Ending Property Rights: What "Add the Words" Really Means

New Mexico Governor Susana Martinez was a regular customer of Santa Fe hair stylist Antonio Darden. About two years ago, Darden decided that he would no longer accept the Governor as a client because of her public support for the conventional definition of marriage as a monogamous, heterosexual arrangement. This was a perfectly legitimate exercise of Daren's absolute property right as the owner of his business.

Six years earlier, New Mexico resident Elaine Huguenin, who runs a photography business, declined a request to photograph a commitment ceremony between two women. In doing so, Mrs. Huguenin broke no contract, violated no promise, and didn't defraud anybody. 

Like Darden, Mrs. Huguenin exercised her absolute property right as a business owner, which includes the unqualified freedom to accept or reject clients at her sole discretion. Darden was publicly praised for his decision. Huguenin was prosecuted. 

Rather than simply finding another photographer willing to take their business, the aggrieved women who had contacted Huguenin filed a complaint with a bureaucratic body calling itself the Human Rights Commission, which is more accurately described as the state's Social Relations Soviet. The agency ruled that Huguenin had committed an act of “sexual orientation discrimination” and imposed a fine of nearly $7,000. Part of that sum went to the plaintiffs. By then they had who found another photographer willing to make a record of their ceremony, which was performed by a female cleric in Taos.

The material outcome of that ruling – which was upheld by the New Mexico State Supreme Court – was not only to punish Mrs. Huguenin for peacefully exercising exactly the same right that Mr. Darden had invoked, but to force her to pay for a ceremony that embodied a religious view she does not share. As Thomas Jefferson would summarize the affair, Mrs. Huguenin and her husband (and business partner) were compelled “to furnish contributions of money to pay for the propagation of opinions” that violated their principles, an official action Jefferson described as “sinful and tyrannical.”

Not surprisingly, the Huguenin case may be headed to the US Supreme Court. The petition filed on behalf of her business, Elane Photography, lays great emphasis on the offenses committed by the government of New Mexico against rights supposedly guaranteed by the First Amendment – freedom of speech (including protection against compelled speech) and freedom of religion. 

The elemental question in this case, however, is a question of property rights and equal protection: Why can a gay hairdresser refuse business on the basis of the potential client's views of “same-sex” marriage, while a Christian wedding photographer is punished for using her property rights to withhold approval of that practice?

The answer to that question, in policy terms, is this: Eleven years ago, the State of New Mexico “Added the Words” – that is, it amended its Human Rights Act to include “sexual orientation” among the “protected classes of people” against whom discrimination would not be permitted.

Remember that phrase, “Add the words”; we’ll return to it shortly. 

In September 2006, Vanessa Willock sent an e-mail to Elane Huguenin inquiring about her services:

“We are researching potential photographers for our commitment ceremony.... This is a same-gender ceremony. If you are open to helping us celebrate our day we'd like to receive pricing information.”

Were this a civilized society, that message would have been seen as an invitation that could be accepted or declined at the choice of the recipient. Acting on the mistaken assumption that she was dealing with a peer and potential client, rather than someone assigned to a “specially protected class,” Mrs. Huguenin dispatched a polite reply: “As a company, we photograph traditional weddings, engagements, seniors, and several other things such as political photographs and singer's portfolios.”

“I'm a bit confused,” Willock stated in her follow-up email, somewhat disingenuously. “Are you saying that your company does not offer your photography to same-sex couples?”

“Sorry if our response was a confusing one,” Mrs. Huguenin said in her forthright reply. “Yes, you are correct in saying we do not photograph same-sex weddings, but again, thanks for checking out our site! Have a great day.”

According to Willock, whose sense of privilege appears to be as over-developed as her capacity for pointless drama, Huguenin's candid but friendly response left her “shocked, angered and saddened,” as well as “fearful, because she considered the opposition to same-sex to be so blatant.”  In addition to being alarmed by fact that somebody in New Mexico disagreed with her views, Willock interpreted Hugein's statement – which, it should be noted, said nothing about the reasons for her company's policy – was “an expression of hatred.”

On the basis of nothing she did or said, and motives imputed to her by a stranger who had never met her, Elane Huguenin was designated a Thought Criminal. 

A few weeks later, Willock's partner – following what has become the standard entrapment procedure in “hate crimes” cases of this sort – committed wire fraud by sending a bogus email inquiry to Elane Photography inquiring about services at a traditional wedding. This act of deception was an exercise in privileged malice, and a criminal conspiracy: The intent was to inflict a financial injury on someone who had peacefully exercised her unqualified right to withhold participation in a proposed business relationship.

Under New Mexico's “Human Rights Act” (NMHRA), however, Elane Huguenin supposedly has a legal and moral duty to surrender her property rights when approached by someone who numbered among what the state Supreme Court calls “protected classes of people.” 

In fact, according to the court, the entire purpose of the NMHRA is “to promote the equal rights of people within certain specified classes”; in practice, this nullifies the principle of equal protection for those not clothed in the government's favor. This is why a gay hairdresser can employ the issue of “same-sex marriage” to screen his client list, but a Christian photographer cannot do likewise.

Huguenin's “asserted right not to serve same-sex couples directly conflicts with Willock's right [under the NMHRA] to obtain goods and services from a public accommodation without discrimination on the basis of her sexual orientation,” the court piously pretends. However, there is no conflict, unless we assume that Willock had a property right in Huguenin's service – in other words, that when Willock approached Huguenin, the prospective client had the “right” to compel the photographer to serve her.

Slavery and involuntary servitude aren't identical, but both are prohibited by law in this country. Nevertheless, they are tolerated, and even required, by the Regime when those controlling it consider this to be necessary.

A slave is somebody who has no right to say “no” – to withhold his or her consent to a transaction, or to refuse participation in a proposed undertaking. Slaves do not own themselves or any property they acquire. Everything they are and have may be seized and employed to serve the will of others. This is the ineluctable product of government policies that assign some people to “specially protected classes.” Once that principle is established, any limits on impositions made in its name are provisional and fleeting.

Those who support coercive fine-tuning of social and commercial arrangements assume that rights can be “balanced” by bureaucrats blessed with infinite insight and bottomless wisdom. But the only way rights can actually be balanced is to recognize, and follow, three principles: 1) All rights are property rights; 2) property rights are absolute; and 3) aggression is always morally wrong and cannot be permitted. 

In its continuing campaign to re-indoctrinate wavering statists who are tempted by individualist heresies, Salon recently published an essay assailing libertarian views regarding anti-discrimination measures. In this case, Salon focused on a proposed measure in Kansas (which was subsequently defeated) that would recognize the right of business owners not to accept patronage from homosexual couples. 

The purported defects in this proposal were illustrated by a scenario in which a restaurant owner, offended by a group of customers who gathered to celebrate a same-sex wedding, ordered them to leave. Rather than doing so the celebrants dug in their heels to protest the owner's unacceptable political views. This prompted the owner to call the police, who – in Salon's rendering – were given the choice of either enforcing the owner's prejudices, or protecting the supposed rights of the now-unwelcome customers to be free from “discrimination.”

"Since it is the state that is ultimately tasked to bring out the violent enforcers who effectuate the discriminating intents of public accommodations providers, the state literally cannot get out of the way,” the homily concludes, reverently invoking the prophet of the divine totalitarian state: “As Vladimir Lenin once retorted, the question is not whether you support freedom or not; rather, the question is freedom `for whom? To do what?'”

This is only two-thirds of the Leninist formula, under which the chief political question is: “Freedom for whom to do what to whom.” As long as the “who” in that equation belongs to a “specially protected” class, the “what” is morally inconsequential – whether it is expropriation, the imposition of involuntary servitude, or physical liquidation.

Collectivism is an exercise in identity politics. For those who understand and cherish individual liberty – which means unconditional property rights – matters of identity are immaterial: What is being done, not who is doing it or to whom, is the chief concern. If the “what” is aggression, it is always morally wrong and cannot be countenanced.

In the case described by Salon, customers who ignore a request to leave are trespassing, thereby aggressively violating the business owner's property rights. If they refuse to leave peacefully, the owner is morally entitled to use defensive force to evict them, should this prove necessary. 

If we are going to countenance the existence of a political government, its only legitimate function would be to protect property rights against aggression. This would mean helping the business owner deal with intransigent trespassers, just as it would mean coming to the aid of a gay business owner dealing with a threat to his property rights. 

As I’ve noted before, “anti-discrimination” measures institutionalize criminal aggression against property rights. This is compellingly explained in Our Secret Constitution: How Lincoln Redefined American Democracy, by George P. Fletcher, a Marxist Columbia University School of Law professor who supports this arrangement.

Since the Union’s victory in the War Between the States, Fletcher contends, the reconfigured United States has been ruled through a “secret constitution” that codifies an entirely different “consensus” than the original written document – one rooted in open-ended and, in principle, unlimited government aggression against the citizenry. 

“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,” writes Fletcher.  In the original concept, individual liberty was protected (at least, in theory) by limiting government involvement in property rights and private life. However, Fletcher insists, “the liberty that comes to the fore in the intended postbellum constitutional order and 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.) 

This is a precise application of Lenin's “who/whom” dichotomy – and an explicit endorsement of Lenin's ruling formula, under which government exercises “power without limit, resting directly on force.”

The purpose of “Human Rights Acts” like the one used against Elane Huguenin is to define “relationships of oppression” in order to decide who gets to enlist state aggression against whom. If Vanessa Willcock had made her email inquiry to Elane Photography in 2003, and been offended by the reply, she probably would have been able to arrange her commitment ceremony – but she wouldn’t have been able to inflict unconscionable misery on Mrs. Huguenin as punishment for disagreeing with her. That’s because prior to that year, Willcock was not a member of a “specially protected class”; she received that status because the state legislature decided to “add the words.”

Here in Idaho for several years, a well-funded and well-organized pressure campaign calling itself “Add the Words” has been demanding that the Idaho Human Rights Act likewise inscribe “sexual orientation” among the protected categories. Rather than “adding the words,” the legislature should delete the law and reinvigorate the principle of equal protection of property rights. That isn’t going to happen, of course. 

During the current legislative session, protesters from the “Add the Words” movement have thrown tantrums in the State Capitol and held vigils state-wide, where they can bask in their mutually-reinforced, self-absorbed sanctimony while indulging their fantasies of righteous victimhood. Former Republican Governor Phil Batt, who wrote the 1969 Human Rights Act, has endorsed the “Add the Words” campaign.

“I would like to have somebody explain to me who is going to be harmed by adding the words to our civil rights statutes,” Batt groused in an Idaho Statesman op-ed column. “Oh, I forgot – that might hurt the feelings of gay-bashers.”

Elane Huguenin didn’t bash anybody, and the injuries she suffered at the hands of New Mexico’s Tolerance Cheka were much more substantial than mere hurt feelings. But Batt and people of his totalitarian persuasion aren’t interested in hearing from people like Huguenin; they’re the “whom,” rather than the “who,” after all. 

Update: Salon's Casual Totalitarianism 

In the most recent in its continuing series of totalitarian parables, Salon published an essay by Brian Beutler making use of a familiar trope: An American expat creates a colony on an uninhabited island, and decides to "start from scratch." 

Displaying the impoverished imagination that typifies statist thinking, Beutler assumes that the "new" society would inevitably recreate the existing system, which, after all, is a product of irresistible historical forces and embodies the best of all possible worlds. This means that "starting from scratch" must include "government subsidy" for hospitals and schools, and a ruling authority that dispenses "privileges" as it sees fit. And the ruler of this "new" society -- presumably, the reader to whom the parable is directed -- will wind up "balancing" rights and assigning "privileges" according to the state's "compelling interest." This is because the state encompasses all social activity -- or, as Mussolini summarized the matter in his familiar totalitarian formula: "Everything within the state, nothing outside the state, nothing against the state." 

In matters of discrimination, the state will countenance the limited exercise of discretion by people who operate businesses over such matters as customer decorum ("No shoes, no shirt, no service"), or allowing them to refuse to conduct business with members of groups that have earned society's disfavor, such as Klansmen. But this is a privilege to be defined by those operating the state, not a property right exercised by the business owner.

As a result, Beutler informs the reader, "you’ve decided that the state has a compelling interest in protecting LGBT people from discrimination that doesn’t extend to Klansmen or people who go shirtless. You will use state power to remove a Klansman from the store if he won’t leave voluntarily, and simultaneously use state power to make sure you serve the same-sex couple. And there’s no contradiction here" -- because, of course, the question is "who does what to whom," with the state identifying the "who" and "whom" in that equation. 

"Store owners need to have a great deal of control over their properties — otherwise they won’t be able to run their businesses — but they can’t have complete control, or else you’ll be compelled to enforce broadly discriminatory rules, and you won’t do that," Buetler concludes, tacitly -- and, for all I know, ignorantly -- embracing the fascist economic model in which private "ownership" of property is graciously permitted, but only to achieve state-ordained outcomes. 

This little exercise in casual totalitarianism, like everything else Salon has recently published in the subject of individual liberty and discrimination, is intended to reassure wavering believers, not to persuade those who don't belong to the cult of the state.

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