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Forever hold your peace [Updated and corrected]

We have blogged before here at W4 about the shutting down of Sweet Cakes by Melissa, the Oregon bakery that refused to serve a wedding cake for a lesbian couple.

The latest news took even me by surprise. The unsurprising part was that their $135K fine has been confirmed by the relevant elected official. I'll let readers know if I find out about a genuine crowdfunding campaign to help them.

Here's the bizarre part: Labor Commissioner Brad Avakian has reinstated a "cease and desist" order that was voided even by the administrative judge in the case (the judge was on board with the $135K fine). This cease and desist order says that they may not publish or publically make any declaration of their intent to fight the case. Such statements, says Avakian, violate the portion of the public accommodations law that says that you can't express an intent not to offer services to members of the protected class.

It may be relevant here to point out that at the moment Sweet Cakes by Melissa doesn't exist. It's been shut down successfully by the leftist bullies' lawsuit. [Correction: My impression that the business had ceased to exist altogether appears to be incorrect, as the business still has a web page. I am now unable to find the link that I recall stated that the business had shut down. My guess is that they shut down their storefront and are operating out of a private home and that a report on this was the route by which my error arose. They still have a web site. Their web site says, "We here at Sweet Cakes strongly believe that when a man and woman come together to be joined as one, it is truly one of the most special days of their lives, we feel truely honored when we are chosen to do the cake for your special day." It is noteworthy that Avakian did not target this "discriminatory" statement on the web site but rather the statement, "The fight is not over" on a talk show. Maybe he just didn't get around to censoring the web site.] Nonetheless, according to Avakian, to go on a talk show and say, "The fight is not over. We will continue to stand strong," as the husband, Aaron Klein, said, is to make a discriminatory statement and violate a law. [Edited]

The relevant law being used for silencing the Kleins' statements of intent to pursue the case is here. It obviously refers to things like, "We will not serve such-and-such a group" signs or notices concerning a presently operating place of business open to the public. Avakian's application of it is insane, and frightening.

I have no brilliant comments to offer except that this new, "You can't talk about fighting these attacks against you" type of order must be overturned.

God bless the Kleins.

Comments (20)

I'll let readers know if I find out about a genuine crowdfunding campaign to help them.

Readers should recall also that GoFundMe shut down the account that was created to help them fund their defense, due to their principled stand against "discrimination" or some such garbage. The leftist Gleischaltung will deprive people even the means to defend themselves or to speak out on their own behalf as they are systematically ruined over what is, at the end of the day, a very insignificant refusal to go along.

And these people have the gall to call themselves tolerant, and the friends of freedom.

Here is what I have found on how to donate to support them. Either via Samaritan's Purse or through their church.


Lydia, have you seen this article?


It sure looks like a lot of sleazy politics was going on behind the scenes on this wretched thing.

Yes, I did know about that, Justin. I don't know the legal ins and outs of this. When is it illegal for a bureaucrat to plot and plan with an interest group to crush a "discriminatory" business? It's pretty clear that that is what Avakian did and moreover that Avakian is filled with virulent hatred against the Kleins and all similar Christian businessmen and wants to crush them into submission. By my recollection it was Avakian who said that such businessmen need to be "rehabilitated," an insanely chilling word.

Is it in general illegal for a bureaucrat handling fines in a discrimination case to meet and plan with a group representing the specially protected class in the case?

The funny thing is, it may not be. I suppose that if the claim were discrimination on the basis of disability, and if the bureaucrat in charge were a militant disability rights advocate, it wouldn't be considered to create a conflict of interest for him to meet with disability rights groups to get ideas and assure them about what he was going to do to the business that had allegedly discriminated.

It's not even clear to me that "conflict of interest" is the correct category. Isn't a bureaucrat in that position usually expected to be something of an activist himself? I would expect that as a matter of course. Now, if he were personally receiving *money* from a gay advocacy group, or especially from the actual couple bringing the suit, *that* would be a clear case of corruption.

I guess to me it's just a sign that this guy is an activist that he was meeting with this group while the case was on-going. Of course that's useful for the public to know if the public were under the naive impression that he is a mere factotum mechanically enforcing the law rather than someone ideologically committed to The Cause. But to me that isn't really news, and I'm not sure it's illegal. So, while I'm glad it has been brought out, to me that isn't really "the story" that it apparently is to some others.

Perhaps other readers who know more about conflict of interest claims can make a more intelligent comment than mine, though.

Am I understanding this correctly that the Klein's will basically be charged with discriminatory signaling if they voice their plan to continue the fight?

I also cannot help but wonder if this cease and desist is allowed to stand if it will not be used by others in the future when another business person is sued for not celebrating homosexual conduct. Basically, shut them up for the beginning and prevent them from being martyrs, so to speak, for their cause.

Precisely correct. Discriminatory signaling is what this statute is about that is being invoked. It says that a representative of the company cannot cause to be published any statement that the business will discriminate in providing the service.

I suppose future people could still be martyrs simply by stating the facts of their case and *I suppose* something of a purely legally factual nature like, "Our decision in consultation with our lawyer is to appeal this decision." Perhaps there is supposed to be some microscopic difference between that and "We will continue the fight" such that the latter is discriminatory signaling concerning future business practices.

I know that the Kleins have their own legal eagles and have to make their own decisions, but if I were in their place I would discontinue all wedding cake offers for anyone from the business now (apparently being run on a shoe string in some private venue). Therefore it could be said that the statement, "We are going to continue this fight" cannot be taken to refer to any business practices prior to a ruling in the couple's favor.

That was fast, it just seems like yesterday we were theorizing about discriminatory signaling being applied to one of these cases. Did not think it would happen in a case that was already in play. Is there any word on what additional consequences they face if they openly declare their intention to keep fighting? I am wondering if this time it could also be jail time because obviously a $135,000 fine is just not enough of a punishment...

Perhaps the scariest thing is just how many people think this is justice served and how many more are either oblivious or fearfully silent.

Did not think it would happen in a case that was already in play.

Oh, I knew it would. That is all well-established in discrimination law.

Is there any word on what additional consequences they face if they openly declare their intention to keep fighting?

I'm pretty sure the bureaucrat Avakian can have additional fines levied against them for violating the cease and desist. Again, perhaps not against a simple statement by their lawyer that they have appealed the case or something purely factual like that about the legal case.

I have to admit I'm surprised he isn't ordering them to take down the statement on their web site about a "man and a woman" coming together to be "joined as one" and being "honored" to do the cake for that man and woman's "special day." That seems to fall more under the "discriminatory signaling" claim than, "We will continue the fight" on a talk show.


"So I wonder whether a baker in Oregon (for example) could prepare a defined catalog of cakes she will offer to prepare for weddings. She produces only these design. She will sell these cakes to any customer who requests one. She will sell nothing that is not in her catalog. All of the cakes in her catalog are decorated prominently with the words, “Congratulations, Husband and Wife!”"

I have already raised the discriminatory signaling issue on Tom Gilson's blog. I assume that would be a problem; however, upon more consideration I am wondering if his idea has more merit than some ideas that have been talked about previously since it allows for no customization of the wedding cakes, they are strictly an order from a catalog purchase. Maybe that small difference means all the difference.

I will say that generally wedding cakes don't contain words, though they do often contain figures.

I have said before that my main problem with the whole "make it and let the customer take it away with him" idea is the speech act problem--that is, that a wedding cake is a particular type of cake and therefore by its very nature celebrates the wedding.

I would add to this proposal that the cake should not be delivered to the venue. That further distances the baker from the event. For that matter, someone could use the cake for some other purpose--e.g., an anniversary.

Speaking for myself, I _think_ (at the moment) it would not be a violation of conscience to make, sell, and not deliver these pre-designed cakes with this speech act inherent in them to all comers. I also think, however, that a) as you say, you probably would be sued for discriminatory signaling and b) many heterosexual couples wouldn't want them, both because wording on a wedding cake is not usual and hence would be considered to "look weird" and because of my suggestion that it not be delivered.

Photographers, musicians, and probably florists have no such out. I say "probably not florists" because most florists provide a wedding _service_ for which they go to the wedding and help everybody with their flowers, etc., etc., and naturally are supposed to be happy and positive about the wedding itself--in, of course, a "nondiscriminatory" fashion. It isn't just a matter of saying, "I don't need to know what the event is. Just tell me how many corsages you need, and you can pick 'em up on Friday."

Should being a marriage counselor, or a wedding planner, or a wedding cake maker be a ministry of a Church? A ministry of the Church has protected status at this time. Is it appropriate to include any, or all of these positions as ministry's of a parish.

Schools also face a threat. If the school is a parochial school, owned and directly under the control of a parish, then many of the positions in the school can be classified as a ministry. If the school is a parentally controlled school, run by the board of a school association; then I suspect the ministerial exemption would not work. Thus the very same positions are not a ministry; because they lack ecclesiastical coverage.

Thus Roman Catholic, Lutheran and Anglican parochial schools would be able to claim a ministerial exemption for a significant amount of their staff. The same would be true for some Baptist congregation run day schools. In general Presbyterian/Reformed Churches set their primary and secondary schools up outside of direct ecclesiastical control. A Christian School Association is established [essentially run by the parents] to oversee the administration and instruction of their schools.

A Christian School Association school could easily run afoul of the civil state the same way that Bob Jones University did.

The question then arises; is running a Christian Day School, or for that matter a Christian Boarding School, a proper function of the institutional Church? The core function of the Church is the preaching of the Word, and the administration of the sacraments; would be the argument of our Presbyterian/Reformed friends. They would rather not have their elders running their schools. They certainly do not want their elders supervising cake makers and wedding planners. They view this as a violation of the principle of sphere sovereignty.

Photographers have no easy out, except that conceivably, if they deliver printed photos, they could make it a practice always to brand their photo paper, on the back, with some wording and/or tagline that carries the message—something clear and pointed, yet without "snark." They could label CDs with something like that. Unfortunately that doesn't do the same thing the wedding cake approach does: it doesn't carry the message right into the celebration. But it might be a way for photographers to limit gay-couple requests, without violating any laws.

Florists and wedding planners have a problem I don't know how to begin to address.

Whatever other ideas may come forth, the only real answer would be for the courts to pay proper attention to the First Amendment, and to quit inventing new meanings for the Fourteenth.

In the meantime, the other real answer is for us to pray for those who oppose us, and to bless them in all ways permissible by Scripture and conscience.

This cease and desist order says that they may not publish or publically make any declaration of their intent to fight the case. Such statements, says Avakian, violate the portion of the public accommodations law that says that you can't express an intent not to offer services to members of the protected class.

While there can be found a judge somewhere that will literally throw every law and regulation out the window to persecute wholesome-minded people, I find it difficult to believe - at this stage of the game - that many judges will back up Avakian in suggesting that saying "I am going to fight the legal case" is legally equivalent to "I will not serve those people".

Even the Supreme Court recognized people can still advocate their position (with, admittedly, no direct support for the notion that they can exercise that advocacy in commercial actions).

This does not mean I think they will win in court, nor that it improbable that some time from now saying "I will fight the legal case" will be taken as a prosecutable offense. We will be persecuted more as time goes on. I just don't think it probable that Avakian's theory is the one that the legal profession right now thinks is the legal standard. He3 is going out on a limb, and we need to hack that limb off as fast and as furiously as we can - hopefully be getting him in hot water and fired.

Thomas Yeutter, I certainly think that Christian schools should apply the Hosanna Tabor ruling to their school employees (if they have a school) and to all church employees or employees of other ministries, right down to the custodian. Designate them all as "ministerial" and move that forward by having every employee rotate in leading in prayer or a Bible study or something throughout the year. As long as we _have_ Hosanna Tabor on the books, we should use it to the maximum and pray it isn't overturned or gutted.

I share your doubts however that wedding planning, photography, florists, or bakery services for weddings are properly a role of the church as such, and in any event I don't think the money is there except at some megachurch to employ a "church florist" for weddings as part of the ministerial staff!

Tom Gilson, I myself think the photographer is in one of the worst positions of all, because the photos themselves are supposed to be beautiful, positive, and celebratory. That would be in my opinion entirely contrary to the conscience of a morally traditional photographer in connection with a same-sex ceremony. No printing on the CD or photo prints can change the fact that the photographer just lent his artistic ability to create a lovely closeup of two men kissing, exchanging rings, etc.--directly praising and celebrating their romantic-sexual relationship.

Tony, I agree with you, it's insane. In fact, the administrative law judge had temporarily thrown out the gag order, but apparently Avakian the bureaucrat has the authority to reinstate it. As I said above, I don't fully understand why he put the cease and desist against the phrase, "We will continue the fight" rather than against the pointed references to a "man and a woman" on the business's home page. The disconnection between, "We will continue the fight" and "We right now refuse to serve homosexuals" is so obvious that it should go nowhere. My own inclination as the Kleins would be to take _down_ the wording on the business home page but to push _harder_ on "We will continue the fight," perhaps even going on Sean Hannity, Rush Limbaugh, etc., and saying, "This was the wording that was banned, and just to reiterate--We will continue the fight!" Meanwhile, perhaps countersue Avakian for a color of law violation of their first amendment right to free speech.

Lydia, I agree with you on the effect of photographing the wedding. My only hope for it (and it is a wan one at best) would be that gay couples would choose not to hire a person who would mark his product that way. As solutions go, it's a bad one. I don't know of any better, under current law in certain states.

Tom, I fear that Christian photographers will be best advised to forego income from engagement and wedding photo shoots. That or just cross their fingers and hope to fly under the radar.

"We will continue the fight," perhaps even going on Sean Hannity, Rush Limbaugh, etc., and saying, "This was the wording that was banned, and just to reiterate--We will continue the fight!" Meanwhile, perhaps countersue Avakian for a color of law violation of their first amendment right to free speech.

That's exactly what I meant. Avakian should not be left untouched by his outrageous abuse of authority. He should lose his job over this.

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