BreakPoint: Sweet Cakes by Melissa, Religious Freedom, Lose on Appeal

Art in the Eye of the Beholder?

The state of Oregon told a pair of bakers to make the cake or eat a ruinous fine. And sadly, a federal court agreed.

Now stop me if you’ve heard this before: A same-sex couple asks a local bakery to make a wedding cake. The bakers, who are Christians, decline to do so on the grounds that it would violate their religious convictions.

The couple, feeling deeply aggrieved, files a complaint. The state civil rights agency finds for the same-sex couple and, in effect, forces the bakers to choose between their faith and their livelihood.

If you noticed my use of plural nouns so far, you may have guessed that I’m not talking about Jack Phillips, whose case was recently argued before the Supreme Court. No, this time I’m talking about Sweet Cakes by Melissa, and its owners, Aaron and Melissa Klein.

Not only did the Oregon Labor Commissioner rule against the Kleins, he imposed a ruinous fine on them of $135,000. A fine that high is the Commissioner telling the Kleins, not only are you wrong, you’re evil. You need to be put out of business.

The Kleins appealed the ruling to the Oregon Court of Appeals, and last month the Court upheld the Oregon Labor Commissioner. While the outcome wasn’t surprising—Oregon is a very liberal state after all—there are some aspects of the opinion that are worth noting.

First is what wasn’t said by the court. There were no comparisons to Nazis or racists, nor were there were references to Jim Crow. That separates this ruling from that of a federal judge in Telescope Media Group v. Lindsey.

That case involved two Christian videographers, Carl and Angel Larsen, who challenged parts of Minnesota’s “Human Rights Act” that would require them to service same-sex weddings. They sought the right to post a notice on their website about their policy concerning same-sex weddings.

The Federal District Court rejected their arguments and then said that what the Larsens were proposing to do was “conduct akin to a ‘White Applicants Only’ sign.”

Now thankfully, the Oregon Court of Appeals didn’t make any such crazy comparisons. Unlike the federal court in Minnesota, it took the Kleins’ claims to freedom of artistic expression seriously.

But its reasoning was tortured. It acknowledged that “the Kleins imbue each wedding cake with their own aesthetic choices,” but then added the strange and nebulous line that the Kleins “have made no showing that other people will necessarily experience any wedding cake that the Kleins create predominantly as ‘expression’ rather than as food.”

So for the Court, what makes something “art” is that they are “both intended to be and are experienced predominantly (whatever that means) as expression.”

Say what? This reasoning is nonsensical. Last May, a college student from Scotland left a pineapple on a table at a museum, and visitors treated it as if it were on display. A year earlier, a 17-year-old left a pair of glasses on the floor of a San Francisco art gallery and people stood around and took pictures of it. The Guardian called it “a work of genius.”

So pineapples and eyeglasses can be experienced as “art,” even “works of genius,” but a cake specifically designed for the context of a wedding might not be?

Look, the Court pulled this “standard” out of thin air. It was a case of, to borrow a line from Lewis Carroll, “sentence first, verdict afterwards.” The Court realized that making a cake for an event could definitely be speech, but they couldn’t allow this speech or those who made it to prevail, so it created a reason why they shouldn’t.

The fact that it’s impossible to imagine this standard being applied in any other context, or to any other direct speech, only underscores this fact.

And as I close, please visit for a special symposium. Hear what folks like Os Guinness, Ryan Anderson, Mindy Belz and others have to say about the challenges facing the Church in 2018. Again, that’s


Editor’s note:  Aaron and Melissa Klein are represented by First Liberty Institute. For up to date information about their case, visit First Liberty Institute’s case page here.


Sweet Cakes by Melissa, Religious Freedom, Lose on Appeal: ‘Art’ in the Eye of the Beholder?

Challenges like the Kleins faced with local and federal legislature and judiciary are likely to increase in the coming year. Read what Christians thinkers and leaders have to say about the issues facing the Church today; click here to visit our first symposium of the new year, “Challenges facing the Church in 2018.”



Oregon bakers lose another round in state court
  • Leigh Jones | WORLD magazine | December 28, 2017
Challenges facing the Church in 2018
  • Symposium | | January 11, 2018

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  • Jesse Bryant

    And what about the 13 gay bakers who refused to bake cakes that expressed the opposite? Google it! (Shoebat) I sure hope this sort of evidence is being presented to the Supreme[ly foolish] Court. Double-standard? What am I missing?

    • Phoenix1977

      “What am I missing?”
      The content of the message, probably. Anti-LGBT messages can be (should be) considered hateful and can therefor be refused. However, a wedding cake is never hateful.

      • Scott

        “The content of the message, probably. Anti-LGBT messages can be (should be) considered hateful and can therefor be refused. However, a wedding cake is never hateful.”

        Not all Anti-LGBT messages are hateful… disagreeing with a certain lifestyle is certainly NOT an act of hate.

        • Phoenix1977

          Let’s agree to disagree in that 🙂

          • Scott

            Okay… so long as our disagreement is not an act of hate. : – )

        • NDaniels

          True. Love requires that we discriminate between acts that respect the inherent Dignity of the human person and acts that do not. It is never unjust to discriminate against demeaning sexual acts of any nature, including between a man and woman, united in marriage as husband and wife.
          Respect for the Sanctity of the marital act is not an act of hate.

      • NDaniels

        What is missing is the fact that the marital act is Life-affirming and Life-sustaining and can only be consummated between a man and woman, united in marriage as husband and wife. No government has the authority to coerce any person into condoning the engaging in or affirmation of sexual acts outside of the Sanctity of the marital act. It is never unjust to discriminate between appropriate and inappropriate sexual acts.

        • Phoenix1977

          “What is missing is the fact that the marital act is Life-affirming and Life-sustaining and can only be consummated between a man and woman, united in marriage as husband and wife.”
          Not according to the law of the land.

          “No government has the authority to coerce any person”
          Actually, every government has that authority and even that duty. Even the late Antonin Scalia recognized that fact because allowing every individual to decide for themselves which laws to adhere to would create anarchy.

          “It is never unjust to discriminate between appropriate and inappropriate sexual acts.”
          Except it’s not up to you to decide what is appropriate and not. All you need to do is obey the law and nothing else.

  • David Carlson

    Thanks for this additional information, which we did not “conveniently” leave out because it was not widely reported on, and clearly wasn’t a factor to the Oregon Court of Appeals or to the ongoing appeals for this case according to all documents and coverage of the appeal. As we’ve now learned, the document posted on Facebook by the Kleins was the formal complaint from the Oregon Department of Justice, which was a public document. We’ve also learned that the Kleins, too, have received numerous threats against their own safety inducing specific and detailed threats against their children. They continue to dispute any role in inciting violence.

    With that limited information, we can say definitively that violence, threats, and inciting of violence and threats are always wrong – on either side – including the sort of horrific things sent to the same-sex couple as described here ( and the threats that the Kleins, Jack Phillips, Baronnelle Stutzman and others continue to receive.

    We can also say that our covering of this story – both in The Point commentary and the BreakPoint commentary – focus on two things that remain unchanged by this information. First, that the penalty being brought against those who wish to live out their deeply held beliefs is excessive and does not fit the so-called “crime” (i.e. being put out of business as in the case of the Kleins, or being threatened with jail time as in the case of the Larsens in Minnesota). Second, the opinion rendered by the Oregon Court of Appeals, especially this brand new criteria of what counts as direct communication and artistic expression, was strange, and an innovation that has never been applied to any other direct speech case.

    • It’s true that the penalty doesn’t fit the crime. Posting the information with a comment like “somebody should do something about this” seems clearly intended to provoke attacks on the victims — as Avakian apparently concluded. A mere fine, however large, is not an adequate penalty for inciting violence. The Kleins should have received a prison sentence.

      • Scott

        What does “something” mean? I agree the comment was ill thought out… but at what point do words become sicks and stones? Should you be held accountable for the violent act of another? No. We are all accountable for our own actions.

  • jaScott

    How did this become a free speech issue? It’s not about expression, but rather participating in an event they reject and thereby violating their conscience. Conscientious objection doesn’t exist anymore? Why didn’t they argue from that position?

    • vreed lak73

      They did argue that item. Technically,, there is no right to refuse to participate in the US Constitution or in any law.. Try doing that next time you get summoned for jury duty.

      Speech was their strongest argument. The current standard for judging whether a law unconstitutionally burdens the free exercise of religion is as follows: the law is valid so long as it has a rational purpose and is neutral and generally applicable. 50 years ago, the US Supreme wrote that religious excuses for violating these anti-discrimination laws were “patently frivolous.” Newman v. Piggie Park Enterprises. (1968) – restaurant owner refused to let black people eat in his restaurants claiming that the integration of the races violated his Baptist religious beliefs.

      “Participation” is really “freedom of association”, which is not a Constitutional right – but one created by the courts. There are 2 “freedoms of association” (i) freedom of intimate association and (ii) freedom of expressive association (like joining with others in order to exercise 1st Amendment rights – say speech). The US Supreme Court ruled in Roberts v. United States Jaycees that these anti-discrimination laws do not interfere with either of those “freedom of associations”.

      • jaScott

        Oh well. I guess if the Supreme Court says down is up I’ll just have to play along.
        (Funny, the last time I was summoned for jury duty I saw a number of potential jurors dismissed for reasons far less serious than that of the baker. Honestly!)
        This is not about speech, association or anything other than advancing an agenda.
        I have no doubt the decision they’ll reach in June will bolster Obergefell.
        Our Lady of Perpetual Help, pray for us.

  • Aloma Marquis

    Is there a way that the business owners can be supported through donations?

    • vreed lak73

      The author of the article conveniently left quite a lot out of the article. It wasn’t really a $135,000 fine. Fines are payable to the government. The $135,000 is more akin to a judgment, payable to the lesbian customers. The “judgment” was so high due to other factors, in addition, to the bakers’ illegal refusal of service: the baker’s doxxed the lesbians and went on a media blitz about the case, which caused the lesbians to get death threats (some slipped under their front door) and their adoption of their 2 foster godchildren almost got derailed as a result.

      And, to answer you question, the Kleins did go crowdfunding and raised over $500,000, something Oregon was well aware of.

      The author fails to disclose that the Kleins paid the judgment in full back in 2015. Their business folded not due to the judgment – but because the bakery lost customers. Wedding cake bakers rely heavily on recommendations from wedding vendors (planners, venues, caterers) – and all of those recommendations stopped because those vendors decided it was in their own best commercial interests to send their clients to non-controversial bakers who serve everyone with a smile on their face.

      • Sam Imam- Eli

        Nice regurgitation of the liberal talking points.

  • jaScott

    I doubt assigning the task to employees would have met with approval. Again, it’s not about cake.
    And anyway, how could he be above a law that is derived from the religion he practices? (Unless just maybe it’s a bad law.) That makes no sense. But then nothing about these lawsuits do. Frivolous. But ruinous.
    That would seem to be the point.
    Interesting discussion though even if we didn’t agree so much! Thank you.