Posted on 07/08/2015 4:46:20 AM PDT by SeekAndFind
On July 2, Brad Avakian, commissioner of Oregons Bureau of Labor and Industries (BOLI), ordered Aaron and Melissa Klein to pay $135,000 in damages for emotional, mental and physical suffering to a lesbian couple after the Kleins owners of Sweet Cakes by Melissa declined to bake a cake celebrating their same-sex wedding. Avakian also ordered the Kleins to cease and desist from publishing, circulating, issuing or displaying, or causing to be published . . . any communication to the effect that any of the accommodations . . . will be refused, withheld from or denied to, or that any discrimination be made against, any person on account of their sexual orientation.
This gag order explicitly applied not just to formal business communications but also to the Kleins statements to the press, such as, This fight is not over. We will continue to stand strong. (While the order itself is extraordinarily broad and explicitly targets the Kleins public comments about their case, BOLI has since put out a contradictory statement to Media Matters that the Kleins can still talk about the case and their opposition to Oregon anti-discrimination laws.)
While this ruling has binding legal force, it is critical to understand that it is not the result of a conventional court proceeding. Rather, it is the product of an administrative process that is unrecognizable to those schooled in the rules and procedures of criminal and civil courts. It is a process that is rife with conflicts of interest, ideological from the start, and often insulated from conventional and appropriate judicial review.
In states across the country, discrimination complaints against businesses like the Kleins originate not in court but instead in state agencies like BOLI or in various state human rights commissions. The agencies and commissions are often led by explicitly ideological politicians who make no pretense of impartiality, instead openly declaring that theyll aggressively find and punish discrimination wherever its found. Discrimination complaints are then investigated by agency investigators, tried by agency prosecutors, and decided by agency judges often interpreting and applying rules drafted by the agency itself. Americans have long recognized the inherent bias when one person functions as judge, jury, and executioner. In the administrative agencies of the deep state, a single, highly ideological entity can function as rulemaker, investigator, prosecutor, judge, jury, and enforcer.
The Kleins case is no exception. BOLI investigators made an initial finding of substantial evidence of unlawful discrimination and ultimately handed the case over to the BOLI prosecutor, who tried the case in front of a BOLI administrative law judge in a proceeding that the Kleins attorney, Herbert Grey, described as featuring minimal rules of evidence and only the barest protections against hearsay.
The informal nature of the proceedings means that standard judicial ethics and conflict-of-interest rules dont apply. For example, Commissioner Avakian committed an act that would typically disqualify judges in civil or criminal proceedings by publicly commenting on the Kleins case before it came before him. On February 5, 2013, he posted a link to a story of a bakery providing a free wedding cake to the complaining lesbian couple and declared, Everyone has a right to their religious beliefs, but that doesnt mean they can disobey laws already in place. Having one set of rules for everybody assures that people are treated fairly as they go about their daily lives. The Oregon Department of Justice is looking into a complaint that a Gresham bakery refused to make a wedding cake for a same-sex marriage. It started when a mother and daughter showed up at Sweet Cakes by Melissa looking for a wedding cake.
Avakian speaks as a politician while exercising the power of a judge.
In fact, Avakians comments ranged far and wide in public statements and in e-mails to LGBT organizations not only firmly declaring his progressive beliefs but applauding same-sex marriage and LGBT causes more generally. Despite his role as a judge, he also functioned fully as a politician, demonstrating his bias clearly, unequivocally, and repeatedly. Politicians are expected to express their political point of view, including their views of pending cases. Judges, however, have a different obligation. Avakian speaks as a politician while exercising the power of a judge.
While litigants typically have a right to appeal agency rulings to real courts, these appeals not only come at the end of an exhausting, expensive, and often years-long administrative process, theyre often extraordinarily limited. In Oregon, for example, according to the Kleins counsel, courts are required to grant considerable discretion to BOLIs ruling, setting aside its legal conclusions only if theyre clearly erroneous. Yet even when courts review agency determinations de novo (granting them no legal or factual preference), administrative proceedings can powerfully shape public opinion and drain a litigants financial resources.
The Kleins case represents the deep state in action, working through administrative agencies the public dimly understands. Core constitutional liberties are adjudicated by bureaucrats who possess minimal constitutional expertise yet operate under clear political and ideological mandates. In such a circumstance, the question isnt whether litigants like the Kleins will prevail, but whether they ever had a chance.
David French is an attorney and a staff writer at National Review.
Anybody out there still think there is redress WITHIN THE EXISTING “legal system”?
Lock and load, boys and girls.
The left
STUDIOUSLY IGNORES
that Muslim bakers refuse to make gay “wedding” cakes.
Also, if Oregon’s Christians seek to beat the bureaucracy, the term is “general strike”.
I agree Eric. In view of those who worship before the Idol of “the Law” in the temple of “the court” There ought to be a law” I mean there is Malpractice laws protecting people from medical malpractice— and attorneys can be disbarred— even citizens can be ignored unless some benevolent judge decides they may have “standing” —WHY NOT a Constitutional Amendment providing for protection against Judicial malpractice.the Court/the Judge who decided against these citizens ought be required to pay double the penalty he /she/ it assessed. half or more to the people injured by the decision—the other portion to go into a special fund for victims of such crimes against the fundamental rights of citizens.
Just refuse to comply. Move your finances where they can't get them. Buy bolt cutters to cut the padlocks off the door every time they put one on.
How many denominations oppose this? There is no unity among the various denominations.
True.
There is primarily only doctrinal bickering between denominations: "We interpret correctly and you others don't, so we won't have anything to do with you losers."
How about Kenya?
The solution is to revoke government’s power to define and regulate marriage.
Government regulation of marriage has been taken over by the Pink Swastika crowd. Bake the cake or they will send government to destroy
your family business. They will grind you into the dust as far as they can like they did to the former CEO of Mozilla, Brendan Eich.
This is homo-fascism in action.
If we have a separation of church and state, in order to protect godly marriage, we must separate marriage and state. It is time to get
government out of the business of defining and regulating marriage.
When marriage is a private matter once again, the Pink Swastika crowd cannot force anyone to bake a cake they don’t want to.
#LoveWins => #BakeTheCake => #PinkSwastika => #LoveWins
And, for the same reason, the “government office holders” in SF should be held accountable for their sanctuary city decision that contributed to a young woman’s murder by a five time border violator.
These people should face criminal charges and certainly a few years of jail time.
It's called the community of Christians. The church in America. And it needs to wake up and unite.
This Supreme Court???
It started with Martin Luther and snowballed from there. The churches reflect the division in society.
RE: This is an open-and-shut Federal constitutional case, and, if appealed, I expect them to win easily.
Depends on what side of the bed Justice Kennedy wakes up in the morning.
Yes, but they are also (like it or not) very much about human power and control, going back to the pre-Luther RCC. IMHO.
I don't understand why you believe that. Private business have been sued for not providing services related to homosexual "weddings" in states where homosexual "marriage" is illegal.
If a homosexual "couple" were being "married" in a self-designed ceremony conducted by a friend with some fancy academic robes from a European university, with no license or other state involvement, they could still sue to force a photographer, baker, or venue to serve them. Under present interpretations of non-discrimination and civil-rights regulation, they have a good chance of winning.
I also think that Christians who work for IBM, Microsoft, and any other company that fought Indiana’s religious freedom law should file a class action suit against those companies for 1st amendment violations, thereby creating a hostile anti-Christian work environment, and ipso facto creating conditions for constructive termination; in effect denying them employment for being Christians.
I would also support a massive (millions as per Italy and France) march on Washington (meaning I would go) that persists until Congress votes for articles of impeachment against the 5 justices who voted for same-sex marriage, and until the Senate convicts; and finally until they pass a constitutional amendment against same sex marriage, and maybe abortion, while we’re at it.
Then march on the States until they ratify that amendment.
Marriage, as defined by God is a covenant, and thus totally outside of the realm of human government. You must be aware that government has insinuated itself into the institution of marriage for so many generations that many people automatically assume that a marriage must be conducted by someone with a “license”. License is the means of government regulation.
If we have separation of church and state, we must of necessity also have a separation of everything the State may attempt to control that comes from the church. Marriage is the primary instrument in that regard and that is exactly why secular forces in society cheered so loudly when the government seized full control of the definition of “marriage”.
Where government has power over marriage, no “license” can be issued. Just like the Second Amendment.
In legalizing a form of relationship that God calls an abomination, the secular forces have declared that God no longer has control over that aspect of civil life.
To my knowledge, there has been no litigation involving service providers denying service to anyone on the grounds that they were participating in some type of ceremony. The only denials of service have come about when service providers have declined to become an “enabler” of a marriage. Part of the government’s support for any action against such service providers was on the grounds that a protected civil right was violated. In this case, the right was the right to marry.
When the state does not have the power to marry or regulate marriage, it is no longer a civil right that has protected status. If there would be any grounds for litigation, it would have to be on some other basis. At this time, sexual orientation is not a federally protected civil right, although in some lesser jurisdictions it may be.
Where government has NO power over marriage, no license can be issued. Just like the Second Amendment.
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