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Justices Avoiding Tough Topic in ‘Cake’ Cases, Scholars Say (1)

June 17, 2019, 1:47 PMUpdated: June 17, 2019, 10:52 PM

Bakery owners fined $135,000 for refusing on religious grounds to make custom cakes for a same-sex couple’s wedding won’t get to make their case at the U.S. Supreme Court, for now.

The justices on June 17 told the Oregon Court of Appeals to take another look at its ruling in Klein v. Or. Bureau of Labor & Indus., which upheld the state’s public accommodation law under which they were fined.

Legal scholars said the court’s instruction to consider the matter anew in light of what many considered to be a non-decision in a similar case last year, again signaled a hesitation to grapple with larger, more controversial topics.

“What the court did by vacating the case was avoid addressing directly the underlying conflict between religious liberty claims and anti-discrimination claims,” said John Inazu, a professor at the Washington University in St. Louis School of Law who specializes in First Amendment issues.

Melissa and Aaron Klein challenged the appeals court decision, arguing that forcing them to make a cake or be fined violates the First Amendment’s free exercise and free speech clauses.

Jennifer Pizer, the law and policy director for Lambda Legal, the LGBT civil rights group that represented the same-sex couple in the Klein case, said it was frustrating that the Supreme Court didn’t deny the baker’s request for further review.

But she thinks the lower courts will rule in favor of her clients, since she said there are no instances of anti-religious adjudicatory bias. Pizer believes her case will follow a similar path to Washington v. Arlene’s Flowers.

In 2018, the U.S. Supreme Court sent that case, which involved the refusal of a Christian florist to provide flowers for a same-sex wedding, back to Washington state for another look in light of its ruling in Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n.

In Cakeshop, the high court narrowly ruled in favor of a Christian baker who refused to make a cake for a same-sex couple’s wedding, based on animus that a state commission demonstrated toward him. A number of court watchers said the justices deferred a decision, or “punted,” on the issue.

The Washington state Supreme Court last week in Arlene’s Flowers ultimately reaffirmed its judgment in favor of the same-sex couple who sued.

“Access to cake is not the point,” Pizer said. “Equal treatment for everyone in the marketplace is the point.”

Adam Gustafson, who represented the Kleins, said he was pleased with the Supreme Court’s decision to vacate in their case.

He said the same type of anti-religious bias that was proven in Masterpiece Cakeshop had “infected” earlier decisions in the Klein case.

“We think the Oregon Court of Appeals got this one wrong and the Supreme Court’s decision to vacate gives them a chance to get it right,” Gustafson said.

The case is Klein v. Or. Bureau of Labor & Indus., U.S., No. 18-547, vacated 6/17/19.

(Updates with additional reporting throughout.)

To contact the reporter on this story: Patrick L. Gregory in Washington at

To contact the editors responsible for this story: John Crawley at; Jessie Kokrda Kamens at