Boise’s Proposed Thoughtcrime Ordinance
William Norman Grigg
Recently by William Norman Grigg: The
Death of a Slave-Catcher
concerned with external behavior and not the inner life of man."
~ Justice Felix
Virginia Board of Education v. Barnette (dissent)
O-36-12, a proposed municipal "anti-discrimination"
measure being considered by the Boise City Council, would do nothing
to protect people from acts of criminal violence. Instead, it would
mandate the use of state-sanctioned aggression against business
owners who refuse the commercial patronage of gay, lesbian, and
has no authority to criminalize private behavior between consenting
adults, by what supposed authority can it punish people who withhold
their consent from a commercial transaction? Proponents of the ordinance
intend to bury that question beneath a blizzard of bromides about
tolerance and respect.
About a year
Council President Maryanne Jordan was approached by two Boise
residents who claimed to have been assaulted because they were gay.
They also claimed that they were afraid to report the crime out
of fear that they might suffer repercussions if they went public
about their lifestyle. Jordan says this prompted her to devise a
measure that would ban discrimination based on "sexual orientation
and gender identity or expression" in housing, employment,
and public accommodations.
disclose any of the details of the alleged assault during the
November 13 City Council hearing on the proposed ordinance.
In this sense the story told by Jordan is typical of what the Boise
Weekly calls "anecdotal reports" that "suggest
a recent increase in hate-based crime" against gays and lesbians.
Those unconfirmed reports have allegedly grown in number since the
last time the state legislature refused to add the category of "sexual
orientation" to the state anti-discrimination ordinance.
one of two possibilities: Either Idaho has a sub-population of violent
bigots who are oddly fastidious about following the state anti-discrimination
law, or the people who are seeking to change the state law aren’t
terribly fastidious about telling the truth.
Idaho was among
the first states to enact a "hate crimes" law. According
to the most recent official tally, hate crimes – a category
that includes rude comments – are all but nonexistent in Idaho.
This offers a powerful argument on behalf of the second of the possibilities
listed above. That argument was augmented by the turnout at the
November 13 Boise City Council meeting.
to Boise’s NBC affiliate, "There was a line out the door,
and also an overflow room for those who came for the reading [of
the measure]." Literally hundreds of gay and lesbian people
came to offer testimony and public support on behalf of a measure
they claimed was necessary because they were paralyzed with fear
over the public disclosure of their sexual identity.
what you are seeing is a group of people who are finally getting
the chance to stand in front of an elected body and tell their story,"
insisted Mistie Tolman, co-founder of the Add the Words Campaign
(which has lobbied to change the state anti-discrimination law).
"So they are coming out in droves to tell them what it’s like
not to have those protections."
Those who testified
on behalf of the anti-discrimination measure weren’t boldly confronting
a hostile Sanhedrin. Every public official at the event expressed
support for the proposed ordinance. Boise Mayor David Bieter, who
later said he was "honored" to take part in the hearing,
made a point of letting the audience know that its input wasn’t
necessary, and that the proposed change could be made without public
Two more public
meetings on the measure are scheduled, but the outcome of this process
is as predictable a Jay Leno punchline.
on November 13 at Boise City Hall was not a deliberative political
function. It was a peculiar kind of revival meeting in which the
faithful gathered to declaim against the sin of discrimination –
a form of iniquity they seek to eradicate through the righteous
and compassionate exercise of official coercion.
As the term
is commonly used, discrimination could sometimes be considered sinful.
There are situations in which it may constitute a tort. It is never
a crime – that is, an act of fraud or violence that injures the
property rights of another human being.
government may issue edicts against discrimination, and enforce
them through the application of aggressive violence. But no government
has the power to turn it into an actual crime, any more than it
can alter the law of gravity by an official edict.
The only legitimate
function of political government, assuming that one exists, is the
protection of property rights. Boise’s proposed anti-discrimination
ordinance is rooted in the denial of property rights, which – when
exercised by insufficiently progressive people – are believed to
undermine "fair and equal treatment" of sexual minorities
and the "city’s economic well-being."
Mayor Bieter, the anti-discrimination ordinance "makes good
business sense, because as we look to attract new jobs and businesses,
we must demonstrate that Boise offers the same protection as other
cities. In short, discrimination is bad for business and counter
to our shared ideals."
everybody else in the political class, Bieter neither understands,
nor cares to learn, how the market functions. If discrimination
is truly "bad for business," then profit-minded businessmen
won’t discriminate – and the market will reward them.
public figure who has endorsed the anti-discrimination measure has
taken refuge in a bizarre dialect that is equal parts civic boosterism
and cultural bolshevism. Boise is a great and wonderful city, they
insist, but it will reach its potential only if its economy is artfully
managed by the wise and visionary people who rule it. This will
mean, among other things, using government power to identify those
who harbor views at odds with the new cultural consensus, and catechizing
them at gunpoint until they recant their political heresies.
A year ago,
the same civic savants who are promoting the "business-friendly"
anti-discrimination ordinance imposed
a ban on smoking
in both public bars and private clubs. That prohibition, which was
also advertised as a way of improving Boise’s business climate,
had the predictable effect of driving many club owners into financial
who violate the smoking ban face a $69 fine for each infraction
– a much milder penalty than the one prescribed for business owners
who are accused of violating the anti-discrimination act.
would apply to housing, employment, and "public accommodations."
An employer, landlord, or businessman could be found in violation
of measure without committing an overt act. All that would be necessary
is a complaint filed by someone who takes offense over another person’s
refusal to engage in commerce.
of how this would work is offered by the
case of New Mexico resident Elaine Hugenin.
In 2006, Hugenin,
a wedding photographer,
was approached by a woman named Vanessa Wilcock, who wanted to hire
her for a "commitment ceremony" with her same-sex partner.
Hugenin declined, politely explaining that she was willing to forgo
that business opportunity in order to be faithful to her religious
Where the natural
law is concerned, the matter ended there. Nobody’s rights were injured,
and Wilcock was free to solicit the services of another photographer.
Rather than doing so, she and her partner decided to enlist the
state to punish Hugenin for her thought crimes. They filed a discrimination
complaint with the state’s "Human Rights Commission,"
which ruled in their favor and imposed a $6,600 fine on the photographer
because she had declined to engage in what should have been a voluntary
commercial transaction. (It’s worth noting that New Mexico, like
Idaho, does not formally recognize "same-sex marriage,"
which means that the state engages in the same form of discrimination
for which Hugenin was punished.)
Hugenin case is headed to the New Mexico Supreme Court, which
means that it is and will continue to be a huge financial drain
on the very limited resources of a small business owner.
and the architects of Boise’s anti-discrimination measure would
probably reply that the victim was to blame for her plight, and
that people who run afoul of the Boise ordinance would be able to
avoid serious punishment if they would simply submit to re-education.
found guilty of discrimination would face up to a year in jail and
a fine of up to $1,000 – unless they agreed to government-imposed
"sensitivity training," in which case they would be subject
to a $100 penalty and be required to sign an agreement "to
not engage in discriminatory practices in the future."
section 6-02-05 of the draft ordinance stipulates that "There
shall be no right to a trial by jury for an infraction citation
or complaint." This provision is facially incompatible with
Article I, section 7 of the Idaho Constitution, which dictates
that "The right of trial by jury shall remain inviolate"
in all criminal cases.
also worth noting that under
Boise’s municipal code, sexual orientation discrimination would
be treated as an offense as serious as an act of physical assault.
What this means is that a landlord who declined to rent a home to
a same-sex couple could spend as much time behind bars as an assailant
who actually committed an act of physical violence against them.
famously said that his neighbor’s religious beliefs didn’t matter
to him because they neither picked his pocket nor broke his leg.
To be a crime, an act must involve aggression against the person
or property of another human being – that is, it must entail either
pocket-picking or leg-breaking.
anti-discrimination measure, like similar enactments elsewhere,
would empower uniformed leg-breakers to pick the pockets – and incarcerate
the persons – of residents whose only offense would be to conduct
their business and private affairs peacefully in accordance with
their religious and moral beliefs.
isn’t a crime. However, seeking to punish it certainly is.
Norman Grigg [send him mail]
publishes the Pro
Libertate blog and hosts the Pro
Libertate radio program.
© 2012 William Norman Grigg
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