The last we had heard from Aaron and Melissa Klein, the former owners of Sweet Cakes in Oregon that lost their bakery business after refusing to make a wedding cake for a same-sex couple, the site GoFundMe had shut down their crowdfunding operation. That was in April, but the drama was not over for the Kleins, who faced a stiff fine for their allegedly discriminatory conduct. Aaron and Melissa defended themselves in media interviews in an attempt to prevent the state of Oregon from further penalizing them, but Oregon Labor Commissioner Brad Avakian went even further than anyone might have imagined.
Not only did Avakian levy a $135,000 judgment against the Kleins for “emotional damages” to the couple denied a wedding cake, he slapped a gag order on them that forbids the Kleins from explaining to potential customers of Sweet Cakes why they won’t bake a cake for a same-sex wedding. Of course, since they’re no longer in business, it no longer matters — and even if they were, the $135,000 fine would make sure they weren’t. The Daily Signal poses this as a broader gag order than it is, however:
Oregon Labor Commissioner Brad Avakian finalized a preliminary ruling today ordering Aaron and Melissa Klein, the bakers who refused to make a cake for a same-sex wedding, to pay $135,000 in emotional damages to the couple they denied service.
“This case is not about a wedding cake or a marriage,” Avakian wrote. “It is about a business’s refusal to serve someone because of their sexual orientation. Under Oregon law, that is illegal.”
In the ruling, Avakian placed an effective gag order on the Kleins, ordering them to “cease and desist” from speaking publicly about not wanting to bake cakes for same-sex weddings based on their Christian beliefs.
“This effectively strips us of all our First Amendment rights,” the Kleins, owners of Sweet Cakes by Melissa, which has since closed, wrote on their Facebook page. “According to the state of Oregon we neither have freedom of religion or freedom of speech.”
Daily Signal writer Kelsey Harkness posted the portion of the order in which the gag clause appears:
— Kelsey Harkness (@kelseyjharkness) July 3, 2015
This is not, as some on Twitter and the Daily Signal argue, a gag order against discussing the case. as Jeff B at AoSHQDD rightly points out. It relates to communication in their business about their policies, which would still be a violation of their First Amendment speech rights, but no longer applies. The Kleins lost their business almost two years ago due to the negative publicity of the complaint. This clause is moot now, which makes one wonder why Avakian bothered to include it at all. It also misrepresents the case at hand. The issue for Sweet Cakes, as it was in other cases, was not one of a refusal to serve on the basis of sexual orientation but the refusal to participate in an event that violated their religious tenets. The gag order clause makes it sound as though the Kleins refused service to people solely on the basis of sexual orientation, which was not the case.
The fine in this case is far more egregious. An average wedding cake will run around a thousand dollars, more or less — so for what kind of damages is Avakian compensating? Did the Kleins refuse to do 135 same-sex wedding ceremonies? Not exactly. As this video from April reminds us, the claim from the one couple contained a ridiculously long list of damages from this one refusal to do business with the couple, none of them substantiated by any medical or expert testimony:
Among my favorites on the list:
- “Felt mentally raped, dirty and shameful”
- “Dislike of going to work”
- “Pale and sick at home after work”
- “Felt stupid”
- “Loss of sleep”
- “Excessive sleep”
I hate it when excessive sleep combines with loss of sleep to result in … what, exactly? Normalcy?
Applying a $135,000 fine on a closed business isn’t about damages. It’s not even about setting a precedent. It’s a flat-out abuse of bureaucratic power for one’s own agenda — and vindictiveness for not acquiescing to government power. Avakian is peeved that the Kleins embarrassed him and his state over their petty power grab and he wants to make them pay for it, literally and figuratively.
Happy Independence Day. Sounds like Oregon needs to recall why we needed it in the first place.
Update: I used the term “lawsuit” above, but that’s inaccurate; I have replaced it with “complaint.”
Update: The cease and desist order may still impact Melissa Klein’s on-line business, Kelsey suggests:
— Kelsey Harkness (@kelseyjharkness) July 3, 2015
It could, but the website doesn’t actually mention any restrictions on wedding cake agreements. It still wouldn’t apply to any interviews with news media, as the Department of Labor’s jurisdiction only applies specifically to commerce in public accommodations. Avakian certainly cited the Kleins’ media appearances as part of the underlying justification of the order, but it doesn’t mean he has the authority to regulate that speech, even if Avakian clearly would like to shut the Kleins up.