The Heart of the Sweetcakes Opinion

The “Sweetcakes by Melissa” opinion from the Oregon Court of Appeals upholds the Bureau of Labor and Industries (BOLI) sanctions against the bakery that refused to bake a wedding cake for a lesbian couple. In terms of a tweet, you might summarize the opinion as saying “Running a public accommodation means accommodating everyone the same.”

The heart of the opinion is the court wrestling with who gets the benefit of the doubt: is it the lesbian couple that just wanted a wedding cake like their straight friends and family could get? If so, then the business almost surely loses.

Or is it the bakery, which creates a custom product with undeniably artistic elements, rather than operating a Costco-style factory for standardized baked products? In this case, the court would look very hard at the law as a burden on the artist’s right to speak as an artist, which includes the right not to be compelled to speak as well.

The court ends up saying that, yeah, while there are artistic elements in this custom bakery thing, there’s not enough to take this out of the world where it’s a business first, with artistry second. And, as a business that operates in the public domain, open to all, it’s subject to all the usual regulations unless the business can show some extraordinary reason that it is impossible for the business to operate if it has to treat all customers the same, straight and LGBTQ alike.

That’s pretty much the ballgame right there.  Below is that key section, lightly edited for easier reading, mostly to remove excessive citations to other decisions. Taken from Oregon Appeals Reports, Vol. 289, starting at page 507; the selection below begins at page 517.)

  1. Meaning and scope of ORS 659A.403

In their first assignment of error, the Kleins argue that BOLI misinterpreted ORS 659A.403—specifically, what it means to deny equal service “on account of” sexual orientation. According to the Kleins, they did not decline service to the complainants “on account of” their sexual orientation; rather, “they declined to facilitate the celebration of a union that conveys messages about marriage to which they do not [subscribe] and that contravene their religious beliefs.” BOLI rejected that argument, reasoning that the Kleins’ “refusal to provide a wedding cake for Complainants because it was for their same-sex wedding was synonymous with refusing to provide a cake because of Complainants’ sexual orientation.” We, like BOLI, are not persuaded that the text, context, or history of ORS 659A.403 contemplates the distinction proposed by the Kleins. . . .

The text of ORS 659A.403(1) leaves little doubt as to its breadth and operation. It provides, in full:

“(1) Except as provided in subsection (2) of this section, all persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is of age, as described in this section, or older.” (Emphases added.)

The phrase “on account of” is unambiguous: In ordinary usage, it is synonymous with “by reason of” or “because of.” Webster’s Third New Int’l Dictionary 13 (unabridged ed 2002); id. at 194 (defining “because of” as “by reason of : on account of”).

And it has long been understood to carry that meaning in the context of antidiscrimination statutes. E.g., 18 USC § 242 (1948) (making it unlawful to deprive a person of “any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race” (emphases added)).

Thus, by its plain terms, the statute requires only that the denial of full and equal accommodations be causally connected to the protected characteristic or status—in this case, “sexual orientation,” which is defined to mean “an individual’s actual or perceived heterosexuality, homosexuality, bisexuality or gender identity, regardless of whether the individual’s gender identity, appearance, expression or behavior differs from that traditionally associated with the individual’s sex at birth.” . . .

In this case, Sweetcakes provides a service—making wedding cakes—to heterosexual couples who intend to wed, but it denies the service to same-sex couples who likewise intend to wed. Under any plausible construction of the plain text of ORS 659A.403, that denial of equal service is “on account of,” or causally connected to, the sexual orientation of the couple seeking to purchase the Kleins’ wedding-cake service.

The Kleins do not point to any text in the statute or provide any context or legislative history suggesting that we should depart from the ordinary meaning of those words. What they argue instead is that the statute is silent as to whether it encompasses “gay conduct” as opposed to sexual orientation. The Kleins state that they are willing to serve homosexual customers, so long as those customers do not use the Kleins’ cakes in celebration of same-sex weddings. As such, according to the Kleins, they do not discriminate against same-sex couples “on account of” their status; rather, they simply refuse to provide certain services that those same-sex couples want. The Kleins contend that BOLI’s “broad equation of celebrations (weddings) of gay conduct (marriage) with gay status rewrites and expands Oregon’s public accommodations law.”

We see no evidence that the drafters of Oregon’s public accommodations laws intended that type of distinction between status and conduct. First, there is no reason to believe that the legislature intended a “status/conduct” distinction specifically with regard to the subject of “sexual orientation.” When the legislature in 2007 added “sexual orientation” to the list of protected characteristics in ORS 659A.403, Or Laws 2007, ch 100, § 5, it was unquestionably aware of the unequal treatment that gays and lesbians faced in securing the same rights and benefits as heterosexual couples in committed relationships. During the same session that the legislature amended ORS 659A.403 (and other antidiscrimination statutes) to include “sexual orientation,” it adopted the Oregon Family Fairness Act, which recognized the “numerous obstacles” that gay and lesbian couples faced and was intended to “extend[] benefits, protections and responsibilities to committed same-sex partners and their children that are comparable to those provided to married individuals and their children by the laws of this state.” Or Laws 2007, ch 99, §§ 2(3), (5). To that end, section 9 of that law provided:

“Any privilege, immunity, right or benefit granted by statute, administrative or court rule, policy, common law or any other law to an individual because the individual is or was married, or because the individual is or was an in-law in a specified way to another individual, is granted on equivalent terms, substantive and procedural, to an individual because the individual is or was in a domestic partnership or because the individual is or was, based on a domestic partnership, related in a specified way to another individual.”

Or Laws 2007, ch 99, § 9(1).

The Kleins have not provided us with any persuasive explanation for why the legislature would have intended to grant equal privileges and immunities to individuals in same-sex relationships while simultaneously excepting those committed relationships from the protections of ORS 659A.403. [fn 5]

  [fn 5] At the time that the Oregon Family Fairness Act was enacted, Article XV, section 5a, of the Oregon Constitution defined “marriage” to be limited to the union of one man and one woman, and the Oregon Family Fairness Act expressly states that it “cannot bestow the status of marriage on partners in a domestic partnership.” Or Laws 2007, ch 99, § 2(7). Nonetheless, the act contemplated, but did not require, the performance of “solemnization ceremony[ies]” and left it to the “dictates and conscience of partners entering into a domestic partnership to determine whether to seek a ceremony or blessing over the domestic partnership.” Or Laws 2007, ch 99, § 2(8). Thus, the legislature was aware that same-sex couples would be participating in wedding ceremonies, and when it simultaneously chose to extend the protections of ORS 659A.403 to cover sexual orientation, there is no reason to believe that it intended to exempt places of public accommodation— such as cake shops, dress shops, or flower shops—so as to permit them to discriminate with regard to services related to those anticipated ceremonies.

Nor does the Kleins’ proposed distinction find support in the context or history of ORS 659A.403 more generally. As originally enacted in 1953, the statute (then numbered ORS 30.670) prohibited “any distinction, discrimination or restriction on account of race, religion, color or national origin.” Or Laws 1953, ch 495, § 1. One of the purposes of the statute, the Supreme Court has observed, was “to prevent ‘operators and owners of businesses catering to the general public to subject Negroes to oppression and humiliation.’ ” Schwenk v. Boy Scouts of America, 275 Or 327, 332, 551 P2d 465 (1976) (quoting a statement by one of the principal sponsors of the statute (emphasis removed)).

Yet, under the distinction proposed by the Kleins, owners and operators of businesses could continue to oppress and humiliate black people simply by recasting their bias in terms of conduct rather than race. For instance, a restaurant could refuse to serve an interracial couple, not on account of the race of either customer, but on account of the conduct—interracial dating—to which the proprietor objected. In the absence of any textual or contextual support, or legislative history on that point, we decline to construe ORS 659A.403 in a way that would so fundamentally undermine its purpose. See King v. Greyhound Lines, Inc., 61 Or App 197, 203, 656 P2d 349 (1982) (adopting an interpretation of Oregon’s public accommodation laws that recognizes that “the chief harm resulting from the practice of discrimination by establishments serving the general public is not the monetary loss of a commercial transaction or the inconvenience of limited access but, rather, the greater evil of unequal treatment, which is the injury to an individual’s sense of self-worth and personal integrity”)

Tellingly, the Kleins’ argument for distinguishing between “gay conduct” and sexual orientation is rooted in principles that they derive from United States Supreme Court cases rather than anything in the text, context, or history of ORS 659A.403. Specifically, the Kleins draw heavily on the Supreme Court’s reasoning in Bray v. Alexandria Women’s Health Clinic, 506 US 263, 113 S Ct 753, 122 L Ed 2d 34 (1993), which concerned the viability of a federal cause of action under 42 USC section 1985(3) against persons obstructing access to abortion clinics. In that case, the Supreme Court addressed, among other things, whether the petitioners’ opposition to abortion reflected an animus against women in general—that is, whether, because abortion is “an activity engaged in only by women, to disfavor it is ipso facto to discriminate invidiously against women as a class.” Id. at 271 (footnote omitted).

In rejecting that theory of ipso facto discrimination, the Court observed:

“Some activities may be such an irrational object of disfa- vor that, if they are targeted, and if they also happen to   be engaged in exclusively or predominantly by a particular class of people, an intent to disfavor that class can read- ily be presumed. A tax on wearing yarmulkes is a tax on Jews. But opposition to voluntary abortion cannot possibly be considered such an irrational surrogate for opposition to (or paternalism towards) women. Whatever one thinks of abortion, it cannot be denied that there are common and respectable reasons for opposing it, other than hatred of,   or condescension toward (or indeed any view at all concerning), women as a class—as is evident from the fact that men and women are on both sides of the issue, just as men and women are on both sides of petitioners’ unlawful demonstrations.”

The Kleins argue that “[t]he same is true here. Whatever one thinks of same-sex weddings, there are respectable reasons for not wanting to facilitate them.” They contend that BOLI simply “ignores Bray” and that BOLI’s construction of ORS 659A.403 “fails the test for equating conduct with status” that the Supreme Court announced in that case.

Bray, which involved a federal statute, does not inform the question of what the Oregon legislature intended when it enacted ORS 659A.403. But beyond that, Bray does not articulate a relevant test for analyzing the issue presented in this case. Bray addressed the inferences that could be drawn from opposition to abortion as a “surrogate” for sex-based animus, and it was in that context that the Supreme Court described “irrational object[s] of disfavor” that “happen to be engaged in exclusively or predominantly by a particular class of people,” 506 US at 270, such that intent to discriminate against that class can be presumed.

Here, by contrast, there is no surrogate. The Kleins refused to make a wedding cake for the complainants precisely and expressly because of the relationship between sexual orientation and the conduct at issue (a wedding). And, where a close relationship between status and conduct exists, the Supreme Court has repeatedly rejected the type of distinction urged by the Kleins. . . . We therefore reject the Kleins’ proposed distinction between status and conduct, and we hold that their refusal to serve the complainants is the type of discrimination “on account of * * * sexual orientation” that falls within the plain meaning of ORS 659A.403. [fn 6]

[fn 6] In doing so, we join other courts that have declined to draw a “status/ conduct” distinction similar to that urged by the Kleins. See, e.g., State v. Arlene’s Flowers, Inc., 187 Wash 2d 804, 823, 389 P3d 543, 552 (2017) (stating that “numerous courts—including our own—have rejected this kind of status/conduct distinction in cases involving statutory and constitutional claims of discrimination,” and citing cases to that effect).

The reasons for the Kleins’ discrimination on account of sexual orientation—regardless of whether they are “common and respectable” within the meaning of Bray— raise questions of constitutional law, not statutory interpretation. The Kleins, in the remainder of their argument concerning the construction of ORS 659A.403, urge us to consider those constitutional questions and to interpret the statute in a way that avoids running afoul of the “Speech and Religion Clauses of the Oregon and United States constitutions.” . . .  Here, the Kleins have not made that threshold showing of ambiguity. Accordingly, we affirm BOLI’s order with regard to its construction of ORS 659A.403, and we turn to the merits of the Kleins’ constitutional arguments.

  1. Constitutional challenges to ORS 659A.403

The Kleins invoke both the United States and the Oregon constitutions in arguing that the final order violates their rights to free expression and the free exercise of their religion. Oregon courts generally seek to resolve arguments under the state constitution before turning to the federal constitution. . . . In this case, however, the Kleins draw almost entirely on well-developed federal constitutional principles, and they do not meaningfully develop any independent state constitutional theories. Accordingly, in the discussion that follows, we address the Kleins’ federal constitutional arguments first and their state arguments second. . . .

  1. Free expression

The Kleins argue that BOLI’s final order violates their First Amendment right to freedom of speech. BOLI argues that the order simply enforces ORS 659A.403, a content-neutral regulation of conduct that does not implicate the First Amendment at all. And each side argues that United States Supreme Court precedent is decisively in its favor.

The issues before us arise at the intersection of two competing principles: the government’s interest in promoting full access to the state’s economic life for all of its citizens, which is expressed in public accommodations statutes like ORS 659A.403, and an individual’s First Amendment right not to be compelled to express or associate with ideas with which she disagrees. Although the Supreme Court has grappled with that intersection before, it has not yet decided a case in this particular context, where the public accommodation at issue is a retail business selling a service, like cake-making, that is asserted to involve artistic expression. [fn 7]

[fn 7] The issue is currently before the Supreme Court in a case involving a Colorado bakery that similarly refused to make a wedding cake for a same-sex couple. Craig v. Masterpiece Cakeshop, Inc.

It is that asserted artistic element that complicates the First Amendment analysis—and, ultimately, distinguishes this case from the precedents on which the parties rely. Generally speaking, the First Amendment does not prohibit government regulation of “commerce or conduct” whenever such regulation indirectly burdens speech. . . .

When, however, the government regulates activity that involves a “significant expressive element,” some degree of First Amendment scrutiny is warranted. Arcara v. Cloud Books, Inc., 478 US 697, 706, 106 S Ct 3172, 92 L Ed 2d 568 (1986); id. at 705 (reasoning that the “crucial distinction” between government actions that trigger First Amendment scrutiny and those that do not is whether the regulated activity “manifests” an “element of protected expression”).

In the discussion that follows, we conclude that the Kleins have not demonstrated that their wedding cakes invariably constitute fully protected speech, art, or other expression, and we therefore reject the Kleins’ position that we must subject BOLI’s order to strict scrutiny under the First Amendment. At most, the Kleins have shown that their cake-making business includes some arguably expressive elements as well as non-expressive elements, so as to trigger intermediate scrutiny. We assume (without deciding) that that is true, and then conclude that BOLI’s order nonetheless survives intermediate scrutiny because any burden on the Kleins’ expressive activities is no greater than is essential to further Oregon’s substantial interest in promoting the ability of its citizens to participate equally in the marketplace without regard to sexual orientation.

(1)     “Public accommodations” and the First Amendment

Oregon enacted its Public Accommodation Act in 1953. See Or Laws 1953, ch 495. The original act guaranteed the provision of “full and equal accommodations, advantages, facilities and privileges * * * without any distinction, discrimination or restriction on account of race, religion, color, or national origin.” Former ORS 30.670 (1953), renumbered as ORS 659A.403 (2001). It applied to “any hotel, motel or motor court, any place offering to the public food or drink for consumption on the premises, or any place offering to the public entertainment, recreation or amusement.” Former ORS 30.675 (1953), renumbered as ORS 659A.400 (2001).

Oregon’s statute was thus similar in scope to Title II of the federal Civil Rights Act of 1964, which prohibits discrimination “on the ground of race, color, religion, or national origin” in three broad categories of public accommodations: those that provide lodging to transient guests, those that sell food for consumption on the premises, and those that host “exhibition[s] or entertainment,” such as theaters and sports arenas. Pub L 88-352, Title II, § 201, 78 Stat 243 (1964), codified as 42 USC § 2000a(b). When the United States Supreme Court upheld the public accommodations provisions of Title II in 1964, it observed that the constitutionality of state public accommodations laws at that point had remained “unquestioned,” citing previous instances in which it had “rejected the claim that the prohibition of racial discrimination in public accommodations interferes with personal liberty.” Atlanta Motel v. United States, 379 US 241, 260-61, 85 S Ct 348, 13 L Ed 2d 258 (1964).

Over two decades, the Oregon legislature incrementally expanded the definition of “place of public accommodation” to include “trailer park[s]” and “campground[s],” Or Laws 1957 ch 724, § 1, and then to places “offering to the public food or drink for consumption on or off the premises,” Or Laws 1961, ch 247, § 1 (emphasis added). Then, in 1973, the legislature significantly expanded the definition to include “any place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements or otherwise,” subject to an exception for “any institution, bona fide club or place of accommodation which is in its nature distinctly private.” Or Laws 1973, ch 714, § 2 (emphasis added). Other states similarly enlarged the scope of their public-accommodations laws over time. See, e.g., Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 US 557, 571-72, 115 S Ct 2338, 132 L Ed 2d 487 (1995) (describing the ways in which the Massachusetts legislature had “broaden[ed] the scope of” the state’s public accommodations law); Roberts v. United States Jaycees, 468 US 609, 624, 104 S Ct 3244, 82 L Ed 2d 462 (1984) (observing that Minnesota had “progressively broadened the scope of its public accommodations law in the years since it was first enacted, both with respect to the number and type of covered facilities and with respect to the groups against whom discrimination is forbidden”).

First Amendment challenges to the application of public-accommodations laws—and other forms of anti- discrimination laws—have been mostly unsuccessful. See, e.g., Roberts, 468 US at 625-29 (rejecting argument that a private, commercial association had a First Amendment right to exclude women from full membership); Hishon v. King & Spalding, 467 US 69, 78, 104 S Ct 2229, 81 L Ed 2d 59 (1984) (rejecting law firm’s claim that prohibiting the firm from discriminating on the basis of gender in making partnership decisions violated members’ First Amendment rights to free expression and association); Runyon v. McCrary, 427 US 160, 175-76, 96 S Ct 2586, 49 L Ed 2d 415 (1976) (rejecting private schools’ claim that they had a First Amendment associational right to discriminate on the basis of race in admitting students). The United States Supreme Court has repeatedly acknowledged that public accommodations statutes in particular are “well within the State’s usual power to enact when a legislature has reason to believe that a given group is the target of discrimination.” Hurley, 515 US at 572. The Court has further acknowledged that states enjoy “broad authority to create rights of public access on behalf of [their] citizens,” in order to ensure “wide participation in political, economic, and cultural life” and to prevent the “stigmatizing injury” and “the denial of equal opportunities” that accompanies invidious discrimination in public accommodations. Roberts, 468 US at 625. And the Court has recognized a state’s interest in preventing the “unique evils” that stem from “invidious discrimination in the distribution of publicly available goods, services, and other advantages.” Id. at 628.

However, as states adopted more expansive definitions of “places of public accommodation,” their anti-discrimination statutes began to reach entities that were different in kind from the commercial establishments that were the original target of public accommodations laws. As a result, on two occasions, the Court held that the application of such laws violated the First Amendment.

First, in Hurley, the court held that Massachusetts’s public accommodations law could not be applied to require a St. Patrick’s Day parade organizer to include a gay-rights group in its parade. 515 US at 573. Observing that state public accommodations laws do not, “as a general matter, violate the First or Fourteenth Amendments,” the Court went on to conclude that the Massachusetts law had been “applied in a peculiar way” to a private parade, a result that “essentially requir[ed]” the parade organizers to “alter the expressive content of their parade” by accommodating a message (of support for gay rights) that they did not want to include. Id. at 572-73 (emphasis added). The Court further reasoned that such an application of the statute “had the effect of declaring the [parade] sponsors’ speech itself to be the public accommodation,” which violated “the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” Id. at 573.

Following Hurley, the Court decided Boy Scouts of America v. Dale, 530 US 640, 120 S Ct 2446, 147 L Ed 2d 554 (2000) (Dale), in which it held that applying New Jersey’s public accommodations law to require the Boy Scouts to admit a gay scoutmaster violated the group’s First Amendment right to freedom of association. The Court observed that, over time, public accommodations laws had been expanded to cover more than just “traditional places of public accommodation—like inns and trains.” Id. at 656. According to the Court, New Jersey’s definition of a “place of public accommodation” was “extremely broad,” particularly because the state had “applied its public accommodations law to a private entity without even attempting to tie the term ‘place’ to a physical location.” Id. at 657. The court dis- tinguished Dale from prior cases in which it held that public accommodations laws posed no First Amendment problem, observing that, in those prior cases, the law’s enforcement did not “materially interfere with the ideas that the organization sought to express.” Id.

Thus, Hurley and Dale demonstrate that the First Amendment may stand as a barrier to the application of state public accommodations laws when such laws are applied to “peculiar” circumstances outside of the usual commercial context. See Dale, 530 US at 657 (“As the definition of ‘public accommodation’ has expanded from clearly commercial entities, such as restaurants, bars, and hotels, to member- ship organizations such as the Boy Scouts, the potential for conflict between state public accommodations laws and the First Amendment rights of organizations has increased.”).

In this case, the Kleins concede that Sweetcakes is a “place of public accommodation” under Oregon law because it is a retail bakery open to the public. But the Kleins contend that, as in Hurley and Dale, application of ORS 659A.403 in this case violates their First Amendment rights.

(2)     First Amendment precedent

BOLI and the Kleins offer competing United States Supreme Court precedent that, they argue, clearly requires a result in their respective favors. We begin our analysis by explaining why we do not regard the authorities cited by the parties as controlling.

The Kleins argue that the effect of BOLI’s final order is to compel them to express a message—a celebration of same-sex marriage—with which they disagree. They pri- marily draw on two interrelated lines of First Amendment cases that, they contend, preclude the application of ORS 659A.403 here.

First, the Kleins rely on cases holding that the government may not compel a person to speak or promote a government message with which the speaker does not agree. See, e.g., Board of Education v. Barnette, 319 US 624, 63 S Ct 1178, 87 L Ed 1628 (1943) (holding that a state may not sanction a public-school student or his parents for the student’s refusal to recite the Pledge of Allegiance or salute the flag of the United States); Wooley v. Maynard, 430 US 705, 97 S Ct 1428, 51 L Ed 2d 752 (1977) (holding that New Hampshire could not force a person to display the “Live Free or Die” state motto on his license plate).

We do not consider that line of cases to be helpful here. In “compelled speech” cases like Barnette and Wooley, the government prescribed a specific message that the individual was required to express. ORS 659A.403 does nothing of the sort; it is a content-neutral regulation that is not directed at expression at all. It does not even regulate cake-making; it simply prohibits the refusal of service based on membership in a protected class. The United States Supreme Court has repeatedly held that such content-neutral regulations—although they may have incidental effects on an individual’s expression—are an altogether different, and generally permissible, species of government action than a regulation of speech. See Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 US 47, 62, 126 S Ct 1297, 164 L Ed 2d 156 (2006) (FAIR) (“[I]t has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” (Internal quotation marks omitted.)); R. A. V. v. St. Paul, 505 US 377, 385, 112 S Ct 2538, 120 L Ed 2d 305 (1992) (“We have long held * * * that nonverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses * * *.”). In short, we reject the Kleins’ analogy of this case to Barnette and Wooley.

Second, the Kleins rely heavily on Hurley and Dale, which, as discussed above, invalidated the application of public accommodations statutes in “peculiar” circumstances outside of the usual commercial context. The difficulty with that analogy is that this case does involve the usual commercial context; Sweetcakes is not a private parade or membership organization, and it is hardly “peculiar,” as that term was used in Hurley, to apply ORS 659A.403 to a retail bakery like Sweetcakes that is open to the public and that exists for the purpose of engaging in commercial transactions. Indeed, the Kleins accept the premise that Sweetcakes is a place of public accommodation under Oregon law, and that, as such, it must generally open its doors to customers of all sexual orientations, regardless of the Kleins’ religious views about homosexuality. Thus, if the Kleins are to succeed in avoiding compliance with the statute, it cannot be because their activity occurs outside the ordinary commercial context that the government has wide latitude to regulate, as was the case in Hurley and Dale. The Kleins must find support elsewhere.

In BOLI’s view, on the other hand, the Kleins’ arguments are disposed of by the United States Supreme Court’s decision in FAIR. In that case, an association of law schools and law faculty (FAIR) sought to enjoin the enforcement of the Solomon Amendment, a federal law that requires higher-education institutions, as a condition for receiving federal funds, to provide military recruiters with the same access to their campuses as non-military recruiters. 547 US at 52-55. Because FAIR opposed the military’s policy at that time regarding homosexual service-members, FAIR argued that the equal-access requirement violated the schools’ First Amendment rights to freedom of speech and association. Id. at 52-53.

The Court rejected FAIR’s compelled-speech argument, reasoning that the Solomon Amendment “neither limits what law schools may say nor requires them to say anything,” and, therefore, the law was a “far cry” from the compulsions at issue in Barnette and Wooley. Id. at 60, 62. The Court acknowledged that compliance with the Solomon Amendment would indirectly require the schools to “speak” in a sense because it would require the schools to send emails and post notices on behalf of the military if they chose to do so for other recruiters. Nevertheless, the Court found it dispositive that the Solomon Amendment did not “dictate the content of the speech at all, which is only ‘compelled’ if, and to the extent [that,] the school provides such speech for other recruiters.” Id. The Court distinguished that situation from those where “the complaining speaker’s own message was affected by the speech it was forced to accommodate.” Id. at 63-64 (citing, inter alia, Hurley, 515 US at 568).

In BOLI’s view, this case is like FAIR because ORS 659A.403 does not directly compel any speech; even if one considers the Kleins’ cake-making to involve some element of expression, the law only compels the Kleins to engage in that expression for same-sex couples “if, and to the extent” that the Kleins do so for the general public.

This case is distinguishable from FAIR, however, in a significant way. Essential to the holding in FAIR was that the schools were not compelled to express a message with which they disagreed. The schools evidently did not assert, nor did the Supreme Court contemplate, that there was a meaningful ideological or expressive component to the emails or notices themselves, which merely conveyed factual information about the presence of recruiters on campus. The Court thus distinguished the case from Barnette and Wooley, cases that addressed the harm that results from true compelled speech—that is, depriving a person of autonomy as a speaker and “inva[ding]” that person’s “ ‘individual freedom of mind,’ ” Wooley, 430 US at 714 (quoting Barnette, 319 US at 637); see Hurley, 515 US at 576 (“[W]hen dissemination of a view contrary to one’s own is forced upon a speaker intimately connected with the communication advanced, the speaker’s right to autonomy over the message is compromised.”).

Here, unlike in FAIR, the Kleins very much do object to the substantive content of the expression that they believe would be compelled. They argue that their wedding cakes are works of art that express a celebratory message about the wedding for which they are intended, and that the Kleins cannot be compelled to create that art for a wedding that they do not believe should be celebrated. And there is evidentiary support for the Kleins’ view, at least insofar as every wedding cake that they create partially reflects their own creative and aesthetic judgment. Whether that is sufficient to make their cakes “art,” the creation of which the government may not compel, is a question to which we will turn below, but even the Kleins’ subjective belief that BOLI’s order compels them to express a specific message that they ideologically oppose makes this case different from FAIR.

That fact is also what makes this case difficult to compare to other public accommodations cases that the United States Supreme Court has decided. It appears that the Supreme Court has never decided a free-speech challenge to the application of a public accommodations law to a retail establishment selling highly customized, creative goods and services that arguably are in the nature of art or other expression.

To put the problem into sharper focus, we see no reason in principle why the services of a singer, composer, or painter could not fit the definition of a “place of public accommodation” under ORS 659A.400. One can imagine, for example, a person whose business is writing commissioned music or poetry for weddings, or producing a sculpture or portrait of the couple kissing at an altar. One can also imagine such a person who advertises and is willing to sell those services to the general public, but who holds strong religious convictions against same-sex marriage and would feel her “freedom of mind” violated if she were compelled to produce her art for such an occasion. Cf. Barnette, 319 US at 637. For the Kleins, this is that case. BOLI disagrees that a wedding cake is factually like those other examples, but the legal point that those examples illustrate is that existing public accommodations case law is awkwardly applied to a person whose “business” is artistic expression. The Court has not told us how to apply a requirement of nondiscrimination to an artist.

We believe, moreover, that it is plausible that the United States Supreme Court would hold the First Amendment to be implicated by applying a public accommodations law to require the creation of pure speech or art. If BOLI’s order can be understood to compel the Kleins to create pure “expression” that they would not otherwise create, it is possible that the Court would regard BOLI’s order as a regulation of content, thus subject to strict scrutiny, the test for regulating fully protected expression. See Hurley, 515 US at 573 (application of public accommodations statute violated the First Amendment where it “had the effect of declaring the sponsors’ speech itself to be the public accommodation,” thus infringing on parade organizers’ “autonomy to choose the content of [their] own message”); see also Riley v. National Federation of the Blind, 487 US 781, 795- 98, 108 S Ct 2667, 101 L Ed 2d 669 (1988) (explaining that “[m]andating speech that a speaker would not otherwise make necessarily alters the content of the speech,” and subjecting such regulation to “exacting First Amendment scrutiny”).

Although the Court has not clearly articulated the extent to which the First Amendment protects visual art and its creation, it has held that the First Amendment covers various forms of artistic expression . . . . The Court has also made clear that a particularized, discernible message is not a prerequisite for First Amendment protection. [fn 8] . . .

[Fn 8] The First Amendment’s protection of artwork is distinct from the protections that extend to so-called “expressive conduct.” Expressive conduct involves conduct that may be undertaken for any number of reasons but, in the relevant instance, is undertaken for the specific purpose of conveying a message. . . . For example, a person may camp in a public park for any number of reasons, only some of which are intended to express an idea. . . . In contrast (as we understand the Supreme Court to have held), because the creation of artwork and other inherently expressive acts are unquestionably undertaken for an expressive purpose, they need not express an articulable message to enjoy First Amendment protection.

In short, although ORS 659A.403 is a content- neutral regulation that is not directed at expression, the Kleins’ arguments cannot be dismissed on that ground alone. Rather, we must decide whether the Kleins’ cake-making activity is sufficiently expressive, communicative, or artistic so as to implicate the First Amendment, and, if it is, whether BOLI’s final order compelling the creation of such expression in a particular circumstance survives First Amendment scrutiny.

(3)     Whether these cakes implicate the First Amendment

If, as BOLI argues, the Kleins’ wedding cakes are just “food” with no meaningful artistic or communicative component, then, as the foregoing discussion illustrates, BOLI’s final order does not implicate the First Amendment; the Kleins’ objection to having to “speak” as a result of ORS 659A.403 is no more powerful than it would be coming from the seller of a ham sandwich. On the other hand, if and to the extent that the Kleins’ wedding cakes constitute artistic or communicative expression, then the First Amendment is implicated by BOLI’s final order. In short, we must decide whether the act that the Kleins refused to perform—to design and create a wedding cake—is “sufficiently imbued with elements of communication” so as to “fall within the scope” of the First Amendment. . . .

Consequently, the question is whether that customary practice, and its end product, are in the nature of “art.” As noted above, if the ultimate effect of BOLI’s order is to compel the Kleins to create something akin to pure speech, then BOLI’s order may be subject to strict scrutiny. If, on the other hand, the Kleins’ cake-making retail business involves, at most, both expressive and non-expressive components, and if Oregon’s interest in enforcing ORS 659A.403 is unrelated to the content of the expressive components of a wedding cake, then BOLI’s order need only survive intermediate scrutiny to comport with the First Amendment. . . .

The record reflects that the Kleins’ wedding cakes follow a collaborative design process through which Melissa uses her customers’ preferences to develop a custom design, including choices as to “color,” “style,” and “other decorative detail.” Melissa shows customers previous designs “as inspiration,” and she then draws “various designs on sheets of paper” as part of a dialogue with the customer. From that dialogue, Melissa “conceives” and customizes “a variety of decorating suggestions” as she ultimately finalizes the design. Thus, the process does not simply involve the Kleins executing precise instructions from their customers; instead, it is clear that Melissa uses her own design skills and aesthetic judgments.

Therefore, on this record, the Kleins’ argument that their products entail artistic expression is entitled to be taken seriously. That being said, we are not persuaded that the Kleins’ wedding cakes are entitled to the same level of constitutional protection as pure speech or traditional forms of artistic expression.

In order to establish that their wedding cakes are fundamentally pieces of art, it is not enough that the Kleins believe them to be pieces of art. See Nevada Comm’n on Ethics v. Carrigan . . . (“[T]he fact that a nonsymbolic act is the product of deeply held personal belief—even if the actor would like to convey his deeply held personal belief— does not transform action into First Amendment speech.” (Emphasis in original.)); see also Clark v. Community for Creative Non-Violence . . . (the burden of proving that an activity is protected expression is on the person asserting First Amendment protection for that activity).

For First Amendment purposes, the expressive character of a thing must turn not only on how it is subjectively perceived by its maker, but also on how it will be perceived and experienced by others. . . . Here, although we accept that the Kleins imbue each wedding cake with their own aesthetic choices, they have made no showing that other people will necessarily experience any wedding cake that the Kleins create predominantly as “expression” rather than as food.

Although the Kleins’ wedding cakes involve aesthetic judgments and have decorative elements, the Kleins have not demonstrated that their cakes are inherently “art,” like sculptures, paintings, musical compositions, and other works that are both intended to be and are experienced predominantly as expression. Rather, their cakes, even when custom-designed for a ceremonial occasion, are still cakes made to be eaten. Although the Kleins themselves may place more importance on the communicative aspect of one of their cakes, there is no information in this record that would permit an inference that the same is true in all cases for the Kleins’ customers and the people who attend the weddings for which the cakes are created. Moreover, to the extent that the cakes are expressive, they do not reflect only the Kleins’ expression. Rather, they are products of a collaborative process in which Melissa’s artistic execution is subservient to a customer’s wishes and preferences. For those reasons, we do not agree that the Kleins’ cakes can be understood to fundamentally and inherently embody the Kleins’ expression, for purposes of the First Amendment. [fn 9]

[fn 9] To be clear, we do not foreclose the possibility that, on a different factual record, a baker (or chef) could make a showing that a particular cake (or other food) would be objectively experienced predominantly as art—especially when created at the baker’s or chef’s own initiative and for her own purposes. But, as we have already explained, the Kleins never reached the point of discussing what a particular cake for Rachel and Laurel would look like; they refused to make any wedding cake for the couple. Therefore, in order to prevail, the Kleins (as they implicitly acknowledge) must demonstrate that any cake that they make through their customary practice constitutes their own speech or art. They have not done so.

We also reject the Kleins’ argument that, under the facts of this case, BOLI’s order compels them to “host or accommodate another speaker’s message” in a manner that the Supreme Court has deemed to be a violation of the First Amendment. . . .

In the only such case that involved the enforcement of a content-neutral public accommodations law, Hurley, the problem was that the speaker’s autonomy was affected by the forced intermingling of messages, with consequences for how others would perceive the content of the expression. 515 US at 576-77 (reasoning that parades, unlike cable operators, are not “understood to be so neutrally presented or selectively viewed,” and “the parade’s overall message is distilled from the individual presentations along the way, and each unit’s expression is perceived by spectators as part of the whole” (emphasis added)). Here, because the Kleins refused to provide their wedding-cake service to Rachel and Laurel altogether, this is not a situation where the Kleins were asked to articulate, host, or accommodate a specific message that they found offensive. It would be a different case if BOLI’s order had awarded damages against the Kleins for refusing to decorate a cake with a specific message requested by a customer (“God Bless This Marriage,” for example) that they found offensive or contrary to their beliefs. . . .

The Kleins’ additional concern, as we understand it, is that a wedding cake communicates a “celebratory message” about the wedding for which it is intended, and the Kleins do not wish to “host” the message that same-sex weddings should be celebrated. But, unlike in Hurley, the Kleins have not raised a nonspeculative possibility that anyone attending the wedding will impute that message to the Kleins. We think it more likely that wedding attendees understand that various commercial vendors involved with the event are there for commercial rather than ideological purposes. Moreover, to the extent that the Kleins subjectively feel that they are being “associated” with the idea that same-sex marriage is worthy of celebration, the Kleins are free to engage in their own speech that disclaims such support. Cf. FAIR, 547 US at 65 (rejecting argument that law schools would be perceived as supporting any speech by recruiters by simply complying with the Solomon Amendment; noting that nothing prevented the schools from expressing their views in other ways).

In short, we disagree that the Kleins’ wedding cakes are invariably in the nature of fully protected speech or artistic expression, and we further disagree that BOLI’s order forces the Kleins to host, accommodate, or associate with anyone else’s particular message. Thus, because we conclude that BOLI’s order does not have the effect of compelling fully protected expression, it does not trigger strict scrutiny under the First Amendment.

As noted above, however, BOLI’s order is still arguably subject to intermediate First Amendment scrutiny if the Kleins’ cake-making activity involves both expressive and non-expressive elements. O’Brien, 391 US at 376 (“[W]hen ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important govern- mental interest in regulating the nonspeech element can jus- tify incidental limitations on First Amendment freedoms.”); see also Turner Broadcasting System, Inc., 512 US at 661-62.

Here, we acknowledge that the Kleins’ cake-making process is not a simple matter of combining ingredients and follow- ing a customer’s precise specifications. Instead, based on the Kleins’ customary practice, the ultimate effect of BOLI’s order is to compel them to engage in a collaborative process with a customer and to create a custom product that they would not otherwise make. The Kleins’ argument that that process involves individualized aesthetic judgments that are themselves within the realm of First Amendment protected expression is not implausible on its face.

Ultimately, however, we need not resolve whether that argument is correct. That is because, even assuming (without deciding) that the Kleins’ cake-making business involves aspects that may be deemed “expressive” for purposes of the First Amendment, BOLI’s order is subject, at most, to intermediate scrutiny, and it survives such scrutiny, as explained below. . .