Is cake art?
Attorneys representing two Gresham bakers who refused to produce a wedding cake for a lesbian couple in 2013 hope to show that the answer is yes.
"For the Kleins, every custom cake they produce is a reflection and celebration of this specific couple," argued lawyer Adam Gustafson before the Oregon Court of Appeals in Salem on Thursday, March 2. "That cake is art."
Aaron and Melissa Klein were fined $135,000 by Oregon's Bureau of Labor and Industries in 2015. The state agency found the couple had refused service — discriminated — on the basis of the sexual orientation of two customers: Rachel Bowman-Cryer and her partner, Laurel.
But a lawyer representing the state said it was preposterous to assume a cake can contain the "particularized message" of artwork or other expressive speech protected by the First Amendment.
"If I order a custom cake for my daughter's birthday, no one at the party would think that it was the bakery wishing 'Happy Birthday,'" argued Assistant Attorney General Carson Whitehead. "That would be the message I was sending based on my love for my child," he continued. "It's not about the baker."
In a press conference held on the steps of the Oregon Supreme Court building, Melissa Klein told reporters that she wants the government to tolerate and accept the differences between people.
"I was happy to serve this couple in the past ... and I would be happy to serve them again, but I couldn't participate in a ceremony that goes against what I believe," she said through tears. "I love my shop. It meant everything to me. And losing it has been so hard for me and my family," she continued. "Nobody in this country should ever have to go through what we've experienced."
Three justices heard oral arguments and questioned lawyers for about 50 minutes today, delving into secondary issues like whether former Labor Commissioner Brad Avakian had prejudged the case based on comments posted to his Facebook account.
The Kleins, who are working with the same high-powered Washington, D.C., law firm that represents George H.W. Bush, closed their Gresham storefront at Main Avenue and Division Street in 2013. They stopped selling pastries out of their home in late 2016.
An appeal was first filed in April 2016.
Whitehead, who represents the state, noted that the Kleins refused service before discussing the message that would be written on the cake. Their store also contained a sample book, showcasing cake designs that could be re-ordered by any customer.
"(If) a same-sex couple wanted the exact same previous design, regardless of the artistic element, the (Kleins) are required under the law to provide that same service," he said.
But Gustafson, arguing for Sweet Cakes, said it didn't matter whether an audience could decode the Kleins' artistic message, merely that one was intended.
"The First amendment protects the right to be free (of) compelled speech," he noted.
Julie E. Smith, a spokeswoman for the Oregon Court of Appeals, said the three justices on the panel work through their caseload chronologically.
"There's no timeline for the issuance of the decision," she said.