Klein v. Oregon Bureau of Labor and Industries, No. 18-547. Order granting certiorari, vacating judgment below, and remanding for further proceedings entered June 17, 2019.


Petitioners, who owned and operated an Oregon bakery, refused to create a custom wedding cake for a same sex marriage, citing religious beliefs.  The State of Oregon found petitioners to have violated the state’s civil rights laws and imposed a $135,000 fine.  Petitioners submitted a petition for a writ of certiorari at the beginning of the Court’s term and just today, close to the term’s end, learned that the ruling against them has been reversed, and the state court has been directed to review the case anew in light of the Court’s determination last term in Masterpiece Cakeshop v. Colorado, 586 U.S.      (2018).

Petitioners asked the Supreme Court to address significant questions of constitutional law, each of which will remain without determination for now, and perhaps, for all time.  The Kleins asked the Court to determine that requiring them to produce a cake against their religious beliefs would violate the First Amendment Free Speech and Free Exercise clauses.  The Kleins wanted asked the court to determine whether to overturn Employment Division v. Smith, 494 U.S. 872 (1990), which requires compliance with neutral laws of general applicability even if the law infringes in part on rights.  They also wanted the court to determine how to properly evaluate cases in which conflicts among fundamental constitutional rights are presented.

The Court’s response to these questions must await another day, if ever they are reached at all.  Those familiar with the Masterpiece Cakeshop determination will recall that similarly substantial issues were presented there, but were likewise not addressed.  Instead, the Court concluded that the Colorado decision showed improper animus toward religion, and reversed the state’s decision in favor of the state civil rights commission.

Those eager to see the larger constitutional questions addressed may find the Supreme Court’s reliance on the conduct of investigations and other proceedings to be frustrating.  To do so might be short-sighted, however. The Court has sent a clear signal that bias among those charged with investigating bias cannot be countenanced, and where such bias can be shown, a decision infected with improper considerations cannot stand.

This is not a minor point.  All concerned in investigative, administrative, and judicial proceedings are on notice that equanimity is to be strictly observed.  In the absence of fair mindedness, victories may prove Pyrrhic indeed.

What is also interesting is that the Supreme Court, after much time has passed in determining whether or not to grant the petition for certiorari, has asked Oregon to look again at its proceedings.  This was not done in Masterpiece Cakeshop, supra.  No doubt all interested eyes will look to Oregon to observe what will next occur.

What follows is today’s Supreme Court Order, the parties’ submissions regarding certiorari, and a copy of the Masterpiece Cakeshop decision.


Order List (06_17_2019)

Klein Cert Petition

Respondent Oregon’s Opposiition 18-547

Klein Reply re. Certiorari

Masterpiece Cakeshop v. Colorado 584 U.S. 2018

The petitioners were supported by several amicus submissions, as follows:

Institute for Faith and Family Amicus Brief

Pacific Legal Foundation Amicus Brief

Southeastern Legal Foundation Amicus Brief

Foundation for Moral Law Amicus Brief

Center for Constitutional Jurisprudence Amicus Brief

Several States’ Amicus Brief

Thomas More Society Amicus Brief

Cato Institute Amicus Brief

Public Advocate of the United States and Others’ Amicus Brief

Billy Graham Evangelistic Association and Others’ Amicus Brief

 

 

 

 

 

 

 

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