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EQUALITY IN THE COURTS: Supreme Court Cites Anti-Equality Brief in Campaign Finance Decision

In this blog series, HRC attorneys discuss news and break down the legal theories in Supreme Court and federal court cases. This post is from Mike Wilson, HRC’s Staff Counsel for Special Projects:

For the fourth time in just three weeks, the Supreme Court commented on a matter involving LGBT issues.  In its most recent decision in Citizens United v. Bruning, the Supreme Court overturned longstanding precedent on corporate expenditures in political campaigns.  The Court held that prohibiting corporations from spending money on elections from their general treasury funds was an unconstitutional violation of the First Amendment’s freedom of speech.   While the decision itself is remarkable for overruling decades of precedent regarding corporate political expenditures, the Supreme Court also raised eyebrows in its decision by citing to a brief from the anti-equality legal group Alliance Defense Fund (“ADF”). In one part of its opinion, the Court had considered the constitutionality of campaign disclosure requirements regarding donors.  The Court cited ADF’s amicus curiae (“friend of the Court”) brief, in which it asserted that donors to certain campaigns had been “blacklisted, threatened, or otherwise targeted for retaliation.”  The Court seemed strongly sympathetic to ADF’s claim, stating that disclosure requirements may be unconstitutional “as applied to an organization if there were a reasonable probability that the group’s members would face threats, harassment, or reprisals if their names were disclosed.  The examples cited by amici are cause for concern.”  In this statement, the Court appeared to be referencing past accusations where individuals were allegedly harassed after the names of donors supporting California’s Proposition 8 were released as required by state law. The Court’s discussion of ADF’s brief would be considered “dicta,” defined as the part of an opinion that discusses matters beyond the specifics of the case before the Court.  Although not generally considered as precedent, the Court’s statement lays out a potential rule that may prove problematic for proponents of public transparency as well as those committed to LGBT equality. 

Not only did the Court appear to view the allegations made by ADF as being “fact”—a disputable notion considering that these incidents of alleged harassment against anti-equality referenda supporters were highly isolated and most have never been verified—but it stated the possibility that there need only be a “reasonable probability” of these threats in order to avoid campaign disclosure laws. ADF alleged that the First Amendment requires that individuals should be allowed “freedom of expression without fear of reprisal.”  In its brief, the group stated that pro-equality supporters were responsible for several incidents of harassment but did not provide any proof.  For example, in one incident, ADF made the open-ended statement: “Churches and religious organizations have also been targeted for their support of Proposition 8. Two temples owned by the Church of Jesus Christ of Latter-day Saints and a Knights of Columbus facility received envelopes containing a suspicious white powdery substance.”  Without any supporting evidence, ADF presumed that those opposed to Proposition 8 were responsible for these acts. The brief also referred to an incident involving a store owner in California who had donated money to the Yes on 8 Campaign, made phone calls on behalf of the Campaign, and even placed a publicly visible yard sign showing his support of Prop. 8, and was subsequently picketed and boycotted by local residents after Prop. 8 passed.  But by ADF’s own admission, the store owner was publicly vocal about his opposition to marriage equality.  ADF presumed that anti-equality donors require anonymity—even when they are not acting anonymously and even when the public response falls well within the contours of the same First Amendment speech protections for which ADF is advocating.  In fact, there was not a single incident alleged by ADF in its amicus brief that definitively indicated that the release of donor information from campaign disclosure requirements was responsible for these incidents.  In every example, ADF cited an outspoken vocal supporter—one who had chosen not to remain anonymous—as the alleged “target.”  Not only was there no evidence that the unnamed alleged harasser knew that an individual had donated to the Yes on 8 Campaign, but there was also no indication that these alleged harassers had actually identified the individual from information obtained from the required donor disclosure. Furthermore, the Court’s dicta creates the possibility that a lower court would permit an uneven application of campaign disclosure laws.  In essence, the Court indicated that the law “as applied” to these groups may be unconstitutional, which may have the effect of only eliminating the disclosure requirement for the supporters of anti-equality referenda.  Yet, such a result would mean that pro-equality forces would still have to abide by the law, just like everyone else in a country that values transparency in the political process. In the end, the Supreme Court’s citation to ADF’s brief leads to only more questions. 

Later this term, the Court will revisit campaign disclosure requirements in Doe No. 1 v. Reed, a case from Washington state in which anti-equality forces fought to avoid the disclosure of petition signatures for the 2009 referendum that would have rolled back domestic partnership protections for same-sex couples.   Equality supporters will be closely watching the Court when it delivers this decision later this year to see whether it will give continued credence to ADF’s arguments.

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