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| Jack Phillips: Baker, businessman -- cultural "terrorist"? |
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.
Dum spiro, pugno!
