BreakPoint: Sweet Cakes by Melissa, Religious Freedom, Lose on Appeal – Art in the Eye of the Beholder?

BreakPoint: Sweet Cakes by Melissa, Religious Freedom, Lose on Appeal – Art in the Eye of the Beholder? January 12, 2018

Sweet Cakes by Melissa, Religious Freedom, Lose on Appeal: ‘Art’ in the Eye of the Beholder?

The state of Oregon told a pair of bakers to make the cake or eat a ruinous fine. And sadly, a federal court agreed.

Sweet Cakes by Melissa, Religious Freedom, Lose on AppealNow stop me if you’ve heard this before: A same-sex couple asks a local bakery to make a wedding cake. The bakers, who are Christians, decline to do so on the grounds that it would violate their religious convictions.

The couple, feeling deeply aggrieved, files a complaint. The state civil rights agency finds for the same-sex couple and, in effect, forces the bakers to choose between their faith and their livelihood.

If you noticed my use of plural nouns so far, you may have guessed that I’m not talking about Jack Phillips, whose case was recently argued before the Supreme Court. No, this time I’m talking about Sweet Cakes by Melissa, and its owners, Aaron and Melissa Klein.

Not only did the Oregon Labor Commissioner rule against the Kleins, he imposed a ruinous fine on them of $135,000. A fine that high is the Commissioner telling the Kleins, not only are you wrong, you’re evil. You need to be put out of business.

The Kleins appealed the ruling to the Oregon Court of Appeals, and last month the Court upheld the Oregon Labor Commissioner. While the outcome wasn’t surprising—Oregon is a very liberal state after all—there are some aspects of the opinion that are worth noting.

First is what wasn’t said by the court. There were no comparisons to Nazis or racists, nor were there were references to Jim Crow. That separates this ruling from that of a federal judge in Telescope Media Group v. Lindsey.

That case involved two Christian videographers, Carl and Angel Larsen, who challenged parts of Minnesota’s “Human Rights Act” that would require them to service same-sex weddings. They sought the right to post a notice on their website about their policy concerning same-sex weddings.

The Federal District Court rejected their arguments and then said that what the Larsens were proposing to do was “conduct akin to a ‘White Applicants Only’ sign.”

Now thankfully, the Oregon Court of Appeals didn’t make any such crazy comparisons. Unlike the federal court in Minnesota, it took the Kleins’ claims to freedom of artistic expression seriously.

But its reasoning was tortured. It acknowledged that “the Kleins imbue each wedding cake with their own aesthetic choices,” but then added the strange and nebulous line that the Kleins “have made no showing that other people will necessarily experience any wedding cake that the Kleins create predominantly as ‘expression’ rather than as food.”

So for the Court, what makes something “art” is that they are “both intended to be and are experienced predominantly (whatever that means) as expression.”

Say what? This reasoning is nonsensical. Last May, a college student from Scotland left a pineapple on a table at a museum, and visitors treated it as if it were on display. A year earlier, a 17-year-old left a pair of glasses on the floor of a San Francisco art gallery and people stood around and took pictures of it. The Guardian called it “a work of genius.”

So pineapples and eyeglasses can be experienced as “art,” even “works of genius,” but a cake specifically designed for the context of a wedding might not be?

Look, the Court pulled this “standard” out of thin air. It was a case of, to borrow a line from Lewis Carroll, “sentence first, verdict afterwards.” The Court realized that making a cake for an event could definitely be speech, but they couldn’t allow this speech or those who made it to prevail, so it created a reason why they shouldn’t.

The fact that it’s impossible to imagine this standard being applied in any other context, or to any other direct speech, only underscores this fact.

And as I close, please visit for a special symposium. Hear what folks like Os Guinness, Ryan Anderson, Mindy Belz and others have to say about the challenges facing the Church in 2018. Again, that’s

Editor’s note:  Aaron and Melissa Klein are represented by First Liberty Institute. For up to date information about their case, visit First Liberty Institute’s case page here.

Sweet Cakes by Melissa, Religious Freedom, Lose on Appeal: ‘Art’ in the Eye of the Beholder?

Challenges like the Kleins faced with local and federal legislature and judiciary are likely to increase in the coming year. Read what Christians thinkers and leaders have to say about the issues facing the Church today; click here to visit our first symposium of the new year, “Challenges facing the Church in 2018.”


Oregon bakers lose another round in state court

  • Leigh Jones | WORLD magazine | December 28, 2017

Challenges facing the Church in 2018

  • Symposium | | January 11, 2018

First Liberty Institute

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