Attorneys for Aaron and Melissa Klein, former owners of the bakery Sweetcakes by Melissa, once again argued in the Oregon Court of Appeals on Tuesday after the U.S. Supreme Court vacated the appeals court’s decision for the second time, sending it back to Oregon to be reconsidered. The Supreme Court ordered the court of appeals to reconsider the case based on the decision in 303 Creative v. Elenis last year, which upheld conscience protections for small business owners.

First Liberty Institute, a Texas-based religious liberty law firm, says that it’s difficult to predict when the decision will come—it could be anywhere between a few months to a year or more. The Kleins are represented by attorneys from First Liberty and Boyden Gray PLLC. This is the third time Oregon courts have reviewed this case.

In 2013, a lesbian couple asked the Kleins to make a custom cake for their wedding. The Kleins declined to make the wedding cake due to their sincerely held religious beliefs on human sexuality and marriage—and so began Sweetcakes by Melissa v. Oregon Bureau of Labor and Industries (BOLI), a more than 10-year legal battle for the Kleins’ First Amendment rights that has effectively bankrupted and forced the bakery out of business.

BOLI argues that Sweetcakes by Melissa declined to serve the lesbian couple, not doing for them what they would do for any other couple, on the basis of their “protected status” as lesbians. Aaron Klein allegedly declined to move forward with the custom process when he learned it would be for a same-sex wedding, and before any actual designs were discussed.

The Kleins’ attorneys argue for their right under the First Amendment to decline to create art that is contrary to their religious beliefs—and that their designing and creation of custom cakes qualifies as art. Judges in Tuesday’s appellate argument grilled the Kleins’ attorney on how exactly this case involves “pure speech” and how the bakers’ actions are protected under the First Amendment.

“We think that when Melissa is sitting down and making drawings, making designs for her customers, she’s speaking just as much as a fashion designer making a customized wedding dress for a wedding,” attorney James Conde of Boyden Gray argued.

Sweetcakes by Melissa created cakes that are customized and expressive by nature. They argue that if a person wanted a simple sheet cake with white frosting, they would likely go somewhere less expensive that does not specialize in custom cakes, which is the service Sweetcakes by Melissa offered to the public. Additionally, when Sweetcakes by Melissa made wedding cakes, they drove a van with the company’s logo on the window and would usually set out business cards near the cake, thus clearly attributing to themselves the creation of the cake and promoting a certain message.

“The clients pick and choose what messages they want to play to with their cakes,” Conde said. “They don’t just refuse to make cakes for same-sex weddings. The declaration shows that they won’t bake a cake for a divorce, for example. So they are designing and making cakes based on the message.”

The U.S. Supreme Court has sent the case back to Oregon courts twice based on two Supreme Court Decisions: Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission and 303 Creative v. Elenis.

In Masterpiece, the Supreme Court ruled that Colorado officials had unjustly shown hostility toward the beliefs of Jack Phillips, a Christian baker who refused to make a wedding cake for a same-sex wedding. (Unfortunately, Phillips continues to be harassed for his religious conviction and has been forced back to court multiple times since this ruling.)

In 303 Creative, the court ruled in favor of Lorie Smith, a wedding website designer who refused to design a wedding website for a same-sex couple.

First Liberty says that this case “could have a big impact on religious freedom more broadly. It could help countless Americans in the marketplace who face hostile treatment and the real threat of losing their business or their livelihood because of their beliefs.” The Kleins have been forced out of business and endured hateful comments and death threats for over 10 years simply for living out their religious convictions.

“We welcomed and served everyone in our bakery, but we could not endorse all messages,” Melissa Klein said. “We lost everything we loved and worked so hard to build. We just want to be able to run our business without being forced to celebrate events that conflict with our religious beliefs.”

“Please keep praying, especially for the judges who heard the case,” First Liberty says. “Pray for their wisdom and discernment as they write their decision.”

Photo: First Liberty Institute