No, Oregon Did Not “Gag” That Anti-Gay Bakery

On Friday, the Daily Signal—which consists mostly of the conservative Heritage Foundation’s press releases dressed up as news—published an article claiming that an Oregon labor commissioner had “placed an effective gag order” on a bakery that refused to serve gay couples. But it is illuminating to see how conservatives contort the facts and the law in order to shoehorn stories like this into their own cake war agenda.

I’ll start with Labor Commission Brad Avakian’s order, which, tellingly, appears nowhere in the Daily Signal’s article. Avakian found Sweet Cakes by Melissa guilty of discriminating against a lesbian couple, in violation of Oregon law. (The bakers had flatly refused to bake a cake for the couple’s commitment ceremony, citing their religious opposition to homosexuality.) Avakian ordered Sweet Cakes to pay $135,000 in damages. He also noted that the bakers had granted an interview with hate-group leader Tony Perkins, which aired on the Christian Broadcasting Network. During the interview, Melissa Klein (of Sweet Cakes) stated: “We don’t do same-sex marriage, same-sex wedding cakes.” The broadcast also displayed a note taped to Sweet Cakes’ door, which directed readers to the store’s Facebook page and stated, in part: “This fight is not over. We will continue to stand strong.”

These statements, Avakian held, clearly telegraph Klein’s intention to continue to refuse service to gay couples. That presents a new legal wrinkle, since under Oregon law, businesses may not “publish, circulate, issue or display” any “communication, notice, advertisement or sign of any kind” that suggests they will turn someone away because of their identity. It’s this law that prevents a hotel from declaring on its website “no interracial couples.” An individual hotelier, of course, retains his private First Amendment right to preach about God’s intent to separate the races—as the trial judge in Loving v. Virginia did. But when he’s speaking publicly in his official capacity as a hotelier, he may not declare that his business will refuse service to the public based on their identity.

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