Oregon Court Upholds Order to Pay $135K in ‘Emotional Damages’ for Declining to Make Cake for Same-Sex ‘Wedding’

PORTLAND, Ore. — The Oregon Court of Appeals has upheld a lower court ruling that ordered Sweet Cakes by Melissa owners Aaron and Melissa Klein to pay $135,000 in “emotional damages” to two lesbian women for declining to make a cake for their same-sex “wedding” in 2014.

“[G]iven BOLI’s detailed factual findings about the effect of the refusal of service on these particular complainants—including anger, depression, questioning their own identity and self-worth, embarrassment, shame, frustration, along with anxiety and reduced excitement about the wedding itself—we cannot say that the order is so far out of line with previous cases that it lacks substantial reason,” wrote Judge Chris Garrett on behalf of the panel.

“We conclude that … the final order does not impermissibly burden the Kleins’ right to the free exercise of their religion because it simply requires their compliance with a neutral law of general applicability, and the Kleins have made no showing that the state targeted them for enforcement because of their religious beliefs,” he stated.

The ruling comes as another case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, is currently being considered by the nation’s highest court. Oral argument was heard in that case on Dec. 5, and a decision is expected in June 2018.

As previously reported, the Kleins were fined $135,000 two years ago after Oregon Bureau of Labor and Industries (BOLI) Commissioner Brad Avakian declared that they had discriminated against two lesbian women for declining to help out with their same-sex “wedding.”

The Kleins had served the women, Rachel Cryer and Laurel Bowman, in other ways, and the women returned because the couple had treated them kindly.

“I have customers come in almost on a weekly basis that are homosexual,” Aaron Klein told reporters. “They can buy my stuff. I sell stuff. I talk with them. That’s fine. … This was not the first time we’ve served these girls.”

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But because the Kleins said that they didn’t feel comfortable with fulfilling that particular order because of the event that it involved, the women filed a discrimination complaint against the bakers.

“We were being asked to participate in something that we could not participate in,” Melissa stated, outlining that the wedding cake is one of the most personal and intricate parts of the occasion.

Some Christians believe that being a part of a same-sex event violates the biblical command in 1 Timothy 5:22 not to be “partakers in other men’s sins,” as well as the command in Ephesians 5:7, “Be not ye therefore partakers with them.”

After the Kleins were declared guilty of discrimination, Cryer and Bowman submitted individual lists of just under 100 aspects of suffering in order to receive damages. They included “acute loss of confidence,” “doubt,” “distrust of men,” “distrust of former friends,” “excessive sleep,” “discomfort,” “high blood pressure,” “impaired digestion,” “loss of appetite,” “migraine headaches,” “loss of pride,” “mental rape,” “resumption of smoking habit,” “shock” “stunned,” “surprise,” “uncertainty,” “weight gain” and “worry.”

But the Kleins told the court that they too had suffered because of the attacks that they received over their desire to live out their Christian faith in the workplace. They stated that they endured “mafia tactics” as their car was vandalized and broken into on two occasions, their vendors were harassed by homosexual advocates resulting in some businesses breaking ties with them, and they received threatening emails wishing rape, death and Hell upon the family.

As a result, the Kleins had to close their business and move it into their private home. They later went out of business altogether.

In April 2015, Alan McCullough, an administrative judge with the bureau, recommended that the Kleins pay emotional damages totaling $135,000, with one of the women receiving $75,000 and the other $60,000. Prosecutors had sought damages of $75,000 each. McCullough outlined that Laurel Bowman was awarded a lesser amount because he believed that her claims were exaggerated.

“In this case, the forum concludes that $75,000 and $60,000, are appropriate awards to compensate Complainants [Rachel] and [Laurel], respectively, for the emotional suffering they experienced from Respondents’ cake refusal. [Laurel] is awarded the lesser amount because she was not present at the cake refusal and the forum found her testimony about the extent and severity of her emotional suffering to be exaggerated in some respects,” he wrote.

“Laurel ‘was a very bitter and angry witness who had a strong tendency to exaggerate and over-dramatize events,’ argued with the Kleins’ attorney and ‘had to be counseled by the ALJ to answer the questions asked of her instead of editorializing about the cake refusal and how it affected her,’ and her ‘testimony was inconsistent in several
respects with more credible evidence,'” the appeals court also outlined on Thursday.

As previously reported, some outlets had wrongly claimed—and later apologized for publishing—that the Kleins were not ordered to pay damages for refusing to bake a cake for a lesbian’s same-sex ceremony, but were rather punished for inadvertently “publishing” the women’s addresses on Facebook by uploading the filed consumer complaint—a public document that had not been redacted by the government—on their new personal page that only had 17 friends at the time. The Kleins deleted the status after being informed that the document was not redacted.

“I was just notified that the [complainants’] info was on the document I posted. Totally didn’t think about that, was a mistake and I apologize. I hope nobody used it for anything bad,” Aaron Klein posted.

The order from BOLI outlined that the complaint form that one of the women completed included a disclaimer noting that once submitted, their information would now become “subject to Oregon’s public records law.” This means that the personal address and phone number that was supplied would able to be seen by the public and the subject of the complaint.

However, the woman said that because she submitted the form via her Smartphone, the disclaimer “was not visible.”

While BOLI concluded that the Kleins were “guilty” of discrimination for declining to supply the cake for the lesbian’s same-sex event, and were willing to award the women damages for emotional distress surrounding the denial, it ultimately refused the women any additional damages for the Facebook mishap nor for the matter having been in the media.

Avakian accepted McCollough’s recommendation and ordered the Kleins to pay the women $135,000 in light of the emotional damages Cryer and Bowman listed for being denied the “wedding” cake. The Kleins then asked for a stay of the order, but were denied. As the couple initially refused to pay the damages, believing that they had done no wrong, officials moved to docket the judgment and seek permission to place a property lien against the Kleins or collect the money in other ways.

In December 2015, the state emptied all of the Klein’s personal banking accounts—including money set aside to pay their tithe. The Kleins told reporters following the incident that they had three personal bank accounts: one checking, one savings, and one account marked “God’s money” for their tithe at church. The three accounts contained just under $7,000 total.

Faced with a nine percent interest penalty for not paying the $135,000, the Kleins then opted to submit a check for the amount in full, using money donated by supporters that was not in their personal bank account. They dropped off a check for $136,927.07 after realizing that the government had seized their personal accounts.

The funds have been held in an escrow account pending the final outcome of the case. The rest of the $500,000 received in donations has been used for legal fees, according to The Oregonian.

While the Oregon Court of Appeals upheld the emotional damages leveled against the Kleins, it disagreed with the lower court that the couple had violated a state law that prohibits businesses from advertising their intent to engage in discriminatory practices. It said that statements made by the Kleins in the midst of legal proceedings merely outlined what they had said on the day that Cryer asked them to make the cake for the event, and that they would fight the matter in court.

“BOLI relied heavily on statements in the [Tony] Perkins interview—taken out of context—to conclude that the Kleins had communicated an intention to discriminate in the future,” the court concluded. “When those statements and the note are viewed in their proper context, the record does not support BOLI’s conclusion that the Kleins violated ORS 659A.409. We therefore reverse that part of BOLI’s order.”

Read the ruling here in full.


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