Monday, July 13, 2015

Administrative "Law" and the Tyranny of "Tolerance" (Update, July 18)

In most jurisdictions, an entrepreneur could be prosecuted for posting this sign.

See the update below.

In a collectivist society, “offenses” aren’t defined by behavior, but rather by identity. This is compellingly illustrated by cases of Antonio Darden and Elaine Huguenin, New Mexico residents and business owners who, acting in the service of their principles, exercised their property rights by refusing service to potential customers. 

Darden operates a hair salon in Santa Fe, where Republican Governor Susana Martinez has been a regular customer. Darden announced in 2013 that Martinez was no longer welcome in his shop because she didn’t support legal recognition of same-sex marriage. Nor would he share his secret hair coloring formula with the Governor, something he was willing to do for other clients.

“Normally I sell the formula to people if they want to go to a different salon that is cheaper,” Darden explained. “I normally give the formula to clients if they’re moving out of state because I care about my clients. But I would not give that formula to her.” 

Not content to withhold his services from Martinez, Darden – a gay rights activist -- sought to discourage his competitors from taking her money, as well: “I have talked with some of the other hairstylists who’ve emailed me…. They’re major salons here in Santa Fe and they told me they’re following suit with me and she is not welcome in their salons either.” 

Darden earned plaudits, rather than rebukes, for discriminating against Martinez – that is to say, exercising his plenary right as a business owner to refuse service to a would-be customer for any reason he considered suitable, including her views on contemporary political issues. 

In 2007, Huguenin, a wedding photographer, was approached via email by a woman who wanted to purchase her services for a same-sex commitment ceremony. Huguenin politely declined, explaining: “As a company, we photograph traditional weddings, engagements, seniors, and several other things [sic] such as political photographs and singer’s portfolios.” Asked for clarification, she stated – without elaboration – that “we do not photograph same-sex weddings.” 

Vanessa Willock, the woman who made the inquiry, described Huguenin’s reply as “an expression of hatred.” Huguenin and her husband are devout Christians who subscribe to the conventional view of marriage, but said nothing about their religious views – or their opinion of same-sex unions – in the correspondence with Willock. At the time of this correspondence, the State of New Mexico did not license or recognize same-sex marriages. On the basis of what was in the record, Huguenin simply declined to provide her services at a ceremony the State of New Mexico didn’t deem legitimate. 

Elaine Huguenin and her husband, Jonathan.
Like Darden, Huguenin was discriminating in her choice of customers. Unlike Darden, once she had decided to forego an opportunity to make a profit she didn’t seek to discourage her competitors from extending their services to Willock and her partner. The couple very quickly located another wedding photographer who was willing to provide services – in a ceremony that took place out of state. 

Owing entirely to the identity of the would-be customers as members of a specially protected class, Huguenin was prosecuted by the New Mexico Human Rights Commission, which imposed a $7,000 penalty on her. Most of that money was given to the women whose business Huguenin declined. This meant, in effect, that the state government compelled her to pay for a ceremony that the same state didn’t regard as legitimate. 

The Human Rights Commission, an executive branch agency, ruled that Huguenin’s refusal of service violated the New Mexico Human Rights Act, the purpose of which (in the words of the state supreme court) is “to promote the equal rights of people within certain specified classes.” (Emphasis added.) In substantive terms this means that business owners can refuse service to some would-be clients, but not to those who are designated members of a specially protected class. 
Willock (r.) and partner.
Susana Martinez would have qualified for “protected” status as a Latina, but not as someone who espoused political and moral views out of favor with the bien-pensants. Thus Darden was permitted to discriminate against Martinez on the latter basis, and publicly advertise his reasons for doing so, without facing the prospect of punishment. 

It has never been proven that Huguenin discriminated against Vanessa Willock and her partner because of their “sexual orientation.” Owing to the identity of the supposed victims, their perception of the incident was taken as definitive, and Huguenin – who neither injured nor defrauded the couple – was punished for hurting their feelings.
Even SJWs understand property rights -- if only their own.
Where some people are assigned to “specially protected” classes, equal protection under law cannot exist. Thus it is appropriate that controversies of this kind are generally dealt with not through criminal or civil courts, but through administrative bodies, of which the Soviet-style entity called the New Mexico Human Rights Commission is typical. 

Philip Hamburger, the Maurice and Hilda Friedman Professor of Law at Columbia Law School, insists that “administrative law” is more honestly described as “extralegal power.” Administrative agencies exercise power “not through law, but outside of it,” Hamburger explained in an address outlining the themes of his recent book, “Is Administrative Law Unlawful?” 

Administrative agencies exist in defiance of the constitutional separation of powers, improperly consolidating functions that were intended to remain discrete. In the New Mexico case described above – as in the more recent case involving a $135,000 damage award against bakers in Oregon who declined when asked to make a wedding cake for a lesbian couple – an executive branch agency exercised a quasi-judicial function. In this way, notes Professor Hamburger, “an agency can be prosecutor, judge, and jury.”

This very common procedure is the modern equivalent of what was called the “inquisitorial process” in the Middle Ages. Hamburger contends that this routine abuse of power was the “original danger the Constitution sought to prevent.” 

Predictably, the legal doctrines justifying the use of administrative law (both at the federal and state levels) were devised during wartime. In its ruling in the 1944 case Yakus v. United States, the US Supreme Court found nothing amiss in the exercise of legislative power by FDR regime’s Price Administrator. Despite the fact that Article One of the US Constitution specifies that “All legislative power herein granted” was to be exercised exclusively by Congress, the Court pretended that an executive branch agency or official could carry out legislative tasks provided that Congress “sufficiently marks the field within which [the official] is to act so that it may be known whether he has kept within it in compliance with the legislative will.”

More P.C. property rights: Long live discrimination!
More concisely put: Once Congress has unlawfully delegated legislative tasks to an administrative agency, the latter can do whatever it can get away with. The US District Court for the District of Columbia invoked Yakus in its 1971 Amalgamated Meat Cutters et al v. US ruling upholding Richard Nixon’s imposition of wage and price controls by executive order

As summarized by one legal commentator, the key holding in Amalgamated Meat Cutters was that “aggressive separation of powers is seen as an impractical impediment to modern governance.” Separation of powers is one of the central principles of constitutional governance – or so we were told, and many of us believed, until exposure to Lysander Spooner’s insights disabused at least some of us of the idea that the Constitution could actually protect individual liberty. 

Both of those rulings dealt with the exercise of legislative power by the executive branch. The extra-constitutional delegation of judicial power to “commissioners” actually began much earlier, and grew dramatically during the 1850s. Administrative officials like Commissioner Brad Avakian, the Oregon functionary who imposed the $135,000 damage award in the Sweetcakes by Melissa case, can trace their institutional pedigree to the commissioners who enforced the Fugitive Slave Act

Although they had “concurrent jurisdiction with the judges of the Circuit and District Courts of the United States,” and some of them were magistrates, the office of “commissioner” was not part of the judiciary. Like contemporary administrative bodies, the Fugitive Slave Commissions existed outside of the constitutional scheme and exercised powers in defiance of the supposed limits imposed by the Constitution

The decision of a commissioner, wrote Chief Justice Roger Taney in United States v. Ferreira (1851), “is not the judgment of a court of justice. It is the award of a commissioner.” This principle applied to the commissioners who ruled on claims filed under the Fugitive Slave Law. Under that measure, any black person could be arrested by a marshal or bounty-hunter on the basis of an affidavit filed by someone describing himself as a slave “owner.” 

As someone “to whom … service or labor may be due,”  a slave “owner” was treated as if his claims were self-ratifying. As an inducement to render the “correct” ruling, slave commissioners were paid $10 when they upheld a claim, but only $5 on the rare occasions they dismissed one. The rulings were almost always made on the basis of identity: A self-identified “owner” was part of a class enjoying special protection, while a black individual was assumed to be part of a class from whom “service” was required.

As Spooner observed, a slave commissioner, “instead of being one of the judges of the United States … is, in law, a mere hired kidnapper, employed and paid by the slave-hunter – and everybody has a right to treat him and his decisions accordingly.”

Public denunciations of the Fugitive Slave Act inspired defenders of the measure to perform cadenzas of theatrical outrage over such impious rebellion against the “rule of law.” 

Whig Senator Joseph R. Underwood of Kentucky rebuked what he called the “arrogance and folly” of those who condemned “the legislation of the majority, and … threaten[ed] resistance and defiance in consequence of an alleged conflict with the law of God.” Whatever moral scruples people had over slavery, Underwood maintained, “It is a duty to submit to the powers that be, and to render unto Caesar the things which are Caesar’s” – which in this case meant facilitating the rendition of black people into the custody of “owners” to whom their “service was due.” Even if the Fugitive Slave Act and similar measures were considered iniquitous, “until repealed, they must be obeyed, or it is the end of government.” 

Senator John Bell of Tennessee discerned “a fanaticism of liberty as well as a fanaticism of religion” among opponents of the Fugitive Slave Act, whom he accused of undermining “the best system of laws ever devised by man.”

Positivist homilies about the supposed duty to submit to the law resonated from pulpits, and editorials devoted to the same theme blackened broadsheets. The rhetorical themes of that era are easily transposed into our own. One suitable recent example was provided by a “progressive” commentator writing in defense of the proposition that administrative bodies can compel Christian business owners to provide services for same-sex weddings, irrespective of their religious scruples because they don’t  really own their business, their labor, or their property.
Hoplophobes have property rights, too.
When Christian (or, presumably, Jewish or Muslim) entrepreneurs “choose to open a business and make a profit on that business in this country, they do so with the understanding that they must abide by the laws of the land,” pontificated the writer. “That means zoning laws, tax laws, health and safety laws, and yes, nondiscrimination laws … [because] they are Americans. And even Jesus said, `Render unto Caesar what is Caesar’s.’”

For his part, “Caesar” isn’t bound by nondiscrimination laws, and – as Christian entrepreneurs in New Mexico and Oregon have discovered – Caesar can redefine and expand his powers at whim and apply them capriciously.
Purely on the basis of identity, Caesar – acting through “administrative law” -- can designate some people as members of “specially protected classes” to whom “service is due,” and then compel those not so designated to provide that service, notwithstanding the prohibition on involuntary servitude found in the Thirteenth Amendment.

Consider this question: What Oregon law specifies that $135,000 is a reasonable penalty for the supposed offense committed by a baker who declines to make a wedding cake for a lesbian couple? The Oregon Equality Act of 2007, which was supposedly violated by Aaron and Melissa Klein, contains no provision for punitive damages of any kind. 

The “law” that was used to inflict this judgment on the Kleins was conjured into existence by an “administrative law judge” working on behalf of an executive branch agency presided over by an elected official who acted as the “final arbiter” of a dispute in which his own agency was the plaintiff. 

Under what Oregon is pleased to call the “law,” Commissar Avakian had the discretion merely to issue an order demanding that the Kleins provide the service they had withheld, which would have violated the prohibition against involuntary servitude while leaving them financially viable. Rather than doing so, Avakian and his comrades selected a punishment calculated to destroy the couple’s business, while potentially depriving their family of their home and leaving them enslaved by non-dischargeable debt for the foreseeable future. 

As social schisms grow more pronounced and cultural conflict becomes more acute, some pundits have suggested that America may succumb to a second civil war. While it’s to be hoped that this is mere hyperbole, there’s no honest way to deny that the Tolerance Industry has helped resurrect the legal regime that precipitated the last one.

                             UPDATE: The Truth about the "Sweetcakes by Melissa" Case

This week's Freedom Zealot Podcast about the "Sweetcakes" case has been serialized on YouTube.

Part One:

Part Two:

Part Three:

Part Four:

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Dum spiro, pugno!


Cederq said...

Those bakers in Oregon should have baked a cake for them... I heard cow manure is tasty.... enough ketchup and it hides most of the taste.

Anonymous said...

Coprophagia enthusiasm. No surprise.

Anonymous said...

Fact, The First Amendant is clear and on the side of American citizens, period. Will such courts force People of faith in Christ to worship rocks because it's deemed that 51 percent of the people in their town do worship rocks. And by not going along to worship The Rocks puts a hardship on The Rock worshiping church by the lack of cash in the offering on Saturday's church services. The church will be forced to another building without A/C. Causing damages of serious hardship on The Rock freaks. This is a situation that is only about 10% down the slippery slope that Americans are about to ride down and suffer We can thank the two black robed homosexual woman who refused to honor their oath of office and voted with black hearts. Nice!

Anonymous said...

America is over. Your principled arguments, while erudite, are lost on the mass of the people and the politicians. You would think that by now small business owners would get smart. Raise rates, or say you're closed that day, or on vacation. Dont come right out and deny service because...(protected class here). Be smart! The game is rigged, so learn to play it, because you are going to lose if you stand on principle or what passes for law in this "country".

Gil said...

Rather this a "haw-haw" moment for the 10A fanbot Libertarians who believe the States can make laws in spite of the Federal Constitution. Namely the people in question have broken various State laws and the 1A only prohibits the Federal Government not the States. Hence Libertarians have to now worry about the tyranny of the State Governments making their own laws that override peoples' freedoms.

On the other hand, the bakery got a large fine because they released the gay couple's personal details to the public in which they got harassed and even death threats from those supporting the business.

William N. Grigg said...

...the bakery got a large fine because they released the gay couple's personal details to the public in which they got harassed and even death threats from those supporting the business.

Gil, in harmony with your previous performance, your summary of this case displays a tendency to pontificate regarding subjects about which your ignorance is profound and comprehensive. In this matter you're regurgitating claims put into circulation a week ago that were immediately, and decisively, debunked by people who (unlike yourself) actually read the BOLI's "Final Order." On the off chance that you're actually willing to review the document, I'll supply a roadmap of the relevant details, given that dispelling ignorance is my chief objective.

Page 19, lines 10-15 of the Final Order dispose entirely of the claim that Aaron Klein, by briefly posting one page of the complaint against his business -- a public document -- to his Facebook audience of 17 "friends," he "doxxed" the couple, or that he did anything inappropriate, immoral, or illegal:

"Although AK [Aaron Klein] has been interviewed by the media on a number of occasions about the case, he did not initiate any contacts with the media. Other than posting LBC's [Laurel Bowman-Cryer's] complaint on his Facebook page, there is no evidence that AK gave Complainants' names to the media." (Emphasis added)

Page 16, lines 8-14, disclose that on February 12, 2013, the Oregon DOJ "emailed a copy of LBC's DOJ consumer complaint to a number of media sources" in what it called a "mob email." That complaint contained Laurel Bowman's name, phone number, address, and email address. If anybody "doxxed" Bowman, it was the DOJ -- or, actually, she did it to herself, because the complaint form explicitly warned her that the information would be "released to the business or person about whom I am complaining" and put into the public domain (see Final Order, page 8, lines 20-23).

The Final Order describes the "harassment" and "death threats" -- assuming this occurred, given that Laurel Bowman-Cryer is described as a serial perjurer with "a strong tendency to exaggerate and over-dramatize events" (see page 21, lines 1-16) -- as a result of the DOJ's media contacts, not those of Mr. Klein.

Finally, Commissar Avakian's award of damages -- which, as even the Oregonian newspaper admits, is illegal -- specifically rejected the claim that the couple were entitled to damages "as a result of the media and social media attention generated by the case" as a result of Aaron Klein's solitary Facebook post. (See page 40, lines 2-19).

Take a few minutes to review my citations (here's the link -- and then decide if you would like to revise or retract your comments about a case you clearly haven't taken the time to study.

William N. Grigg said...

Gil, the first section of your comment is just as ill-informed as the latter one:

Rather this a "haw-haw" moment for the 10A fanbot Libertarians who believe the States can make laws in spite of the Federal Constitution. Namely the people in question have broken various State laws and the 1A only prohibits the Federal Government not the States. Hence Libertarians have to now worry about the tyranny of the State Governments making their own laws that override peoples' freedoms.

Could you specify which "laws" (plural) were broken by the Kleins by declining to make the requested cake? The Oregon Equality Act of 2007 (cited above -- contains 158 words, none of them addressing "denial of service."

Assuming that the actual text of the law means something, what the Kleins did was not illegal. They did not refuse "accommodations" -- by, for example, posting a sign announcing "No Gay Customers Allowed"; they simply announced that they didn't provide a particular service, in much the same way that a Pizza restaurant might say that doesn't offer a particular combination of toppings. Rachel Cryer and her mother could purchase any of the products offered by the Kleins on the same terms as any other customers. That's what equality of "accommodations" means, and the Kleins did nothing to interfere with it.

The lawbreaking that occurred here was committed by Commissar Avakian, who, as the Oregonian points out, "lacks the statutory authority ... to punish the Kleins" for their supposedly illegal conduct. (See

It's important to remember that the BOLI is not a court (it describes itself as a "forum"); Avakian is not a judge; and this case -- one that deals with a matter of "first impression" -- has yet to be dealt with by a legitimate judicial body. This illegal and grotesque damage award will not survive actual judicial scrutiny, and the Kleins have been blessed with the financial means (albeit just barely, at present) to mount what will inevitably be a successful legal challenge.

Libertarians traditionally have seen the 10th Amendment as a useful protection against federal impositions, while seeing the spurious construct called the "state" at any level or in any guise as inimical to liberty. While I oppose federalization of police power, I focus primarily on abuses committed by police agencies at the state and local level.

Most importantly, libertarians subscribe to the non-aggression principle in all human conduct. The Kleins committed no aggression against the lesbian couple; exactly the reverse is true.

Gil said...

Oh really?

William N. Grigg said...

"Oh really?" is not an argument; the link above leads to an early republication of Raw Story's now-discredited original story; and you have proven yourself to be an impenitent liar.

If you cannot trouble yourself to review the original document -- even with annotations that will direct you to the specific sections dealing with the questions under discussion -- you obviously prefer to luxuriate in dishonesty, which is your privilege. But you'll have to indulge this desire elsewhere.

I welcome disagreements, appreciate well-expressed opposing views, cherish the opportunity to engage in pointed debate; I will abide any variety of commentary that doesn't involve blasphemy or direct incitements to specific violence.

I will not countenance proven liars like you, Gil.

Anonymous said...

Dear William N. Grigg

Thank you, sincerely. I really appreciate all the time and effort that it take to not just write these interesting and insightful articles but also that you so thoroughly respond to the willfully ignorant and malicious (Heinlein's Razor). Time is our most precious resource, thus this note is intended to express gratitude and to offer some encouragement - to let you know that your generosity is not only noticed but also admired since it inspires and provides hope. Your writing is a proverbial light in the darkness of a world filled with ignorance, apathy and evil. It is somehow comforting to know that one is not alone. That there are others like yourself still diligently (and seemingly tirelessly) fighting the good fight, despite the high cost of a very finite resource. Tu ne cede malis, sed contra audentior ito.

Please keep it up. You are making a positive difference in this world. Stay strong!

Your friend,


kirk said...

'gil' appears at several libertarian sites i visit, always with the same drivel as appears here. he is an internet troll likely paid by those who despise the freedom espoused by libertarian ideology.

when reading 'comments', i no longer read those entered by him since his objective is not to foster debate, but, rather, only to attack. he has appeared here in the past with the same drivel.

William N. Grigg said...

Drivel I will happily accommodate, but liars aren't welcome here.

Anonymous said...

Your article was excellent till it meandered off course with your diatribe about the fugitive slave act. To demonstrate the absurdity of your argument substitute the word property for slave and youtr argument collapses.

While no one advocates a return to slavery the principles of the law should remain firm and not subject to the whims and capricies of the moment.

Our society has embraced a progressive kind of law, which is no law at all. Which is what the Left desires in order to develop their utopia. Your article failed by wandering out in left field. Pity.

William N. Grigg said...

I can understand why examining the enforcement of the Fugitive Slave Act might seem to be a digression, but the transposition you suggest actually illustrates why it is not: People cannot be claimed as "property," nor can one person claim a property interest in the involuntary labor of another.

That second claim has been upheld in the cases of Elaine Huguenin and the Klein family. Although this isn't a restoration of outright chattel slavery, it is a "progressive" application of the same perverted principle that was made uniform throughout the U.S. in the 1850s through the Fugitive Slave Act, enforced through a very similar set of "administrative law" procedures.

The only legitimate purpose of law is the protection of property rights. Modern progressives and antebellum defenders of slavery both institutionalized the denial of property rights, employing very similar procedural methods in doing so.

Unclezip said...

This Oregon administrative "judge" was in constant communication with the gay rights group during the entire episode. This is nothing more than Offended for Profit.

Ken said...

" People cannot be claimed as "property," nor can one person claim a property interest in the involuntary labor of another. "

Oh,,, how true!

Too bad government doesn't concur. 40% of my earnings seem to belong to them in one fashion or another.

Rarely comment,,, first here (assuming allowed) ,, your articles are awesome.

Anonymous said...

A lot of action was taking by people in the OR government. Courts operating outside of the law, the states DOJ releasing information., on and on and on. There is one out come all of these government employees desire, to gain new and stronger foothold to grow government on as many new levels as possible. Justice is not an objective and never has been remotely anywhere in the actions of any government employee that has put their fingers on this matter in any degree. This matter only follows the footdteps of the cross dressing New York City ex-mayor and the, Broken Window policy. It grows and empowers government. He did a decent drag of Marilyn Monroe, all things considered.
On a side note: when police stopped being Peace Officers and became Law Enforcement Officers. Police stopped serving the citizens interest and started serving government's interest, which was to enforce the demands and needs of a growing government. Government servers government and growing government is in government's best interest. Follow the gains in empowering government like following the money, it's all the same.

Anonymous said...

Will, I believe the July 15 show link on Kiwi6 is broken

William N. Grigg said...

I've had quite a bit of trouble with Kiwi6; when it becomes practical to do so I'm going to migrate to a different platform. Please try the link again -- I think it's working now. Thank you.

Anonymous said...

I agree. Thank you for your work!