The Tyranny of Tolerance

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.

Elaine Huguenin’s experience was rather different.

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.

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.

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.

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 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,” the claims of a slave “owner” was treated as 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.

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.