The Leo Soell Doctrine: Palpable Punishment for Intangible "Harm"

Two Democratic congressmen, always seeking madder music, stronger wine, and new ways to punish people for holding opinions they despise, have introduced a bill they call the  “Do No Harm Act.” The purpose of that measure is to abolish the religious liberty and free speech rights of business owners who hurt the feelings of those who belong to “specially protected groups.” This would be done by weaponizing a legal concept called “dignitary harm.” The case of Leo Soell, which we will examine anon, offers a perfect example of that concept in action.

The “Do No Harm Act” is, in part, a reaction to recent Supreme Court rulings protecting the rights of business owners against Obama administration policies that would require them to violate their religious convictions. Those rulings have cited the 1993 Religious Freedom Restoration Act, which was intended to buttress the putative protections offered by the First Amendment. 

 Section 2 of the “Do No Harm Act” stipulates that “the Religious Freedom Restoration Act of 1993 should not be interpreted to authorize an exemption from generally applicable law that imposes meaningful harm, including dignitary harm, on a third party.” (Emphasis added.) “Dignitary harm” does not involve fraud, failure to honor contractual obligations, or injury to person or property. To paraphrase the familiar song, it is nothing more than (hurt) feelings.

In what is probably the definitive treatment of the concept, Cristina Carmody Tilley of the Northwestern University School of Law contends that infliction of emotional distress “does more than inflict property damage or even physical injury that the modern man is expected to rationally commodify. Instead, it invades an individual’s sense of worth and dignity, important values in a relational society.” 

To substantiate that astonishing claim, Tilley cites a passage from sociologist Erving Goffman’s book Interaction Ritual: Essays in Face to Face Behavior: “[T]he individual must rely on others to complete the picture of him of which he himself is allowed to paint only certain parts.”

Assuming that this means anything intelligible, it appears to be a claim that refusing to indulge someone’s preferred “picture” of himself violates the supposed victim’s right to be validated, thereby undermining his or her “sense of self-worth and dignity.” Tilley invites us to pretend that this gives rise to a valid civil claim under the Ninth Amendment to the US Constitution. 

Properly understood, that amendment was intended to protect un-enumerated individual rights from abridgment by the federal government. Tilley, a cultural Marxist by inclination if not by overt profession, treats that amendment – and the Constitution in general – as a license for limitless state intervention in private affairs for the purpose of creating an egalitarian social order. This will require the use of state coercion to equalize the “power deficit” that occurs when a “privileged” individual inflicts “dignitary harm” on an officially designated victim.

The most interesting element of Tilley’s essay is her insistence that redress of hurt feelings through state action is necessary to prevent “violent self-help” on the part of the supposed victim. Slights to a person’s sense of dignity, she writes, “are more likely to incite vengeance” than physical injury or damage to personal property. What she calls “civil recourse theory” allows for the state’s judicial system to address “injuries to personality in a way that might now be true for injuries to property or body.” Through “the provision of a state-sponsored forum for vindicating the dignitary interests invaded by these wrongs,” the need for vengeance will be addressed without violence, according to Tilley.

Blinded by ideology, Tilley either doesn’t see, or will not admit, that her prescription legitimizes violence and vengeance to the extent they are carried out in the name of the fictive entity called the State – and that she approves of violent punishment of people who have inflicted no tangible injury on anyone. Political government, after all, is nothing but the praxis of violence. 

The legal doctrine described by Tilley, and embedded in the “Do No Harm Act,” has led to a string of administrative rulings punishing businessmen – florists, bakers, photographers, innkeepers -- who have declined to participate in same-sex weddings. None of those cases involved actual harm to the purported victims, or a refusal by the defendants to carry out the terms of a contract. A recent case in Gresham, Oregon expands the concept of “dignitary harm” to include the use of pronouns that offend someone designated as part of a “specially protected class.” 

Brina Soell, a fifth-grade teacher who had her given name legally changed to Leo, was born a biological female. A year ago, she “came out” as transgender after surviving breast cancer and undergoing a bilateral mastectomy. She remains otherwise anatomically female. Rather than “identifying” as male, she insists on being treated as “transmasculine” and “gender-queer,”  and demands that others address her as “they” rather than “he” or “she.”

Most of Soell’s colleagues have done what they can to accommodate her desires, albeit at severe expense to the proper English they are supposed to be teaching their young students. On occasion, however, some have referred to her has “she,” “lady,” or “Miss Soell,” and one of them expressed a candid disagreement with Soell’s “belief system.”

All of this resulted in “dignitary harm” to Soell’s incomparably precious feelings. As an accredited member of a specially protected class, she threatened to file a harassment complaint with the Oregon Bureau of Labor and Industries. 

Brad Avakian, the BOLI’s chief commissar, is the same unaccountable functionary who imposed a $135,000 punitive judgment on a Christian couple who declined a request to bake a cake for a lesbian wedding ceremony – and a $400,000 judgment on a bar owner who had politely asked a group of transgender males not to monopolize his Friday night business. Contemptuous of due process and unhindered by conscience, Avakian considers his will to be law – which is why the mere threat of filing a complaint with his agency was sufficient to induce capitulation on the part of the school district.

On May 20, a few weeks after the Obama administration effectively re-wrote the federal Civil Rights Act to include “gender identity” as a protected category, the Gresham-Barlow School District agreed to pay a $60,000 tax-subsidized settlement to Soell, and to enact policies intended to teach grade school students that “gender identity” is infinitely customizable – and that the English language is subject to modification at the whims of “specially protected” people and the bureaucrats who exploit their contrived grievances.

In a career otherwise devoted to polluting the air with foolishness, Eleanor Roosevelt said one unambiguously wise thing: “No one can make you feel inferior without your consent.” Each of us is the exclusive owner of his personality and self-concept, and any “dignitary harm” that results from words spoken to or about any of us is purely consensual.

"Trigglypuff" expounds on the evils of "dignitary harm."

As Thomas Jefferson might put it, someone accused of “dignitary harm” has neither picked his neighbor’s pocket, nor broken his leg. The “social recourse” approach to such disputes socializes violence by unleashing state-licensed pickpockets and leg-breakers to punish people who have not injured the property rights of anybody.

Where redress is demanded for perceived harm of this kind, it should be pursued privately. Tilley, interestingly, acknowledges that “early Anglo-Saxon law [treated] dignitary interests as compensable in private actions until the Norman conquest of England in 1066.” One lamentable consequence of that conquest was the imposition of the “King’s Peace” doctrine, under which all disputes were to be considered offenses against the “sovereign,” rather than a specific injured party.

Prior to 1066, perceived injuries to personal honor and reputation were often settled through trial by single combat, a tradition that persisted, in the form of dueling, in the United States until the early 20^th Century. If we are to treat “dignitary harm” as a matter of public concern, the most rational approach would be to restore and update that tradition.

This wouldn’t necessarily involve pistols at dawn, or bare-knuckle boxing. It could be a formal challenge for a mediated debate before a jury of one’s peers, who could rule in favor of either the plaintiff or the defendant. Plaintiffs who prevail would see their self-image fully restored, which we are supposed to believe is the only thing they really want. A defendant who refused a summons to single combat would lose a default judgment, thereby producing the same outcome.

Of course, as the accused party, the defendant would have the right to decide the form of single combat. Social Justice Warriors who seek palpable punishment for intangible “dignitary harm” revel in vicarious violence committed on their behalf in the name of the State. For the most part, they would melt into puddles of pathos at the prospect of participatory violence.


This week's Freedom Zealot Podcast examines the imprisonment and official persecution of a man who was a peacemaker at Bunkerville in April 2014:

 

Dum spiro, pugno!

Lavender Leninists and Heretic-Hunters: The Thoughtcrime Prosecution of Ruth Neely

Not merely an offender for a word -- an offender for words she didn't say: Ruth Neely.

During her years as a Magistrate Judge in Pinedale, Wyoming, Ruth Neely performed dozens of civil marriage ceremonies. State law (Sect. 20-1-106[a]) specifies that magistrates, like “every licensed or ordained minister of the gospel, bishop, priest, or rabbi … may perform the ceremony of marriage in this state.”

Presiding at a civil wedding is a discretionary function of the magistrate’s office, not a mandatory duty. Neely had an unqualified right to decline a request to preside at a wedding, for any reason that suited her. 

Prior to December 2014, she had never performed a same-sex wedding ceremony, because they were not recognized by the State of Wyoming.  Shortly before Christmas that year, Neely was interviewed by a newspaper reporter named Ned Donovan, who asked her if she was “excited” to begin officiating at same-sex wedding ceremonies. 

A few weeks earlier, the US District Court in Wyoming had issued a ruling prohibiting state officials “from enforcing or applying” Wyoming’s existing marriage statute. Neely had made formal inquiries about how this would affect her responsibilities, and had been counseled to refrain from public comment on the matter until official guidance was given. 

In dealing with Donovan, Neely acted in good faith, not aware that the reporter with whom she was speaking was actually playing the role of  pursuivant – a heretic hunter working on behalf of the state and its allied “tolerance” industry. She explained that “When law and religion conflict, choices have to be made. I have not yet been asked to perform a same sex marriage.”

 

"Journalist" as pursuivant: Donovan.

After speaking with Neely, Donovan called Pinedale Mayor Bob Jones, who informed him that as a municipal judge, Neely had no authority to perform weddings – which obviously would mean that she had no legal responsibility to do so, either.

Determined to shoehorn what he was told into a pre-conceived story, Donovan called Neely again and engaged in a species of blackmail: If she would “state a willingness to perform same-sex marriages,” he told the judge, he would refrain from publishing a story about her. Neely told Donovan that she had no further comment and ended the conversation. 

Donovan’s contrived story was published under the deliberately misleading headline, “Pinedale judge will not perform same-sex marriages.” He filed a few more missives in a similar vein before moving on to different outlets. Since leaving Pinedale, according to an affidavit filed by the editor of the city paper, Donovan has waged a campaign for Judge Neely to be “sacked.” 

In his initial story, Donovan claimed that “All judges are required to marry those who meet the legal requirements, unless there is a scheduling conflict or some other problem. In those cases, prospective couples will be referred to other magistrates.” Nothing in Wyoming law dictates that a magistrate must perform a marriage ceremony for anybody. 

The US District Court’s ruling striking down Wyoming’s ban on same-sex marriage did not alter the provision of Wyoming law recognizing that judges “may perform the ceremony of marriage”; accordingly, Neely would have been within her legal rights to say candidly that she would decline to perform same-sex marriage ceremonies. 

It’s important to note that Neely merely acknowledged that under the new dispensation, what the Regime is calling the law would come into conflict with what the Supreme Court called “decent and honorable religious or philosophical” objections held and expressed “in good faith by reasonable and sincere people.” 

 

"EEK! HERETIC!" screamed Comrade Cuprill.

Donovan’s pseudo-journalistic artifact was read by Ana Cuprill, Chair of the Wyoming Democratic Party. In the fashion of a dutiful stukach informing on a dissident in Stalinist Russia, Cuprill filed a complaint with the Wyoming Commission on Judicial Conduct and Ethics (CJCE). This was done at a Democratic Party Christmas gathering attended by Commission Chair Wendy Soto, whose guests included her “best friend,” Jeran Avery, President of the gay rights organization Wyoming Equality. 

Prior to becoming Chair of the CJCE, and for a brief time after assuming that position, Soto – who is neither an attorney, nor a judge, but rather a paralegal -- was a board member of Wyoming Equality and had been involved in litigation on behalf of the group. 

Neely was suspended from her position and informed that an “Investigatory Panel” would inquire into allegations that she had committed offenses meriting removal from the bench.

Last August, following the most perfunctory imaginable inquiry, the CJCE ruled that Neely, by answering a hypothetical question in a fashion fully in harmony with the existing laws, and expressing a point of view the Supreme Court described as “decent and honorable” regarding a highly contentious social policy, had violated the state’s code of judicial conduct. 

“A judge announcing her decision to pick and choose the law she wishes to follow undermines her position and our system of justice,” announced the CJCE, without substantiating that charge in any way.  It is impossible, after all, to substantiate a lie: Nothing Neely said can honestly be construed as “announcing” her intent to ignore the law, and – as previously noted -- the law as it exists in current statutes did not require Neely to perform any marriage ceremony. 

It it also worth pointing out that after Neely was suspended, several gay and lesbian residents of Pinedale wrote affidavits describing her as a fair-minded and honorable public official. This availed her nothing, as far as the CJCE was concerned. 

On February 26, the CJCE formally recommended that Neely be removed from her position. The Commission also seeks to impose a $40,000 fine as punishment for Neely’s expression of what it calls “repugnant” views regarding marriage. Once again, Neely was presented with an extortion demand: The CJCE offered to waive the fine if she were to resign and publicly recant her beliefs regarding marriage. 

Commissarina Soto.

In its ruling, the CJCE sneers that Neely’s sincerely held beliefs regarding marriage are the kind of opinions that should be confined to “churches” and “coffee shops.” Not that we should assume that those private settings would be spared future legal scrutiny: Recall that the section of the Wyoming State code specifying that magistrates “may perform the ceremony of marriage in this state” also applies to “every licensed or ordained minister of the gospel, bishop, priest, or rabbi … [who] may perform the ceremony of marriage in this state….”

In an amicus brief filed on Neely’s behalf before the Wyoming State Supreme Court, attorney Doug Mason underscores the fact that the CJCE, which has no legislative authority, has effectively re-written the existing law to say that the listed officials who “may” perform weddings, henceforth shall perform them. This imperative, however, is not of general application: It apparently applies only to same-sex ceremonies. Magistrates would still be at liberty not to officiate a ceremonies for people who don’t belong to that specially protected class.

Mason points out that “there are no penalties for non-judicial celebrants who refuse to participate in certain weddings, e.g. a Catholic priest who declines to wed a Muslim couple, or a Catholic priest who [declines] to marry a gay couple. In each case, the Catholic priest is exercising the power of the state – the power to solemnize a wedding – but the law imposes no such restrictions on those official acts.”

The missing word in this otherwise correct observation is: “Yet.”

“Many religious traditions refuse to solemnize or bless same-sex relationships,” Mason continues, referring to the teachings of the Catholic and LDS churches, various Protestant denominations, as well as “Islamic Law [and] Orthodox Judaism.”

“The Commission is really saying that no judge who belongs to any of these religions is allowed to be a Wyoming judge,” Mason observes. The Commission is “creating a religious test for public office: no individual can remain a state judge if he or she believes that marriage is a joining of man and woman, a view, by the way, that four justices of the US Supreme Court embraced. Three of them are still on the Court and US Supreme Court justices can perform wedding ceremonies. Is the State of Wyoming stating that these three Justices should be impeached because they will not perform a gay wedding?”

There’s no reason to doubt that Commissarina Soto and her fellow Leninists believe that this would be an appropriate course of action. However, the “legal” principle the Commission pretends to have discovered is even more expansive: The standard demanded by the CJCE would of necessity encompass an ideological test for religious officials who are authorized to perform marriage ceremonies.

Ruth Neely, unlike Kim Davis, was not actively impeding the issuance of marriage licenses to same-sex couples. She was not declining to bake wedding cakes, or do floral arrangements, or act as a wedding photographer for same-sex wedding ceremonies – all of which are exercises of property rights that our rulers now consider to be unlawful.  Her only overt “act” was to express her religious convictions and correctly observe that they are in tension with what the Judicial Branch now wants us to pretend is the “law.”

In doing so, she violated what the Lavender Leninists have styled the “right” to “affirmation” of same-sex unions – in the words of the California Supreme Court, “the right of [same-sex] couples to have their family relationship accorded respect and dignity equal to that accorded the family relationship of opposite-sex couples.”

Progressive heretic-hunters would probably prefer drone strikes.

Nobody can legitimately claim a property right to “approval,” “respect,” or “affirmation” from another. In a genuinely free society, marriages of all kinds would be private relationships solemnized through covenants, or formalized through contracts, by parties acting on the “choice of law” principle.

A non-statist marriage ceremony would be an invitation to the community to recognize and affirm the union. Separation of marriage and state is what people who understand individual liberty should pursue. The community can invite recognition of a union, but the Lavender Leninists are seeking to compel it – and doing so requires the coercive power of the state.

At the time of the Stonewall uprising, and for years after, the refrain of the gay rights movement was: Keep the police out of our private behavior. In its late-Leninist phase, the movement now demands that the state use its police power to punish those who withhold their approval of that private behavior.

Nobody has a legitimate property right in a tax-subsidized job, which is why the removal of Ruth Neely from her current position isn’t, in itself, an affront to liberty. The prosecution of Neely for heresy against the New Orthodoxy could be seen as an overture to the social order predicted by Robert Destro of The Catholic University’s Columbus School of Law:

“Dissenting individuals and culture-forming institutions would … be forced to make a Hobson’s choice – either provide symbolic affirmation of same-sex relationships or accept fines, penalties, or exclusion from full participation in the civic life of the community.” 

What a victory! The same state that will plunder, regiment, abuse, conscript, and perhaps even kill "transgendered" young people has affirmed their "right" to use bathrooms corresponding to their gender identity -- this week's Freedom Zealot Podcast:

Dum spiro, pugno!

Doreen Hendrickson, Political Prisoner

The law is the true embodiment

Of everything that’s excellent.

It has no kind of fault or flaw

And I, m’lords, embody the law.

The Lord Chancellor, from Gilbert and Sullivan’s Iolanthe

Michigan resident Dorren Hendrickson was convicted of “criminal contempt” and sent to prison for 18 months for refusing a judge’s order to commit perjury. The first attempt to convict her of that supposed offense ended in a hung jury. In the second trial, U.S. District Judge Nancy Edmunds foreclosed the possibility of acquittal by instructing the jury that “It is not a defense to the crime of Contempt of Court that the Court Order that the Defendant is accused of violating was unlawful of unconstitutional.” 

Federal juries are notoriously pre-disposed toward conviction. The presence of a single conscientious juror in Mrs. Hendrickson’s first case was little less than providential. In the return engagement, the prosecution succeeded in winnowing out any potential jurors who might possess the character and intelligence necessary to nullify the pre-ordained verdict.

Hendrickson and her husband Peter are long-time libertarian activists, which of necessity means that they are devoted enemies to the criminal cabal called the IRS. Mr. Hendrickson is the author of a book entitled Cracking the Code which outlines his novel theory that only government employees are liable to pay income taxes. Acting on that assumption, the Hendricksons – and a number of others – have filed returns in which they have claimed no income, and through which they have received large refunds.

It is not immoral to cheat a thief, so any criticism of the “offenses” committed by the Hendricksons against the IRS is purely prudential in nature. In their long struggle against the world’s most contemptible criminal syndicate, the Hendricksons have displayed a tendency to borrow trouble at a high rate of interest.

In April 1990, the couple (who at the time were not yet married) plotted with another, Scott and Karen Scarborough, to mail a letter-bomb to the IRS. The package wound up in a mail bin at the Royal Oak, Michigan post office on the evening of April 16 – which was crowded with last-minute tax victims. When the letter began to smoke, a postal employee named Tom Berlucci extracted it and attempted to extinguish it by throwing it into a puddle and stomping on it. This caused the incendiary charge to detonate, causing minor burns to Berlucci’s face and hands and injuring a bystander.

Peter Hendrickson has described the incident as a prank that was opportunistically inflated into a terrorist bombing by the prosecution. He also insists that Berlucci exaggerated the extent of his injuries.

While stipulating that hyperbole and dishonesty are persistent federal traits, I must point out that there is no way to consider placing an incendiary device of any kind in the mail, and injuring innocent strangers to any extent, as anything other than serious crimes.

At the time, the Hendricksons and the Scarboroughs were members of the Libertarian Party, which means they were probably acquainted with the non-aggression principle – a moral axiom they either ignored or deliberately violated in staging their stunt. Summoned before a grand jury, the Scarboroughs claimed ignorance of the plot and specifically testified that the Hendricksons could not have put the letter bomb in the mail.

After he and Scott Scarborough were charged with conspiracy, Peter Hendrickson pleaded guilty in a deal that included dismissal of charges against Doreen. Seeking an additional reduction in his sentence, Mr. Hendrickson surreptitiously recorded conversations in which the Scarborough admitted to assembling the letter-bomb (using red phosphorous obtained by Doreen from the school where she worked) and planting it at the post office while Peter waited in the parking lot.

With the evidence provided by his erstwhile colleague-turned-informant, Scott Scarborough was convicted of perjury and obstruction, and joined him for a brief stint in prison.

Doreen Hendrickson’s current imprisonment has nothing to do with that misconceived caper, and her behavior more than a quarter-century ago does not justify the tyrannical actions of the prosecutor and judge who have imprisoned her for asserting her rights.

The IRS began legal action against the Hendricksons ten years ago, claiming that they had made false statements in their tax returns for 2002 and 2003. In 2010, the agency filed a motion that the couple be held in contempt for failing to file the amended returns demanded of them. A federal judge granted the motion and imposed a fine of $100 a day until the returns were filed.

When the Hendricksons did as they were ordered, filling out returns with figures dictated by the IRS, they inscribed the notation “UNDER DURESS” above their signatures as a protest. This was unacceptable to the Stalinists at the IRS, who secured another judicial decree demanding that they file the returns once again “in usable form, that in no way undermine[s] the verity of the returns….”

In January 2011, as ordered, the Hendricksons filed yet another set of revised returns. Both of them referred to Doreen’s affidavit stating that while the government regarded the most recent returns to be “true, correct, and complete,” that she was submitting them “under extreme protest” and that she “disclaim[ed] these coerced returns because they are wholly false and fraudulent.”

Mere obedience is not enough to placate totalitarian-minded functionaries when dealing with dissidents: The submission must be coupled with a profession of belief in the Regime, acceptance of its official falsehoods, and admiration for the boundless wisdom of its administrators. That is why Stalin demanded a confession from a convicted state enemy before he was fed a “Lubyanka Breakfast” – a cigarette and a bullet to the back of the head. It is also why the IRS, acting through a Stalin-grade federal judiciary, arranged the imprisonment of Doreen Hendrickson for expressing her appropriately contemptuous opinion of them.

What has been done to Doreen Hendrickson is abhorrent. It is not, however, unprecedented.

In matters of criminal contempt a trial judge enjoys the kind of unaccountable power boasted of by Gilbert and Sullivan’s Lord Chancellor: A judge not only issues orders, but can claim the jurisdiction to rule on their constitutionality. An obscure procedural principle called the “collateral bar rule” generally precludes those subject to such orders from challenging their constitutionality in contempt proceedings, or when appealing convictions. 

He was wrong, but he embodied the "law": Connor.

This is why the Supreme Court upheld the criminal contempt conviction of Martin Luther King for violating a patently spurious restraining order intended to prevent a peaceful demonstration in Birmingham, Alabama. Many civil libertarians who admire King will probably not find Doreen Hendrickson to be a sympathetic figure, but she is just as much a political prisoner as he was.

According to a ruling handed down in March by the Sixth Circuit Court of Appeals, “the collateral bar rule prevents Hendrickson from challenging the constitutionality of the underlying order in the court of her criminal contempt proceeding. When a district court has personal and subject matter jurisdiction over a case, an order issued by the court `must be obeyed by the parties until it is reversed by orderly and proper proceedings.’”

Precedents upholding the supposed authority of government to demand unquestioning obedience are generally set during wartime, and that principle applies here. The Sixth Circuit decision cites the Supreme Court’s 1947 ruling in United States v. United Mine Workers of America, which dealt with an anti-strike injunction issued against workers whose mines were operated under government control during World War II.

Chief Justice Fred Vinson asserted that “impressive authority” – of what provenance, he didn’t bother to explain – justifies “the proposition that an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings. This is true without regard even for the constitutionality of the Act under which the order is issued.” (Emphasis added.)

What this means, in practical terms, is that when a judge issues a ruling, obedience is more important than lawfulness. This is because in our system, “order” is valued more than liberty. Where a judge injures the rights of a defendant by abusing his power, the latter is to submit to the abuse, or see it compounded through imprisonment.

In 1967, the Supreme Court made this explicit in Walker v. City of Birmingham, which dealt with the criminal contempt conviction of Martin Luther King four years earlier.

King and his colleagues announced their intention to conduct a peaceful protest march on Good Friday in Birmingham, which prompted the city’s arch-segregationist Police Commissioner, Eugene “Bull” Connor, to obtain a last-minute injunction forbidding all demonstrations in the city in the absence of a parade permit. City officials also made it clear that no such permit would be issued.

Pursuing a court challenge to the injunction would mean effectively calling off the demonstration, so King decided to violate the manifestly unconstitutional order and challenge it in court. He was arrested and jailed for about a week before being released on bond.

In his majority opinion, Justice Potter Stewart acknowledged that the order suppressing the demonstration implicated “substantial constitutional issues” but pretended that “this is not a case where the injunction was transparently invalid or had only a `frivolous pretense of validity.”

According to Stewart, “however erroneous the action of the court may be,” disobeying that unlawful edict “is contempt of its lawful authority, to be punished” as the same corrupt court would direct.

The acerbic dissent by Chief Justice Warren represents a detour in a career otherwise devoted to undermining sound constitutional principles. The injunction issued against King, and upheld by the High Court’s majority, Warren observed, “was such potent magic that it transformed the command of an unconstitutional statute into an impregnable barrier, challengeable only in what likely would have been protracted proceedings and entirely superior in the meantime to the United States Constitution.”

Paul W. Butler of the Georgetown Law School points out that the collateral bar rule enthrones a “judge-made rule of law” over “fundamental constitutional right[s]…. A requirement of absolute obedience to judicial orders appears facially inconsistent with a party’s right to violate a statute and then allege its unconstitutionality in court.”

 

Defending Bull Connor's legacy: Judge Edmunds.

However, he continues, “exceptions to the collateral bar rule have been recognized where use of its prohibitive powers would ride roughshod over rudimentary constitutional principles” – such as the First Amendment rights of media organizations found in contempt for publishing critical information in defiance of unconstitutional restraining orders. “To demand compliance with such orders pendente lite [before being ruled upon] would corrupt the constitutional process by elevating form over substance at the expense of individual liberties,” he continues.

Since that “expense” is paid by the victims of judicial corruption, it matters little to the corrupt functionaries who are responsible for their suffering. The punishment inflicted on Doreen Hendrickson violated several “rudimentary constitutional principles” – including supposed guarantees of rights found in the First and Fifth Amendments. This makes her case eminently worthy of an appeal to the Supreme Court.

Assuming that the Hendricksons were able to absorb the expense involved in such an appeal, in all likelihood, the Court would decline to hear it. The judiciary has no interest in challenging the conceit that the black-robed disposers of other peoples’ lives and liberties “embody the law,” rather than being subject to it. 


This week's Freedom Zealot Podcast deals with the tragic -- but not incurable -- condition called Collectivism Spectrum Disorder:

Dum spiro, pugno!