Friday, November 16, 2012

Boise’s Proposed Thoughtcrime Ordinance

"Law is concerned with external behavior and not the inner life of man."
-- Justice Felix Frankfurter, West Virginia Board of Education v. Barnette (dissent)

Ordinance O-36-12, a proposed municipal “anti-discrimination” measure being considered by the Boise City Council, would do nothing to protect people from acts of criminal violence. Instead, it would mandate the use of state-sanctioned aggression against business owners who refuse the commercial patronage of gay, lesbian, and bisexual people. 

If government has no authority to criminalize private behavior between consenting adults, by what supposed authority can it punish people who withhold their consent from a commercial transaction? Proponents of the ordinance intend to bury that question beneath a blizzard of bromides about tolerance and respect. 

 About a year ago, City Council President Maryanne Jordan was approached by two Boise residents who claimed to have been assaulted because they were gay. They also claimed that they were afraid to report the crime out of fear that they might suffer repercussions if they went public about their lifestyle. Jordan says this prompted her to devise a measure that would ban discrimination based on “sexual orientation and gender identity or expression” in housing, employment, and public accommodations. 

Jordan didn’t disclose any of the details of the alleged assault during the November 13 City Council hearing on the proposed ordinance. In this sense the story told by Jordan is typical of what the Boise Weekly calls “anecdotal reports” that “suggest a recent increase in hate-based crime” against gays and lesbians. Those unconfirmed reports have allegedly grown in number since the last time the state legislature refused to add the category of “sexual orientation” to the state anti-discrimination ordinance. 

This suggests one of two possibilities: Either Idaho has a sub-population of violent bigots who are oddly fastidious about following the state anti-discrimination law, or the people who are seeking to change the state law aren’t terribly fastidious about telling the truth.  

Idaho was among the first states to enact a “hate crimes” law. According to the most recent official tally, hate crimes – a category that includes rude comments – are all but nonexistent in Idaho. This offers a powerful argument on behalf of the second of the possibilities listed above. That argument was augmented by the turnout at the November 13 Boise City Council meeting. 

According to Boise’s NBC affiliate, “There was a line out the door, and also an overflow room for those who came for the reading [of the measure].” Literally hundreds of gay and lesbian people came to offer testimony and public support on behalf of a measure they claimed was necessary because they were paralyzed with fear over the public disclosure of their sexual identity. 

“I think what you are seeing is a group of people who are finally getting the chance to stand in front of an elected body and tell their story,” insisted Mistie Tolman, co-founder of the Add the Words Campaign (which has lobbied to change the state anti-discrimination law). “So they are coming out in droves to tell them what it’s like not to have those protections.”

Those who testified on behalf of the anti-discrimination measure weren’t boldly confronting a hostile Sanhedrin. Every public official at the event expressed support for the proposed ordinance. Boise Mayor David Bieter, who later said he was “honored” to take part in the hearing, made a point of letting the audience know that its input wasn’t necessary, and that the proposed change could be made without public testimony. 

Two more public meetings on the measure are scheduled, but the outcome of this process is as predictable a Jay Leno punchline. 

What happened on November 13 at Boise City Hall was not a deliberative political function. It was a peculiar kind of revival meeting in which the faithful gathered to declaim against the sin of discrimination – a form of iniquity they seek to eradicate through the righteous and compassionate exercise of official coercion. 

As the term is commonly used, discrimination could sometimes be considered sinful. There are situations in which it may constitute a tort. It is never a crime – that is, an act of fraud or violence that injures the property rights of another human being. 

A political government may issue edicts against discrimination, and enforce them through the application of aggressive violence. But no government has the power to turn it into an actual crime, any more than it can alter the law of gravity by an official edict. 

The only legitimate function of political government, assuming that one exists, is the protection of property rights. Boise’s proposed anti-discrimination ordinance is rooted in the denial of property rights, which – when exercised by insufficiently progressive people – are believed to undermine “fair and equal treatment” of sexual minorities and the “city’s economic well-being.” 

According to Mayor Bieter, the anti-discrimination ordinance “makes good business sense, because as we look to attract new jobs and businesses, we must demonstrate that Boise offers the same protection as other cities. In short, discrimination is bad for business and counter to our shared ideals.”

Like nearly everybody else in the political class, Bieter neither understands, nor cares to learn, how the market functions. If discrimination is truly “bad for business,” then profit-minded businessmen won’t discriminate – and the market will reward them. 

Nearly every public figure who has endorsed the anti-discrimination measure has taken refuge in a bizarre dialect that is equal parts civic boosterism and cultural bolshevism. Boise is a great and wonderful city, they insist, but it will reach its potential only if its economy is artfully managed by the wise and visionary people who rule it. This will mean, among other things, using government power to identify those who harbor views at odds with the new cultural consensus, and catechizing them at gunpoint until they recant their political heresies. 

A year ago, the same civic savants who are promoting the “business-friendly” anti-discrimination ordinance imposed a ban on smoking in both public bars and private clubs. That prohibition, which was also advertised as a way of improving Boise’s business climate, had the predictable effect of driving many club owners into financial ruin. 

Individuals who violate the smoking ban face a $69 fine for each infraction – a much milder penalty than the one prescribed for business owners who are accused of violating the anti-discrimination act.

The ordinance would apply to housing, employment, and “public accommodations.” An employer, landlord, or businessman could be found in violation of measure without committing an overt act. All that would be necessary is a complaint filed by someone who takes offense over another person’s refusal to engage in commerce. 

Thoughtcriminal Elaine Hugenin and husband.

One illustration of how this would work is offered by the case of New Mexico resident Elaine Hugenin.

In 2006, Hugenin, a wedding photographer, was approached by a woman named Vanessa Wilcock, who wanted to hire her for a “commitment ceremony” with her same-sex partner. Hugenin declined, politely explaining that she was willing to forgo that business opportunity in order to be faithful to her religious commitments. 

Where the natural law is concerned, the matter ended there. Nobody’s rights were injured, and Wilcock was free to solicit the services of another photographer. Rather than doing so, she and her partner decided to enlist the state to punish Hugenin for her thought crimes. They filed a discrimination complaint with the state’s “Human Rights Commission,” which ruled in their favor and imposed a $6,600 fine on the photographer because she had declined to engage in what should have been a voluntary commercial transaction. (It’s worth noting that New Mexico, like Idaho, does not formally recognize “same-sex marriage,” which means that the state engages in the same form of discrimination for which Hugenin was punished.) 
Vanessa Wilcock

The Hugenin case is headed to the New Mexico Supreme Court, which means that it is and will continue to be a huge financial drain on the very limited resources of a small business owner. 

Mayor Bieter and the architects of Boise’s anti-discrimination measure would probably reply that the victim was to blame for her plight, and that people who run afoul of the Boise ordinance would be able to avoid serious punishment if they would simply submit to re-education. 

Boise residents found guilty of discrimination would face up to a year in jail and a fine of up to $1,000 – unless they agreed to government-imposed “sensitivity training,” in which case they would be subject to a $100 penalty and be required to sign an agreement “to not engage in discriminatory practices in the future.” 

Significantly, section 6-02-05 of the draft ordinance stipulates that “There shall be no right to a trial by jury for an infraction citation or complaint.” This provision is facially incompatible with Article I, section 7 of the Idaho Constitution, which dictates that “The right of trial by jury shall remain inviolate” in all criminal cases.

It’s also worth noting that under Boise’s municipal code, sexual orientation discrimination would be treated as an offense as serious as an act of physical assault. What this means is that a landlord who declined to rent a home to a same-sex couple could spend as much time behind bars as an assailant who actually committed an act of physical violence against them. 

Thomas Jefferson famously said that his neighbor’s religious beliefs didn’t matter to him because they neither picked his pocket nor broke his leg. To be a crime, an act must involve aggression against the person or property of another human being – that is, it must entail either pocket-picking or leg-breaking. Boise’s proposed anti-discrimination measure, like similar enactments elsewhere, would empower uniformed leg-breakers to pick the pockets – and incarcerate the persons – of residents whose only offense would be to conduct their business and private affairs peacefully in accordance with their religious and moral beliefs. 

Discrimination isn’t a crime. However, seeking to punish it certainly is.


Dum spiro, pugno!


  1. The modern progressive do-gooder tyrant cares naught for the words of long dead white men like Jefferson.

  2. It doesn't surprise me when legislators pass bad law. Politicians are
    by nature pathological sycophants who lack those self-sacrificing
    principles the rest of us live by.

    What does shock and frighten me is the deterioration and rot of our
    judiciary which was at one time comprised of our best and brightest.

    New Hampshire is reinforcing its jury nullification laws for the very
    reason that if our judges will not strike bad laws then it should be
    the final prerogative of the jury to do so. But laws such as Grigg
    has described should not even be put before a jury. It is not the
    responsibility of the individual to shoulder the cost and burden of
    fighting bad laws, our highest jurors (judges) were intended to
    protect us from such. Let those who want to prosecute bad law
    fight the judges on appeal, not those who defend.

    The law is a shield as well as a sword.
    If a sword only, then might does make right.

    1 Corinthians 2:14
    But the natural man receiveth not the things of the Spirit of God:
    for they are foolishness unto him: neither can he know them,
    because they are spiritually discerned.

  3. excellent expose on the TALMUDIC TERRORISM in Idaho...

    now when is the trial for Horiuchi scheduled on the docket...?

  4. The majority wants this stuff. It is an active and unwavering few that keep this stuff from being like the international standard of such.

  5. One does expect this kind of garbage from the stupid lib-tards down in Boise.

    Pandering to the perverted un-godly.



  6. Ever tried talking to the average Joe about private property rights? What a disaster, as most people seem to think it is perfectly OK for some outside force (government) to dictate what others do with their own property.

    I'm not sure we can turn things around until the majority of people in this country understand the role private property (and full control over that property) plays in a truly free society. Until that happens, I think we're screwed.

    Great piece, as usual, Will.

  7. Will...excellent piece as usual. I assume that there is still a significant LDS population in Boise; I'm also assuming that many of them own businesses. I wonder how this latest edict will play out against a group whose sincerely held beliefs may incline them to violate said edict.

  8. Commie queers, what do you expect?

  9. With the influx of "lifestyle" seekers into Idaho I'm not at all surprised that they'd use the power of the state to force people at gunpoint to submit to their diktats. It's the way of your typical progressive tyrant. When you complain of something THEY do it's always "If you don't like it turn the channel" but when the shoe is on the other foot it's "Your money or your life". Their "tolerance" only extends to those of a like mind otherwise you'd better watch out! This ordinance will face a challenge all the way up should it pass and then will be struck down as it rightly should.

  10. This starts off on a faulty/ questionable premise...

    "....claimed to have been assaulted because they were gay. They also claimed that they were afraid to report the crime out of fear that they might suffer repercussions if they went public about their lifestyle....."

    Why in Gods name would they have to bring up that they were Gay in reporting an assault? What would a conjectured motive for a crime have to to with whether or not the crime occurred? I don't know if I believe this supposed discussion at all. I makes little sense.

    1. Motive is important in determining whether a crime has been committed. And being attacked for who you are is arguably worse than a random attack or robbery. It's an attack on a group rather than just an individual.

  11. I, for one, would be much more receptive to criticisms of these sorts of laws if they weren't always couched in Bronze Age mythologies. The right of people to engage in voluntary business transactions is paramount, but why do the people seeking protection from the state always have such horrid ways of thinking in the first place?

    Furthermore, it's more important that people be able to live their lives to the fullest, regardless of whether someone else's god disagrees with who and what they are. You can't control your sexual orientation anymore than you can your gender or race so why should someone be denied being a full part of society because of it? It's absurd on its face.

    All of that said I agree wholeheartedly that things like this are best left to the market to sort out. It may take longer but it's bound to have fewer unseen consequences.

  12. I assume that there is still a significant LDS population in Boise; I'm also assuming that many of them own businesses. I wonder how this latest edict will play out against a group whose sincerely held beliefs may incline them to violate said edict.

    If the past is any guide to go by, and if LDS "communities" are anything like the "evangelical Christian" communities in any given locality, something along the lines of the following will happen:

    1. Thunderous rhetoric erupts from pulpits across the region on a string of Sunday mornings, with preachers warning their congregations of another ungodly law in the works (emanating from the very same secular government that the preachers decrying these ungodly laws routinely urge their parishioners to blindly obey, usually by misquoting Romans 13).

    2. Committees of the Righteous (CoR) are formed among the various congregations to organize efforts to petition city or county councils, state legislatures, or other political bodies over whom the Righteous mistakenly think they have any real influence.

    3. CoR crowds converge on city/county council meetings, state legislative assemblies, and other secular political bodies in an attempt to make their positions known to the region’s political overlords.

    4. The political overlords ignore the Representatives of the Righteous and pass the ungodly law anyway.

    5. The CoR, its immediate mission having failed, quietly disbands.

    6. Preachers fulminate from the pulpits on a string of Sunday mornings in the wake of the ungodly laws passage about the evil group of politicos who passed such a law and that God will judge them for what they are. This is usually immediately followed in the next breath by a sermon on Romans 13, in which the preachers remind their parishioners of their obligation as Faithful to obey the edicts of the civil authorities who hold power over them.

    7. Within a few months, all returns to normal on Sunday mornings. Any passing reference to the ungodly law the passage of which was the recent point of contention is met with either a shrug, a sermonette on how sodomites are damned to hell, or a “Huh? What law are you talking about?”

  13. Motive is important in determining whether a crime has been committed.

    The question of motive is what (to borrow from Aristotle) we can call a question of second intent; it is useful only to establish whether and against whom a crime is committed. The overt act may be punished, but no government has jurisdiction to punish malign motives.

    And being attacked for who you are is arguably worse than a random attack or robbery. It's an attack on a group rather than just an individual.

    On this construction, everybody who belongs to the arbitrarily defined "group" is victimized, whether or not he or she was injured. This makes sense to those who subscribe to the irrational dogma called "collectivism."

  14. This is the issue that caused me to swallow the proverbial "red-pill." In the early nineties I was a hard-core, gay left-liberal. As a result of said pill, over a period of over ten years, I became an anarcho-capitalist. (I'm still gay).

    I was arguing with my libertarian sister-in-law about discrimination laws and how we needed them. She calmly pointed out how a free-market could resolve such issues. At the time, I resolutely continued to deny it, but in the back of my mind and down in my gut was the undeniable thought--"she's right."

    The time spent learning how the market can and should handle these social difficulties is far more rewarding than any time spent believing the government is a solution. If the latter were true, we should be close to utopia by now, but the reality is the world is coming apart because of government intrusion in individual lives.

    It's hard to convince minorities (and even the comfortable majorities) of this, but it must be done if people are to be free.

    Thanks for the article Mr. Grigg.

  15. Assault is assault. Also this is Idaho folks, and for some leftist liberal queer boys (no offense intended, just a statement using older more clearly comprehended words) and girls, you'd think they'd educate themselves and actually start packing a gun. How much more impressive to show they are empowered by SHOOTING their assailant and nonchalantly adding "just cause I'm queer and minding my own business doesn't mean I'm a pushover."

    I know a queer or two who keep their stuff to themselves instead of shoving it into everyone's faces. I have no qualms with anyone, but most of the flamers I met reaaaaally wanted to light everyone's shit on fire. Pardon me for the more vulgar lingo, but that's the way it is.

    And to the collectivist morons who continually tell me that another type of assault is "worse" than any other, that is pure nonsensical BULLSHIT! PERIOD!

    You hit me because I'm straight, or because I don't pray the way you want me to, or because of any reason whatsoever, I'm still going to shoot you until you stop trying to hit me and no longer pose a threat! Period. End of discussion. Assault, true assault (not that nonsense cops use to make innocents into felons or pleabargainers to misdemeanor assaults to avoid felony status) is always and always will be easy to tell. You hit me when I'm not bothering you in any way, or attempt to hit me when I tell you I'm not interested in you or dealing with you, and we have a situation. If you're queer and refuse to defend yourself, you deserve whatever you get.

  16. @Anonymous

    "You can't control your sexual orientation anymore than you can your gender or race. . ."

    Likewise, I cannot control my Libertarian beliefs against the unjust use of force by
    persons or governments. Does this qualify me for status as a protected "group"?

    If I run for office can I then prosecute those that don't vote for me based on the
    intent to discriminate against my Libertarian beliefs?

    You might say, "You don't have to be Libertarian," but I reply that this is
    not at all true. If I abandon my Libertarian beliefs and accept yours it is only
    under duress and as such is a lie. I would have to live in the political closet.
    I could just as easily say, "You don't have to be gay," and we all know
    where that argument leads, i.e., to the same closet.

    If the Gay community were to push for Liberty rather than political coercion
    then I would join their activism but as it is they are the best example of how and
    why democracies devolve into facist prisons.

    Martin Luther King Jr. did not protest in Montgomery for the adoption of race
    laws but was protesting unjust existing laws. In other words, he was for
    liberation not legislation.

    On the other hand, the Gay community is using political power to create legislation
    that forces me to act in their best interest whether or not it is in my
    best interest, and it is for that reason and that reason alone that we are apart
    and will remain apart. I don't hate your homosexuality, but I do hate your fascist
    little hearts.

    You may love your same sex partner but you certainly do hate me.

  17. people, we are through the looking glass. the "progressives" have no interest in the constitution, legitimate limitations on power when it does not serve them, or the right to free association.

    now the "fags" and "queers" and "homos" will be able to use the labels but our "rude comments" are chargeable offenses. you can't make this shite up!

    to any homosexual reading this...this silliness DOES NOT help your cause. as an you fags want to be COMPELLED to rent your home to a someone you consider to be a redneck bigot? of course have the right to freely associate and discriminate against such people if you choose to. this is the essence of a free society.

    like all "laws" this starts with a good intention but will surely morph into unintended consequences

  18. Mikey... Unintended consequences? I would argue that it's absolutely "intended". That's the whole point: to shove tyrannical diktats down everyones throat. People need to quash such statist tripe and in the meantime continue to voice the libertarian message of "liberty for all" without the need for laws. Someone who can't accept that is any enemy who'd more than likely have you shipped off to the camps just so long as THEY felt safe.

  19. A business owner should have the right approve or deny his or her services based upon what ever reason they believe. If service is denied because of race then so be it. The government should play no role in such matters. However the person denied service has the right to protest via free speech avenues. Public opinion and free market choices will resolve the government force necessary.

  20. to any homosexual reading this...this silliness DOES NOT help your cause. as an you fags want to be COMPELLED to rent your home to a someone you consider to be a redneck bigot? of course not.

    And most of them (or anyone else of rigid ideologically dogmatic mind, whether of the left or right) will tell you straight-up that such laws only apply to "the other side." Because THEIR "bastards" are in power, and thus have control of the machinery of law, what they say goes. There's no "justice," "equality," or "rule of [natural] law" about it. In other words, it's Lenin's "who to whom" in action, regardless of whether the "who" at a given time consists of left-wing faggots or right-wing redneck bigots.

  21. @Honor Your Oath We need to stop speaking in terms of "should have the right..." This implies that the right is dependent upon it being granted. Rights aren't conditional; rights simply ARE. So it's not that they should have the right, it's that they DO have the right, and it's incumbent on the State to not interfere with it.

  22. Comrades since we elected President Hussein the Messiah we are all one big happy collective. Rally around comrade dear leader and he will smote the warming and intolerance and lead us to glorious times!

  23. Anyone who doubts where this is leading should read The Gulag Archipelago.

  24. While I share your antipathy toward Government, I hear much about the market healing all wounds, but I don't know that I believe it. And if you want to know why, witness the frenzy of this past Black Friday. What is the Market going to do to prevent us from more Fukushimas? I would think the people of Idaho should know about mining companies and a legacy of deliberate bankruptcy, and messes left behind. As for gay people in Idaho, I think as long as the market is dominated by mindless consumers who care nothing for the earth, that doesn't bode well for anyone in Idaho, or anywhere else, for that matter.

    Persoanally, I like the gay people I know, I just don't care so much for the drama. :) I generally care considerably less for moral pronouncements. Much less for the sanctity of private property when it has proven such excellent cover for Mammon. Or some simulacrum. Still, as I said today, to friend at big bank, William N Grigg is much the reason I say, no good of any kind can come from militarizing the police.

  25. William, I don't know where to begin. What exactly do you believe? You say you share antipathy towards government but then out of the other side of your mouth you'll use the big stick of government to smash people over the head. Why? Because of what some idiots have done in the past? And what in the hell does Black Friday have anything to do with the above article. I avoided it because I have no desire to get run over just so some lunatic can shave a few bucks. Outside of that it's none of my business. I like people, all people, so long as they don't get a baseball bat out to wallop me to feel sorry for them. That doesn't endear anyone to me. Any if you have no respect for private property then you have no respect for the individual, much less even yourself. That's the sort of thinking only a slave could babble out.

    And while we're at it the Boise City council approved this piece of cow plop. My only hope is that it will be stricken down.