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Klein v. Oregon Bureau of Labor and Industries

Court of Appeals of Oregon

December 28, 2017

Melissa Elaine KLEIN, dba Sweetcakes by Melissa; and Aaron Wayne Klein, dba Sweetcakes by Melissa, and, in the alternative, individually as an aider and abettor under ORS 659A.406, Petitioners,
v.
OREGON BUREAU OF LABOR AND INDUSTRIES, Respondent.

          Argued and submitted March 2, 2017.

         Oregon Bureau of Labor and Industries 4414, 4514

          Adam R.F. Gustafson, Washington, D.C., argued the cause for petitioners. With him on the briefs were Tyler Smith, Anna Harmon, and Tyler Smith & Associates; Herbert G. Grey; C. Boyden Gray, Derek S. Lyons, and Boyden Gray & Associates, Washington DC; and Matthew J. Kacsmaryk, Kenneth A. Klukowski, Cleve W. Doty, and First Liberty Institute, Texas.

          Carson Whitehead, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Leigh A. Salmon, Assistant Attorney General.

          Stefan C. Johnson and Lambda Legal Defense and Education Fund, Inc., California, fled the brief amicus curiae for Rachel Bowman-Cryer, Laurel Bowman-Cryer, and Lambda Legal Defense and Education Fund, Inc.

          Peter Meza and Hogan Lovells U.S. LLP, Colorado; Jessica L. Ellsworth, Laura A. Szarmach, and Hogan Lovells U.S. LLP, Washington, DC; Nicole E. Schiavo and Hogan Lovells U.S. LLP, New York; and Seth M. Marnin, [289 Or.App. 508] Michelle N. Deutchman, David L. Barkley, Anti-Defamation League, New York, fled the brief amicus curiae for Anti-Defamation League, Bend the Arc: A Jewish Partnership for Justice, Hindu American Foundation, Interfaith Alliance Foundation, Hadassah: The Women's Zionist Organization of America, Inc., Keshet, Metropolitan Community Churches, Global Justice Institute, More Light Presbyterians, People for the American Way Foundation, African American Ministers Leadership Council, The National Council of Jewish Women, T'ruah: The Rabbinic Call for Human Rights, Union for Reform Judaism, Religious Action Center, Women of Reform Judaism, Central Conference of American Rabbis, and Women's League for Conservative Judaism.

          P. K. Runkles-Pearson, Alexander M. Naito, and Miller Nash Graham & Dunn LLP; Mathew W. dos Santos, Kelly K. Simon, and ACLU of Oregon, Inc.; Jennifer J. Middleton and Johnson Johnson & Schaller PC, fled the brief amicus curiae for ACLU Foundation of Oregon, Inc.

          Julia E. Markley, Courtney R. Peck, and Perkins Coie LLP; Richard B. Katskee, Carmen Green, and Americans United for Separation of Church and State, fled the brief amicus curiae for Americans United for Separation of Church and State.

          Before DeVore, Presiding Judge, and Garrett, Judge, and James, Judge. [*]

         [289 Or.App. 509] Case Summary: Petitioners seek review of a final order of the Bureau of Labor and Industries (BOLI) concluding that petitioners, doing business as Sweetcakes by Melissa, violated ORS 659A.403 by refusing to bake a wedding cake for the complainants, a same-sex couple, on account of their sexual orientation. The order further concluded that petitioners violated ORS 659A.409 by communicating an intention to similarly refuse service in the future. In four assignments of error, petitioners argue: (1) that BOLI erred in concluding that petitioners violated ORS 659A.403, and, in the alternative, that the statute, as applied to them, violates their federal and state constitutional rights to free expression and the free exercise of religion; (2) that BOLI's commissioner made public statements demonstrating that he was biased against petitioners, and his failure to recuse himself violated their due process rights under the Fourteenth Amendment to the United States Constitution; (3) that BOLI's damages award for the complainants' emotional distress is not supported by substantial evidence or substantial reason; and (4) that BOLI erred in concluding that petitioners violated ORS 659A.409 by communicating the intention to discriminate in the future. Held: Because petitioners' refusal to bake a cake was causally connected to the complainants' status as a same-sex couple, BOLI did not err in concluding that petitioners violated ORS 659A.403 by denying service "on account of" sexual orientation. Further, BOLI's order did not violate petitioners' right to freedom of expression under the First Amendment. Petitioners failed to demonstrate that their wedding cakes invariably constituted fully protected speech or art such that BOLI's order was subject to the highest level of First Amendment scrutiny. At most, BOLI's order was subject to intermediate scrutiny, which it survived because the order was not directed at the content of petitioners' expression, and any burden on that expression was no greater than essential to further Oregon's substantial interest in preventing invidious discrimination in the marketplace. The Court of Appeals rejected petitioners' argument under Article I, section 8, of the Oregon Constitution because it was derivative of their First Amendment argument, and petitioners did not offer a separate analysis under the Oregon Constitution. The court also rejected petitioners' free-exercise claims under both the state and federal constitutions because ORS 659A.403 was a neutral law of general applicability, and petitioners failed to demonstrate that they were targeted for enforcement because of their religion. As for the remaining assignments of error, the court rejected petitioners' due-process argument because the commissioner's statements did not evince an inability to be an impartial decision maker in a contested case; the statements did not demonstrate anything more than the commissioner's views about the law and public policy. The court further held that BOLI's damages award was supported both by substantial evidence of the complainants' emotional distress caused by the denial of service, and it was supported by substantial reason. The court agreed with petitioners, however, that BOLI erred by concluding that petitioners violated ORS 659A.409, because the statements at issue could not reasonably be understood to communicate an intention to unlawfully discriminate in the future.

         Reversed as to BOLI's conclusion that petitioners violated ORS 659A.409 and the related grant of injunctive relief; otherwise affirmed.

          [289 Or.App. 510] GARRETT, J.

         Melissa and Aaron Klein, the owners of a bakery doing business as Sweetcakes by Melissa (Sweetcakes), seek judicial review of a final order of the Bureau of Labor and Industries (BOLI) finding that the Kleins' refusal to provide a wedding cake to the complainants, a same-sex couple, violated ORS 659A.403, which prohibits a place of public accommodation from denying "full and equal" service to a person "on account of * * * sexual orientation." The order further concluded that the Kleins violated another of Oregon's public accommodations laws, ORS 659A.409, by communicating an intention to unlawfully discriminate in the future. BOLI's order awarded damages to the complainants for their emotional and mental suffering from the denial of service and enjoined the Kleins from further violating ORS 659A.403 and ORS 659A.409.

         In their petition for judicial review, the Kleins argue that BOLI erroneously concluded that their refusal to supply a cake for a same-sex wedding was a denial of service "on account of" sexual orientation within the meaning of ORS 659A.403; alternatively, they argue that the application of that statute in this circumstance violates their constitutional rights to free expression and to the free exercise of their religious beliefs. The Kleins also argue that they were denied due process of law because BOLI's commissioner did not recuse himself in this case after making public comments about it, that the damages award is not supported by substantial evidence or substantial reason, and that BOLI erroneously treated the Kleins' public statements about this litigation as conveying an intention to violate public accommodation laws in the future.

         As explained below, we reject the Kleins' construction of ORS 659A.403 and conclude that their denial of service was "on account of" the complainants' sexual orientation for purposes of that statute. As for their constitutional arguments, we conclude that the final order does not impermissibly burden the Kleins' right to free expression under the First Amendment to the United States Constitution. We conclude that, under Employment Division, Oregon Department of Human Resources v. Smith, 494 U.S. 872, 110 [289 Or.App. 511] S.Ct. 1595, 108 L.Ed.2d 876 (1990), the final order does not impermissibly burden the Kleins' right to the free exercise of their religion because it simply requires their compliance with a neutral law of general applicability, and the Kleins have made no showing that the state targeted them for enforcement because of their religious beliefs. For substantially the same reasons for which we reject their federal constitutional arguments, we reject the Kleins' arguments under the Oregon Constitution. We also reject the Kleins' arguments regarding the alleged bias of BOLI's commissioner and their challenge to BOLI's damages award. We agree with the Kleins, however, that the evidence does not support BOLI's conclusion that they violated ORS 659A.409. Accordingly, we reverse the order as to that determination and the related grant of injunctive relief. BOLI's order is otherwise affirmed.

         I. BACKGROUND

         We will discuss the relevant evidence and factual findings in greater detail within our discussion of particular assignments of error, but the following overview provides context for that later discussion.[1] The complainants, Rachel Bowman-Cryer and Laurel Bowman-Cryer, met in 2004 and had long considered themselves a couple. In 2012, they decided to marry.

         As part of the wedding planning, Rachel and her mother, Cheryl, attended a Portland bridal show.[2] Melissa Klein had a booth at that bridal show, and she advertised wedding cakes made by her bakery business, Sweetcakes. Rachel and Cheryl visited the booth and told Melissa that they would like to order a cake from her. Rachel and Cheryl were already familiar with Sweetcakes; two years earlier, [289 Or.App. 512] Sweetcakes had designed, created, and decorated a wedding cake for Cheryl's wedding, paid for by Rachel.

         After the bridal show, on January 17, 2013, Rachel and Cheryl visited the Sweetcakes bakery shop in Gresham for a cake-tasting appointment, intending to order a wedding cake. At the time of the appointment, Melissa was at home providing childcare, so her husband, Aaron, conducted the tasting.

         During that tasting, Aaron asked for the names of the bride and groom. Rachel told him that there were two brides and that their names were Rachel and Laurel. At that point, Aaron stated that he was sorry, but that Sweetcakes did not make wedding cakes for same-sex ceremonies because of his and Melissa's religious convictions. Rachel began crying, and Cheryl took her by the arm and walked her out of the shop. On the way to their car, Rachel became "hysterical" and kept apologizing to her mother, feeling that she had humiliated her.

         Cheryl consoled Rachel once they were in their car, and she assured her that they would find someone to make the wedding cake. Cheryl drove a short distance away, but then turned around and returned to Sweetcakes. This time, Cheryl reentered the shop by herself to talk with Aaron. During their conversation, Cheryl told Aaron that she had previously shared his thinking about homosexuality, but that her "truth had changed" as a result of having "two gay children." In response, Aaron quoted a Bible passage from the Book of Leviticus, stating, "You shall not lie with a male as one lies with a female; it is an abomination." Cheryl left and returned to the car, where Rachel had remained, "holding [her] head in her hands, just bawling."

         When Cheryl returned to the car, she told Rachel that Aaron had called her "an abomination, " which further upset Rachel. Rachel later said that "[i]t made me feel like they were saying God made a mistake when he made me, that I wasn't supposed to be, that I wasn't supposed to love or be loved or have a family or live a good life and one day go to heaven."

         When Rachel and Cheryl arrived home, Cheryl told Laurel what had happened. Laurel, who had been raised [289 Or.App. 513] Catholic, recognized the "abomination" reference from Leviticus and felt shame and anger. Rachel was inconsolable, which made Laurel even angrier. Later that same night, Laurel filled out an online complaint form with the Oregon Department of Justice (DOJ), describing the denial of service at Sweetcakes.

         In addition to the DOJ complaint, Laurel eventually filed a complaint with BOLI, as did Rachel, alleging that the Kleins had refused to make them a wedding cake because of their sexual orientation. BOLI initiated an investigation.

         Meanwhile, the controversy had become the subject of significant media attention. The Kleins were interviewed by, among others, the Christian Broadcast Network (CBN) and later by a radio talk show host, Tony Perkins. In the CBN interview, which was broadcast in September 2013, the Kleins explained that they did not want to participate in celebrating a same-sex marriage, wanted to live their lives in the service of God, and that, although they did not want to see their bakery business go "belly up, " they had "faith in the Lord and he's taken care of us up to this point and I'm sure he will in the future." The CBN broadcast also showed a handwritten sign, taped to the inside of the bakery's front window, which stated:

"Closed but still in business. You can reach me by email or facebook. www.sweetcakesweb.com or Sweetcakes by Melissa facebook page. New phone number will be provided on my website and facebook. This fight is not over. We will continue to stand strong. Your religious freedom is becoming not free anymore. This is ridiculous that we cannot practice our faith. The LORD is good and we will continue to serve HIM with all our heart [heart symbol]."

(Uppercase and underscoring in original; spacing altered).

         In the Perkins interview, which occurred in February 2014, Aaron explained that he and Melissa "had a feeling that [requests for same-sex wedding cakes were] going to become an issue" and that they had discussed the issue. During the interview, Aaron stated that "it was one of those situations where we said 'well I can see it is going to become an issue but we have to stand firm. It's our belief and we have a right to it, you know'"

         [289 Or.App. 514] BOLI's investigation determined that substantial evidence supported the complaints, and the agency eventually issued formal charges against the Kleins that described the initial refusal of service as well as the Kleins' subsequent participation in the CBN broadcast and Perkins interview. Specifically, BOLI alleged that the Kleins had violated ORS 659A.403, which entitles all persons "to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of *** sexual orientation, " ORS 659A.403(1), and further makes it "an unlawful practice for any person to deny full and equal accommodations, advantages, facilities and privileges of any place of public accommodation in violation of this section, " ORS 659A.403(3). BOLI further alleged that the Kleins' subsequent statements had violated another provision of the state's public accommodations laws, ORS 656A.409, which makes it unlawful to communicate an intention to discriminate in the future on account of sexual orientation.

         After the issuance of formal charges, BOLI designated an ALJ to handle the contested case proceedings, and the Kleins and BOLI engaged in extensive motions practice before the ALJ. Among those motions, the Kleins sought to disqualify BOLI's commissioner, Brad Avakian, on the ground that he was biased against them, as evidenced by his public statements about the cake controversy. In a Facebook post shortly after Laurel filed the DOJ complaint, Avakian had provided a link to a story on www.kgw.com related to the refusal of service; in that post, he wrote, "Everyone has a right to their religious beliefs, but that doesn't mean they can disobey laws that are already in place. Having one set of rules for everybody ensures that people are treated fairly as they go about their daily lives." Later, shortly after the first of the BOLI complaints was filed, an article in The Oregonian quoted Avakian as saying that "[e]veryone is entitled to their own beliefs, but that doesn't mean that folks have the right to discriminate." According to the Kleins, those statements and others indicated that Avakian had prejudged their case before the hearing. The ALJ disagreed and denied the motion to disqualify.

         [289 Or.App. 515] The Kleins and BOLI also filed cross-motions for summary judgment on multiple issues involving the merits of the case, including, as relevant on judicial review: (1) whether the complainants were denied service "on account of" their sexual orientation for purposes of Oregon's public accommodation laws; (2) if so, whether the application of those laws violates the Kleins' rights to free expression and religious worship under the state and federal constitutions; and (3) whether Aaron Klein's statements during the CBN and Perkins interviews, and the note on the Sweetcakes window, were the kinds of statements of a future intention to discriminate that are prohibited by ORS 659A.409. In an interim order on the cross-motions, the ALJ agreed with BOLI on the first two questions, concluding that the Kleins' refusal to provide a wedding cake violated ORS 659A.403, and that the statute was constitutional, both facially and as applied under the circumstances.[3] However, the ALJ agreed with the Kleins that Aaron's statements during the CBN and Perkins interviews had not been prospective; rather, the ALJ determined that those statements "are properly construed as the recounting of past events that led to the present Charges being filed, " and therefore did not violate ORS 659A.409.

         After the ALJ's rulings on the various motions, only the issue of damages remained to be decided at a hearing. BOLI alleged that each complainant was claiming damages of "at least $75, 000, " and it adduced evidence at the hearing-through testimony of the complainants and others-concerning emotional harm that the complainants suffered in the wake of the Kleins' refusal to make their wedding cake. During closing arguments, BOLI also [289 Or.App. 516] asked that the ALJ award damages for the distress that the complainants suffered as a result of media and social-media attention after the denial of service. In response, the Kleins argued that the complainants were not credible but that, even if the ALJ were to find them credible, their emotional distress was attributable to sources other than the denial of service that were not lawful bases for a damages award, such as media attention and family conflicts. The Kleins also argued that the amount of damages requested by BOLI far exceeded anything that the agency had previously sought for similar violations.

         After six days of testimony and argument regarding the damages issue, the ALJ issued a proposed final order that encompassed his earlier summary judgment and procedural rulings and also addressed the question of damages. With respect to damages, the ALJ found that Rachel had testified credibly about her emotional distress, but that Laurel had not been present at the cake refusal and had, in some respects, exaggerated the extent and severity of her emotional suffering. The ALJ concluded that there was no basis in law for awarding damages to the complainants for their emotional suffering caused by media and social-media attention. Ultimately, the ALJ determined that $75, 000 was an appropriate award to compensate Rachel for her suffering as a result of the denial of service, and that a lesser amount, $60, 000, was appropriate to compensate Laurel.

         Both the Kleins and the agency filed exceptions to the ALJ's proposed final order. BOLI, through its commissioner, Avakian, then issued its final order that, for the most part, was consistent with the ALJ's reasoning in his proposed order. Specifically, BOLI's final order affirmed the ALJ's determinations that the Kleins violated ORS 659A.403, it affirmed the ALJ's conclusion that application of that statute did not violate the Kleins' constitutional rights, and it affirmed the damages awards. However, the final order departed from the ALJ's determination in one respect: whether the Kleins had violated ORS 659A.409 by conveying an intention to discriminate in the future. On that question, the final order determined that, based on Aaron's statements during the CBN and Perkins interviews, and the handwritten sign taped to the bakery's window (stating [289 Or.App. 517] that the "fight is not over" and vowing to "continue to stand strong"), the Kleins had conveyed an intention to unlawfully discriminate in the future by refusing service based on sexual orientation. Thus, BOLI reversed the ALJ's ruling on that matter and concluded that the Kleins violated ORS 659A.409; but, BOLI did not award any damages based on that particular violation "because there is no evidence in the record that Complainants experienced any mental, emotional, or physical suffering because of it." This petition for judicial review followed.

         II. ANALYSIS

         In their petition, the Kleins raise four assignments of error. In their first assignment, they argue that BOLI erred by applying ORS 659A.403 to their refusal to make the wedding cake. Within that assignment, they argue that BOLI misinterpreted the statute to apply to the refusal; alternatively, they argue that, as applied under these circumstances, the statute abridges their rights to freedom of expression and religious exercise under the federal and state constitutions. In their second assignment, the Kleins argue that their due process rights were violated by the commissioner's failure to recuse himself. The Kleins' third assignment asserts that BOLI's damages award is not supported by substantial evidence or substantial reason. And, in their fourth assignment, they argue that BOLI erred by applying ORS 659A.409 because their statements after the refusal did not communicate an intention to discriminate in the future. We address each assignment of error in turn.

         A. First Assignment: Interpretation and Application of ORS 659A.403

         1. Meaning and scope of ORS 659A.403

         In their first assignment of error, the Kleins argue that BOLI misinterpreted ORS 659A.403-specifically, what it means to deny equal service "on account of" sexual orientation. According to the Kleins, they did not decline service to the complainants "on account of" their sexual orientation; rather, "they declined to facilitate the celebration of a union that conveys messages about marriage to which they do not [subscribe] and that contravene their religious [289 Or.App. 518] beliefs." BOLI rejected that argument, reasoning that the Kleins' "refusal to provide a wedding cake for Complainants because it was for their same-sex wedding was synonymous with refusing to provide a cake because of Complainants' sexual orientation." We, like BOLI, are not persuaded that the text, context, or history of ORS 659A.403 contemplates the distinction proposed by the Kleins.

         We review BOLI's interpretation of ORS 659A.403 for legal error, without deference to the agency's construction of the statute. ORS 183.482(8)(a); see Multnomah County Sheriffs Office v. Edwards, 361 Or. 761, 770-71, 399 P.3d 969 (2017) (where statutory terms are inexact, courts determine the meaning of the statute most likely intended by the legislature that enacted it, without any deference to an agency charged with enforcing the statute). To determine the legislature's intended meaning of ORS 659A.403, we use the analytic framework set forth in State v. Gaines, 346 Or. 160, 171-72, 206 P.3d 1042 (2009), whereby we look to the text of the statute in its context, along with any helpful legislative history.

         The text of ORS 659A.403(1) leaves little doubt as to its breadth and operation. It provides, in full:

"(1) Except as provided in subsection (2) of this section, all persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is of age, as described in this section, or older."

(Emphases added.) The phrase "on account of" is unambiguous: In ordinary usage, it is synonymous with "by reason of or "because of." Webster's Third New Int'l Dictionary 13 (unabridged ed 2002); id. at 194 (defining "because of" as "by reason of: on account of). And it has long been understood to carry that meaning in the context of antidiscrimination statutes. E.g., 18 USC § 242 (1948) (making it unlawful to deprive a person of "any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or [289 Or.App. 519] penalties, on account of such inhabitant being an alien, or by reason of his color, or race" (emphases added)).

         Thus, by its plain terms, the statute requires only that the denial of full and equal accommodations be causally connected to the protected characteristic or status-in this case, "sexual orientation, " which is defined to mean "an individual's actual or perceived heterosexuality, homosexuality, bisexuality or gender identity, regardless of whether the individual's gender identity, appearance, expression or behavior differs from that traditionally associated with the individual's sex at birth." Former ORS 174.100(6) (2013), renumbered as ORS 174.100(7) (2015).[4] Accord Hopper v. SAIF, 265 Or.App. 465, 470, 336 P.3d 530 (2014) (explaining that, because the ordinary meaning of the term "for" in context was "because of" or "on account of, " the workers' compensation statute at issue "requires a worker to prove that any failure to cooperate was because of-in other words, causally connected to-reasons beyond the worker's control" (first emphasis in original; second emphasis added)); Elk Creek Management Co. v. Gilbert, 353 Or. 565, 580-81, 303 P.3d 929 (2013) (explaining that antidiscrimination statutes often use the term "retaliation" "in conjunction with the word 'because' or other words that require a causal connection between one party's acts and another party's protected activity" (emphasis added)).

         In this case, Sweetcakes provides a service-making wedding cakes-to heterosexual couples who intend to wed, but it denies the service to same-sex couples who likewise intend to wed. Under any plausible construction of the plain text of ORS 659A.403, that denial of equal service is "on account of, " or causally connected to, the sexual orientation of the couple seeking to purchase the Kleins' wedding-cake service.

         The Kleins do not point to any text in the statute or provide any context or legislative history suggesting that we should depart from the ordinary meaning of those words. What they argue instead is that the statute is silent as to [289 Or.App. 520] whether it encompasses "gay conduct" as opposed to sexual orientation. The Kleins state that they are willing to serve homosexual customers, so long as those customers do not use the Kleins' cakes in celebration of same-sex weddings. As such, according to the Kleins, they do not discriminate against same-sex couples "on account of" their status; rather, they simply refuse to provide certain services that those same-sex couples want. The Kleins contend that BOLI's "broad equation of celebrations (weddings) of gay conduct (marriage) with gay status rewrites and expands Oregon's public accommodations law."

         We see no evidence that the drafters of Oregon's public accommodations laws intended that type of distinction between status and conduct. First, there is no reason to believe that the legislature intended a "status/conduct" distinction specifically with regard to the subject of "sexual orientation." When the legislature in 2007 added "sexual orientation" to the list of protected characteristics in ORS 659A.403, Or Laws 2007, ch 100, § 5, it was unquestionably aware of the unequal treatment that gays and lesbians faced in securing the same rights and benefits as heterosexual couples in committed relationships. During the same session that the legislature amended ORS 659A.403 (and other antidiscrimination statutes) to include "sexual orientation, " it adopted the Oregon Family Fairness Act, which recognized the "numerous obstacles" that gay and lesbian couples faced and was intended to "extend[] benefits, protections and responsibilities to committed same-sex partners and their children that are comparable to those provided to married individuals and their children by the laws of this state." Or Laws 2007, ch 99, §§ 2(3), (5). To that end, section 9 of that law provided:

"Any privilege, immunity, right or benefit granted by statute, administrative or court rule, policy, common law or any other law to an individual because the individual is or was married, or because the individual is or was an in-law in a specified way to another individual, is granted on equivalent terms, substantive and procedural, to an individual because the individual is or was in a domestic partnership or because the individual is or was, based on a domestic partnership, related in a specified way to another individual."

[289 Or.App. 521] Or Laws 2007, ch 99, § 9(1). The Kleins have not provided us with any persuasive explanation for why the legislature would have intended to grant equal privileges and immunities to individuals in same-sex relationships while simultaneously excepting those committed relationships from the protections of ORS 659A.403.[5]

         Nor does the Kleins' proposed distinction find support in the context or history of ORS 659A.403 more generally. As originally enacted in 1953, the statute (then numbered ORS 30.670) prohibited "any distinction, discrimination or restriction on account of race, religion, color or national origin." Or Laws 1953, ch 495, § 1. One of the purposes of the statute, the Supreme Court has observed, was "to prevent 'operators and owners of businesses catering to the general public to subject Negroes to oppression and humiliation.'" Schwenk v. Boy Scouts of America, 275 Or. 327, 332, 551 P.2d 465 (1976) (quoting a statement by one of the principal sponsors of the statute (emphasis removed)). Yet, under the distinction proposed by the Kleins, owners and operators of businesses could continue to oppress and humiliate black people simply by recasting their bias in terms of conduct rather than race. For instance, a restaurant could refuse to serve an interracial couple, not on account of the race of either customer, but on account of the conduct- interracial dating-to which the proprietor objected. In the absence of any textual or contextual support, or legislative history on that point, we decline to construe ORS 659A.403 in a way that would so fundamentally undermine its purpose. See King v. Greyhound Lines, Inc., 61 Or.App. 197, 203, 656 P.2d 349 (1982) (adopting an interpretation of Oregon's [289 Or.App. 522] public accommodation laws that recognizes that "the chief harm resulting from the practice of discrimination by establishments serving the general public is not the monetary loss of a commercial transaction or the inconvenience of limited access but, rather, the greater evil of unequal treatment, which is the injury to an individual's sense of self-worth and personal integrity").

         Tellingly, the Kleins' argument for distinguishing between "gay conduct" and sexual orientation is rooted in principles that they derive from United States Supreme Court cases rather than anything in the text, context, or history of ORS 659A.403. Specifically, the Kleins draw heavily on the Supreme Court's reasoning in Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993), which concerned the viability of a federal cause of action under 42 USC section 1985(3) against persons obstructing access to abortion clinics. In that case, the Supreme Court addressed, among other things, whether the petitioners' opposition to abortion reflected an animus against women in general-that is, whether, because abortion is "an activity engaged in only by women, to disfavor it is ipso facto to discriminate invidiously against women as a class." Id. at 271 (footnote omitted).

         In rejecting that theory of ipso facto discrimination, the Court observed:

"Some activities may be such an irrational object of disfavor that, if they are targeted, and if they also happen to be engaged in exclusively or predominantly by a particular class of people, an intent to disfavor that class can readily be presumed. A tax on wearing yarmulkes is a tax on Jews. But opposition to voluntary abortion cannot possibly be considered such an irrational surrogate for opposition to (or paternalism towards) women. Whatever one thinks of abortion, it cannot be denied that there are common and respectable reasons for opposing it, other than hatred of, or condescension toward (or indeed any view at all concerning), women as a class-as is evident from the fact that men and women are on both sides of the issue, just as men and women are on both sides of petitioners' unlawful demonstrations."

Id. at 270.

         [289 Or.App. 523] The Kleins argue that "[t]he same is true here. Whatever one thinks of same-sex weddings, there are respectable reasons for not wanting to facilitate them." They contend that BOLI simply "ignores Bray" and that BOLI's construction of ORS 659A.403 "fails the test for equating conduct with status" that the Supreme Court announced in that case.

         Bray, which involved a federal statute, does not inform the question of what the Oregon legislature intended when it enacted ORS 659A.403. But beyond that, Bray does not articulate a relevant test for analyzing the issue presented in this case. Bray addressed the inferences that could be drawn from opposition to abortion as a "surrogate" for sex-based animus, and it was in that context that the Supreme Court described "irrational object[s] of disfavor" that "happen to be engaged in exclusively or predominantly by a particular class of people, " 506 U.S. at 270, such that intent to discriminate against that class can be presumed.

         Here, by contrast, there is no surrogate. The Kleins refused to make a wedding cake for the complainants precisely and expressly because of the relationship between sexual orientation and the conduct at issue (a wedding). And, where a close relationship between status and conduct exists, the Supreme Court has repeatedly rejected the type of distinction urged by the Kleins. See Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez, 561 U.S. 661, 689, 130 S.Ct. 2971, 177 L.Ed.2d 838 (2010) ("[Christian Legal Society] contends that it does not exclude individuals because of sexual orientation, but rather on the basis of a conjunction of conduct and the belief that the conduct is not wrong. Our decisions have declined to distinguish between status and conduct in this context." (Citation and internal quotation marks omitted.)); Lawrence v. Texas, 539 U.S. 558, 575, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) ("When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres."). We therefore reject the Kleins' proposed distinction between status and conduct, and we hold that their refusal to serve the complainants is the type of discrimination "on account of [289 Or.App. 524] * * * sexual orientation" that falls within the plain meaning of ORS 659A.403.[6]

         The reasons for the Kleins' discrimination on account of sexual orientation-regardless of whether they are "common and respectable" within the meaning of Bray- raise questions of constitutional law, not statutory interpretation. The Kleins, in the remainder of their argument concerning the construction of ORS 659A.403, urge us to consider those constitutional questions and to interpret the statute in a way that avoids running afoul of the "Speech and Religion Clauses of the Oregon and United States constitutions." See generally State v. McNally, 361 Or. 314, 337, 392 P.3d 721 (2017) (describing the interpretive canon by which courts will "avoid an interpretation that would raise constitutional problems in application, if another reasonable interpretation of the statute would not"). However, that canon applies only where the court is faced with competing plausible constructions of the statute. See State v. Lane, 357 Or. 619, 637, 355 P.3d 914 (2015) ("The canon of interpretation that counsels avoidance of unconstitutionality applies only when a disputed provision remains unclear after examination of its text in context and in light of its enactment history"). Here, the Kleins have not made that threshold showing of ambiguity. Accordingly, we affirm BOLI's order with regard to its construction of ORS 659A.403, and we turn to the merits of the Kleins' constitutional arguments.

         2. Constitutional challenges to ORS 659A.403

         The Kleins invoke both the United States and the Oregon constitutions in arguing that the final order violates their rights to free expression and the free exercise of their religion. Oregon courts generally seek to resolve arguments under the state constitution before turning to the federal constitution. See State v. Babson, 355 Or. 383, 432-33, 326 P.3d 559 (2014) (discussing policy reasons for analyzing state constitutional claims first). In this case, however, the [289 Or.App. 525] Kleins draw almost entirely on well-developed federal constitutional principles, and they do not meaningfully develop any independent state constitutional theories. Accordingly, in the discussion that follows, we address the Kleins' federal constitutional arguments first and their state arguments second. See Church at 295 S. 18th St. v. Employment Dept., 175 Or.App. 114, 123 n 2, 28 P.3d 1185, rev den, 333 Or. 73 (2001) (noting that "[t]he Supreme Court likewise does not always pause to consider state constitutional arguments before addressing federal constitutional arguments, particularly when the parties have not asserted any independent state constitutional analysis"); see also Neumann v. Liles, 358 Or. 706, 716 n 6, 369 P.3d 1117 (2016) ("Ordinarily, we would look to our state constitution before addressing any federal constitutional issues. As noted, however, the parties to this case have argued this issue solely under the First Amendment and have not invoked Article I, section 8, of the Oregon Constitution.").

         a. Free expression

         The Kleins argue that BOLI's final order violates their First Amendment right to freedom of speech. BOLI argues that the order simply enforces ORS 659A.403, a content-neutral regulation of conduct that does not implicate the First Amendment at all. And each side argues that United States Supreme Court precedent is decisively in its favor.

         The issues before us arise at the intersection of two competing principles: the government's interest in promoting full access to the state's economic life for all of its citizens, which is expressed in public accommodations statutes like ORS 659A.403, and an individual's First Amendment right not to be compelled to express or associate with ideas with which she disagrees. Although the Supreme Court has grappled with that intersection before, it has not yet decided a case in this particular context, where the public accommodation at issue is a retail business selling a service, like cake-making, that is asserted to involve artistic expression.[7]

         [289 Or.App. 526] It is that asserted artistic element that complicates the First Amendment analysis-and, ultimately, distinguishes this case from the precedents on which the parties rely. Generally speaking, the First Amendment does not prohibit government regulation of "commerce or conduct" whenever such regulation indirectly burdens speech. Sorrell v. IMS Health Inc., 564 U.S. 552, 567, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011). When, however, the government regulates activity that involves a "significant expressive element, " some degree of First Amendment scrutiny is warranted. Arcara v. Cloud Books, Inc., 478 U.S. 697, 706, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986); id. at 705 (reasoning that the "crucial distinction" between government actions that trigger First Amendment scrutiny and those that do not is whether the regulated activity "manifests" an "element of protected expression").

         In the discussion that follows, we conclude that the Kleins have not demonstrated that their wedding cakes invariably constitute fully protected speech, art, or other expression, and we therefore reject the Kleins' position that we must subject BOLI's order to strict scrutiny under the First Amendment. At most, the Kleins have shown that their cake-making business includes some arguably expressive elements as well as non-expressive elements, so as to trigger intermediate scrutiny. We assume (without deciding) that that is true, and then conclude that BOLI's order nonetheless survives intermediate scrutiny because any burden on the Kleins' expressive activities is no greater than is essential to further Oregon's substantial interest in promoting the ability of its citizens to participate equally in the marketplace without regard to sexual orientation.

         (1) "Public accommodations" and the First Amendment

         Oregon enacted its Public Accommodation Act in 1953. See Or Laws 1953, ch 495. The original act guaranteed the provision of "full and equal accommodations, advantages, facilities and privileges * * * without any distinction, [289 Or.App. 527] discrimination or restriction on account of race, religion, color, or national origin." Former ORS 30.670 (1953), renumbered as ORS 659A.403 (2001). It applied to "any hotel, motel or motor court, any place offering to the public food or drink for consumption on the premises, or any place offering to the public entertainment, recreation or amusement." Former ORS 30.675 (1953), renumbered as ORS 659A.400 (2001). Oregon's statute was thus similar in scope to Title II of the federal Civil Rights Act of 1964, which prohibits discrimination "on the ground of race, color, religion, or national origin" in three broad categories of public accommodations: those that provide lodging to transient guests, those that sell food for consumption on the premises, and those that host "exhibition[s] or entertainment, " such as theaters and sports arenas. Pub L 88-352, Title II, § 201, 78 Stat 243 (1964), codified as 42 USC § 2000a(b). When the United States Supreme Court upheld the public accommodations provisions of Title II in 1964, it observed that the constitutionality of state public accommodations laws at that point had remained "unquestioned, " citing previous instances in which it had "rejected the claim that the prohibition of racial discrimination in public accommodations interferes with personal liberty." Atlanta Motel v. United States, 379 U.S. 241, 260-61, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964).

         Over two decades, the Oregon legislature incrementally expanded the definition of "place of public accommodation" to include "trailer park[s]" and "campground[s], " Or Laws 1957 ch 724, § 1, and then to places "offering to the public food or drink for consumption on or off the premises, " Or Laws 1961, ch 247, § 1 (emphasis added). Then, in 1973, the legislature significantly expanded the definition to include "any place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements or otherwise, " subject to an exception for "any institution, bona fide club or place of accommodation which is in its nature distinctly private." Or Laws 1973, ch 714, § 2 (emphasis added). Other states similarly enlarged the scope of their public-accommodations laws over time. See, e.g., Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 571-72, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (describing the ways in [289 Or.App. 528] which the Massachusetts legislature had "broaden[ed] the scope of the state's public accommodations law); Roberts v. United States Jaycees, 468 U.S. 609, 624, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) (observing that Minnesota had "progressively broadened the scope of its public accommodations law in the years since it was first enacted, both with respect to the number and type of covered facilities and with respect to the groups against whom discrimination is forbidden").

         First Amendment challenges to the application of public-accommodations laws-and other forms of antidiscrimination laws-have been mostly unsuccessful. See, e.g., Roberts, 468 U.S. at 625-29 (rejecting argument that a private, commercial association had a First Amendment right to exclude women from full membership); Hishon v. King & Spalding,467 U.S. 69, 78, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) (rejecting law firm's claim that prohibiting the firm from discriminating on the basis of gender in making partnership decisions violated members' First Amendment rights to free expression and association); Runyon v. McCrary,427 U.S. 160, 175-76, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976) (rejecting private schools' claim that they had a First Amendment associational right to discriminate on the basis of race in admitting students). The United States Supreme Court has repeatedly acknowledged that public accommodations statutes in particular are "well within the State's usual power to enact when a legislature has reason to believe that a given group is the target of discrimination." Hurley, 515 U.S. at 572. The Court has further acknowledged that states enjoy "broad authority to create rights of public access on behalf of [their] citizens, " in order to ensure "wide participation in political, economic, and cultural life" and to prevent the "stigmatizing injury" and "the denial of equal opportunities" that ...


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