Fight to Expunge Prop. 8 Backer Records Heats Up
SAN FRANCISCO (CN) - Conservative groups who backed an initiative that banned same-sex marriage in California may persuade the 9th Circuit that they have standing to keep the names of private donors out of the public eye.
ProtectMarriage.com - Yes on 8 and the National Organization for Marriage sued the California Fair Political Practices Commission, Secretary of State Debra Bowen and then-Attorney General Jerry Brown in 2009, claiming a legislative requirement that they disclose the names of donors who contributed $100 to Proposition 8 is unconstitutional.
The Political Reform Act of 1974 requires such groups to file semiannual reports that list contributor's names, addresses and employers. That information is then posted on the Secretary of State's website.
U.S. District Judge Morrison England refused to block the law in 2011, despite the possibility that Proposition 8 supporters, such as Pastor Jim Franklin of Fresno's Cornerstone Church and former Mayor Alan Autry, would face abuse, harassment and violent threats.
At a 9th Circuit hearing Friday, lawyers for the groups asked that the records be expunged and that England's ruling reversed.
Lead attorney for the appellants James Bopp Jr. said most of the threats and harassment occurred after the initiative was passed by voters in 2008.
While Prop. 8 was overturned in 2010, and an appeal to the U.S. Supreme Court rejected in 2013, efforts to block same-sex marriage continue, Bopp said.
In questioning state attorney Molly Lee, Judge J. Clifford Wallace pointed to Wolfson v. Brammer, a legal challenge brought by an Arizona lawyer over restrictions on political speech and campaign-related activities. Bopp also defended this case before the 9th Circuit.
Wallace related the present case to Wolfson, noting that if Prop. 8's supporters intend to continue their campaign for traditional marriage in future elections, they do not need to establish a concrete plan for doing so, but only need to state their intention. "So your opposition comes in and says we intend to continue the process and it will go on in California." Wallace, who wrote the Wolfson opinion, said. "Wolfson clearly gives standing," he joked, "which was directly on point in my view and a well-written opinion."
"All the person in Wolfson said was I intend to assert this position. I just don't see how you can get around Wolfson."
Lee said there were no specific statements in the record indicating the groups' intent. She pushed again for the concrete plan, "one that says when, where and who will be involved."
"It sounds like you're saying you've got to have your whole plan mapped out," Judge Milan Smith said. "That can't be the standard."
John Eastman, a law professor and chairman of the National Organization for Marriage Lawyers, argued for the conservative groups.
He drew comparisons to the NAACP and Socialist Workers Party, both of which had own confidentiality for their members.
"What the NAACP case was in the '60s, and Socialist Workers in the '70s, the quintessential example of what meets the Buckley test is our case here," Eastman said, citing Buckley v. Valeo, a 1974 case challenging restrictions on political speech and campaign contributions.
"There must be a `relevant correlation' or `substantial relation' between the governmental interest and the information required to be disclosed," Eastman added.
Smith had trouble accepting the comparison between the traditional marriage advocates and the civil rights group. "You had millions of dollars successfully raised. You won the proposition contest," Smith said. "If you have people who perhaps represent the majority of the state, isn't there far less of a concern than when the NAACP had to disclose its membership list in Alabama at the height of Brown v. Board of Education?"