Masterpiece Cake Human Rights Campaign held a press conference outside the U.S. Supreme Court in October prior to delivering an amicus brief supporting gay couples in Masterpiece Cakeshop. (Photo: Diego M. Radzinschi/ALM)

The U.S. Supreme Court on Monday said it will not take up and hear arguments over whether a baker who refused on religious grounds to make a wedding cake for a same-sex couple violated a state's anti-discrimination law.

The justices vacated the lower court ruling and sent the case Klein v. Oregon Bureau of Labor & Industries back to the Oregon Court of Appeals for further consideration in light of the high court's decision last term in Masterpiece Cakeshop v. Colorado Civil Rights Commission.

In Masterpiece, the justices avoided deciding the First Amendment speech and religion claims by a Colorado baker. The 7-2 majority on June 4, 2018, reversed the commission and the Colorado Court of Appeals because the commission did not give a neutral hearing to the baker. Some commission members, Justice Anthony Kennedy said, showed hostility towards the baker's religious beliefs.

“The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be re­solved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market,” Kennedy, who announced his retirement later that month, said. Justice Brett Kavanaugh succeeded Kennedy.

In the Oregon case, Melissa and Aaron Klein owned a bakery doing business as Sweetcakes by Melissa. Rachel Bowman-Cryer and her mother, Cheryl, visited the bakery in 2013 for a cake-tasting appointment. Rachel and her longtime partner Laurel Bowman-Cryer were planning to marry.

During the tasting, Aaron Klein told them that Sweetcakes would not make wedding cakes for same-sex ceremonies because of his and Melissa's religious convictions. The couple who wanted a cake filed complaints with the Oregon bureau, alleging the Kleins refused to make them a wedding cake because of their sexual orientation.

The bureau found that the Kleins had violated the state's public accommodations law by denying “full and equal” service to a person “on account of sexual orientation” and a second public accommodations law by communicating an intention to unlawfully discriminate in the future.

The Oregon Court of Appeals agreed that their refusal to make the cakes was “on account of” the couple's sexual orientation. It also found that the bureau's final order did not impermissibly burden the Kleins' First Amendment right to free exercise of their religion because, as the U.S. Supreme Court held in 1990 in Employment Division v. Smith, the order “simply requires their compliance with a neutral law of general applicability, and the Kleins have made no showing that the state targeted them for enforcement because of their religious beliefs.”

In their Supreme Court petition, the Kleins, represented by Adam Gustafson, partner at Boyden Gray & Associates, pressed again their First Amendment speech and free exercise claims. They also asked the justices to overrule the 1990 Smith decision. The Smith majority opinion was written by Justice Antonin Scalia.

Oregon Solicitor General Benjamin Gutman countered that the Kleins denied service to the same-sex couple based on their sexual orientation before discussing the design of any cake. Under Supreme Court cases, he wrote, “baking is conduct, not speech, and Oregon may regulate that conduct for purposes unrelated to the suppression of free expression. Whether a particular cake reflecting a specific message could be protected by the First Amendment is not presented on this record.”

Read more:

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Justices Rule for Colorado Baker Who Refused to Make a Cake for Gay Wedding

Lawyer Who Lost 1995 LGBT Case Says DOJ's Reliance in 'Masterpiece' Is Misplaced