The Oregon Court of Appeals upheld last week an earlier ruling that Sweet Cakes by Melissa, a Gresham bakery that is now closed, illegally discriminated against a lesbian couple in 2013 when it refused to bake them a cake to celebrate a civil union.
The decision the court upheld was an order from the Bureau of Labor and Industries that found the bakery violated an Oregon law prohibiting discrimination based on sexual orientation. The couple, the Cryers, were awarded $135,000 in damages.
That part of the Thursday ruling was perhaps not a surprise. But the court also made a very interesting ruling about freedom of speech — in particular about ambiguous speech.
When Brad Avakian, Oregon’s Commissioner of the Bureau of Labor and Industries, issued his final order to the bakery he said statements made by the bakery owners — the Kleins — amounted to a statement of intent to keep discriminating. In fact, Avakian overruled the decision of the administrative law judge on the speech issue.
Avakian focused on a couple of statements. One was from Aaron Klein, recalling what he said when he was told that the cake would be for two brides. He said he recalled telling her: “we don’t do same-sex marriage, same-sex wedding cakes.”
Avakian said that statement was more than just a recollection of what happened, but also a vow of what the bakery would do in the future.
The second statement related to a handwritten sign in the window of the bakery, during the controversy. It said the “fight is not over” and said the bakery would “continue to stand strong.”
Are those statements clear declarations of an intent to continue to discriminate, or are they ambiguous? Avakian reasoned they were a recounting of past events but also notice that discrimination will be practiced in the future.
But the court said Thursday that the first statement was merely a recollection of what was said. It said the quotes from the note were ambiguous.
That’s a win for Oregonians. People should not be penalized by their government for ambiguous speech or, as is the case here, for asserting their disagreement with a government sanction and vowing to keep fighting.