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Prop 8 proponents back in court in campaign finance disclosure dispute

LGBT Legal Cases Marriage equality Marriage Equality Trials Prop 8

United States Court of Appeals Ninth CircuitThe proponents of California’s Prop 8, ProtectMarriage, are back in federal court, this time with election lawyer James Bopp. They argued at the Ninth Circuit Court of Appeals on Friday in an attempt to avoid disclosure of their donors to the campaign to pass Prop 8. According to ProtectMarriage, anti-marriage equality activists have continued to receive death threats and have faced vandalism even after the US Supreme Court’s decision in June that left in place a district court’s ruling striking down the measure.

A district court judge had declined to seal the records:

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.

The Ninth Circuit panel seemed skeptical of sealing the names, pointing out that the donor list was already made public and is on the internet:

“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.”

ProtectMarriage has used the tactic of filing cases citing threats and intimidation in several cases at this point. Many courts have rejected those claims. In Doe v. Reed, the Supreme Court decided a case involving disclosure of petition signers for an anti-gay marriage referendum in Washington state. The case (also argued by James Bopp) was decided 8-1 in favor of disclosing the names. Justice Scalia’s concurring opinion called out the anti-gay group’s tactics, writing, “[]it may even be a bad idea to keep petition signatures secret. There are laws against threats and intimidation; and harsh 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 (McIntyre) 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.”

The new federal court action is the latest in a string of litigation in the Prop 8 case, after the Supreme Court’s June decision. The proponents went to state and federal courts protesting various aspects of the final ruling and the legality of performing same-sex marriages in California after the district court order went into effect. The California state supreme court ultimately decided not to take up the state appeal. California began issuing marriage licenses to same-sex couples and performing marriages a few days after the Ninth Circuit lifted the stay of the district court order.

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