State censorship implies at least two powers and rights on the part of the state: First, state censorship means that the state is the determiner of the common good as the sovereign over all its subjects or citizens. Second, state censorship as a sovereign power and right means that the power to determine the good or evil of things subject to censorship rests in the state as an inherent factor.—R. J. Rushdoony[i]
History has shown us that hateful words sometimes lead to hurtful actions that undermine freedom and have led to unspeakable crimes. That is why Canada and most other democracies have enacted legislation to place reasonable limits on the expression of hatred.—Jennifer Lynch, Q.C., chief commissioner, Canadian Human Rights Commission[ii]
A recent decision by the New Mexico Human Rights Commission, to punish a Christian photographer for not taking pictures of a lesbian “commitment ceremony,” raises the specter of a Canadian-style “human rights” regime being imposed on the United States.
As humanists labor to reconstruct society under a secular theocracy, an invaluable weapon in their arsenal will be the “human rights commission.”
“These commissions are being used more and more, definitely, as the weapon of choice against Christians,” said Jordan Lorence, an attorney with the Alliance Defense Fund.
Lorence is defending Elane Photography, a mom-and-pop photography business in Albuquerque, for refusing to photograph the lesbians’ “commitment ceremony.” Elaine and Jonathan Huguenin told the New Mexico Human Rights Commission that their Christian religious beliefs—including the belief that marriage is only for a man and a woman—barred them from taking any action to support same-sex unions.
The HRC ruled against them in April and fined them $6,637.94 to cover the plaintiff’s legal fees. Lorence said they will appeal the decision in the District Court in Albuquerque and, if necessary, appeal all the way up to the United States Supreme Court.
A Conflict of Interest?
The plaintiff in the case, lesbian Vanessa Willock, “has been with UNM [University of New Mexico] since 1997 and is currently an EEO Compliance Representative with the Office of Equal Opportunity where she investigates claims of discrimination and sexual harassment …” (emphasis added).[iii]
In other words, she is employed by one state government agency to investigate the kind of claim she brought before another agency of the same government. This struck us as irregular and possibly unethical, but Lorence played it down.
“I do not believe this was a setup from the beginning,” he said. “We looked into it, and I see no evidence for it. We were prepared to argue that it was a setup, but then they [the lesbians] actually did have a ceremony, with a New Age priestess from Taos and another photographer [hired when they couldn’t get Elaine Huguenin to photograph their ceremony].”
In Canada, where a more draconian “human rights” regime prevails, it is not unknown for an “investigator” to post actionable comments on a target’s blog, hacking the site if necessary, and then file a “hate speech” complaint against the blogger. (For egregious examples of this, featuring investigator/plaintiff Richard Warman, see http://www.richardwarman.com/covert_ops.html.) Supposedly, this has yet to happen in the United States.
We have no space here to list the cases in which “human rights” complaints have been filed against Canadian Christians, but we have found two websites that offer lists of the more notable examples.[iv] We urge the reader to visit these sites.
ADF provided Chalcedon with a copy of the ruling against the Huguenins, issued by hearing officer Lois Dogliani in April after a one-day hearing in January.
“We were amazed by the stunning indifference the New Mexico HRC showed to First Amendment issues,” Lorence said. Perhaps he was thinking of this conclusion by the hearing officer:
“[T]hese [constitutional] questions are not before the NMHRC for determination in this proceeding and, accordingly, are not addressed here …” (emphasis added).
The HRC found that there was an “unwritten company policy … that Elane Photography would not photograph any image or event which was contrary to the religious beliefs of its co-owners,” Elaine (the photographer) and Jonathan (the business manager) Huguenin. “Ms. Elaine Huguenin believed that, as an artist, she became a part of the events she photographed,” the hearing found.
The HRC ruled that this small photography business was subject to state law prohibiting “public accommodation discrimination based on sexual orientation,” and rejected a defense based on the Huguenins’ free exercise of religion, a First Amendment right. Apparently this is what the Huguenins got for advertising in the Yellow Pages and holding a New Mexico business license—which, in the opinion of the HRC, made their photography business subject to the same public accommodation laws regulating diners, motels, or pool halls.
The Huguenins also made the mistake of telling Willock, in an email, “Yes … we do not photograph same-sex weddings.”
This simple statement, Willock told the HRC, was “an expression of hatred” that made her feel “shocked, angered, and saddened,” and also “fearful.”
Fearful? It seems to us that the Huguenins had a great deal more to fear from her.
Can the U.S. Avoid Canada’s Example?
Meanwhile, north of the border, Canadian human rights commissions “cast a wide net to capture the known and unknown [sic] causes of discrimination.”[v] Such language from Chief Commissioner Barbara Hall captures the creepy ambience of the Ontario Human Rights Commission’s official website, http://www.ohrc.on.ca.
Jordan Lorence does not seem to believe Americans have much to fear from the Canadian example. “In the United States,” he said, “unlike Canada or Western Europe, we have a strong tradition for freedom of speech and religious liberties because of our First Amendment. Also, the Supreme Court has ruled that the First Amendment protects one from punishment under a sexual discrimination law, at least in some circumstances.
“The Supreme Court ruled the right way in the Hurley (Boston St. Patrick’s Day parade) case in 1995 and the Boy Scouts case in 2000. Also, in the U.S. we have groups like the Alliance Defense Fund willing to defend those attacked by the nondiscrimination laws. We cannot guarantee victory, but we have the expertise, experience, and funding to fight for our liberties.”
But in Canada the provincial government funds the plaintiffs’ legal costs in any human rights complaint, leaving the defendant to shift for himself. We talked to Ezra Levant, who has so far spent more than $100,000 defending himself against a human rights complaint.
As editor of the now-defunct Western Standard, Levant published the notorious “Muhammad cartoons” to illustrate a news story about Muslim outrage over the cartoons. A few Canadian Muslims complained to the Alberta Human Rights Commission, and the chase was on.
“The U.S. Constitution has less wiggle room for censors than does our Trudeaupian Charter [the Canadian Charter of Rights and Freedoms],” Levant said. “Their First Amendment is stronger than our Section 2.
“Canadians do believe in freedom, generally speaking. We have the same heritage of the Magna Carta and the rule of law as do Americans. But these human rights commissions have evolved without the scrutiny or approval of Canadians. They were created forty years ago, ostensibly to deal with acts of discrimination—mainly in accommodations and employment. But there has been a steady mission creep, where they have expanded their jurisdiction on their own, and now have arrogated unto themselves the right to regulate political opinion. This happened gradually, over decades, because these commissions were not subject to proper scrutiny or oversight. Now they’re baring their fangs and coming straight for religious and political views they deem to be incorrect.”
We wonder what kind of scrutiny or oversight has been applied to the New Mexico Human Rights Commission. Levant continued:
“That slowly creeping fascism is something that America is susceptible to—in their university campus ‘speech codes’ and even through other facsimiles of our human rights commissions.”[vi]
“Americans have a genetic advantage over us,” Levant said, “in that their Constitution has a more robust defense of speech, including ‘offensive’ speech; but there are seeds of politically correct censorship that are already planted there, that are putting down roots, too.”
A Mission to “Design” Society
That America’s sister country has a cancer of tyranny growing in it becomes apparent after a visit to the Ontario Human Rights Commission’s website. What we see here is an agency of the government, not content to deter and punish specific acts of discrimination, assigning itself the mission of abolishing “hate” in general—by coercion.
Ontario’s Human Rights Code “evolved in part from the Ontario Racial Discrimination Act of 1944,” says the website’s article, “Policy and Guidelines on Racism and Racial Discrimination.” “But, despite laws to address racial discrimination having existed for over 60 years, racial discrimination and racism persist in Ontario.”[vii]
Laws intended to abolish racism have not worked … so Ontario needs more anti-racism law? Coercion hasn’t worked, so Ontario needs more coercion?
“The Supreme Court of Canada has made it clear that society must be designed [emphasis added] to be inclusive of all persons,” says the OHRC.[viii] To that end, the commission has assigned itself the duty of policing the “organizational culture” or a company or an association, right down to the level of “informal social behavior, such as communication, decision-making and interpersonal relationships, which are the evidence of deeply held and largely unconscious values, assumptions and behavioral norms.” The commission is determined to stamp out “unintended” or “unconscious” discrimination wherever it exists.[ix]
A Visit with the OHRC
Starting in July, the commission will have expanded powers under a “new mandate.”
“When the Human Rights Code Amendment Act, 2006 comes into effect on June 30, 2008, there will be a number of significant changes in the mandate of the Ontario Human Rights Commission,” says an article on the OHRC website.[x] “We will have the power to conduct public inquiries, initiate our own applications (formerly called complaints), or intervene in proceedings at the Human Rights Tribunal of Ontario (HRTO). We will be able to engage in proactive measures such as public education, policy development, research and analysis.”
The commission will acquire expanded powers “to consider whether legislation is inconsistent with the intent of the Code” in “our current role as a developer of public policy on human rights.”
We talked to Jeff Poirier, a media liaison for the OHRC, who said that the commission is not, for practical purposes, an agency of the government. “We are at arm’s length from government—in fact, we are independent from government,” he said. “Our mission is to advance a culture of human rights.”
To carry out the mandate for “designing society,” as the Canadian Supreme Court puts it, the commission is to be “independent from government” and have the power to decide whether legislation serves the intent of the Human Rights Code. It sounds as if rather than the commission being accountable to the legislature, the legislature is to be subordinated to the commission.
The commission has also been given the power to initiate complaints: why wait for a plaintiff? “[T]he Commission may choose to initiate a complaint and use its broad powers to investigate, resolve or decide whether to refer the matter to the Human Rights Tribunal of Ontario,” says the commission’s 2007 Annual Report.[xi]
“Freed of its gatekeeper role,” reports the National Post, “the commission will be allowed to bring complaints on its own initiative to the Ontario Human Rights Tribunal, even without individual complainants.”[xii]
“We have a very broad mandate,” Poirier said. “The commission is a very unique institution.”
He denied any and all reports that the HRC is riding roughshod over Canadians’ civil liberties, systematically discriminating against Christians and conservatives in favor of Muslims and homosexual activists. That impression, he said, “is probably the result of media coverage of the commission’s activities. Things are difficult when people see rights competing.”
Aiding and Abetting Sin
But how can there be anything but abuse, when a government agency—which self-consciously sees itself as independent of the government—takes on the mission of “designing” society? When it sees its authority extending over such vague and indefinable areas as “unconscious racism” and “interpersonal relations”? When it self-consciously believes that “hate” can be abolished by criminalizing “offensive” speech? Note that speech offensive to Christians is never hateful! The reader is urged to visit the OHRC website and decide for himself whether we overstate our case.
We may seem to have strayed far afield from the human rights case in New Mexico, but consider this.
Had a lesbian contacted Mrs. Huguenin to hire her to take pictures of her new car, her high-school reunion, or her favorite niece’s birthday party, Mrs. Huguenin would have had no reason to decline any such mundane assignment. But Ms. Willock asked Mrs. Huguenin to take part, by photographing it, in a lesbian “commitment ceremony.”
The operative Biblical principle in this case is seen in Psalm 50, verse 18: “When thou sawest a thief, then thou consentedst with him, and hast been partaker with adulterers.”
“To see theft and be silent is to be party to the theft,” R. J. Rushdoony explains.[xiii] Furthermore, the state calls it “misprision of a felony”—a punishable felony in itself—for failing to report the commission of a federal felony.[xiv]
If a Christian is serious about living by God’s law, she cannot take part in any activity—a lesbian “wedding,” for instance—contrary to that law. To serve as the photographer at Ms. Willock’s “commitment ceremony” would have been for Mrs. Huguenin to give her tacit consent to it. Her acceptance of the assignment would have been the Biblical equivalent of “misprision of a felony.” But the state takes its own laws far more seriously than it expects a Christian to take God’s laws.
Can It Happen Here?
Canada’s human rights commissions were originally created to play “a valuable role in protecting against discrimination in housing, employment, access, etc.,” Royal Hamel writes.[xv] Now, he says, “they are shutting down free speech across Canada by using hate speech legislation. Unlike in a court of law, there is no presumption of innocence for the defendant, and the commissions have returned a verdict of guilt in virtually every hate speech case they have ever heard.” This is unavoidable when the “evidence” of hate speech is the offended party’s “feelings.”
In Canada, any opposition to the advance of organized sodomy is construed as “hate” and subject to punishment. There is no First Amendment to protect Canadians. But will it protect us?
“The government cannot make people choose between their faith and their livelihood,” Jordan Lorence said. “Christians in the marketplace shall not be penalized for abiding by their beliefs. The Constitution prohibits the state from forcing unwilling people to promote a message they disagree with and thereby violate their conscience.”
But the Huguenins have been penalized by the New Mexico Human Rights Commission; and unless this is undone by a court, it will stand.
The Elane Photography case is not the first of its kind in the U.S. In October we reported that the state of New Jersey is trying to force a Methodist church to allow a lesbian “marriage” to be performed on its property—the result of a complaint to another government “civil rights” agency.[xvi] Meanwhile, a U.S. senator is trying once again to attach a “hate crimes amendment,” punishing crimes motivated by alleged prejudice against homosexuals, to a defense appropriations bill.[xvii]
There can be no doubt that if “human rights” apparatchiks and liberal politicians have their way, and if the courts fail to uphold America’s religious liberties under the First Amendment, we will have here the same kind of hate crimes regime we see in Canada, and a deep erosion of our freedom.
The state wishes to define the common good and to assume the authority to decide which words, which actions, are good or evil. It’s in man’s sinful nature that the state will never stop trying to achieve this—not now that the genie has been let out of the bottle.
Maybe, with greater public scrutiny and oversight, Canada might have prevented its human rights commissions from becoming a law unto themselves. But now the commissions are entrenched, and it remains to be seen whether they can ever be uprooted from their position of dominance.
Our American “human rights” regime is just starting to dig in.
Since this article was written, the Canadian Parliament has introduced a resolution calling for an investigation of the Canadian Human Rights Commission (CHRC).
The resolution cites “concerns… raised regarding the investigative techniques of the Canadian Human Rights Commission… and the interpretation and application of section 13 of the Canada Human Rights Act.” Section 13 is the clause giving the commission authority to investigate any comments or writings that “might” cause the complainant, at some undetermined future time, to be exposed to hatred—an exceedingly broad mandate. (A full text of the resolution can be seen at http://ezralevant.com/RICK%20DYKSTRA.pdf .)
“I don’t think the CHRC is going to be a pleasant place to work for the next year or so—longer if criminal charges are laid,” Levant said.
[ii] Quoted by Mark Steyn, “Please send more complaints” Maclean’s, April 23, 2008, http://www.macleans.ca/canada/opinions/article.jsp?content=20080423_31672_31672.
[vi] Lee Duigon, “‘No Free Speech Allowed’ at Site of Liberty Bell,” The Chalcedon Foundation, January 16, 2008, http://www.chalcedon.edu/articles/article.php?ArticleID=2821.
[viii] “Guidelines on Developing Human Rights Policies and Procedures,” Ontario Human Rights Commission, revised January 30, 2008, http://www.ohrc.on.ca/en/resources/Policies/gdpp?page=gdpp-I.html.
[xii] Joseph Brean, “A friend of free speech?” National Post, April 19, 2008, http://www.nationalpost.com/most_popular/story.html?id=456006.
[xiv] Ibid., 467.
[xvi] Lee Duigon, “Church Won’t Perform Lesbian ‘Union,’ So State Revokes Tax Exemption,” October 9, 2007, http://www.chalcedon.edu/articles/article.php?ArticleID=2783.