Although the Supreme Court’s recent Masterpiece Cakeshop decision reinforced the principle that government must not be hostile towards religion, it left many American business owners with more questions than answers, especially about cases where art, expression, and speech intersect with daily commerce.
Fortunately, the more recent case of Aaron and Melissa Klein may present the court with an opportunity to provide clarity and guidance to businesses, large and small, on the fundamental question of whether they may operate in accord with their deeply held convictions or be forced to abandon their First Amendment rights when they enter the marketplace.
To frame the question in constitutional terms, can the state force citizens to choose between their most sacred beliefs or their livelihood? Can government compel citizens to express a message with which they strongly disagree?
The case of Aaron and Melissa Klein does bear some resemblance to the Masterpiece Cakeshop case, but it is precisely where it differs from Masterpiece that should compel the court to hear the case. Like Masterpiece Cakeshop owner Jack Phillips, the Kleins operated a small family business, Sweet Cakes by Melissa. It offered custom-designed baked goods. Every item sold by the Kleins was a custom design. There were no “off the shelf” cakes available.
Aaron and Melissa often spent hours getting to know the clients for whom they designed wedding cakes. Melissa’s practice was to pray for God’s blessing on the marriage of the clients as she decorated their cakes. Like Phillips, the Kleins politely declined to design a cake for a same-sex wedding because of their religious beliefs on marriage, even though they had done business with the same family on other occasions.
People in America have different beliefs about same-sex marriage, but one thing all Americans should be able to agree on is that people have a right to hold different beliefs on the topic. When considering the complaint filed against the Kleins, government officials from the Oregon Bureau of Labor and Industries made statements disparaging the views of Aaron and Melissa, much like the commissioners in Colorado made against Phillips.
But shockingly, the state of Oregon went much further than Colorado. Oregon’s BOLI assessed a $135,000 penalty against the Kleins, essentially bankrupting their business and ordered Aaron and Melissa not to publicly speak their beliefs on marriage.
Jack Phillips is still in business; Aaron and Melissa Klein are not. The fate of Sweet Cakes by Melissa was directly attributable to government censorship of speech.
The Constitution protects all speech, popular or not, from condemnation by government. In other words, the government cannot bankrupt a business because the owners refuse to speak the government’s preferred message. The state of Oregon has failed in its most fundamental duty toward the Kleins.
Justice Neil Gorsuch put it best in his concurring opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission, “It is in protecting unpopular religious beliefs that we prove this country’s commitment to serving as a refuge for religious freedom.” Justice Anthony Kennedy, in NIFLA v. Becerra, reiterated, “Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief.”
In many ways the American dream is the story of the entrepreneur. We tell our children that here in a free country if you work hard there is no limit to what you can achieve. But try telling that to the children of Aaron and Melissa Klein. The Kleins’ American dream was turned into a nightmare when the very government they trusted to protect their rights did the opposite, forcing them to choose between speaking the government’s preferred message or losing everything they worked so hard to build.
Aaron and Melissa Klein, joined by millions of American business owners, are asking the court, “Will government-compelled speech be allowed to subvert freedom of expression and the free exercise of religion in America?”
For the sake of our republic, this is a question the justices must answer.
Kelly Shackelford is the president and CEO of First Liberty Institute, a nonprofit law firm dedicated to defending religious freedom for all. Read more at FirstLiberty.org.
