The Ku Klux Klan and its sympathizers lynched hundreds of African Americans. It waged a campaign of intimidation to deter black children from attending white schools and to keep their parents from voting. And it benefited from a web of Jim Crow laws intended to maintain white supremacy.
And yet, according to a lawsuit filed by several leading anti-gay organizations in California, the law should treat opponents of marriage equality exactly the same way that it treats victims of Klan violence — at least for purposes of campaign finance law. A federal appeals court rejected this lawsuit on Tuesday, although it decided one of the key issues in the case on procedural grounds without reaching the merits.
The lawsuit arose out of a California law requiring political committees to disclose donors who gave more than $100 to a campaign. The plaintiffs in this lawsuit are groups that supported that state’s unconstitutional Proposition 8, which prohibited same-sex couples from getting married. Thus, they were required to reveal all but their smallest donors to the state of California, which then published this information on a public website. The anti-gay groups want to be exempted from these disclosure rules in the future, and they want a court order requiring the state to pull their previous disclosures off its website, citing several alleged cases where people who oppose marriage equality were harassed or intimidated as justification for this exemption.
At the most superficial level, the anti-gay groups appear to have some precedent on their side. Though the Supreme Court has largely upheld laws requiring campaign donors to be disclosed, it’s cautioned that such disclosure laws are unconstitutional “as applied to an organization if there were a reasonable probability that the group’s members would face threats, harassment, or reprisals if their names were disclosed.” To support their claim that their donors will indeed experience such “threats, harassment, or reprisals” if their names remain public, the anti-gay groups submitted a stack of news reports, press releases and white papers from conservative think tanks all reporting on instances where, they claim, opponents of marriage equality were harassed or worse.
There are several problems with their evidence, however. Many of the news reports they cite do not actually demonstrate that anyone was harassed because of their anti-gay views. One news clip, for example, reports that vandals threw eggs inside a church that supported Proposition 8. Vandalizing a place of worship is a despicable act that should be condemned, but the news report offers no evidence that the church’s anti-gay views motivated this act of vandalism. Other news reports submitted by the anti-gay groups hardly count as harassment at all. One of them concerns a “kiss-in” where couples “exchanged small kisses and pecks” in front of a Mormon temple to protest the church’s support for Proposition 8. Another is a column from a conservative writer that primarily complains that some supporters of marriage equality were mean to former Miss California Carrie Prejean after she expressed an anti-gay view.
A few incidents, including a menacing letter received by a mayor who supported Proposition 8, are much more troubling. But, as a federal district court determined, these more serious incidents were limited and were “directed at a very small segment of the supporters of the initiative.”
The reason why this matters is because, while the Supreme Court has held that “threats, harassment, or reprisals” can justify an exemption from disclosure laws, it has only actually allowed such an exemption in extreme cases. The paradigmatic case where a political organization was allowed an exemption from a disclosure law was NAACP v. Alabama, which held that the NAACP could not be required to “to reveal to the State’s Attorney General the names and addresses of all its Alabama members and agents,” at a time when Jim Crow was still very much ascendant in the South. As the state of California explains in its brief, “white supremacists committed more than 1000 documented violent incidents aimed at stopping integration, including bombing, burning, flogging, abduction, castration, and murder” around the time that this Supreme Court case was decided.
There is no gay Klan in California. Gay vigilantes do not kidnap opponents of marriage equality in the dark of night, and then leave their lifeless bodies to be discovered days later. No church has been firebombed by Proposition 8’s opponents. Nor has any supporter of this proposition been castrated.
The other major case where the Supreme Court exempted a political organization from disclosure laws was Brown v. Socialist Workers ’74 Campaign Committee, which held that the fringe Socialist Workers Party could be exempted from Ohio’s disclosure laws. That party, however, experienced far more serious harassment then the supporters of Proposition 8 have claimed. Indeed, the party at issue in Brown faced “threatening phone calls and hate mail, the burning of SWP literature, the destruction of SWP members’ property, police harassment of a party candidate, and the firing of shots at an SWP office.” Moreover, the socialist group in Brown was the subject of a “massive” government surveillance campaign seeking to disrupt its activities. An FBI program included “’disclosing to the press the criminal records of SWP candidates, and sending anonymous letters to SWP members, supporters, spouses, and employers.’ Until at least 1976, the FBI employed various covert techniques to obtain information about the SWP, including information concerning the sources of its funds and the nature of its expenditures.”
The FBI, by contrast, has not targeted opponents of marriage equality.
Now, however, the justices are far more sympathetic to attacks on campaign finance laws then they were when these two cases were decided. So, while the anti-gay groups challenging California’s disclosure law may have lost in a federal appeals court, they can still seek comfort from a higher authority. Nevertheless, they may find a less sympathetic audience than they are hoping for. In a similar case brought by anti-gay groups seeking to be immunized from disclosure law, conservative Justice Antonin Scalia penned a stirring tribute to public disclosure:
[H]arsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.
Scalia cannot always be relied upon to follow his past opinions when he feels strongly about a particular case. But if he remembers his past tribute to “civil courage,” then Proposition 8’s supporters are unlikely to win the exemption from disclosure laws that they seek.