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How Today’s Supreme Court Decision Affects The Marriage Equality Movement

Right-wing Trial analysis

by Robert Cruickshank

This morning David Thompson and Dr. Gary Segura got into an important discussion about the role of boycotts in politics. At the same time, the US Supreme Court was handing down one of the most important decisions of the new century, Citizens United v. FEC – a case that has direct bearing on the questions being raised at the Prop 8 trial, both this morning and more broadly.

The Supreme Court decision is bad enough – it throws out key parts of the McCain-Feingold Act of 2002 that had prevented corporations from spending money to expressly advocate for or against the election of a candidate, and overturns two previous decisions dating back to 1990 that had upheld these kinds of laws. The result is a corporate free-for-all, enabling them to spend as much money as they want on elections. That will in turn further corrupt an already broken political system, giving wealthy corporations the ability to dominate our elections and politics. Over at Slate, Dahlia Lithwick explains just how bad this decision is for our democracy.

And yet, some conservatives on the court wanted to go much further. Justice Clarence Thomas, one of the most ideologically far-right members of the court, wrote a concurring opinion that sought to rule all laws mandating public disclosure of campaign donations and disclaimers (such as those you see on TV ads telling you who paid for the ad) unconstitutional. To back up this truly radical effort, Thomas cited the Proposition 8 boycotts in almost exactly the same way that David Thompson did this morning in trial:

Amici ’s examples relate principally to Proposition 8, a state ballot proposition that California voters narrowly passed in the 2008 general election. Proposition 8 amended California’s constitution to provide that “[o]nly marriage between a man and a woman is valid or recognized in California.” Cal. Const., Art. I, §7.5. Any donor who gave more than $100 to any committee supporting or opposing Proposition 8 was required to disclose his full name, street address, occupation, employer’s name (or business name, if self-employed), and the total amount of his contributions. 1 See Cal. Govt. Code Ann. §84211(f) (West 2005). The California Secretary of State was then required to post this information on the Internet. See §§84600–84601; §§84602–84602.1 (West Supp. 2010); §§84602.5–84604 (West 2005); §85605 (West Supp. 2010); §§84606–84609 (West 2005).

Some opponents of Proposition 8 compiled this information and created Web sites with maps showing the locations of homes or businesses of Proposition 8 supporters. Many supporters (or their customers) suffered property damage, or threats of physical violence or death, as a result. They cited these incidents in a complaint they filed after the 2008 election, seeking to invalidate California’s mandatory disclosure laws. Supporters recounted being told: “Consider yourself lucky. If I had a gun I would have gunned you down along with each and every other supporter,” or, “we have plans for you and your friends.” Complaint in ProtectMarriage.com—Yes on 8 v. Bowen , Case No. 2:09–cv–00058–MCE–DAD (ED Cal.), ¶31. Proposition 8 opponents also allegedly harassed the measure’s supporters by defacing or damaging their property. Id. , ¶32. Two religious organizations supporting Proposition 8 reportedly received through the mail envelopes containing a white powdery substance. Id. , ¶33.

Those accounts are consistent with media reports describing Proposition 8-related retaliation…

Now more than ever, §§201 and 311 will chill protected speech because—as California voters can attest—“the advent of the Internet” enables “prompt disclosure of expenditures,” which “provide[s]” political opponents “with the information needed” to intimidate and retaliate against their foes. Ante , at 55. Thus, “disclosure permits citizens … to react to the speech of [their political opponents] in a proper”—or undeniably improper —“way” long before a plaintiff could prevail on an as-applied challenge. 2 Ibid.

I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in “core political speech, the ‘primary object of First Amendment protection.’ ” McConnell , 540 U. S., at 264 ( Thomas , J., concurring in part, concurring in judgment in part, and dissenting in part) (quoting Nixon v. Shrink Missouri Government PAC , 528 U. S. 377, 410–411 (2000) ( Thomas , J., dissenting)). Accordingly, I respectfully dissent from the Court’s judgment upholding BCRA §§201 and 311.

In other words: Thomas believes that because there are some reports coming from Prop 8 proponents of harassment, all laws requiring disclosure of donations must be struck down. He believes that the law must protect the person seeking to take away rights, rather than protect the person whose rights are being taken away.

Segura addressed this overall topic on the stand this morning:

David Thompson (T): Reads NYT story about the ugly specter of people getting death threats and white powder being mailed and boycotts. Does that make the LG position tougher?

Dr. Gary Segura (S): To the extent that these acts make the already weak position of the LG community weaker, I’d agree with you. Boycotts are separate. Difficult to imagine the success of the civil rights movement without the Montgomery Bus Boycott. We can all the way back to the 1770s when women in Boston organized a boycott of English tea to see that boycotts are often instruments used by weaker parties.

Segura points out that acts of true harassment, such as death threats, are not only reprehensible, but self-defeating. As leading law blogger Rick Hasen pointed out last week, courts can and do address legitimate issues of harassment through specific exemptions, rather than striking down the entire edifice of public disclosure law.

But that’s not what Thomas and the Prop 8 backers want. As we saw last week, the right-wing movement wants to hide its true intentions from a public that fundamentally disagrees with their views and values. They don’t want you to know that your gym, your church, or your supermarket is using your money to work against the causes you support and the values you hold. In fact, they argue that you have no right to know, and that it would hurt them if you knew.

This is all part of the overall right-wing’s effort to cast themselves as the victims, when in fact it is they who are doing the victimizing. While the few isolated examples of harassment of Prop 8 supporters are unfortunate, they are no comparison to the brutal killings of Matthew Shepard and Gwen Araujo, to name just a few of the many victims of anti-gay discrimination. In fact, hate crimes against LGBT people have dramatically increased since Prop 8 passed.

Even though the US Supreme Court did not share Thomas’s view in this particular case, it’s a further sign that the right-wing is still very much interested in changing all the rules and laws of politics and the courts to suit themselves. In a democracy, we rely on public disclosure, public access to the courts, and the courts themselves to protect our freedoms and our rights. Instead we are witnessing a sustained attack on those laws, institutions, and rights coming from the right-wingers.

And they’re not going to stop at same-sex marriage. That’s why progressive activists need to be focused on these issues, not just as they affect the Prop 8 trial and marriage equality, but as they affect the very fabric of our democratic rights.

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87 Comments

  • 1. Richard  |  January 21, 2010 at 1:13 pm

    What the SCOTUS has done today in Citizens United v. the Federal Election Commission is a shanda! A complete and total shanda! For those who don't know Yiddish, "shanda" means disgrace. Our court has just disgraced this entire nation, the Declaration of Independence, and the Constitution that each member swears to uphold and defend. To absolutely rob us of civil rights in this manner by giving Corporate America carte blanche to buy our politicians,thus turning politics into legalized prostitution, is nothing less than a disgrace. We need to stand up and fight this as soon as we can. If we do not, then any victory we gain through Perry v. Schwarzeneggar will be lost. And, Gov. S, if I have misspelled your name, I apologize.

  • 2. SF Bay  |  January 21, 2010 at 1:15 pm

    Now I'm officially freightened. I have been concerned that a loss for us in the Supreme Court would be very bad. Now I'm reading that this is just the beginning? Not good at all.

  • 3. Barb  |  January 21, 2010 at 1:20 pm

    Pulls up my sleeves above my shoulders, shows my muscles…I am ready for the fight of my life!

  • 4. Donald  |  January 21, 2010 at 1:23 pm

    You guys are so much more prepared than the morons running the state of California. A win is inevitable.

  • 5. Charles  |  January 21, 2010 at 1:27 pm

    I usually don't like this kind of discourse, but i honestly feel that the USA are on the decline. Everything that's been happening in the US over the past decade points to it: aggressive war mongering, science-contestation, overt contempt toward anything "intellectual", surrender to big corporation that can't even control their own power, complete divergence with the rest of the world…

    I guess every nation has a shining moment and a moment where it declines. I have no idea – I'm not a fortune-teller – but the time of US decline might have come. :-(

  • 6. GAYGUY  |  January 21, 2010 at 1:29 pm

    I live in CA…I never heard of a SINGLE G/L person attacking or defaming or in any way other than verbally being upset about Prop 8…doing ANYTHING other than basis civil protests. These are obviuosly isolated insidences that could have been done to Prop 8 people by Prop 8 people trying to make US look bad! In any case the people that did any harm should be held responsible, not come up with a Supreme court ruling on it! Even the protest at El Cayote was peaceful with no arrests. THIS DOES NOT MAKE SENSE!!!

  • 7. Bob  |  January 21, 2010 at 1:33 pm

    Man, I never thought I'd say this, but Thomas and the Prop8 folks do have a point about disclosure potentially stiffing free speech.

    Please go easy on the torches and pitchforks here — I know what I'm going to say won't be popular in our ranks.

    I've, personally, been on the "other" side; meaning being in a position where if I was personally identified, I would almost certainly be subjected to both legal (lawfare) and illegal harassment.

    Without mentioning names, there's a certain "church" that is as famous for its human rights abuses as it is for mercilessly pursuing and destroying its critics.

    They've got massively deep pockets, a cadre of lawyers, and a small army of private investigators. Not to mention their own intelligence division.

    If you take them on, in any personally identifiable way, they'll roll over you like a freight train. Frivolous lawsuits, harassment at work, picketers outside of your home, and any other number of dirty tricks to shut you up.

    Even if your actions are perfectly lawful, honest and well-intentioned, they've got the resources to absolutely bury you in litigation and unattributable harassment.

    Guess what? For the last 50 years, most people don't go after them. They get hurt, shut up, and slink off hoping to not be noticed. The intimidated silence of their victims allows the abuses to continue.

    It's been a pretty damn effective strategy for this "church" until now.

    Guess what finally enabled a useful methodology for tacking this organization?

    Anonymity.

    (which, by the way, is a form of speech the Supreme Court has upheld in the past)

    So, long story short, this is a lot more complicated than just the "bad guys" wanting to hide behind the shield of anonymity. There are very, very legit reasons "good guys" want to avail themselves of this protection as well.

    Which leads to the massively complicated and difficult question: who gets anonymity?

    Grant it — and people in the right suffer.
    Remove it — and people in the right suffer.

    Food for thought, anyway.

  • 8. Bob  |  January 21, 2010 at 1:37 pm

    P.S., and no — I'm not comparing our side's actions to this infamous "church's" well-documented and institutionalized track record of using this tactic. We've had an incredibly small number of screwballs on our side do something stupid.

    I don't think that negates thoughtfully considering this argument from both points of view though.

  • 9. Steven  |  January 21, 2010 at 1:43 pm

    I've got to agree with Charles.

    As I read this posting and then the comments, this was virtually how I am feeling…I just went out and told my other half that I feel like I'm living the TV show "V". Our government has been infiltrated by aliens!

    Close enough…

  • 10. Lain  |  January 21, 2010 at 1:50 pm

    Is anyone else terrified of this trial hitting SCOTUS? In spite of everything that has just happened? All the work we've done?

    I can see it now: 5 – 4….

  • 11. Timmeh  |  January 21, 2010 at 2:08 pm

    Well, you've just articulated the reason a lot of people are frightened of cases like this being put before SCOTUS. Is it too soon? Should we wait for a slam-dunk in the supreme court before bringing this up in lower courts?

    As it stands, whether we win or lose in the 9th, it seems all but inevitable this will finally land in SCOTUS's lap. Via this case, or others presently working their way upstream.

    As it stands now, it does seem like Justice Kennedy is the swing vote… and it's not at all clear which way he'll go.

    Whether or not that will be the make-up of SCOTUS judges if/when this case gets that far… I dunno. From a personal perspective… I'm tired of waiting for this mythical perfect court before arguing our case.

    Certainly, there are some dyed-in-the-wool "we're a Christian nation(tm)" judges who will never budge from the party line. I'm looking at you Scalia.

    Right now, we've got a court that teeters back-and-forth between both sides… and, *gasp* I think that's a good thing.

    If we can present a compelling argument to Kennedy, I think we stand a pretty good chance of winning this… not just in the 9th, but with SCOTUS as well.

  • 12. Martin  |  January 21, 2010 at 2:14 pm

    This may just be wishfull thinking but maybe they're giving all these wins to the conservative side because they know they have no way of constitutionally upholding Prop 8. What do I mean by this? Maybe, just maybe, they're getting prepared to overturn anti-gay laws for good and they are trying to protect the bigots which will have to answer to their children about why they participated in such hateful campaigns. It's like a win-win situation: We get our rights, they don't have to be looked down upon (by name and address, etc.) for the rest of time. Because after all, we're on the right side of history!!

  • 13. Dieter M.  |  January 21, 2010 at 2:18 pm

    Face it It's all over..we lost. the liars won. gay marriage will never happen now. and it only gets worse…going forward the country will now be controlled by gas /oil /churches/ insurance/ and republicans. It's over.

    does anyone in Canada need a rommate?..I won't live here anymore without killing myself.

  • 14. Ty  |  January 21, 2010 at 2:22 pm

    I love your optimism, Martin. I'm trying to remain high-spirited, but I'm afraid of what the future holds. I'm a closeted 21 year old who's been in a ss-relationship for nearly a year, and I'm afraid that if my love for him can't allow me to become wed, I'll feel as though I hit a brick wall. I hate feeling like I'm inferior or the "ideal" citizen. All I want is to be recognized as equal. And yes, I do like preaching to the choir. (No religious idioms intended)

  • 15. Timmeh  |  January 21, 2010 at 2:30 pm

    Well, if that's your position, just pull the eject handles and bail out… I hope you land someplace where you don't have to fight for your rights…. because if you do, you'll get your ass kicked there just as easily.

    I'm really, really trying to hold back calling you a pussy… fuck it…. you're a pussy. Admit defeat and run away. Retreat to an area where others' have done all the work before your arrival.

    WIN! (?)

  • 16. Sam  |  January 21, 2010 at 2:34 pm

    Based on the comments I've read so far, there is one important detail I'd like to point out.

    Ted Olson.

    He argued on behalf of Citizens United and they won. I don't know what scares me more. The fact that corporations now have more power to influence the people's elections or that Ted Olson is on our side and fighting for our marriage rights.

    Based on my count, this is the 45th case he's won out of 57 cases before SCOTUS. I really hope that Prop 8 (and maybe all the other gay marriage bans) gets struck down but with these recent court decisions, I literally can't say that I'm not scared of the final result.

  • 17. Caleb  |  January 21, 2010 at 2:50 pm

    Okay, so there was a supreme court decision a lot on our side feel crappy about.

    Rather than spending a week arguing/bemoaning it, how about expending some energy trying to figure out to take advantage of it?

    Sure, attack it, but friggin' use it as well.

  • 18. Jane  |  January 21, 2010 at 2:50 pm

    You nailed it Charles. On all points.

  • 19. basedonjohn  |  January 21, 2010 at 2:51 pm

    I have mixed feelings on this.
    In one sense, democratic reforms are arguably a bad thing. The more democratic we are, the power is put in the people who no less about the world than politicians(scary as that is but nonetheless its a reality if you have a job/school/family etc). But perhaps more importantly, people typically vote with their own self-interest in mind. Its natural. We may think we know whats best for everyone but without a proper understanding of science, demographics, economics etc we end up looking to our own self-experiences. When the majority does this the majority gets what it wants. In our case that means that if the majority does not want same sex marriage(as it typically does not) we(the minority) do not get it. On the other hand, if there is more power in the hands of a few individuals we have a better chance at getting votes.

    For one, a lot of businesses see advantages in being pro-gay friendly. And secondarily, its fewer people to convince.

  • 20. basedonjohn  |  January 21, 2010 at 2:59 pm

    Eh a few gramttical errors on my part. Hopefully this rewording better conveys my ideas.

    "The more democratic America is means there is more power in the hands of the majority. And typically speaking, we as people know less about whats best for us than the politicians do. They have access to information you and I don't. People have families to raise, jobs to work, schools to attend, etc etc. On the other hand, it is the politicians job to know the statistics, to know the science(even if they often times don't) etc.

    Sure there are a lot of blockheads in Washington, but only because we are so democratic. If everyone votes in their self interest the person's character is less important than their views. And that is why it is arguably good to overturn these democratic reforms.

    Fewer people in power, means there is a better chance for minority issues to be passed. This is clearly evident in the courts who are the most removed from democractic pressure. When the majority pressures politicians into voting one way, politicans are likely to respond. On the other hand, politicians have less incentive to respond to a minority if its going to cost them their job.

    On the other hand, with corporations having more power, that means the politicians will be under less pressure from their constituents(and the anti-gay marriage majority) meaning that it will be easier to swing their vote. Its always easier to convert a few rather than many.

    Lastly, large corporations are often times more gay friendly. By some its seen as advantageous to be so.

  • 21. David  |  January 21, 2010 at 3:07 pm

    A term being bandied about a lot by moderate conservatives (true conservatives, not the radicals who call themselves conservatives) and progressives is "proto-fascist" to describe the rising attitude on the right wing described in this post. "Proto" because they still pay lip service to the structure of our government – obviously, when they lost power one year ago, they left peaceably – but still fascistic because they a) are fostering a nationalist, xenophobic and violent base and b) are at the vanguard of destroying 100 years of transparency and separation between the public and corporate spheres of American life.

    A) is a part of the Prop 8 trial – a secretive group seeks to demonize a minority by enshrining animus towards that minority in state constitutions. B) is today's decision by the Supreme Court, as well as the blending of corporatist and state interests (Blackwater, Halliburton/Cheney/Rumsfeld, Treasury/Goldman-Sachs, Etc.) over the last 10 years.

  • 22. Dieter M.  |  January 21, 2010 at 3:54 pm

    you have NO clue asshole. have you NOT heard the supreme court ruling. Do you NOT understand the rammifications of not only gay rights but the rest of this nation?..clearly you do not. and just so you know I do more to fight for gay rights in a day than you will ever do in your life. now slink back into your hole until you realize what occurred today. you are totally clueless.
    now you be sure to have a lovely day Maggie gallager.

  • 23. michael  |  January 21, 2010 at 4:10 pm

    Your right! Instead of "we come in peace" their chant is "we come with love"…

  • 24. Shell  |  January 21, 2010 at 4:31 pm

    I am not American. But it seems to me that since the Republicans lost power there has been a lot more disclosure about America (on a range of topics) under Obama than Bush.

    The GFC has shed light on a lot of corporate deficiencies and lies and even though the health care bill didn't quite go as planned many deficiencies were exposed in the main stream.

    The prop 8 campaign and this trial are attempting to allow G and L stories be told that have previously been suppressed. (side bar: my favorite fear of the right is that children are going to be taught about homosexuals in school, but at the same time pay for ads on tv, billboards, radio, and saturate the market with gay gay gay gay gay)

    These scare the conservatives because it seems that they only thrive on the ignorance of Americans. When the truth is told they don't get votes.

  • 25. Alan  |  January 21, 2010 at 5:06 pm

    Justice Thomas is an idiot. You only need to watch him and read what he writes to realize this. I would say you could listen to him as well but he was the only justice that did not ask a single question during oral arguments for the entire last term of the Supreme Court. That is unprecedented and shocking.

    He's so clueless and his arguments are so lacking in merit that he cannot ever cite to a previous precedent to support his positions. Note what he does in today's opinion: he cites to himself for support. Not only that but those citations are to other dissenting opinions or concurring opinions that he has authored. In other words, he only has himself as legal support and nothing that he cites to that he has authored is even controlling law.

    Hell, Judge Judy and Judge Milan have better legal skills and knowledge than he does.

  • 26. B  |  January 21, 2010 at 5:19 pm

    "In fact, hate crimes against LGBT people have dramatically increased since Prop 8 passed." …. in fact the article you linked to stated, "the number of hate crimes based on sexual orientation increased from 111 to 134."

    The difference is 23 with an error of +- 15.7, so the apparent increase is not statistically significant – it could easily be due to chance, not to a change in the rate at which such hate crimes occur. It would take more data to tell. News sources often report statistically insignificant changes in crime statistics as a crime wave of some sort. I might add that a decrease of 23 would similarly not prove that things are getting better either – it works both ways.

  • 27. Anonymous  |  January 21, 2010 at 6:27 pm

    I know exactly what you are talking about my fellow Anon. We are legion.

    And thusly, I fully agree. I am rather on the fence about the disclosure law.

  • 28. Barb  |  January 21, 2010 at 9:12 pm

    I will fight UNTIL we win! I will not give up.

  • 29. BobbiCW  |  January 21, 2010 at 10:32 pm

    What concerns me most is Justice Kennedy. We all know he's the swing vote, and in just the past week or so he's voted against transparency and democrratic ideals twice. Hope Ted Olson knows something I don't!

  • 30. Brett  |  January 21, 2010 at 11:22 pm

    If you forget how to spell Schwarzenegger, just look at the top of this web page. It's up there! 😉

  • 31. Warren S  |  January 21, 2010 at 11:28 pm

    Well I think it is safe to say that Mr. Olson knows a lot of things most of us don't!

    Kennedey is in my mind a slightly better than 50/50 chance for us as he wrote the Romer decision and watching the case the argument the plantiffs have developed fits neatly within the ruling on Romer. There is no way on the planet that Thomas was EVER going to give us a favorable ruling and the same can be said for Scalia (a man who used to drive over a hundred miles a week to attend Latin Mass), Alito and Roberts (though perhaps with Roberts there is a 2% chance vs. the 0% from the others). I am sure that Breyer and Sotomayor are yes votes, Ginsburg and Stevens are likely.

    There is one reason and one reason only to offer support for and make sacrifices to the Obama campaign in 2012 and that is the Supreme Court. I assume by 2012 we will have replacements for Stevens and Ginsburg, maintaining the status quo. Thomas is 72 and Scalia is 73. I would think it unlikely that both of them would still be on the bench in 2016. As such, it is essential that we have a non right-wing crazy appointing their replacements. This will be so much more critical if Stevens or Ginsburg are still on the bench in 2012 as they will certainly bow out before 2016. The Supreme Court is the only real hope we have for LGBT rights and more broadly for the salvation of America. Obama made a smart move in appointing a 50 -something woman in his first appointment — we should have 30+ years of her on the bench. But we need to make sure that future appointments are made by a non-crazy person or we are truly doomed.

  • 32. Jeremy  |  January 21, 2010 at 11:30 pm

    @ Bob

    "Which leads to the massively complicated and difficult question: who gets anonymity? Grant it — and people in the right suffer.Remove it — and people in the right suffer. Food for thought, anyway. By Bob"

    Hmmm, seems to me that if people in the right suffer either way, that nothing is gained by the removal of the transparency. So, imho, the disclosures should have been allowed to remain. What is so curious to me is why we seem to keep losing the "swing vote" in the Court. What is Kennedy up to? I mean we expect this from Thomas, Scalia, & Alito.

  • 33. Brett  |  January 21, 2010 at 11:32 pm

    There are laws that protect citizens against acts of violence, harassment, property destruction etc. These laws already exist and should prevent a normal, rational person from committing those acts. Most people don't even need laws to keep them from doing those things. They take the moral high road and know that the problem needs to be solved intellectually and financially rather than with assault.

    Said normal person would look at the list and think "Huh, maybe I should have a talk with my neighbor about why donating to this cause is hurting me. Maybe it would change her mind." or "Maybe I should stop giving my money to this business, since it's in turn being given toward something that will hurt my rights."

    We can't adjust every law for the fringe lunatics. If those people weren't using a disclosure list for targets, they would find another way – such as defacing houses with Prop 8 signs, or churches publicly known to be associating with the campaign. In politics, it's never difficult to find a target for those people who are looking for one.

  • 34. BobbiCW  |  January 21, 2010 at 11:33 pm

    He voted our way on Romer, but it concerns me that he seems to be buying into the fear-mongering "hoardes of viscious scary homos" argument with his vote to not televise the trial. I hope he's just anti-video!

  • 35. ron1008  |  January 21, 2010 at 11:44 pm

    So now a Corporation can vote? It seems to me elections should be 1 PERSON 1 VOTE- The Supreme Court has now given our rights to big business totally. Shouldn't election dollars be from individuals only. What a way to create jobs on K street.

  • 36. george  |  January 21, 2010 at 11:49 pm

    Charles –

    Actually, America has been at its greatest in times of war and corporate power. Science has only come under scrutiny since it has become entwined with political agendas. But where it stays out of politics – consider opur recent advances in technology and ever-advancing progress in medicine – science continues to be well-respected in this country.

    If the country is on a downswing, it's because of movements towards appeasement in international affairs, a focus on individualism and the adoption of moral relativism, and a general feminization of society in which political correctness overcomes common sense, weakness is celebrated over strength, socialism celebrated over capitalism.

    We're becoming a nation of wimps while the rest of the world (except Europe) is aggressively seeking growth and domination.

  • 37. Dave T  |  January 21, 2010 at 11:51 pm

    Just a couple of thoughts on this…

    When I was driving in to work this morning, they said this about the ruling: "The objective of the five-justice majority was to free up the speech rights of corporations" (Morning Edition, NPR).

    A corporation is an invention designed to do a number of things, the biggest one being to ease the flow of capital by protecting investors from liability. Why does this thing have a right to free speech? Some may argue that corporations should have a right to influence the political decisions that affect them – I would argue that this is false, since the government of this country is supposed to be "government of the people, by the people, for the people" (to borrow a phrase from Lincoln). If the executives or the board of a corporation fears the effects of pending legislation or the election of particular candidate, they need to bring that up with the people who they are responsible to and who are actually involved in the political process: the shareholders.

  • 38. ron1008  |  January 21, 2010 at 11:59 pm

    Yes Dave, and when these people go home they can send a personal check in support of the party or politician they wish . Sounds pretty Democratic to me. Corporate funds should be used to build the company to insure there employees a decent paycheck and benifits, not squandered on bribes.

  • 39. george  |  January 22, 2010 at 12:06 am

    That Clarence Thomas chose to use the anti-Prop8 actions is almost scary.

    Surely there are some great examples where public disclosures led to bad acts against corporations – the subject of the case – and yet he chose an example of public discloure backlash in the context of Prop 8? Almost sounds like a signal, to me.

  • 40. Mykelb  |  January 22, 2010 at 12:09 am

    Charles, I am with you. I no longer want to live in this country run by corporate interests. The idea of "citizen" has been killed.

  • 41. Dave T  |  January 22, 2010 at 12:14 am

    I grew up in Canada. While I was in grad school I became friends with another student from the US who was amazed that politics in Canada "just worked". There are arguments, there are disputes, there are far right & far left wingnuts, there are issues that never seem to get resolved, but the political process never seems to get bogged down the way it does here in the US.

    I'm no political scientist, but I am familiar with both systems (since I live in the US now) and I have a theory as to why that is.

    There are two factors at work here:

    1. There is what Americans might call a lack of democracy: in Canada, there is no fixed schedule of elections. There must be a general election at least every five years, but if necessary, it can be sooner. This is true both provincially & federally. There is no initiative process, there are no special measures that must be subject to referenda. You elect your local representative and they go off to the capital and do their job, which is making decisions on behalf of their constituents. The result is that you have an election maybe every two years – sometimes a little longer, sometimes a little less.

    2. And going hand-in-hand with the trust Canadians place in their politicians, there seems to be a respect of that trust by the politicians. You elect your local representative, they go off to the capital and do their best to represent you. Of course, they're not all like this – there are those who have affairs, who steer contracts to their cousins, who get up to all sorts of nonsense – but on the whole there is a sense (maybe unfounded) that the politicians are working for the constituents that seems to be lacking here.

    When I first moved to the US, I was struck by the number of elections. I grew up in a politically active household and have always believed in the importance of voting. But when I got here, I think I voted in four elections (maybe more) in the first two years with huge, multi-part ballots asking me to vote on dozens of things. And I remember thinking "don't we elect people to answer these questions?" This, I think, is a big part of the reason voter turnout is so low in this country – fatigue.

    I'm not advocating a switch to the British parliamentary systems – it simply would not work here without a massive change in the mindset of the people. But I am puzzled how it is that the US system, with all its checks and balances intended to curb abuses winds up with more problems than the relatively check-and-balance-free system in other democratic countries.

  • 42. Mykelb  |  January 22, 2010 at 12:20 am

    Apparently, you don't see the problem that corporations will control the media which is the outlet for freedom of speech. Corporations will back those who will support corporations bottom lines, not progressive politicians. Anyone who does not support the corporation's bottom line will be drowned out and will never get a chance to speak, nor raise enough money to defeat a corporatist politician.

  • 43. Dave T  |  January 22, 2010 at 12:24 am

    Sounds to me like he's buying into the whole "OMG, three people were threatened by the big nasty gays! Nobody's safe!" nonsense.

    I, for one, am disgusted by this. Not because he's buying into it, but because he's displaying such a monumental failure to think critically. Here's the way a rational person should approach this issue:

    The defenders of prop 8 claim they have been threatened and because of that we should eliminate an mechanism by which we ensure transparency in the political process.

    Hmmm… they might have a point, but I have a couple of questions: How widespread was this threatening behaviour? What is the nature of this threatening behaviour? Were any of these threats actually carried out?

    Oh, and one more thing, do we have any objective evidence of this or are we just supposed to take your word for it?

    We have mechanisms for dealing with this kind of behaviour: if someone threatens you, call the police. Let's try that remedy before we start undermining our democracy.

  • 44. Charles  |  January 22, 2010 at 12:26 am

    Sure George, whatever floats your boat.

    When was the time of English superpower and prosperity? The 19th century. What happpened in the 19th century?

    – Corporations were allowed to do whatever they wanted (wild capitalism) with no restrictions
    – Ultra conservatism in private areas of life
    – No rights for women or anyone who wasn't a rich white male
    – Colonialism: England was the empire where the sun never sets.

    Sure it was a political and economical success. But were the people happy?

    Women were oppressed. Conservatism regarding private matters only served one thing: Fuel prostitution. In 1865, 11 000 girls aged 9 to 11 were treated in public hospitals for veneral diseases. Poor people (=most people) worked to exhaustion in factories for mere subsistence, with no protections and died early of diseases. Those who wouldn't work (too young, too old, too unstable) were sent away to poor houses that is to say prison with obligatory labour.

    Now let's look at Norway, or Belgium or else. Are they the biggest economical power around? no. Are they the biggest political power around? no. Are their people happier, healthier and more educated than in the US? Yes.

    What's the point of being the "biggest" if only 1% of the population benefits from it?

  • 45. Charles  |  January 22, 2010 at 12:30 am

    Sometimes fighting means being clever enough to flee and being able to fight again later on.

    I'm not saying it's obligatorily the case here, but your argument makes no sense. Were the Jews who left Germany in the 30s "pussies" or were they clever and courageous? I think it takes a lot of courage and will to leave everything you know and own to settle somewhere else with no knowledge of what you'll have gained.

  • 46. proudprogressive  |  January 22, 2010 at 12:35 am

    Thank you for this post, Yesterday the Supreme Court Jumped the shark. It is makes me seriously question Life time appointments. These judges cannot be trusted with the Constitution. – an Historic Low. The mind reels.

  • 47. Jim Keller  |  January 22, 2010 at 12:36 am

    OK, just for the record, conservatives support equality, too. Please stop portraying the fight to ensure that the 14th Amendment (and in this case the 1st Amendment) applies to everyone as a "Progressive" issue. It's not.

  • 48. RAL  |  January 22, 2010 at 12:45 am

    From Pugno's latest over at Protectmarriage.com:
    http://www.protectmarriage.com/blog/

    "Later Wednesday, lawyers for the plaintiffs started submitting evidence of the “improper” influence of Catholics, Baptists, and other major religious communities in support of the traditional definition of marriage. As though the First Amendment itself had disappeared, the court allowed their lawyers—over the strenuous objections of our legal defense team—to pry into the internal records of churches, communications between church members and church leaders, and other similar documents revealing these religious organizations’ commitment to protecting traditional marriage.

    Its an all out religious appeal aimed at religious people. Weirdly, though, there is still no specific mention of the LDS Church — but there is mention of the Catholic and Baptist Churches. This is notable because, at the direction of Mormon leadership, individual Mormon donors/volunteers were crucial to the funding and canvassing of Yeson8. They did most, if not all of the heavy lifting but Pugno consistently won't go there in his posts.

    During the Prop 8 campaign I remember reading some blog post or other with words to the effect that "Mormons are twice as smart, three times more wealthy and a hundred times more organized than the Evangelicals". There is quite a bit of truth to that — why won't he include them in his diatribes?

  • 49. Rightthingtodotx  |  January 22, 2010 at 12:48 am

    I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in “core political speech, the ‘primary object of First Amendment protection.’ ”

    BUT HE CAN ENDORSE CONSTITUTIONAL BASIS FOR AN ENTIRE COMMUNITY TO BE SYSTEMATICALLY CRAPPED ON, BEAT UP AND TREATED LIKE DIRT?

  • 50. Tedd  |  January 22, 2010 at 12:51 am

    Terrible mistake for the supreme court to rule in favor of corporations like this.

    Government is the people, not corporations.

    Corporations can take away the rights of the people because they have the money to do it, and the little guy the people won't be able to fight back, unless we all stand together. I know there are some in the Gay community that divide. I know there are some groups allegedly Gay's of Gay parents against Gay Marriage, which to me is silly. If your going to fight against marriage, then fight against t hose who have it, not those who don't have it. This is about equality.

    I feel a lot of those alleged "harassment" claims are fabricated all the way to the alleged "white powder." I haven't seen anything proving that these incidents were ever conclusive. Yet, they say nothing about the harassment they are causing to the Gay community.

    I'm sure it's what they're being taught at Pat Robertson's Faux University.

    The Gay Community needs to stand together and continue fighting, even when their is a loss, get back up and fight back. Anyone file a frivolous law suit for any reason, you just have to have the money, and that's what the Morons are doing to block information that should be public.

    What I don't get is them blocking information, yet they want all our personal family history information and documents. What are they doing with my family information? Why do they need to collect these personal private documents. It may be public information, but it shouldn't be for people to collect and then turn around and sell to people.

  • 51. Gaby Tako  |  January 22, 2010 at 12:54 am

    This has got to be the singularly most backward and wrong-headed Supreme Court decision since Dred Scott.
    But there are glimmers of hope: Many large corporations, in general, seem to support gay marriage, as that base of consumers seem to be especially loyal and that translates into bigger spend and profits. Additionally, Congress can, and should come in, not with campaign restrictions, but with freedom of information restriction (Justice Thomas' concurrence nothwithstanding) identifying corporate donors, etc. As Barney Frank said last night, there are several avenues where Congress can impose restrictions that will affect corporate spending in the political process.

    Overall this is a very frighening decision, and wholly wrong…it's been wrong all along to see corporate entities as having the same 1st amendment rights as individuals.

    Next up the SCOTUS will be looking at a gay-related case involving referendum 71 in Washington State and the disclosure of names of petition signers. Once again, the far right is portraying themselves as victims rather than the bigots they are.

    I'm getting depressed with the way the US is moving politically…

  • 52. Lisa  |  January 22, 2010 at 1:02 am

    Yes, we europeans really don't rule world anymore, do we? We're wimps! In Germany, we have a woman for chancellor and a gay foreign minister (they're more conservative than the last government, lead by two men BTW).

    And what science are you talking about? The one that says, sexual orientation can't be changed?

  • 53. george  |  January 22, 2010 at 1:05 am

    Hey Charles –

    Hey, if you're good with building the US economy on oil and gas drilling (like in Norway), I'm with you. You know that won't happen, because the left-wing environmentalists won't let it happen. Fortunately for them, Norway doesn't have that problem.

    What has Norway done to stop the spread of aggression in the world? They surrendered to the Germans during WWII. (Btw – they have mandatory military service; are you for that in the US?)

    Norway exists because of the power of countries like the U.S.

  • 54. M.E. Graves  |  January 22, 2010 at 1:06 am

    I know that I must be reading this ruling incorrectly, but since the ruling overturns the limits that a corporation can give to a candidate, so long as the money spent is not directly given to the official candidate, couldn't the CEO of a multinational corporation set up a separate organization to run positive ads for the CEO and then decide to run for office?

  • 55. Ozymandias  |  January 22, 2010 at 1:14 am

    "Many supporters (or their customers) suffered property damage, or threats of physical violence or death, as a result. They cited these incidents in a complaint they filed after the 2008 election, seeking to invalidate California’s mandatory disclosure laws. Supporters recounted being told: “Consider yourself lucky. If I had a gun I would have gunned you down along with each and every other supporter,” or, “we have plans for you and your friends.”"

    Excuse me? Just HOW many reported incidents of this were there? This galls me to no end – his opinion is clearly designed to further inflame the far-Right with their claims of victimhood, with a complete lack of actual FACT in his statements. Further, his opinion seems to basically say that Gays can be discriminated and harassed all day long (since he mentions NOTHING about how much harassment or abuse the anti-Prop 8 side received) but for us to express our displeasure via boycott or demonstration – how dare we?!

    Ridiculous. However, as for the judgment itself, I'm not entirely convinced this is a bad thing – even if a corporation is allowed to give as much money as it wants to a campaign, disclosure laws still apply, right? If this case overturned those disclosure laws (as that idiot Thomas seems to think) THEN I would be incensed – the Prop 8 side has been fighting tooth and nail to prevent the very disclosure that our side is depending on to prove its' case. For that disclosure to be overturned at the SCOTUS level… now THAT is scary.

  • 56. Lisa  |  January 22, 2010 at 1:16 am

    Oh and the thing with not seeking world domination:

    I call it learning from our mistakes. Just saying.

  • 57. fiona64  |  January 22, 2010 at 1:18 am

    So much for Roberts and Alito's promise to abide by stare decisis

    As I said to my husband this AM, we may as well just slap a corporate logo on the back of the senate seats, so we know for whom our "representatives" are really working.

  • 58. fiona64  |  January 22, 2010 at 1:21 am

    George wrote: a general feminization of society in which political correctness overcomes common sense, weakness is celebrated over strength, socialism celebrated over capitalism.

    Hmmm. Does your little woman press your white hood for you, George?

    Your misogyny is apparent in this post, but it doesn't surprise me in the slightest. Homophobia, after all, has its roots in misogyny.

  • 59. fiona64  |  January 22, 2010 at 1:22 am

    This.

  • 60. Anne  |  January 22, 2010 at 1:25 am

    This opinion of Clarence Thomas' is scary. If we don't know who is giving to political campaigns, we've lost a key tool for democracy. And sure, it might stop people from giving to unpopular causes out of fear of their employer or church or whatever finding out; but I do think that's a minority of people. The good of knowing who gave and how much outweighs that fear.

    The prop 8 side won the vote – why are they claiming to be quaking in fear now? bizarre.

  • 61. Bill  |  January 22, 2010 at 1:25 am

    There are far better countries to live in than the UNited States.

  • 62. Leslie Wilde  |  January 22, 2010 at 1:30 am

    I heard the SCOTUS ruling may have a silver lining for GLBTQ, in that politicians will no longer need to pander to the far right religious groups for money, like "Focus on the Family", et al.

    Corporations already know that their workforce contains G's and L's and may not be interested in eliminating their rights, its counterproductive to their business interests.

    Some mega corparations also lean liberal, like Microsoft, Yahoo, Google. Even the oil company friendly Cheney family is pro-gay marriage, I'm just saying it may not be the end of the world.

  • 63. David  |  January 22, 2010 at 1:30 am

    From I understand of the SCOTUS ruling – no, the corporations are no longer required to disclose how much money they contribute to a campaign.

  • 64. fiona64  |  January 22, 2010 at 1:31 am

    Except for one little thing, "B." According to the FBI, hate crimes against all other groups are decreasing. Furthermore, any time anti-gay legislation passes, crimes against LGBT people increase.

    122 transgender people were killed last year, B. That's double the number in the previous year. I guess a 100 percent increase is not significant to you, either?
    http://www.fbi.gov/hq/cid/civilrights/hate.htm

    Enjoy.

  • 65. Joe  |  January 22, 2010 at 1:32 am

    LONG BEFORE Prop 8 ever passed, the folks at Prop 8 sent letters to major contributors of No
    on 8 threatening to go public with their names, even though their names were already in the public record. THEY just gave us the idea, we ran with it.

  • 66. fiona64  |  January 22, 2010 at 1:33 am

    Because, thanks to Santa Clara County v. Southern Pacific Railroad, corporations are considered persons under the law.
    http://en.wikipedia.org/wiki/Santa_Clara_County_v

  • 67. David from Sandy UT  |  January 22, 2010 at 1:35 am

    Democracy works best when people know who pulls the puppet strings.

    Boycots and non-violent protests are protected, morally justified speech.

    People who jump off a high cliff should expect to go splat at the bottom. People and organizations who contribute time and money to a politically process should expect full disclosure of that participation and any lawful consequences that follow.

    Your freedoms do not trump my freedoms. Your freedom of speech (or political participation) has absolutely no impact on my freedom of a lawful response.

    Many citizens here in Utardia—The Pretty Hate State (a.k.a. Utah) think that their speech or political activity should be exempt from criticism because it is motivated by religious belief. Horse Excrement!

    David
    Sandy UT

  • 68. Bill  |  January 22, 2010 at 1:36 am

    I thought the same thing. WHO DIED???

    I do not believe ANYONE died as a result of Prop 8 harassment.

    Judge Clarence Thomas really needs to go back to talking about things he KNOWS about.

    Pubic hair on a Coke can. Isn't that this fool's area of expertise.

  • 69. george  |  January 22, 2010 at 1:49 am

    Mykelb –

    This country was founded on the notion of freedom from government. You want socialism? You're living in the wrong country.

  • 70. Joe  |  January 22, 2010 at 1:51 am

    And here's an example of such a letter.

    Had Prop 8 lost, they would not have hesitated to boycott No on 8 donors. Would that have raised the ire of the conservatives on the Supreme Court? Of course not.

  • 71. Joe  |  January 22, 2010 at 1:52 am

    David,

    Indeed, how dare you take away my right… to take away people's rights!

  • 72. fiona64  |  January 22, 2010 at 1:54 am

    George wrote: This country was founded on the notion of freedom from government. You want socialism? You’re living in the wrong country.

    Good lord, he's a Randian on top of everything else.

    Let me help: http://www.whitehouse.gov/our-government

  • 73. Rightthingtodotx  |  January 22, 2010 at 1:55 am

    amen fiona64

    the "georges" of the world have so much sense of entitlement embedded in their views of society, they can't see anything else.

    they can't allow for the fact that, for example, women are humans and not just incubators, unpaid house servants, sperm receptacles

    admitting that there's more than one way to build a family is tantamount to: 1) admitting incorectness 2) acknowledging the female's role in family/society as something other than the heretofore mentioned list

  • 74. fiona64  |  January 22, 2010 at 1:55 am

    Or my favorite: "You calling me out as a bigot means that you are bigoted."

  • 75. fiona64  |  January 22, 2010 at 2:05 am

    George wrote: Norway exists because of the power of countries like the U.S.

    Those silly Norwegians, thinking that their history predates that of the US. How naive of them. @@
    http://en.wikipedia.org/wiki/Norway

    Quote: Archaeological findings indicate the area currently constituting Norway has been inhabited since at least the 10th millennium BC.[24] The indigenous people of Northern Norway and Central Norway are the Sámi people, though Norse culture arrived very early also. The current monarch of Norway has stated that the kingdom was founded upon the territories of two peoples – the Norwegians and the Sámi.[25]

    Love,
    fiona64

  • 76. JonInSF  |  January 22, 2010 at 2:41 am

    The problem being, a lot of these countries won't accept random immigrees without jobs waiting for them. =( I love my country, but rather than misguidedly take up arms… Well, I will not descend to the level of the traitorous eliminationists.

    Anyway, its not the end of the nation just yet. There is still much to do and still much fight left before we are well and truly screwed.

  • 77. Marlene Bomer  |  January 22, 2010 at 3:23 am

    OMFG, george! Just WHO do you think has been the biggest PROponent of government intrusion into public lives???

    Liberals? Not in you wildest dreams, my delusional friend!

    Conservatives and neocons for decades have been the ones promoting and advocating a draconian form of intrusion into personal lives, combined with an almost libertarian lack of oversight in business interests.

    Good luck to anyone wanting to run for public office — with a candidae now allowing to be sponsored by corporations, I fear we're going to slide into the corpocracy as envisioned in the James Caan movie "Rollerball".

  • 78. Bruce  |  January 22, 2010 at 3:25 am

    How is it possible for the Supreme Court to pass this horrifying judgement? I've been so wrapped up in the Prop 8 trail that I didn't pay much attention to this SC case.

    I feel completely let down by my government right now. They have handed over control to big business and are now trying to make that control invisible. This is some seriously scary s***. Seems like 1984 is a bit late, but now here in full force.

  • 79. Caleb  |  January 22, 2010 at 3:26 am

    Ugh. I had heard mention of that tactic but hadn't seen the actual letter. Disgusting.

    If I'd been a corporate donor and received that letter, I'd reply with, "Thanks. You've just given me reason to triple my donation to no on prop8. Suck it."

  • 80. RonvanL  |  January 22, 2010 at 4:14 am

    I had to look it up to be sure but Thomas is not 72, he's 61, and almost for sure will be on the bench in 2016.

  • 81. Andrea  |  January 22, 2010 at 6:48 am

    I just read the entirety of the Citizens United decision, and I agree with you, Bob.

    The article summary severely misrepresents the point of Thomas's dissent, IMO. To wit:

    Thomas: Some supporters of Proposition 8 engaged in similar tactics; one real estate businessman in San Diego who had donated to a group opposing Proposition 8 “received a letter from the Prop. 8 Executive Committee threatening to publish his company’s name if he didn’t also donate to the ‘Yes on 8’ campaign.”
    ….
    My point is not to express any view on the merits of the political controversies I describe.

    Reading his entire dissent, I'm inclined to take him at his word. Roberts, Kennedy, and Alito used reasoning that is very encouraging for Perry et al, as well.

  • 82. Geoff G.  |  January 22, 2010 at 6:58 am

    Can we call Injustice Thomas as a witness for how oppression works in this country?

  • 83. Steph  |  January 22, 2010 at 7:44 am

    So, according to the anti-Roe v Wade Mr. Clarence Thomas…
    Corporate-sponsored bigoted attacks against a minority group = privacy should be protected.
    Medical decision between a woman and her doctor = privacy should not be protected.

    That makes sense.

    When is he due to retire anyway?

  • 84. kelly  |  January 22, 2010 at 11:14 am

    Hallelujah! And amen!

    I am just the choir singing for you Ty!

    Keep saying it out in safe places and it will eventually be easier when you come out and say it in not so safe places!

  • 85. kelly  |  January 22, 2010 at 11:48 am

    Although I agree with your entire your entire approach a rational person should take when evaluating the claims of the Prop 8 people, I completely disagree that a Supreme Court Justice should have been using any of them other than the last one when using it as a reason to uphold or overturn a law.

    "Oh, and one more thing, do we have any objective evidence of this or are we just supposed to take your word for it? "

    Is there any evidence that would/could prove in a court of law that a person or persons committed a crime against any Yes on 8 people?

    He wasn't quoting any actual court cases that have been settled. It is outrageous that it was even mentioned.

  • 86. Pat  |  January 22, 2010 at 11:51 am

    Wake up children. By the time old Clarence retires we'll all be under water. Global Warming is the only issue. There's no time left . Katrina and Haiti are the miner's canaries for what's in store for us, black, white, gay, or straight. There is no evacuation plan… there's no place to run! Chaos is inevitable if we humans don't stop buying into their Plan to divide and conquer and control us. The SC is a shadow Corporation. Doesn't their latest decision remove any remaining hope that we can litigate our way out of this mess. Don't you get it? Tomorrow is today. Get out there and start hugging heterosexuals.

  • 87. kelly  |  January 22, 2010 at 11:53 am

    Interesting that they do not allow people to post anything over there at Protectmarriage.

    They want to preach to their sheep, but not allow them to speak.

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