The Sensitivity Apparat
On the scourge of ‘human rights’ commissions
Feb 4, 2013, Vol. 18, No. 20 • By MARK HEMINGWAY
And since Tony is on the taller side, with a pale complexion and sandy hair, his ethnicity is not entirely obvious. Along with the letter, he included a picture of his father, an Air Force veteran in the cockpit of an airplane. There’s no mistaking the half-Filipino, half-Irish heritage of the elder Tomelden. In the letter, Tony goes on to make the intent of his satirical cocktail painfully clear:
According to Tony, Velasquez claimed not to have gotten the joke in the sign until he received Tony’s letter: “Once we received your pictures,” Velasquez said, “we realized that we had mistaken what the sign meant. But we had already started the process and we had to finish it.” If the director of a D.C. agency claims he didn’t understand what “Marion Berry’s Dirty Asian Summer Punch” referred to, either he’s lying, has no sense of humor, is profoundly ignorant, or all of the above.
Regardless of whether Velasquez willfully misrepresented the satirical intent of the sign, Tony’s main concern by now was that the D.C. Office of Human Rights was misinforming others about what was going on. Tony asked Velasquez to pass on his letter to all of the officials carbon copied on the commission’s original letter to clear up any potential misunderstanding. “Make sure they get a copy of the letter, because you threw me out there,” Tony recalls of their exchange. “And [Velasquez] said, ‘Well, we didn’t send this out to anyone except for Koo [the director of D.C.’.s Office of Asian & Pacific Islander Affairs]. That was just between the three of us.’ ”
While Tony had already agreed to take down the sign, he didn’t do it right away. “Punk-ass that I am, I was going to wait 71 and three-quarters hours to take it down,” he says. He wanted to make a big production of removing the sign in front of everybody, as his own personal statement about what he thought of the D.C. government coming into his bar and telling him what he could and could not say.
So the sign was still up the day after Tony’s exchange with the D.C. Office of Human Rights. That’s when a representative of the Alcoholic Beverage Regulation Administration stormed into The Pug and demanded the sign be removed. This time Tony wasn’t around, and ABRA spoke to one of his employees who was in the bar prepping food for the evening. He was afraid that ABRA would shut The Pug down immediately, so he erased the sign and scrambled to tell Tony what was going on.
Once Tony heard what had happened, he contacted Velasquez. “So I called him back, and said ‘You just told me you didn’t [inform other city agencies about the sign]. And ABRA is in my establishment right now.’ And he said, ‘Well, this isn’t their jurisdiction. They have no control over this.’ I said, ‘They’re in there threatening me right now.’ And he said, ‘Well, I don’t know what to tell you.’ ”
By now, Mike DeBonis at the Washington Post was sniffing around the story. Eventually the Post published a rather unflattering write-up online of how the city was bullying The Pug. When contacted by DeBonis, ABRA director Fred Moosally made the questionable claim his agency hadn’t issued any threats. “When we went out there, the sign was already down,” he said. “We didn’t tell anyone to take down a sign.”
After the story hit the Post, The Pug became the source of much local chatter. The piece even gained a small measure of national publicity after it landed on the Drudge Report. “The ACLU called, and it exploded,” Tony says, but aside from making a few local radio appearances, he didn’t pursue it much further because by then the sign was down and he wanted to move on. Prince of Petworth, a popular D.C. blog, ran an online poll that showed overwhelming support for Tony, but the attention was not all positive. “Channel 7 went over to a barber shop in Marion Barry’s district, and they all called me racist,” recalls Tony.
If you care about freedom of expression, the resolution of Tony’s encounter with the D.C. Human Rights office is more than a little unsatisfactory. What if Tony hadn’t flipped the politically correct script (a white guy can’t make fun of a black politician) by revealing his Filipino heritage? What if his plight hadn’t been covered by one of the nation’s most influential newspapers? What if Tony hadn’t been making a joke, but exercising his right to express an opinion contrary to the liberal orthodoxy enforced by the “human rights” thought police?
If you find yourself trying to answer this last question, don’t expect the ACLU to give you a call. In recent years, the group most responsible for challenging the blatantly unconstitutional behavior of human rights commissions has been a Christian legal group, the Alliance Defending Freedom (ADF). That’s because stamping out religious liberty appears to be a cause that state and local human rights groups have zealously embraced, First Amendment be damned.
• In 2007, a lesbian couple brought a complaint to the New Jersey Division on Civil Rights against a Methodist organization for not allowing them to use the church’s beachfront camp for a civil-union ceremony. More specifically, the church said they could use the property, just not any of the sacred worship spaces within. That wasn’t accommodating enough, so an administrative judge with the Division on Civil Rights stripped the group of their tax-exempt status, costing them $20,000 a year.
• In 2006, the Arlington County, Virginia, Human Rights Commission—just across the Potomac River from The Pug—filed charges against Bono Film and Video for refusing a gay group that wanted video duplication services for footage of a gay rights rally. Again, the owner’s Christian beliefs were cited as the reason for not wanting to participate in promoting the film.
• In 2008, the New Mexico Human Rights Commission ruled against a wedding photography business for declining to photograph a gay commitment ceremony. The husband and wife who own the business are evangelical Christians. They were fined $6,637.
• And in 2011, the D.C. Office of Human Rights investigated allegations that the rights of Muslim college students were violated because they were prohibited from forming a Muslim student group, let alone provided rooms without Christian symbols. The school in question? Catholic University.
In addition to handling the cases in New Jersey and New Mexico, ADF is representing Blaine Adamson, the owner of Hands On Originals, a printer in Kentucky, against the Lexington-Fayette Urban County Human Rights Commission. When Hands On Originals was asked to print T-shirts promoting the local gay pride parade, the owner refused on account of his Christian beliefs. According to Adamson, “It’s not that we have a sign on the front door that says no gays allowed. We’ll work with anybody. But if there’s a specific message that conflicts with my convictions, then I can’t promote that.”
In fact, Adamson has gay employees and says he’s worked with gay customers in the past. But in November, the Lexington-Fayette Urban County Human Rights Commission validated the Gay and Lesbian Services Organization’s complaint, arguing, in effect, that if the owner of a printing press declines to promote a message he disagrees with, it’s tantamount to discrimination because gays and lesbians are a protected class of citizens, according to local ordinance. By contrast, Raymond Sexton, executive director of the Lexington-Fayette Urban County Human Rights Commission, says that a gay printer could refuse to print materials promoting Christian events he disagreed with. “That could be legal because it’s attacking the message and not the protected class of the individuals in question,” Sexton told CitizenLink, a Christian advocacy group. “It’s just simply the message.”
Apparently, Sexton thinks the free speech rights of one self-identified group are privileged over those of another. But the fact that Sexton is unable to see the duplicitous logic here is almost beside the point. According to Jim Campbell, an ADF lawyer representing Hands On Originals, complaints brought by human rights commissions are rigged from the outset. “Almost certainly the first thing they do is launch an initial investigation, in which case they ask the defendant or respondent for all types of information. They have a lot of statutory authority to do so. . . . They want to know about the operations of the business, past orders filled by the business, things of that nature,” says Campbell. “Just going through the process is an overwhelming burden for businesses.”
Once the human rights commission’s investigation is complete and they decide the complaint is worth pursuing—which is where the Hands On Originals case stands—there’s usually an administrative hearing to determine if anyone has been wronged and to levy fines and punishments accordingly. These hearings are simply not credible, because “the commission is the one that both investigates and decides these cases,” Campbell says. Aside from being prejudicial, this adds to the burden for the accused. The complaint is prosecuted by the commission, but if charges are brought against you and you want legal representation—which you’re probably going to need—you have to pay for your own defense.
In general, these administrative tribunals don’t provide the individuals they target with the constitutional protections and evidentiary standards observed in courtrooms. “In many ways they try to mimic [court processes],” says Campbell, noting that they often use legal terminology. But in the end, “Every administrative agency has its own rules and regulations under which it operates. They’re very lax in the way that they do things.”
So how do you fight back when the deck is so obviously stacked against you? Not to mock ADF’s unjustly dragooned Christian clients, but they might as well pray. If the human rights commission is out to get you, about the only thing to be done is wait it out and accept its punishment. “The problem of having these important constitutional issues stuck in these administrative tribunals results from a Supreme Court decision,” Campbell says. In 1986, the Court heard the case Ohio Civil Rights Commission v. Dayton Christian Schools, Inc. “The Court said that a doctrine called the Younger Abstention applied to proceedings before a state human rights tribunal. It’s a doctrine that says a federal court won’t get involved if there’s an ongoing state proceeding that addresses an issue,” Campbell says. “So if someone files a discrimination complaint and thereby invokes a state administrative human rights commission proceeding, you then trap the business owner into the administrative tribunal, and he can’t get into federal court to have his constitutional claims heard.”
Only when you’ve been through the human rights tribunal and exhausted your appeals at the state level will federal courts even consider intervening to protect your constitutional rights. And though human rights commissions were set up with the idea of expediting discrimination claims that would otherwise clog the legal system, bureaucratic inertia has made them excessively drawn out affairs. Campbell also worked on the Ocean Grove case in New Jersey and ruefully notes, “The date the discrimination complaint was filed until the director of the division on Civil Rights issued his final decision was five years and four months. . . . Are we really saying that in our justice system it’s okay to keep someone in a very difficult administrative tribunal, to keep them locked in there for five years, because ultimately they can get into a state court?”
For now, the answer to that question is yes. Once a human rights commission begins proceedings against you, welcome to legal purgatory.
If it seems like the human rights commissions have gotten out of hand, know that the situation can get much, much worse. Just look toward the Great White North, where Canadian human rights commissions exist at the local, provincial, and national level.
In 2002, the Saskatchewan Human Rights Commission fined the Saskatoon StarPhoenix and Hugh Owens each $1,500 because of an ad Owens placed in the paper that quoted Bible verses condemning homosexuality. In 2008, the Alberta Human Rights Commission ordered evangelical pastor Stephen Boisson to pay $5,000 to someone offended by his impolitic opinions on homosexuality. That’s not terribly remarkable by the standards of Canadian human rights tribunals. Far more appalling is that the Alberta Human Rights Commission also ruled that Boisson “shall cease publishing in newspapers, by email, on the radio, in public speeches, or on the Internet, in future, disparaging remarks about gays and homosexuals.” (The judgment was finally overturned in 2009.)
And it isn’t just in relation to religious freedom that Canadian human rights tribunals are problematic. They routinely enforce cartoonish notions of political correctness. They’ve taken up the grievance of a cook who was fired for having Hepatitis C; a hairstylist whose coworkers allegedly called him a “loser”; and heard a discrimination case against a rape crisis center for refusing to hire a burly male-to-female transsexual as a counselor of rape victims. The British Columbia Human Rights Tribunal even took up the case of a lesbian who got insulted at a comedy club—it’s only a matter of time before the State Department issues a travel advisory warning to Don Rickles. And if you think the Hands On Originals complaint is groundless, consider that in 1999 a printer was fined $5,000 by a Canadian human rights commission for refusing to print business cards and letterhead for an organization that archives pro-pedophilia material. The printer spent $40,000 in legal fees defending himself, to no avail.
Pedophiles notwithstanding, freedom of the press has no real meaning in Canada, either. When Canadian conservative journalist Ezra Levant, publisher of the now online-only Western Standard, reprinted the infamous Danish cartoons of Muhammad in 2006 to make a point about press freedom, he was hauled in for questioning. Canadian human rights commissions finally overplayed their hand when a few Muslim law students objected to an article by another prominent conservative journalist, Mark Steyn, in Maclean’s magazine titled “The Future Belongs to Islam.” In 2008, Steyn and Canada’s newsweekly of record were called out by the provincial human rights commission. Eventually the case was dropped, but only after Steyn and representatives from Maclean’s were forced to endure a lengthy, pointless hearing in a windowless basement in British Columbia. The fact that the charges against Steyn and one of Canada’s most prestigious news outlets were dropped only serves to highlight another uncomfortable fact: Over the course of three decades, in all the cases completed by Canadian human rights commissions, not a single entity charged under Canada’s Section 13 “hate speech” provisions was ever exonerated.
Then there’s the brazen corruption of Canada’s human rights regime. An Ottawa lawyer named Richard Warman worked as an investigator for the Canadian Human Rights Commission at the same time he was filing complaints with that body under his own name. His personal complaints were heard before the Canadian Human Rights Commission 12 times, and 12 times the Canadian Human Rights Commission awarded him money—in all, some $50,000. In 2008, Warman was caught using a stranger’s open Wi-Fi connection to post racist comments on a website which he would then use as evidence to charge the site owner with hate speech before the Canadian Human Rights Commission. The unwitting owner of the unprotected Wi-Fi connection was identified in court proceedings as the source of the racist comments, and his name and address were dutifully relayed in newspaper accounts. Naturally, the owner of the Wi-Fi connection wanted to clear his name, and Warman’s scheme was exposed.
The good news is that between the Levant, Steyn, and Warman cases, a flood of bad publicity and political pressure rained down on Canadian human rights commissions. In response to this, in 2009 the Canadian Human Rights Tribunal—not to be confused with the Canadian Human Rights Commission—ruled that Section 13, the source of much of the commission’s expansive power, was incompatible with the Canadian charter of rights. Canada’s extensive network of human rights commissions is still largely intact, but the number of questionable activities they’re engaged in is definitely on the downswing.
By contrast, the activities of U.S. human rights commissions appear to be ramping up, and if you think that Canadian-level corruption can’t happen here—it already does. In October, it was revealed that over a five-year period at least 27 Iowa landlords were allowed to make donations to the Iowa Civil Rights Commission in lieu of being brought up on charges. “All 27 complaints and requests for a ‘voluntary contribution’ to settle the matters were initiated by the commission itself,” reported the Des Moines Register. “The requests came after sting operations in which representatives of the commission would, for example, pose as prospective tenants and tell landlords over the phone that they needed a service dog for anxiety reasons and quiz them as to whether a pet deposit would apply to them.” The Register further revealed that all fines assessed by the Iowa Civil Rights Commission go directly to the budget of the commission, instead of to the state’s general fund. The Iowa Civil Rights Commission netted close to $20,000 from the landlord sting operation, and according to the former director of the commission, the state attorney general’s office gave its blessing to this way of operating.
This may be legal, but that doesn’t change the fact it’s extortion. Given the lack of scrutiny and the abundant conflicts of interest—Campbell notes he was shocked to learn that the Lexington human rights commission accepts private donations—it’s a pretty safe bet that Iowa doesn’t have America’s only corrupt human rights commission.
For now, Campbell remains frustrated by the lack of legal avenues to remedy what should be clear constitutional violations. But perhaps the biggest obstacle is lack of public awareness of what’s going on—to say nothing of the difficulty of getting those who support human rights commissions in the abstract to think through their real-life consequences. “They’re applied in a way that most left-leaning people would look at it and say, ‘Okay, I agree with that.’ But what the public needs to understand is that the same principles apply on the other side,” Campbell says. “Whether you’re the African American who doesn’t want to promote some white supremacist event, or whether you’re a homosexual business owner that doesn’t want to print something that says homosexuality is immoral—whoever you are, this could ultimately be turned around on you if these laws are applied fairly.”
Tony Tomelden appears to have little in common culturally and otherwise with the evangelical Christians the ADF is defending against human rights commissions. But his pronounced disdain for politics in favor of principle and common sense means Tony ends up making the exact same point as Campbell. Only, as you might expect, he’s a bit more irreverent about it. After his encounter with the D.C. Human Rights Office, he says laughing, “I was going to serve White Liberal Punch.”
Tony genuinely wishes he could have done more to stand up to the D.C. Human Rights Office. “My dad was a big union guy. He was all about the losing fight,” he says, noting his father often went on strike to back up his convictions. “On one hand, it was, ‘Oh man, I totally let him down.’ I was defending him and all his Asian cousins. At the same time, I have three kids. . . . I can’t afford a $10,000 fine. My margins are too small.” Still, Tony chafes at the underlying accusations. “There were people calling me a racist and it totally tore my wife apart.” Not long after he says this, Erik, the very hygienic Asian who rents space from Tony and operates a ramen restaurant above The Pug, wanders by and overhears Tony discussing the incident with the human rights authorities. “Oh yeah. I was super-offended and almost didn’t renew my lease,” he says dryly before wandering out the back of the building.
If any so-called guardians of human rights think they’re in a position to punish Tony for being racially insensitive, they would do well to hang out in The Pug for a while and soak up the ambiance. Sure, you might find a rowdy joke about a demonstrably sleazy and racist politician on a chalkboard behind the bar. But that’s not all you’ll see. As Tony’s recounting what happened to him at the hands of the D.C. Human Rights Office, he’s seated at a table in The Pug. Behind him on the wall is a four-foot-tall, framed vintage poster with a proposed route for the I-395 highway overlaid on a map of Washington, D.C. The poster says “White Men’s Roads Thru Black Men’s Homes!” It was part of a campaign in the 1970s to keep the elevated freeway from being built through the heart of town—opponents said it would further segregate the city. The road went in anyway, and the effect on the city was sadly predictable. When the location for the new $700 million publicly financed Washington Nationals baseball stadium was picked a few years back, it was placed in the predominantly black part of southeast D.C., a deliberate attempt to revitalize the community that earlier found itself on the wrong side of the freeway. Tony says he got the poster from a neighbor whose father worked on the unsuccessful campaign to stop I-395 back in the day. The poster is one of his prized possessions; the only other known copy belongs to the Smithsonian. When it comes to confronting the D.C. government’s extensive history of needlessly creating racial discord, it turns out that Tony, like his father before him, is all about the losing fight.
Instead of issuing spurious threats, D.C. leaders interested in civic harmony would do well to pay attention to exactly how Tony runs his establishment and why people love it so much. For one thing, they appreciate his sense of humor. And anyone visiting his bar will find Tony’s rather straightforward embrace of diversity—be it in opinions or skin color—there for all to see. The day the man from the D.C. Human Rights Office strode into The Pug and threatened to run Tony out of business, you wonder if, right after delivering the letter explaining Tony was making people feel “objectionable, unwelcome, unacceptable, or undesirable,” the official saw the lit sign that hangs permanently over the entrance to the bar. It reads: You Are Always Welcome Here.
Mark Hemingway is a senior writer at The Weekly Standard.
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