Tuesday, February 03, 2015

Oregon bakery ruled to have discriminated against lesbian couple illegally, RFRA logic backfires on business


An agency of the state government of Oregon, the Bureau of Labor and Industries, has ruled that a ("Christian") bakery in Oregon violated a state anti-discrimination ordinance when it refused to sell a wedding cake to a female couple, according to this story in ThinkProgress by Zack Ford, link here.  The business (Sweet Cakes by Melissa)  will have to pay administrative damages of as much as $150,000 to the couple (Rachel Cryer and Laurel Bowman, now Bowman-Cryer), amount to be determined later.

  
The business had even moved out of its storefront into home to strengthen its own legal theory (shown here on administrative "court" paper, here ).
  
The legal analysis is interesting. First, in the law, the distinction between “conduct” and personhood ( perhaps understood as a propensity or desire for conduct, wording well-known from the military gay ban debate of years past) is very minimal in the law, based on Lawrence v. Texas in 2003.  More subtle is the way the reasoning of the “Hobby Lobby” case applies.  The article points out that the Hobby Lobby case (Books blog, Jan. 2, 2015), the legal outcome depended on the Religious Freedom and Restoration Act (RFRA) as a federal law, but not on similar laws in some states. 
  
The analysis also denies that merely selling a commercial product already announced as available is “compelled speech”. 
  
Wikipedia attribution link for picture of high country in eastern Oregon (BLM, public domain) here.   I visited the area in 1978.

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