Bloomberg Law
March 15, 2019, 8:56 AMUpdated: March 15, 2019, 2:21 PM

Supreme Court Has Pick of LGBT Discrimination Controversies (1)

Patrick L. Gregory
Patrick L. Gregory

Melissa and Aaron Klein say they were unconstitutionally driven out of business and charged a $135,000 fine under Oregon law for refusing to make a custom cake celebrating a same-sex couple’s wedding, in violation of their religious beliefs.

Phyllis Young refused service to a same-sex couple at her business, Aloha Bed & Breakfast, resulting in a “coordinated campaign” by Hawaii to punish her for her religious convictions, she says.

The Kleins and Young are asking the U.S. Supreme Court to take up their cases rooted in state law prohibitions. The cases raise First Amendment questions left unanswered since the justices ruled last term in favor of a baker who refused to make a cake for a same-sex Colorado couple’s wedding in Masterpiece Cakeshop.

Both “cases can be viewed as presenting a classic clash between liberty and equality,” said Caroline Mala Corbin, a professor at the University of Miami School of Law who teaches constitutional law.

The court could announce whether it will hear Young’s case as soon as March 18. The court March 14 rescheduled consideration of the Kleins’ case to an unspecified date.

A key question is whether Chief Justice John G. Roberts Jr. is ready to extend the Masterpiece Cakeshop decision.

The court’s four conservatives besides Roberts may not like the rulings challenged in these cases. But they might not want to hear either of them if they aren’t certain that he’ll stand with them, Corbin said. It only takes four votes to grant review, but five votes for a majority opinion that will be binding law.

Roberts is the justice “most concerned about” the court’s reputation, and there’s the question of whether he’d want the court to take up such controversies any time soon, Corbin said.

The justice has shown a new willingness to side with the court’s liberal wing, which may indicate that he wants to prevent the court from shifting too far right.

Some scholars have suggested that Roberts is concerned about the court’s reputation after the polarizing confirmation fight over Justice Brett Kavanaugh, which has resulted in a low-profile term with cases on less hot-button issues.

A scholar and former Supreme Court clerk expects Roberts to join fellow conservatives on these issues eventually, though he may wish to avoid deciding on them for now.

“In the end, I do think the five conservatives will hold that the application of anti-discrimination laws in these circumstances violate either the free speech or freedom of religion rights of the individuals who refuse to deal with same-sex couples,” said Geoffrey R. Stone, a professor at the University of Chicago Law School who writes about constitutional law.

For now, it’s possible the justices “will find a way to reverse both of the lower court decisions” here without reaching the controversial constitutional questions, Stone said.

Another Cake Controversy

The Kleins claim that forcing them to make a custom cake in violation of their religious beliefs violates the First Amendment’s free speech and free exercise clauses.

“These are the same claims” that the court declined to answer in Masterpiece Cakeshop v. Colorado Civil Rights Commission, Terri Day, a professor at Barry University law school in Orlando, Fla., said.

Corbin said the claims are “based on the novel argument that designing and baking a wedding cake is speech.”

The Oregon Court of Appeals ruled that the state’s public accommodation law was constitutional because it was a neutral law of general applicability and because the Kleins didn’t show that the state targeted them for enforcement based on their religious beliefs, in 2017’s Klein v Or. Bureau of Labor & Indus.

If that decision is allowed to stand, even a for-profit speaker could be compelled to broadcast messages with which he disagrees, the Kleins argue.

The Kleins are explicitly asking the high court to overrule its major free exercise decision in 1990’s Emp’t Div., Dep’t of Human Res. of Or. v. Smith, Corbin said.

That decision ruled that the First Amendment allows application of a neutral law to religious conduct.

Four conservative justices, not including Roberts, recently signaled their interest in overturning Smith.

Texas and 10 other states have filed a friend-of-the-court, or amicus brief supporting the Kleins.

Bias Claim

The Hawaii Court of Appeals rejected Young’s claim that the state’s public accommodation law didn’t apply to her because she operated the bed and breakfast out of her personal residence.

Like the Kleins, Young argues that forcing her to open her business to same-sex couples violates her free exercise rights.

But Young’s free exercise argument is different in that it’s based “on a new wrinkle” introduced in Masterpiece Cakeshop, Corbin said.

That decision held that the “anti-religious hostility of a few government decisionmakers” constituted a free exercise violation, Corbin said.

Young likewise claims that her case was tainted by anti-religious bias.

The cases are Klein v. Or. Bureau of Labor & Indus., U.S., No. 18-547, rescheduled 3/14/19 and Aloha Bed & Breakfast v. Cervelli, U.S., No. 18-451, to be considered 3/15/19.

(Updates with rescheduling Aloha case in fifth paragraph)

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