Attorney for former Gresham bake shop appeals fine for discrimination against gay couple.

FILE PHOTO - Aaron and Melissa KleinTwo Gresham bakers who were fined for discrimination are appealing to a higher power.

Lawyers representing Sweet Cakes By Melissa have asked the Oregon Supreme Court to revisit a ruling by the Court of Appeals, who approved in December a $135,000 fine against the bakery for refusing to make a wedding cake for Rachel and Laurel Bowman-Cryer.

The appeal was filed Thursday, March 1, by Aaron and Melissa Klein's lawyers at the First Liberty Institute and at Boyden Gray & Associates, the high-powered law firm that represented President George H.W. Bush during his time in the White House.

"Popular ideas are not in great danger of being suppressed or silenced," argued First Liberty attorney Stephanie Taub in a news release. "The true test of our commitment to freedom is when we welcome disagreement and live peaceably as neighbors anyway."

The Kleins' lawyers say pastry-making is akin to artwork — a form of speech protected by the First Amendment — and that the state can't compel artists to say something they don't believe.

In their appeal, they write that the precedent created by the Appeals Court would require a black screenprinter to make T-shirts for the Ku Klux Klan or force a feminist to cater at a frat party. They also note that the Kleins served Rachel Bowman-Cryer before, when she was buying a cake celebrating her mother's heterosexual marriage.

"The Kleins oppose same-sex marriage, not gay persons," the petition states.

When the case was before the Appeals Court, lawyers for the state highlighted the Klein's book of samples, from which anyone could order. They also noted that the Kleins refused to serve the women after learning it was for a gay wedding, not while discussing the message on the cake.

The Appeals Court then unanimously declared that cake isn't a type of speech — writing that most people see edible pastries as food, not a form of expression. That reaffirmed the decision by the Oregon Bureau of Labor and Industries, who levied the initial fine for discriminating based on sexual orientation.

While the Kleins shuttered their storefront at 44 N.E. Division Street in Gresham in 2013, the high-profile case has netted the couple an estimated $450,000 in crowdfunding and donations by 2015.

The $135,000 fine was paid some time ago, though the money was being held in escrow while the legal battle escalated.

In a similar case, a California Superior Court judge in February sided with a baker who declined to offer his services to two women planning their wedding.

The U.S. Supreme Court is also preparing a decision regarding a Colorado baker who refused to make a wedding cake for a same-sex couple, according to the Associated Press.

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