An attorney for Aaron and Melissa Klein, the owners of Sweet Cakes by Melissa who were recently forced to pay $136,927.07 to a lesbian couple after refusing to make a gay wedding cake, believes that the bakers’ battle could end up setting religious freedom precedents.
Ken Klukowski, an attorney with the First Liberty Institute, told TheBlaze on Tuesday that his firm has joined forces with Boyden Gray, former White House Counsel for President George H.W. Bush, in an effort to defend the Kleins’ First and Fourteenth Amendment rights.
The legal team filed a brief on Monday with the Oregon Court of Appeals on behalf of the Kleins, challenging the government’s handling of the gay cake denial and advancing five main arguments in an effort to push back against the massive judgement; the $136,927.07 that was collected is currently sitting in an escrow account while legal proceedings forge on.
“This case could very well go to the U.S. Supreme Court,” Klukowski said. “The First Amendment and Fourteenth Amendment issues that are raised in this case have never been addressed by the Supreme Court.”
Listen to the Kleins discuss their case during a February interview with The Church Boys podcast below:
The attorney said that the handling of this case in the courts could impact “millions of Americans for years to come,” explaining his belief that the Kleins should be protected and able to live out their faith through their business as they see fit.
First Liberty became involved in the Kleins’ case last fall after other attorneys that the couple was working with decided to begin an appeals process to challenge the Oregon Bureau of Labor and Industries’ final ruling demanding that the bakers pay out $135,000 to the lesbian couple who were denied a cake.
While Klukowski said that the ruling was styled to appear as though private damages were being awarded, he believes that it was intended to serve as a “form of penalty.”
Klukowski, who proceeded to outline the five main arguments that his legal team has crafted in defense of the Kleins, said that he expects that oral arguments could possibly unfold in the case later on this year.
“There are five issues in this case … and that’s what makes it a complex case for a court, raising some issues that have never been decided by most courts,” he said. “We’re in uncharted waters here, where you have people of faith punished by the government because their faith does not agree with the government’s new agenda on social issues.”
The first two arguments that the Kleins will advance deal with First Amendment issues, with Klukowski explaining that customized designs convey a specific message — an act of artistic expression that he believes is protected by the First Amendment.
“When she’s doing a wedding cake [Melissa Klein] sits down with the couple to have a long conversation with them, gets to know the couple, how they met … and then she tries to bake a cake that conveys exactly the message that the couple would want,” he said.
Klukowski continued, “In this case, Melissa and Aaron — having traditional Christian beliefs … would be forced by the government … to have to convey a message celebrating marriage between two same-sex individuals that violates their faith.”
As for the legal team’s second argument, the attorney discussed the constitutional right to the free exercise of religion, saying that some individuals on the “far left” act as though the Founding Fathers simply wanted to protect peoples’ rights to exercise their religion in church, but he said that the right to religious expression extends far beyond Sunday morning worship.
“The free exercise of religion is the right to live your daily life in accordance with your beliefs and traditions … it’s not just what you say or think in your head; it’s the ability to peaceably act about your faith,” Klukowski said. “For a business owner that means the right to run your business with your faith.”
In the case of the Kleins, the attorney said that they simply wanted to run their bakery as a “form of ministry to the community.”
“With this case, it would be a matter of — they want to run their bakery business in a way that they think is God-honoring and pleasing to God,” he added. “And for them that does not include same-sex weddings.”
Hear the Kleins’ full story in a 2015 interview with The Church Boys:
As for his third argument, Klukowski pointed to the right of due process, detailing his belief that the handling of the case by Oregon’s Bureau of Labor and Industries and Commissioner Brad Avakian was improper.
“In this administrative agency, the prosecutors are all appointed by the commissioner and they answer to the commissioner. The administrative law judges who make rulings, those are all appointed and answer by the commissioner,” he said. “Here, you have a commissioner who is judge, jury and executioner.”
According to Klukowski, Avakian was openly doing interviews with media while the case was ongoing before his agency.
“He said that they need to be rehabilitated by the government … he said all of that while the case was working its way through his agency’s process,” Klukowski said. “The due process clause of the 14th amendment guarantees the right to a fair hearing before an impartial decision maker. If he were a real judge he would have been forced off the case for showing bias.”
The attorney was referring, in part, to a 2013 interview in which Avakian told the Oregonian that the goal is to “rehabilitate” when business owners violate the law.
“The goal is never to shut down a business. The goal is to rehabilitate,” the commissioner said, speaking generally of discrimination claims. “For those who do violate the law, we want them to learn from that experience and have a good, successful business in Oregon.”
The fourth argument from the Kleins’ team will focus on the $135,000 judgment that the government forced the couple to pay, with Klukowski questioning how that large sum was calculated, calling it a “grossly excessive fine which is being done as a form of government punishment for the Kleins.”
The fifth and final argument in the legal challenge centers on what Klukowski called a “gag order” that has been purportedly placed on the Kleins, barring them from discussing their “beliefs regarding this case in the public.” There has been quite a bit of debate surrounding what, exactly, Avakian’s order said, as can be read and analyzed here.
Here’s how the Daily Signal discussed the supposed gag order in an article last year: “In fact, the Kleins are now legally required, as a result of the order issued Thursday, ‘to cease and desist from publishing, circulating, issuing or displaying, or causing to be published … any communication to the effect that any of the accommodations … will be refused, withheld from or denied to, or that any discrimination be made against, any person on account of their sexual orientation.'”
As TheBlaze previously reported, the Kleins recently payed out the $136,927.07 penalty — a necessity for them to file the appeal to their case. But rather than being paid out to the couple in question, that money is currently sitting in an escrow account pending the coming legal proceedings.
Problems for the Kleins began in 2013 after they declined to make a wedding cake for lesbian couple Rachel Cryer-Bowman and Laurel Bowman-Cryer based on the bakers’ religious views; the government subsequently awarded damages to the women.
The Kleins were originally ordered to pay the money to the couple on July 13, 2015, but repeatedly declined to do so until December.
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