How Today’s Supreme Court Decision Affects The Marriage Equality Movement
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.
87 Comments January 21, 2010
