The Pacific Legal Foundation, a veteran victor in multiple property and civil rights fights that have gone all the way to the Supreme Court, is sounding off on the fight that has developed between the state of Oregon and Aaron and Melissa Klein.
They were forced to close their bakery when officials in the state imposed a fine of $135,000 on them for their refusal to violate their constitutionally protected religious faith and create a wedding cake for a same-sex duo.
The PLF notes the First Amendment issues that are involved in the case, but warns in its filing with the Supreme Court that the very system that’s supposed to protect individual rights is a serious threat to them.
Because in this case, as in many cases involving disputes over state or federal agency actions, the “judges” who decide them are administrative law judges.
That means they’re not part of the judiciary at all, but are simply agency employees beholden to the agency for their salaries and more.
PLF attorney Wen Fa explained:
“What happens when one disagrees that an agency’s action actually furthers the public interest? You might think that she can call on the courts for help. Yet many of the judges who resolve the dispute between the individual and the agency work for the agency. In one instance, the head of a federal consumer protection bureau went after a mortgage lender for allegedly violating a vague real estate law. An administrative law judge imposed a fine of six million dollars. The bureau chief didn’t care much for that decision. He overruled the judge and imposed a fine of 109 million dollars instead! Instances in which an agency head overrules a judge offends the separation-of-powers and threatens individual liberty.”
Fa pointed out that agencies, and agency chiefs, “have plenty of control over administrative law judges at the state level too.”
The Klein case involves cake creators who were fined for refusing to violate their religious faith.
“Although much ink has been spilled about whether cake artistry is speech, PLF’s brief advances a unique argument. It focuses on the threat that agency power poses to the First Amendment. That power threatens First Amendment rights not only when cake artistry is at issue, but in any instance in which an Oregon agency seeks to enforce a broad law,” Fa explained.
“When that happens, it will be up to an Oregon administrative law judge (ALJ) to vindicate an individual’s constitutional rights. These judges are not federal judges. The Constitution ensures that federal judges are independent by vesting them with life tenure and preventing the government from diminishing their salary. By contrast, Oregon ALJs are beholden to their agency head, and rely on that person for performance reviews, salary decisions and so on. Hardly a system that safeguards judicial independence.”
The organization’s filing explains issues in the case affect the First Amendment rights of all Americans.
“As the court of appeals observed, there is no ‘reason in principle why the services of a singer, composer, or painter could not fit the definition of a ‘place of public accommodation” under state law … And there is no reason why a state could not add ‘political beliefs’ to the list of protected classes under its public accommodations law.”
In previous cases, the Supreme Court has decided the “government is not free to compel speech to promote an approved message or discourage a disfavored one, however enlightened either purpose may strike the government,” the filing explained.
The foundation said states in recent years have moved to adopt broad “public accommodations” laws in order to cater to the LGBT population, and because of that, the conflicts with the First Amendment are developing.
In the Klein case, it is the Oregon Bureau of Labor and Industries, that, the PLF explained, has been set up as “judge, jury and executioner,” in applying an extremely broad public accommodations law.
“Broad laws pose a problem for the First Amendment because their very existence can ‘chill the expressive activity of others not before the court.’ Such laws raise the concern that the legislature ‘has created an excessively capacious cloak of administrative and prosecutorial discretion, under which discriminatory enforcement may be hidden,'” it explained.
“This court,” the filing said, “should be vigilant to guard individual liberties against agencies that place policy objectives over the Constitution’s guarantees. Agencies can use fines and other tools to ‘rehabilitate’ businesses … and coerce them to ‘bend to the [agency’s] demand without a fight.'”
But such coercion “presents unique dangers in First Amendment cases. Pressure or threats from government officers impose a chilling effect on free expression.”
“This court should grant review to offer clear guidance to state ALJs who decide sensitive First Amendment issues in the first instance. These judges can face strong political pressure when deciding important constitutional questions, and an authoritative holding from this court will help ensure that these difficult cases are solved on principled First Amendment doctrine rather than pressure from state agencies or the public.”
William J. Olson P.C. filed the brief on behalf of Public Advocate of the United States, Conservative Legal Defense and Education Fund, One Nation Under God Foundation and Restoring Liberty Action Committee.
It contends that the “notion of declaring all businesses (and all individuals) to be places of public accommodation has become in vogue in certain states, enacted, inter alia, to cater to the political powerful or politically favored, but it has no common law or even federal antecedent.”
“Such laws place government bureaucrats in operational charge of businesses, imposing the state’s morality on every business owner, while still (nominally) allowing private ownership of the ‘means of production.’ Thus, it is best understood as extreme interventionism – a step on the road to Fascism. Consider how the Oregon Public Accommodation law accords with the description of Fascism offered by scholar Sheldon Richmond, editor of The Freeman.”
Richmond wrote: “As an economic system, fascism is SOCIALISM with a capitalist veneer. … Where socialism sought totalitarian control of a society’s economic processes through direct state operation of the means of production, fascism sought that control indirectly, through domination of nominally private owners.”
The brief stated: “In its essence, the Oregon law confiscates from individuals and businesses the right to determine with whom they will do business and on what terms. They smack of the type of control that Benito Mussolini described in his 1928 autobiography.”
In it, the dictator wrote: “The citizen in the Fascist State is no longer a selfish individual who has the anti-social right of rebelling against any law of the Collectivity. The Fascist State with its corporative conception puts men and their possibilities into productive work and interprets for them the duties they have to fulfill.”
“We don’t often tell people they are acting like fascists – unless they
deserve it,” Olson told WND.
Officials in the office of Oregon Gov. Kate Brown declined to respond to a WND request for comment.