No, Oregon Did Not “Gag” That Anti-Gay Bakery

Sweet Cakes by Melissa would never make a sweet cake like this.

Photo by Africa Studio/Shutterstock

On Friday, the Daily Signal—which consists mostly of the conservative Heritage Foundation’s press releases dressed up as news—published an article claiming that an Oregon labor commissioner had “placed an effective gag order” on a bakery that refused to serve gay couples. The story was picked up the National Review and the Weekly Standard, both of which repeated, verbatim, the “gag order” claim. Having read the names National Review and Weekly Standard, you can probably already guess that this account is absurdly exaggerated in order to further the right’s favorite narrative that gay rights are trampling on religious liberty. But it is illuminating to see how conservatives contort the facts and the law in order to shoehorn stories like this into their own cake war agenda.

I’ll start with Labor Commission Brad Avakian’s order, which, tellingly, appears nowhere in the Daily Signal’s article. Avakian found Sweet Cakes by Melissa guilty of discriminating against a lesbian couple, in violation of Oregon law. (The bakers had flatly refused to bake a cake for the couple’s commitment ceremony, citing their religious opposition to homosexuality.) Avakian ordered Sweet Cakes to pay $135,000 in damages. He also noted that the bakers had granted an interview with hate-group leader Tony Perkins, which aired on the Christian Broadcasting Network. During the interview, Melissa Klein (of Sweet Cakes) stated: “We don’t do same-sex marriage, same-sex wedding cakes.” The broadcast also displayed a note taped to Sweet Cakes’ door, which directed readers to the store’s Facebook page and stated, in part: “This fight is not over. We will continue to stand strong.”

These statements, Avakian held, clearly telegraph Klein’s intention to continue to refuse service to gay couples. That presents a new legal wrinkle, since under Oregon law, businesses may not “publish, circulate, issue or display” any “communication, notice, advertisement or sign of any kind” that suggests they will turn someone away because of their identity. It’s this law that prevents a hotel from declaring on its website “no interracial couples.” An individual hotelier, of course, retains his private First Amendment right to preach about God’s intent to separate the races—as the trial judge in Loving v. Virginia did. But when he’s speaking publicly in his official capacity as a hotelier, he may not declare that his business will refuse service to the public based on their identity.

Noting that the Kleins had run afoul of Oregon law by asserting their intention to keep discriminating against gay couples, Avakian proposed a simple solution: Stop doing that. Rather than fine the Kleins further, Avakian wrote that the couple must “cease and desist” stating that Sweet Cakes would continue to turn away gay couples. As individuals, the Kleins may declare that Oregon’s anti-discrimination law should not protect gay couples. But when speaking publicly about the future of their own business, they must not opine that they will maintain a policy of anti-gay discrimination.

That is what the ruling says, plainly and lucidly. Now, here’s how Mark Hemingway of the Weekly Standard summarized it:

According to the state, the Kleins are now forbidden from talking about the ruling against them.

That is factually incorrect. There is nothing in Avakian’s order that bars the Kleins from talking about the ruling. They can rail against it, march against its injustice, and pen Facebook screeds complaining about anti-discrimination law. What they cannot do is proclaim (publicly!) that their business will not serve gay couples. Conservatives may believe that proscription is unjust. But if so, they had better be prepared to attack laws barring business owners from publicizing their intent to discriminate against blacks, women, religious minorities, and every other protected class under Oregon law.

Incidentally, Hemingway’s latest piece marks the sixth Weekly Standard article to inveigh against the alleged persecution of the Kleins since 2013. (For the intrepid, here are the other ones.) 2013 also happens to be the most recent year for which the FBI has compiled hate-crime statistics. That year, the FBI counted 1,402 hate crimes based on sexual orientation bias. At least 14 of those occurred in Oregon. The number of articles the Weekly Standard has published decrying anti-gay hate crimes? Zero.

If I were a cynic, I’d start to wonder if the Weekly Standard’s writers are more concerned about the right of Christians to discriminate than the right of gay people to live a life free of bias-motivated violence. But I’m an optimist. So I’ll assume they simply see anti-gay hate crimes as nothing more than local crime stories.

Want to hang out with Outward? If you’ll be in or near New York City on Monday, July 13, join June Thomas, J. Bryan Lowder, and Mark Joseph Stern—and special guests Ted Allen, of Queer Eye and Chopped fame, and marriage-equality campaigner extraordinaire Evan Wolfsonfor a queer kiki at an Outward LIVE show, hosted by City Winery. Details and tickets can be found here.