The Constitution Doesn't Allow Businesses to Discriminate

by Mat dos Santos, Legal Director

August 29, 2016 - No one should be turned away from a business just because of who they are. When Sweet Cakes co-owner Aaron Klein refused to make a wedding cake for a lesbian couple, he broke Oregon anti-discrimination laws. Discrimination is degrading, and harms not only the individual or targeted group, but society as a whole. Our state has a long-standing tradition of protecting people from businesses that discriminate because Oregonians value fairness and equality.

sign that reads open for business open for all;

And let’s be real, selling a wedding cake doesn’t mean a business owner is endorsing a marriage, or agreeing with everything the customer believes. It simply means they are providing services to the public, and that their business is open to everyone on the same terms. For many of us, this is just the Golden Rule — treating others as we would like to be treated — but, it is also required by law in Oregon and elsewhere.

The Kleins have argued that they should be able to discriminate against same-sex couples and, presumably, anyone else their personal religion disfavors. They say that some of our most fundamental freedoms, the freedoms of speech and religion, give them a license to discriminate.

Freedom of religion and freedom of speech are fundamental rights protected by the Oregon and federal constitutions. But those freedoms don’t allow any of us to harm others.

Using religion to discriminate is wrong, both morally and legally. It’s also not new. Religious freedom arguments were made in support of slavery, in support of denying women the right to vote, and in support of Jim Crow laws. People who made those arguments got it wrong, just like the Kleins have. 

This doesn’t stop the Kleins, as individuals, from holding or expressing whatever beliefs they want. Even if most people find their point of view distasteful, that expression is not against the law. Shutting your doors to a class of people is.

However, in a friend-of-the-court brief we filed today, we argued that greater clarity from the state and the court would be helpful in this case. Although we agree with the fundamental conclusions that the Bureau of Labor and Industries made about the Kleins’ actions and speech, we would like to see more specificity about what statements violated the law, and how they violated it. An overly broad application of Oregon’s anti-discrimination laws could chill speech. More clarity from the court would strengthen Oregon’s anti-discrimination laws while ensuring that we have the right to express our personal opinions.

But, let’s be very clear: Discriminatory conduct does not become protected expression just because it involves words.

All Oregonians should be able to live free from discrimination. Our freedoms of speech, expression, and religion don’t give businesses a pass from anti-discrimination laws.