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 unenumerated 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. The 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.

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 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 20th 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.