Supporters of California’s 2008 ban on same-sex marriage are back in court arguing for an exemption from the state’s campaign disclosure laws because of threats and harassment they said they have received from gay-rights supporters.
At a hearing Friday before the Ninth U.S. Circuit Court of Appeals in San Francisco, backers of the hotly contested and now-overturned ballot measure, Proposition 8, sought to keep confidential the names of contributors of $100 or more. But members of the three-judge panel quickly pointed out that the identities of Prop. 8’s donors have already been released by court order.
“They’ve got all this information on the Internet. You want us to ignore it?” asked Judge Milan Smith.
“How can this court redress the grievance that you have?” asked Judge Sandra Ikuta.
By ordering the state to remove the names from its website and seal its files, and by granting an exemption for future elections, replied James Bopp, lawyer for Prop. 8’s main sponsors, a conservative religious coalition called Protect Marriage. He said the organization expects to take part in additional “campaigns regarding protecting marriage.”
He gave no details. But Prop. 8’s campaign manager, Frank Schubert, and the National Organization for Marriage, another sponsor of the 2008 initiative, have joined the signature-gathering campaign for a referendum that would repeal a new state law allowing transgender students to join sports teams and use restrooms for the gender with which they identify.
The third panel member, Judge J. Clifford Wallace, agreed with Bopp that the case presented a live issue because it could affect future campaigns.
A federal judge declared Prop. 8 unconstitutional in 2010, but the ban on same-sex marriage remained in effect until this June, when the U.S. Supreme Court ruled that the proposition’s sponsors, private citizens unaccountable to the state or its voters, lacked the legal right to appeal the judge’s ruling after state officials declined to do so.
In seeking an exemption from disclosure laws, Prop. 8’s sponsors presented declarations from 58 people saying the measure’s supporters had been subjected to vandalism, hate mail, boycotts and death threats.
U.S. District Judge Morrison England of Sacramento refused to seal the contribution records and said most of the reported incidents could be attributed to predictable excesses by both sides in a bitterly fought campaign. He said a small number of alleged violent acts and threats had been referred to police and prosecutors.
In his November 2011 ruling, England also noted that the Prop. 8 campaign raised more than $40 million and got over 7 million votes. By contrast, he said, the U.S. Supreme Court had reserved confidentiality for “small, persecuted groups whose very existence depended on some manner of anonymity,” like the Socialist Workers Party during the Cold War and the NAACP in the segregated South.
Smith raised the same issue at Friday’s hearing.
“You had millions of dollars. You won. … How can we avoid taking that into account?” Smith asked.
John Eastman, a law professor and chairman of the National Organization for Marriage, replied that threats and harassment have continued since the 2008 election and could recur in future campaigns.
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