Posted: June 16th, 2013 by Militant Libertarian
Discrimination against gays and other people identified as “protected classes” is, according to self-described constitutional authority David Adler, “a form of domestic terrorism that requires swift and sustained remedies.”
Assuming that Adler uses language with the sobriety and specificity adult conversation requires, he must understand that he is tacitly endorsing the use of lethal means to punish those who decline to associate with certain people.
If present trends continue, the day may soon come when a discrimination complaint filed against a landlord, a restaurant owner, or an employer will be treated as sufficient grounds for a drone strike, or at least the summary arrest and indefinite military detention of the thought criminal until he is suitably re-educated. The former would meet Adler’s criteria for a “swift” remedy for that supposed act of “domestic terrorism”; the later would represent a more “sustained” approach to a remedy.
Mr. Adler is the director of the Andrus Center for Public Policy at Boise State University. He describes himself as an authority of some kind “on the Constitution, the presidency and the Bill of Rights.” Writing in the June 6 issue of the Idaho Statesman, Adler commended the City Council of Coeur d’Alene for joining Boise, Sandpoint, Moscow, and Ketchum in enacting municipal ordinances “to prohibit discrimination against their residents in the areas of employment, housing and public accommodations on the grounds of sexual orientation and gender identity.”
The “courage” supposedly displayed by those city governments, Adler insists, stands in severe contrast to the timidity of the state legislature in refusing to expand the state’s anti-discrimination laws to include sexual orientation. Appropriating one of George W. Bush’s preferred post-9/11 tropes – “If you’re not with us, you’re against us” — Alder insists that those who are not enlisted in the ranks of coercive “tolerance” are on the side of benighted bigotry: Anyone who refuses “to prohibit discrimination … effectively endorses it,” he asserts.
No, it’s even worse than that, Adler insists. The social division runs between enlightened “neighborhoods and community centers where patriots gather to promote the concept of liberty” – which, in Adler’s universe, requires government regimentation of all private associations and commercial transactions – and the squalid ranks of domestic “terrorists” and those who enable them. Thus if you reside in Idaho, and aren’t actively working to expand anti-discrimination laws, you must be considered an ally of domestic terrorists, and shouldn’t expect to be spared with the anti-discrimination drones begin to fly.
Mr. Adler might object that this is a caricature of his views. It is not. He refers in detail to the use of what he calls “state power” to “mitigate the evil nature of discrimination” against women and various ethnic minorities. This is an application of supposedly redemptive coercion on the basis of what Columbia University School of Law Professor George P. Fletcher calls the “Secret Constitution.”
In his book of that name, Fletcher explains that the government ruling us draws its authority not from the principles of the Declaration of Independence, or even from the delegate powers listed in the U.S. Constitution, but rather from the war to re-conquer the independent South. That conflict, usually referred to by the artfully misleading title “Civil War,” established the fact that the government in Washington is willing to kill Americans in whatever quantity it deems necessary in order to enforce its edicts, and then sanctify the slaughter in the name of some suitably “progressive” social objective.
Fletcher puts the matter quite plainly in Our Secret Constitution – How Lincoln Redefined American Democracy: “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.”
Recall that Adler referred to those who agitate on behalf of anti-discrimination laws as “patriots” who “seek to promote the concept of liberty.” Fletcher usefully explains that under what he calls the “new order” the “liberty that comes to the fore … 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.)
On this construction, the more regimented our commercial and personal associations are, the “freer” we become, pending that millennial day in which we will achieve the perfect liberty that is possible only through the blessing of undisguised totalitarianism.
Laws criminalizing “discrimination” are innately totalitarian: They vitiate the concept of property rights upon which all liberties depend, and they authorize the state to punish people for doing nothing. In many instances, those accused of discrimination are pointedly denied due process. Under the ordinance enacted last year by the City of Boise, for example, a business owner or landlord can be fined $500 and sent to jail for a year on the basis of a single discrimination complaint, and the defendant in that process is explicitly denied the right to a jury trial. This is impermissible under the Idaho State Constitution, not that this fact is of any material consequence.
Discrimination is not a crime, and it doesn’t become one simply because a government demands that we pretend it to be. A crime requires a conscious act of force or fraud that injures the property (including the person) of another individual. No injury of that sort occurs when one party declines to engage in a business transaction with another. In a market economy, the former party would lose a financial opportunity, and the latter would be able to find others who would be willing to provide the same good or service. The opportunity cost of foregoing that transaction is the price that is paid by those who chose to discriminate – and that’s the only morally supportable form of “punishment” that can be imposed for discrimination.
In a political economy, as Fletcher and Adler understand it, the state asserts an entirely spurious property right in the management of all transactions and private associations, and claims the authority to intervene when one party declines to participate in transactions with someone identified as a member of a “protected class.” Those accused of discrimination can be found guilty of a “crime” without engaging in an overt act of any kind, let alone one that involves force or fraud.
In a “discrimination” case in Colorado, that state’s “CivilRights” bureaucracy and the ACLU have become co-conspirators in a campaign of official persecution targeting a businessman who was the victim of an act of criminal fraud.
Last July, Denver resident Jack Phillips, who operates a specialty bakery called the Masterpiece Cakeshop, declined to make a wedding cake for a same-sex couple. Because Colorado state law officially discriminates between marriage and the “same-sex” arrangement that wants to appropriate that title, the couple intends to travel to Massachusetts later this year for a their ceremony. The trouble and expense involved in making that trip are the fault – if that word applies – of the Denver state government, not Jack Phillips.
For his part, Phillips simply declined to take the couple’s money, which is his indefeasible right as a businessman. He didn’t defraud them or impose on their property rights in any way. Denver, being a self-consciously “progressive” city, abounds in businesses that would be delighted to make a wedding cake for the couple. So neither party in this matter endured any injury – until the couple decided to target Phillips for official harassment because he had invoked his religious scruples in explaining why he declined to take their business.
Several other same-sex couples joined in the fun. One of them included a woman who decided to pull what she probably regarded as a clever little sting operation. Littleton resident Stephanie Schmalz, who complained that she and her significant other, Jeanine, had been told by Phillips that he wouldn’t make cupcakes for their “commitment ceremony.”
After reading about the incident involving the other same-sex couple, “I decided to try an experiment,” Schmalz recounted in a January 3, 2013 affidavit. “I called Masterpiece Cakeshop again and spoke with Jack Phillips. I told Mr. Phillips I was a dog breeder and was planning to host a celebration on the occasion of breeding one of my dogs with a neighbor’s dog. I specified that for the `dog wedding’ I wanted a cake larger enough to serve about 20 people, in the shape of a dog bone, and lettered with the names Roscoe and Buffy. My Phillips stated no objection to filling this order; he quoted me a price of $69.99 plus tax and asked when I needed the cake.”
“I then felt even more disgusted that the owners of Masterpiece Cakeshop were willing to take a cake order for a supposed wedding between two dogs, but not willing to take an order for a celebration of the love and commitment between two women,” concluded Schmalz in a coda ironically worthy of her name.
I’ll let others to contemplate whether the speciesism displayed by Schmalz is a form of criminal discrimination worthy of state scrutiny and punishment. The germane issue here is that her affidavit contains a sworn confession to the offense of wire fraud – a “scheme or artifice to defraud” involving a telephone conversation — which is a crime under both federal and Colorado state law. She made a fraudulent representation to an innocent businessman, who offered a price quote in good faith.
Mr. Phillips could make a very good case that Schmalz’s deception amounts to a civil tort. What elevates it to a criminal offense is the fact that her fraudulent representation is being used against Phillips in a state government proceeding that has already imposed considerable material expenses, and may result in fines, a year in a cage, and government-supervised re-education.
Conflicts of this kind are being staged elsewhere – such as New Mexico, Washington, and Oregon – by gay rights activists who mistakenly assume that the sacred cause of “tolerance” justifies assaults on the property rights of businessmen whose acts have not harmed them, but whose religious convictions they find objectionable.
David Adler refers to this variety of sanctimonious bullying as “courage,” which he says is displayed whenever people are willing “to bring state power to bear against the forces of discrimination.” We can expect Mr. Adler to lend this voice to the chorus of “progressive” celebration that will erupt when the anti-discrimination drones begin their cleansing work.