On July 2, Brad Avakian, commissioner of Oregon’s Bureau of Labor and Industries (BOLI), ordered Aaron and Melissa Klein to pay $135,000 in damages for “emotional, mental and physical suffering” to a lesbian couple after the Kleins — owners of Sweet Cakes by Melissa — declined to bake a cake celebrating their same-sex wedding. Avakian also ordered the Kleins to “cease and desist” from “publishing, circulating, issuing or displaying, or causing to be published . . . any communication to the effect that any of the accommodations . . . will be refused, withheld from or denied to, or that any discrimination be made against, any person on account of their sexual orientation.”
This gag order explicitly applied not just to formal business communications but also to the Klein’s statements to the press, such as, “This fight is not over. We will continue to stand strong.” (While the order itself is extraordinarily broad and explicitly targets the Kleins’ public comments about their case, BOLI has since put out a contradictory statement to Media Matters that the Kleins can still talk about the case and “their opposition to Oregon anti-discrimination laws.”)
While this ruling has binding legal force, it is critical to understand that it is not the result of a conventional court proceeding. Rather, it is the product of an administrative process that is unrecognizable to those schooled in the rules and procedures of criminal and civil courts. It is a process that is rife with conflicts of interest, ideological from the start, and often insulated from conventional and appropriate judicial review.
The Kleins’ case is no exception. BOLI investigators made an initial finding of “substantial evidence of unlawful discrimination” and ultimately handed the case over to the BOLI “prosecutor,” who tried the case in front of a BOLI administrative law judge in a proceeding that the Kleins’ attorney, Herbert Grey, described as featuring minimal rules of evidence and only the barest protections against hearsay.
The informal nature of the proceedings means that standard judicial ethics and conflict-of-interest rules don’t apply. For example, Commissioner Avakian committed an act that would typically disqualify judges in civil or criminal proceedings by publicly commenting on the Kleins’ case before it came before him. On February 5, 2013, he posted a link to a story of a bakery providing a free wedding cake to the complaining lesbian couple and declared, “Everyone has a right to their religious beliefs, but that doesn’t mean they can disobey laws already in place. Having one set of rules for everybody assures that people are treated fairly as they go about their daily lives. The Oregon Department of Justice is looking into a complaint that a Gresham bakery refused to make a wedding cake for a same-sex marriage. It started when a mother and daughter showed up at Sweet Cakes by Melissa looking for a wedding cake.”
Avakian speaks as a politician while exercising the power of a judge.
In fact, Avakian’s comments ranged far and wide — in public statements and in e-mails to LGBT organizations — not only firmly declaring his “progressive” beliefs but applauding same-sex marriage and LGBT causes more generally. Despite his role as a judge, he also functioned fully as a politician, demonstrating his bias clearly, unequivocally, and repeatedly. Politicians are expected to express their political point of view, including their views of pending cases. Judges, however, have a different obligation. Avakian speaks as a politician while exercising the power of a judge.While litigants typically have a right to appeal agency rulings to “real” courts, these appeals not only come at the end of an exhausting, expensive, and often years-long administrative process, they’re often extraordinarily limited. In Oregon, for example, according to the Kleins’ counsel, courts are required to grant considerable discretion to BOLI’s ruling, setting aside its legal conclusions only if they’re “clearly erroneous.” Yet even when courts review agency determinations de novo (granting them no legal or factual preference), administrative proceedings can powerfully shape public opinion and drain a litigant’s financial resources.
The Kleins’ case represents the deep state in action, working through administrative agencies the public dimly understands. Core constitutional liberties are adjudicated by bureaucrats who possess minimal constitutional expertise yet operate under clear political and ideological mandates. In such a circumstance, the question isn’t whether litigants like the Kleins will prevail, but whether they ever had a chance.
— David French is an attorney and a staff writer at National Review.