Commissar Avakian's Evil Ambitions (Updated, May 2)

Oregon Labor Commissioner Brad Avakian bears a strong resemblance to Mikhail Gorbachev. That comparison is misleading: There’s no reason to believe that the former Soviet ruler was ever as passionately devoted to Communism as his doppelganger from the Beaver State. Unlike Avakian, furthermore, Gorbachev conceded that there were limits to his power, and eventually stopped trying to abolish property rights by decree. Commissar Avakian has just gotten started on that mission.

Since 2008, Avakian has afflicted Oregon business owners as chief commissar of the Bureau of Labor and Industries (BOLI). Seeking to expand the compass of his power to visit ruin on a state from which he should be exiled, Avakian is running for the position of secretary of state.

As defined by the state constitution and statutes, that occupant of that office is little more than a glorified file clerk who administers public records, supervises elections and notaries public, and sits on a couple of bureaucratic panels. Avakian, who as BOLI commissar has made an art out of acting beyond his brief, believes that as secretary of state he would have the authority to audit private businesses, establish “equal pay” guidelines by fiat, and impose penalties on anybody who offends the canons of environmental correctness.

He has admitted on at least one occasion that the things no Oregon secretary of state has exercised the powers he describes, but blithely insists that “I think that’s a mistake” – thereby casually confirming that his whims constitute the only law to which he defers.

Not surprisingly, Avakian’s neo-Leninism has endeared him to cultural revolutionaries in Oregon, but has alarmed what we might call the Menshevik faction within the state’s Democratic Party. He may not survive the May 17 primary; indeed, the last time he ran for a position other than BOLI Commissioner was 2011, when he was buried in a race to fill a vacant congressional seat.

Avakian’s most ambitious project doesn’t require him to change jobs. His office is data-mining US Census findings to create what he promises will be the “gold standard” index of wage information correlated by “gender, race, and religion – all the protected categories.” This information would be used to create an “action plan” to end “wage disparity” in the labor market. And, of course, in addition to using those findings to unleash litigation against employers in Oregon, “we’ll be sharing it with other states” in order to propagate similar misery elsewhere in the soyuz, Avakian boasted in a recent campaign address.

It’s quite likely that Avakian is using both his current office, and his campaign for Oregon secretary of state, to audition for a position in a Hillary Clinton administration. His resume is a bit thin, but his vaunting ambition and bottomless self-regard – coupled with his limitless hostility toward less enlightened human beings – might qualify him for a mid-level spot in the Department of Labor.

They broke no law, but were ruined nonetheless: The Kleins.

He would see that promotion as a reward – and Oregonians who belong to the productive class would see his departure as a relief. If this were to happen, Avakian’s successor would have to deal with the institutional unpleasantness that will ensue once his signature accomplishment, the ruinous $135,000 punitive award imposed on an innocent Christian couple who once ran a bakery in Gresham, is undone by an actual court.

Although it is an executive branch agency, the BOLI pretends to be a court, albeit one that reflects the Soviet, rather than the American, legal tradition. The Commissioner hires a cadre of prosecutors who present civil actions before an administrative law judge, who is also supervised by the Commissioner.

The same Commissioner brings civil actions, in the agency’s name, against targeted businesses, so he is a party to every dispute that is brought before the “court” (or “forum,” as it is formally called). The administrative law judge then makes findings of fact, and issues an order directing remedial action and a punitive award. That order is then reviewed by the Commissioner, who can revise it as he sees fit – despite, once again, being a party to the dispute.

Respondents in BOLI actions do not enjoy the same due process rights that are afforded in both criminal and civil trials. The administrative law judge in BOLI proceedings does not have the authority to impose sanctions on the Commissioner or his hired prosecutors in cases of misconduct.

All of this explains why Aaron and Melissa Klein, after being hit with a discrimination complaint in January 2013 for exercising their right to decline a business proposal, petitioned to have the case tried in a district court, rather than in Avakian’s proprietary Star Chamber. By the time the couple filed that motion, Avakian – who, recall, is the final arbiter of the controversy – had publicly pre-judged the case by openly stating that the couple, by refusing to create a wedding cake for a same-sex ceremony not then legally recognized by the State of Oregon, had committed an unlawful act of discrimination. He also characterized them as thought criminals who needed to be “rehabilitated.”

Since that motion was made before a forum Avakian controlled, it was denied, of course – but it’s worth focusing for a moment on his use of the term “rehabilitated.”

In addition to revealing the depth of Avakian’s totalitarian impulses, his use of that clinical term demonstrates the poverty of the case against the Kleins. They had supposedly injured the couple, Rachel and Laurel Bowman-Cryer, by declining to take their money to create a wedding cake. If the lesbian couple were the injured party, why was it the supposed offenders who needed to be “rehabilitated”?

Sticks and stones may break your bones, but hurt feelings are really lucrative.

During his testimony before the BOLI, Aaron Cryer, the brother of one of the supposed victims, stated that “the whole reason of pursuing this case is … to change [the] behaviors” of people like the Kleins, who subscribe to the pre-Obergfell definition of marriage as a union between a biological man and a biological woman. The ideologically motivated nature of the lawsuit against the Kleins was made clear in Avakian’s public comments, and discussed in email and social media conversations among the “victims” and their families early in 2013.

Those conversations were subpoenaed by the defense during the discovery process, and were among 109 pages of evidence withheld by the prosecution until practically the eve of the “trial.” Chief prosecutor Jenn Gaddis, lying with the practiced ease one expects from someone in her position, pretended that this was an oversight. However, 20 of the 26 prosecution exhibits drew from those 109 pages of long-withheld discovery evidence.

If this case had been heard before a legitimate court – even in the People’s Republic of Western Oregon -- that act of prosecutorial misconduct would have been sufficient to have the complaint thrown out with prejudice.

The 614-page appeal contains extensive excerpts from the official record of the case documenting that Avakian, working in collusion with a pressure group called Basic Rights Oregon, misrepresented the state’s anti-discrimination law, pre-judged the case prior to a hearing, exceeded his agency’s mandate, and violated the constitutional rights of the Kleins by claiming that they were required to participate in a ritual that violated their long-established and deeply held religious beliefs. Their refusal to create a specific product containing a message with which they disagreed was not a denial of “public accommodations,” but the lawful exercise of their free speech rights – a distinction that is recognized in the controlling Supreme Court precedent.

The Kleins were denied the opportunity to depose key witnesses. They were likewise not permitted to follow up on a critical question that arose when they were tardily provided with the suppressed 109 pages of discovery evidence: Why did Rachel, in a January 17, 2013 email written immediately after Aaron Klein had declined to make a wedding cake for the couple, claim that “This is twice in this wedding process that we have faced this kind of bigotry.”

Had they previously been turned down by another baker before seeking out the Kleins? Three years earlier, the couple had bought a wedding cake from the Kleins for Rachel’s mother, Cheryl McPherson. The Kleins, who knew that Rachel and Lauren were a gay couple, happily and respectfully provided them with that service, because it did not involve expressing a message, and participating in a ritual, to which they had moral objections. The couple complied with anti-discrimination law by accommodating customers of all varieties, but they did not offer products that were incompatible with their Christian worldview.

Again, this is a valid and legally recognized distinction, even under the prevailing anti-discrimination regime. If Rachel and Lauren had been previously stiff-armed by another baker, why didn’t they file a discrimination complaint in that instance?

Another – in my opinion, likelier – explanation is that the “bigotry” they describe was displayed by a county clerk who refused to grant the couple a marriage license because, once again, the State of Oregon at the time did not legally recognize same-sex marriage. Aaron and Melissa Klein were aware of this. What Commissar Avakian describes as “unlawful discrimination” by the Kleins was actually an act in which they obeyed the law as it stood at the time.

“Oregon state agencies, including BOLI, were and are places of public accommodation [under state law],” notes the couple’s appeal. “Until May of 2014, county clerks, acting as agents of the state, were openly denying marriage licenses to same-sex couples because Oregon’s Constitution limited marriage to the union of one man and one woman. Thus, it is evident that the state of Oregon itself distinguished between same-sex marriage and sexual orientation” for the purposes of public policy, just as the Kleins did for purposes of business transactions.

“If BOLI now wants to take the contrary view and hold itself to the same standard it seeks to apply to Respondents, it must confess the state of Oregon engaged in official discrimination based on sexual orientation,” the appeal continues. This would mean either that the state officials who carried out that policy would be personally liable to pay restitution to the “victims” of that policy, or that the judgment against the Kleins must be vacated.

Without using the term, the Kleins’ appeal is describing a form of “entrapment by estoppel,” a defense arising when “a government official affirmatively assures the defendant that certain conduct is legal” and the defendant acts on that assurance – only to be prosecuted for the same conduct. Where this case differs from others dealing with entrapment by estoppel (apart from the fact that it is a civil, rather than criminal, matter) is that there was no existing law that defined what the Kleins did as “unlawful discrimination.”

The BOLI, which has no legislative authority, is in the habit of inventing “law” through its own rulings – and then discarding those “laws” at the Commissioner’s whim. This is demonstrated by the fact that Avakian imposed a $135,000 penalty on the Kleins for a single act of supposedly unlawful discrimination that occurred during a ten-minute conversation.

To palliate their hurt feelings, Rachel was awarded $75,000, Laurel the relative pittance of $60,000. Avakian had originally demanded $75,000 for each of them, but the administrative law judge, exercising a particle of discretion at a time when it did no material good, reduced Laurel’s award because she wasn’t actually in the room when Aaron Klein expressed his supposedly unlawful view of marriage.

Avakian pretends that this punitive award “is consistent with [BOLI’s] prior orders.” The Kleins’ appeal points out that in a previous case the agency awarded $50,000 to a victim who was “repeatedly assaulted and threatened with a firearm,” and in another it awarded the same amount to a victim “who had been punched in the head” and “sexually harassed” over a prolonged period.

Through ideologically inspired capriciousness, Avakian concluded that hurting the feelings of someone belonging to a “specially protected class” is a graver offense than physically and sexually assaulting someone who doesn’t qualify for that status.

The BOLI, summarizes the Kleins’ appeal, invented a “novel interpretation” of Oregon’s anti-discrimination statutes in order “to stamp out dissent to a new social orthodoxy that embraces same-sex weddings….” As Aaron Cryer testified, that was “the whole reason of pursuing this case.”

If Commisar Avakian is elected Oregon’s secretary of state, he will give himself permission to stamp out dissent of many other kinds. Since he has pledged to use that office to battle “climate change,” it’s reasonable to expect that he would enlist in ongoing efforts to punish “climate deniers,” for example. He has no opponent in his re-election campaign for Labor Commissioner, and he would continue to aggrandize himself, and the powers of that office, until and unless Oregon’s long-suffering business owners do whatever is necessary to lance the BOLI boil.

UPDATE:


The day after this piece was published, The Oregonian -- a progressive newspaper that previously condemned Avakian for his "fascistic gag order" in the Sweetcakes case -- took a pin to the commissar's grotesquely inflated self-image:
"Voters would be understandably confused if they thought Brad Avakian was running not for secretary of state, but rather for governor, attorney general or perhaps a new post of progressive superhero....
The problem is that Avakian has already shown he is willing to misuse his power in order to further causes that he believes in. As labor commissioner, he oversaw a discrimination case against a Christian bakery that refused to bake a wedding cake for a lesbian couple. While he rightfully found that the bakery's owners, Aaron and Melissa Klein, had violated state law prohibiting such discrimination, he didn't stop there. Instead, he declared that the bakery owners had also violated a separate law that prohibits businesses from advertising an intent to discriminate. Among the offending statements was an interview Aaron Klein gave to a reporter in which he recounted the conversation he had with the would-be customer....

Avakian's oversized ambitions for the office are worrisome on their own. But he has the full support of several organizations that appear to embrace his concept of an activist-elected official in a position unsuited for such partisan advocacy.... When choosing a secretary of state, Oregonians should favor the candidate who is best suited to do the job he or she seeks — not the one who promises to push it in new and ideologically freighted directions for political gain."

This week on Freedom Zealot Radio --

Social Justice Warriors who seek to "reform" less enlightened people through coercion should remember that the "Who" and the "Whom" will eventually trade places -- which is why the "What" is the most important consideration:

Dum spiro, pugno! 

Gavin Grimm's Totalitarian Fairy Tale

Faith, we are reliably informed, is the “substance of things hoped for, the evidence of things not seen.” The troubled 16-year-old girl from Gloucester, Virginia who calls herself Gavin Grimm, and insists on being treated as if she were a boy, is acting on something other than faith by denying substantive facts that are plain to be seen by fellow high school students who would share bathroom facilities with her. 

Those students, and the school faculty, have unwisely indulged Grimm in her delusion to the extent of providing her – and others who have qualified for the trendy and politically potent diagnosis of “gender dysphoria” – with unisex bathroom facilities. To avoid potentially unsettling encounters in locker rooms, Grimm was allowed to do P.E. at home.

Grimm registered as a female for her 9^th grade year at Gloucester High School before deciding (perhaps as a result of prolonged immersion in Tumblr, I suspect) that she was actually a male, irrespective of her biological sex. Her parents, along with school administrators and counselors, were unfailingly supportive after Grimm announced a desire to “transition” in a “social” – but not anatomical – sense. An Orwellian revision of school records was made to reflect Grimm’s new “gender identity”; an official e-mail was dispatched ordering teachers to address her as if she were a biological male. 

As Grimm herself has acknowledged, “no teachers, administrators, or staff at Gloucester High School expressed any resistance to calling me by my legal [meaning male] name or referring to me using male pronouns.” Students were unfailingly supportive – and understandably confused when Grimm opted not to use any of the three “unisex” bathroom facilities that had been provided at substantial expense to local tax victims. Owing to their indoctrination, female students looked upon Grimm as a boy; owing to their residual allegiance to reality, many male students still saw her as a girl. 

Why was Grimm avoiding the unisex bathrooms in the first place? In the lawsuit inevitably filed by the pressure groups exploiting her, Grimm insisted that it was “stigmatizing” to use those facilities. In this fashion she imputed unspoken motives to people who had (by her own admission) said nothing offensive to her. She likewise complained that by being required to use the unisex bathrooms she was subjected to “different and unequal treatment.”

This much is incontestable: The treatment she received was manifestly unequal when compared to that given to students who were not recognized as “specially protected” specimens and thus did not share her entitlement to rearrange local reality according to the dictates of her whimsical self-image. 

While it is unwise to reinforce the delusions of an emotionally troubled adolescent girl – and criminal to use plundered wealth to that purpose -- nobody has the right to punish her for them, or to compel her to abandon them. On the same principle, neither she nor any of the ideologically deranged adults who are cheerfully exploiting her has the right to compel others to participate in her fantasy, which is the purpose of her lawsuit. 

The activist groups who have battened on Grimm’s lawsuit seek nothing less than federal intervention to compel people to take part in what amounts to an exercise in participatory solipsism: Because Grimm is an accredited member of the “specially protected” class, hers is the only mental state that matters, and those unworthy of that designation must defer to her. Mere material accommodation is insufficient; every thought must be taken captive in the service of “gender justice,” or whatever label is currently affixed to the bottle containing this bilge. 

In a ruling that should surprise nobody who is paying attention, the US Fourth Circuit Court of Appeals, in a 2-1 decision, has demanded that the Gloucester School District permit Grimm to use restroom facilities reserved for biological males. This is supposedly required by the infinitely expandable Title IX of the federal educational amendments of 1972, which forbids “sex discrimination” on the part of any educational institution that receives any amount of federal subsidies. 

This ruling, predictably, ignores the actual text of the law, relying instead on a letter composed by an appointed functionary in the Education Department’s Office for Civil Rights that elides the critical difference between sex – an innate physical characteristic – and “gender” – which is, apparently, a protean social artifact. The author of that letter has no legal or constitutional authority to revise the text of the statute at issue. Such matters are inconsequential to social justice warriors, whether in foundation-funded pressure groups or judicial robes. 

In a dissent that reflects the tautly controlled exasperation of a rational man surrounded by Bedlamites, Judge Paul Niemeyer writes that the US Department of Education’s interpretation of Title IX overturns “all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes.”

“This unprecedented holding overrules custom, culture, and the very demands inherent in human nature for privacy and safety, which the separation of such facilities is designed to protect,” Niemeyer continued. “More particularly, it also misconstrues the clear language of Title IX and its regulations. And finally, it reaches an unworkable and illogical result” – which is the ideal outcome for people driven by an insatiable appetite to reform what they see as defects in the way others live and think. 

Grimm professes that she feels psychological distress when using girl’s bathroom facilities in the presence of other biological females. The same would be true of male students compelled to share bathrooms with her. However, they belong to an unprivileged class and, therefore, their discomfort is not relevant – unless they should act on it by absenting themselves when Grimm materializes among them. This would be “stigmatizing” behavior and, thus, unacceptable. So what would be the appropriate remedy? Will school resource officers be on hand to enforce a regime of compelled bathroom integration? If not, why not?

No, you're cynically exploiting her.

Totalitarianism is a political system in which the State seeks to reconfigure society in harmony with an ideological abstraction. This makes it impossible for people to relate to each other without constant supervision by the Enlightened Ones, backed by the constant threat, and frequent imposition, of punitive sanctions. The Regime has been pursuing this design, through various means, since roughly 1865, as Professor George P. Fletcher documents in his book The Secret Constitution: How Lincoln Redefined American Democracy. 

Fletcher, a self-described Marxist who taught at Columbia University School of Law, insists that the true purpose of the War Between the States, and the Reconstruction of the South, was not to end chattel slavery, but rather to replace the original constitutional order with a unitary Regime in which the central government would have illimitable power to regulate the personal behavior of its subjects. 

“The heart of the new consensus is that the federal government, victorious in warfare, must continue its aggressive intervention in the lives of its citizens,” wrote Fletcher approvingly. The Founders' Constitution, according to the men who framed it, would supposedly protect liberty by prescribing a handful of limited powers to the central government, thereby proscribing the exercise of any others by it.  

That arrangement was changed as a result of the War and Reconstruction, according to Fletcher, since “the liberty that comes to the fore in the intended postbellum constitutional order and under the Secret Constitution requires the intervention of government. Liberty is born in the state's assertion of responsibility to oversee and prevent relationships of oppression.” (Emphasis added.) 

By this formula, the more aggressively the federal government intervenes in our private lives, the “freer” we become. In the case of Gavin Grimm, the Regime has arrogated to itself the power to redefine basic matters of biology, thereby giving itself a very broad license for aggressive intervention in the most intimate areas of life – in this case, the lives of minor children. 

Judge Niemeyer, striving with admirable but doomed determination to remind his colleagues that something called the law exists, observes: “An individual has a legitimate and important interest in bodily privacy such that his or her nude or partially nude body, genitalia, and other private parts are not exposed to persons of the opposite biological sex.”

This is an elemental property right. Gavin Grimm does not have a property right entitling her to require others to see her as a boy. The totalitarian scope of the Regime’s ambition is made clear by its determination to punish those unwilling to pretend otherwise.

 This week's Freedom Zealot Podcast examines the perverse persistence of Prohibition:

Dum spiro, pugno!