Kelly Shackelford: Why Oregon cake bakers' victory matters so much (for all of us)

On Monday, the Supreme Court of the United States threw out a lower court ruling and $135,000 penalty against bakers Aaron and Melissa Klein, for following their religious convictions. The Court’s decision is a victory not only for Aaron and Melissa Klein, but for religious liberty in general.  Now the State of Oregon will be subjected to the Masterpiece test. 

The technical term of the court’s action Monday, "GVR," stands for "grant, vacate, remand" and it requires that a majority of the Justices – at least five – vote in favor of such a remedy. 

By "grant," the court means it granted Aaron and Melissa’s appeal, filed on their behalf by First Liberty Institute and attorneys with Boyden Gray & Associates. That indicates a majority of the Justices agree that something happened to validate the appeal. In "vacating" the decision below, the Justices agreed that the Oregon Court of Appeals did not consider or got something wrong in their decision. That’s significant, but made more significant by the "remand." 


The Supreme Court sent the case back to the lower court, pointing to an area of the law that they are supposed to follow as it reconsiders their prior decision. The body of law the court specifically pointed to is the 2018 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission. 

The cases bear a remarkable similarity. Both involve cake artists who create custom wedding cakes, not cakes one might walk in and purchase "off the shelf." Both were the target of litigation by their state government for allegedly violating the state’s nondiscrimination’s laws. Both said they would serve all people but could not endorse all messages. And, both were the subject of religious hostility.

Where Colorado compared cake artist Jack Phillips to the Nazis, Oregon suggested that Aaron and Melissa needed to be "rehabilitated" before they had even had a hearing. And, while Jack was required to attend a form of sensitivity training, Aaron and Melissa had to pay a penalty of $135,000 – one of the highest penalties Oregon’s Bureau of Labor and Industries has ever imposed on anyone. Their business was bankrupted.

It seems clear that a majority of the Justices thought the Oregon Court of Appeals might come to a different conclusion should it apply the standard in Masterpiece to Aaron and Melissa’s case. 

That standard requires basic fairness. As Justice Kennedy explained, the clearly biased nature of Colorado’s Civil Rights Commission "cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case." After all, how can we ensure freedom if state officials employ a routinely unfair and partial system of justice? 

It also requires that the process respect the important role religion has played – and continues to play – in the lives of millions of Americans, both in private and within the public square. Citing long-settled precedent of the Supreme Court, Justice Kennedy explained that the Constitution rejects "regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices." But that is precisely what the State of Colorado did to Jack Phillips. 

And, we contend, it is what the State of Oregon has done to Aaron and Melissa Klein. Rather than act in a neutral manner toward their beliefs, state officials were biased, lacking the tolerance and respect for the religious beliefs and convictions of American citizens acting within the marketplace. 

Of course, Aaron and Melissa could have avoided all of this by just doing what the state demanded they do: bake the cake. Had they done so, they would have avoided paying a $135,000 penalty, being told in a gag order not to even talk about the situation, being told they required rehabilitation of their beliefs, and being subjected to an onslaught of vile hate speech from the general public, including death threats to them and their children.

Like the commissioners in Colorado, state officials in Oregon "endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome" in Oregon’s public square.

That is the opposite of the First Amendment’s guarantee that we may engage in the "free exercise of religion." A system that compels and coerces citizens into violating their conscience, prejudges the legitimacy of those beliefs and punishes dissent is not free. 


We shall soon know whether Oregon is able to pass the Masterpiece test. But it is vital to our liberties that these protections remain. As Justice Gorsuch noted in his concurring opinion in Masterpiece, "The Constitution protects not just popular religious exercises from the condemnation of civil authorities. It protects them all."

State officials who condemn unpopular religious beliefs and exercise fail in their duty to protect religious freedom. No matter what your beliefs personally, you never want to hand the state the power to crush and bankrupt those with whom it disagrees.