Christian bakers Aaron and Melissa Klein, owners of Sweetcakes by Melissa, located in Gresham, Oregon received some unexpected good news this week from the U.S. Supreme Court. Their appeal challenging the actions of the state of Oregon in fining them $135,000 and driving them out of business for refusing to use their creative talents for a same-sex wedding cake was partially successful.

What the Supreme Court did was to accept the Kleins’ case, immediately vacate (erase, as if it never existed) the lower court decision, and remand (send) the case back to the Oregon courts to look at the case again in light of the justices’ 2018 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission.

As you recall, Jack Phillips, the owner of Masterpiece Cakeshop in Lakewood, Colorado, was found by the Colorado Civil Rights Commission (Commission) to have discriminated against a homosexual couple for declining to create a same-sex wedding cake for them. In a somewhat limited-in-scope decision, the Court held that the Commission had violated Jack’s freedom of religion because of the blatant hostility it exhibited toward him, including a Commissioner who compared Phillips to Nazis and slave owners, and also called his religious views “despicable.”

The Masterpiece decision, however, never reached the central First Amendment question looming over the case: Did Phillips’ creativity in the design of custom wedding cakes amount to “speech” protected by that Amendment’s free speech clause? The Court felt there was an unresolved difference over some of the facts of the case that might have been pertinent to answering that question, so it limited the scope of the decision to the religious hostility claim.

However, the Kleins’ case contains even stronger facts than Masterpiece Cakeshop, both with regard to the state’s religious hostility toward them as well as the free speech aspects of their story.

The Kleins are represented by First Liberty, a religious liberty public interest law firm headed by Kelly Shackelford. In a press release, Shackelford praised the Supreme Court’s action: “This is a victory for Aaron and Melissa Klein and for religious liberty for all Americans. The Constitution protects speech, popular or not, from condemnation by the government,” he said. “The message from the Court is clear; government hostility toward religious Americans will not be tolerated.”

So why does the Oregon Court of Appeals get what is essentially a “do-over?” Why didn’t the U.S. Supreme Court simply take the case, hear arguments, and then render its own decision?

As it turns out, the Kleins’ case was decided by the Oregon Court of Appeals in December 2017, six months before the U.S. Supreme Court handed down Masterpiece Cakeshop. In such situations, it is common practice for the justices to send a case with similar facts and legal arguments back down for reconsideration, so that it can benefit from the lower court’s follow-up opinion.

So what happens next? The Oregon Court of Appeals will have to write a new opinion. That could mean the parties will write new briefs arguing for and against Masterpiece Cakeshop’s applicability to the Kleins’ case; perhaps a new round of oral arguments before that court; and, ultimately, a new decision.

Another legal wrinkle might accompany a new Court of Appeals decision. Last time around, the Oregon Supreme Court refused to even hear the Kleins’ appeal from the Court of Appeals. Depending on what happens this time at the Court of Appeals, the Oregon high court might just decide to hear the renewed case on appeal. After that, there will undoubtedly be an appeal to the U.S. Supreme Court by the losing party.

Hopefully, that losing party next time will be the state of Oregon.

Photo from First Liberty