:
This complaint will become part of our permanent records. Consumer complaints may be released to the business or person about whom you are complaining, members of the public, or other agencies. This form is also subject to Oregon’s Public Records Law.
2. Most likely the complaint mailed to the Kleins was seen by less than 5 people on Aaron Klein’s Facebook page. According to the government’s finding, Aaron Klein had only 17 Facebook friends when he posted a copy of the complaint’s first page (which he and his wife received as respondents). The posting was to his personal Facebook page, not the Sweet Cakes by Melissa business page. It was this document that included the complainants’ personal information. Klein’s post included this remark: “[t]his is what happens when you tell gay people you won’t do their ‘wedding cake.'” (p. 12)
Owing to the short amount of time it was online, combined with Facebook’s own algorithm (which restricts organic reach), and the shear mass of stories and status updates flooding Facebook, it is unlikely more than 5 people would have seen the posted complaint. It is more likely one or two people would have seen it. The report gives no indication of negative or derogatory comments, or any comments, made on the post.
One person who did see it immediately sent an email to one of the complainants, who contacted her attorney, who contacted Aaron Klein, who removed the post. The posting was up for less than a day, possibly less than 12 hours. (p. 12)
3. Contra NCRM, the Kleins were not fined for making public the complainant’s personal information. Such a judgment is not included in the government’s finding. The Kleins were fined $75,000 and $60,000 “in damages for emotional and mental suffering resulting from the denial of service.” (Emphasis added.)
4. The Kleins were fined for refusing to bake the cake, for stating publicly it was against their faith to do so, and for pain and suffering. Oregon law at the time could not have made illegal refusing to bake a cake for a same-sex wedding because same-sex weddings were not allowed under Oregon law. The Bowman-Cryer’s original request was a cake for a commitment ceremony, not a wedding. This refusal was found illegal.
The law does make illegal public declarations that a business will discriminate against a protected class of people in a “place of public accommodation.” One of those classes is sexual orientation.
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.
In other words, business trumps religious freedom since the Bowman-Cryer’s could have gotten married (in time) with no cake at all.
The government found statements made by the Kleins during media interviews violated this Oregon law. Also used as evidence was a hand-written note in the window of the closed brick-and-mortar store. (p 17, 18, 25)
According to the Commissioner, however, this did not figure into his judgment against the Kleins.
[T]he Commissioner awards no damages to the 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. (p 27, 28)
A splitting of legal hairs allows the Commission to “fairly” compensate the Complainants without it constituting a “fine or civil penalty.” (p 34)
5. One of the complainants repeatedly exaggerated or over-dramatized, to the degree that her testimony was given no credibility without corroboration. The government document includes four separate and specific claims by Laurel Bowman-Cryer which were disproven by other evidence. She is described as “a very bitter and angry witness who had a strong tendency to exaggerate and over-dramatize events.” Further the state “has only credited [her] testimony when it was either (a) undisputed, or (b) disputed but corroborated by other credible testimony.” (p. 21, also 41)
This in addition to the contradictory testimony given by Rachel Bowman-Cryer and her mother, the two who visited Sweet Cakes by Melissa for the cake tasting. (Eg, Aaron Klein did not call either Rachel, her mother, or any members of their family, “abominations.”)
6. Due to a lack of clarity the legal finding does have the potential to affect the Kleins’ free speech. The noted legal blog Popehat did an analysis of the “gag rule,” as it was called. One of the primary contributors, Ken White, wrote this:
The “don’t do” comment relates what they said in the past, the “stand strong” comment may well refer to litigation, and Commissioner Avakian’s finding to the contrary is profoundly chilling of any dialogue about such laws or such a proceeding. It’s clear that Avakian cannot, constitutionally, prohibit the Kleins from saying “this law is wrong” or “our First Amendment rights should allow us to refuse to make a cake that violates our religious beliefs” or “we don’t agree with gay marriage” or “we will continue to fight for our rights.” But Avakian’s order strongly suggests that he — and the Labor Commission — may treat such statements as a violation. That means that the Kleins, even if they are eventually vindicated in a real court, will have to expend tens or hundreds of thousands of dollars defending their free speech, and in the meantime will be subject to ruinous sanctions.
Taken in the abstract, Commissioner Avakian’s prohibition isn’t a problem. But in the context of his factual findings and the facts of this case, it is vague and ambiguous, and suggests that the government seeks to punish statements disagreeing with Oregon’s anti-discrimination laws.
In public statements, the Oregon Labor Commission has denied that this is a “gag order,” and the usual suspects have asserted that critics are engaged in inaccurate political propaganda. But the order part of the ruling doesn’t exist in a vacuum; it’s issued in the context of the facts of the case and the Commissioner’s other findings of law. If I were the Kleins, or their lawyer, I would be very uncertain what I could say without the Commission claiming a violation of the order.
So: I was right to criticize coverage that described this without details or the text of the order as a “gag order.” But I too quickly dismissed all criticism of the order. Its vagueness and potential scope are quite troubling.
A reading of the Order does not find the owners of Sweet Cakes by Melissa stirred up hatred or threats against the Bowman-Cryers. There were a multiplicity of events that contributed to any mental anguish the couple could have suffered (uncertainty about the wedding itself, family members who opposed it, custody concerns of their then foster-children, and emotional instability are all explicitly or implicitly mentioned in the facts of the case). It was the Bowman-Cryers through their attorney who contacted ten media outlets to support their case (p 14, 15). According to the BOLI investigation the Kleins, though making several media appearances, initiated none of them.