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Home arrow Opinion arrow Editorials arrow Cake flap won’t gain legal rights

Cake flap won’t gain legal rights


There is at first glance a certain gastronomic symmetry between Oregon’s recent flap over a gay couple who wanted to buy a wedding cake, and the civil rights movement of the 1950s and ’60s.

One of the great symbols of the latter was, of course, the lunch counter — specifically, the prevalence of “whites only” restaurant sections in the Deep South.

But given anything more than a cursory look, the validity of this comparison withers.

For one thing, the segregated lunch counter, and other restricted public accommodations, were the norm in those days, whereas we know of only one Oregon bakery whose owners won’t bake wedding cakes for same-sex couples.

For another, the activists who defied the lunch counter segregation had as their ultimate goal guaranteeing for themselves fundamental rights, chief among them suffrage and access to public universities, which are not denied to Americans based on their sexual orientation.

Aaron Klein, who owns Sweet Cakes bakery in Gresham with his wife, Melissa, said he refused to make a cake for Laurel Bowman and her fiancée because he’s a Christian and he doesn’t think gay couples should be able to legally marry. Klein said this wasn’t the first time he has declined to make a wedding cake for a same-sex couple.

Bowman’s decision to file a formal complaint against Klein with the Oregon Attorney General over a wedding cake, a product readily available at dozens of businesses in the Portland area, seems to us a clumsy attempt to achieve the worthwhile goal of securing for gay couples the same legal rights, such as hospital visitations, afforded to heterosexual couples who are married.

The dispute over the wedding cake does, though, raise an interesting question about what seems to us a conflict between Oregon’s Constitution and one of its laws.

Here’s what the Constitution says: “No law shall in any case whatever control the free exercise, and enjoyment of religious opinions, or interfere with the rights of conscience.”

But then there’s a law passed in 2007, ORS 659A.403: “all persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status....”

The law’s definition of public accommodations includes private businesses.

The Constitution seems to us intended to protect Klein’s right to express his religious opinions by, for instance, not making a wedding cake for a same-sex marriage.

Yet the law makes it clear that if he bakes wedding cakes for heterosexual couples — which he does — then he can’t refuse to do the same for a gay couple because they’re gay.

The ideal solution to this apparent legal conundrum is not to be found in a courtroom or in the Attorney General’s office, however.

What’s needed is a dollop of tolerance.

Bowman and her fiancée should tolerate Klein’s constitutional right to adhere to his religious views.

And by doing so, of course, Klein loses not only the couple hundred dollars the couple would have spent on a cake, but an unknown amount of money from other potential customers who no doubt will patronize a different bakery because they don’t agree with Klein’s stance on gay marriage.

Ultimately, we think gay couples will be more likely to gain the legal rights they want, and deserve, by focusing their efforts on legislative and electoral remedies rather than worrying about one bakery.

 
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