Prop 8 / DOMA
The National Organization For Marriage built its operation and national profile around California's discriminatory Proposition 8 campaign, so it was no surprise that the organization invested heavily in the four year legal process that followed the November 2008 vote. The organization, which has been a key part of the so-called "Protect Marriage"coalition, tracked every development in the Hollingsworth v. Perry (formerly Perry v. Brown and Perry v. Schwarzenegger) case, providing courtroom commentary, calls to remove openly gay judge Vaughn Walker, rallies in support of the Prop. 8 defense team, launching a Legal Defense Fund to direct financial support to the legal fight in California and elsewhere and, of course, much fundraising around the historic and high profile case.
NOM also had much to say about the Defense of Marriage Act and its dismantling. NOM launched a Defend DOMA site that was geared toward supporting the discriminatory law in congress and in the courts. NOM also launched ads attacking President Obama for dropping defense of the law and promoting its own efforts of behalf of DOMA. Through 2012 and 2013, NOM dedicated much time and energy to making the case for DOMA and its continuation.
In March 2013, as the Supreme Court began hearing both the Perry (Prop 8) and Windsor (DOMA) cases, NOM hosted a march outside the Supreme Court and a rally on the National Mall geared toward supporting both of these discriminatory laws. NOM realized the great importance of these fights, and NOM knew how devastating a loss would be.
In June of 2013, the Supreme Court issued rulings that dismantled both Proposition 8 and DOMA. This pair of rulings led to a time of great progress (still ongoing), with federal court after federal court ruling in favor of marriage equality and striking down state bans.
NOM is shellshocked.
In 2014, NOM fought to intervene in a district court case challenging the constitutionality of the Beaver State's marriage ban. Judge Michael McShane denied NOM's request and, ultimately, struck down Oregon's marriage ban. NOM then appealed to the U.S. Supreme Court, seeking a stay while they appeal the matter to the 9th Circuit. SCOTUS denied NOM's request without comment. As os June 2014, NOM is still vowing to fight on, however, with Chairman John Eastman saying they will continue to to press the 9th U.S. Circuit Court of Appeals to allow the organization to intervene in the case.
While marriage is its focus, most of NOM's court battles involve public disclosure laws. NOM argues aggressively that, despite widely supported public disclosure laws on the books, it does not have to reveal its donors and that marriage equality opponents don’t have to be publicly known. NOM stands firmly on the side of nondisclosure and secrecy.
Yet multiple federal judges and state boards have thrown out NOM-backed cases, concluding the reasons NOM cites for needing such secrecy — LGBT people are bullies and will harass NOM supporters — is bogus and without sufficient evidence. NOM has unsuccessfully challenged disclosure laws in Washington, Maine, Minnesota, New York, California, Rhode Island and Iowa. In fact, in every jurisdiction that NOM and its allies have tried to undermine public disclosure, they have lost.
In 2009, The National Organization for Marriage and one of its affiliates sought to repeal a domestic partnership law in Washington state. They gathered the requisite number of signatures to put repeal on the ballot, but voters overwhelmingly decided to keep the law in place. During the campaign, the NOM side demanded that the 138,000 signatures remain under seal. If the names were publicly disclosed, they contended, gay people would threaten, harass and intimidate the signers. In October 2011, U.S. District Court Judge Benjamin Settle threw out NOM’s case, citing no credible evidence. The case followed from a 2010 U.S. Supreme Court decision (Doe v. Reed) in which even Justice Scalia strongly rejected the anti-LGBT groups’ claims.
In January 2009, NOM sued the California Secretary of State in federal court to avoid disclosing donors to the Yes on Proposition 8 campaign. California law requires campaign committees to report information for any contributors of $100 or more, which is then made publicly available. Rather than follow the decades-old California Public Records Act, NOM suggested that it was entitled to a blanket exemption. In October 2011, U.S. District Court Judge Morrison England Jr. rejected NOM’s suit, upholding California’s campaign finance reporting laws and noting that “disclosure… prevents the wolf from masquerading in sheep’s clothing.” As in Washington, the court found NOM’s evidence insufficient.
In May 2014, the 9th Circuit Court of Appeals yet again upheld California's disclosure laws.
Throughout 2009, NOM provided $1.8 million to oppose the ballot referendum on marriage equality in Maine, but it illegally failed to disclose where the money came from. Maine law requires that any funds raised to support or oppose a ballot question be made public. The Maine Ethics Commission launched an inquiry and unanimously denied NOM’s request to dismiss the state investigation into the organization’s finances. NOM sued the commission in February 2011, but a federal judge sided with the commission and upheld Maine’s campaign finance disclosure law as constitutional. NOM then took its case to the 1st Circuit Court of Appeals, which sided with the state of Maine in August 2011. NOM next appealed to the U.S. Supreme Court, which rejected the case.
In June 2011, the Minnesota Campaign Finance and Public Disclosure Board ruled that groups advocating for or against a ballot measure on gay marriage are subject to certain disclosure requirements under state law. NOM had falsely argued that supporters of marriage equality would harass and intimidate their donors, and cause property damage if they were made public. The board rejected NOM’s bid for nondisclosure. The board’s decision followed a federal court ruling in September 2010 that upheld the state’s campaign finance disclosure laws against challenge by NOM’s lawyers.
NOM wanted to run ads in support of Carl Paladino, Republican candidate for governor in 2010, but NOM didn’t want to make donors’ names public. Under New York law, running ads in support of any candidate could classify the group as a political committee. As a political committee, it, like every other organization, would then be subject to several reporting and disclosure requirements. NOM refused and filed suit. U.S. District Judge Richard Arcara rejected NOM’s suit, blocking NOM's ads.
In September 2010, NOM sued the state of Rhode Island to keep its donors secret, arguing the state’s restrictions on political advertising and campaign finance disclosure requirements were unconstitutional and overly broad. A district judge disagreed, and the 1st Circuit Court of Appeals upheld the district judge’s ruling.
In 2009, NOM meddled in a special legislative election, part of its efforts to get a constitutional amendment reversing the state Supreme Court’s unanimous decision recognizing marriage equality. NOM asked its supporters to contribute in a nationwide email saying that “…best of all, NOM has the ability to protect donor identities.” The e-mail and subsequent complaints prompted a letter from the Iowa Ethics and Campaign Finance Board stating that state law requires disclosure of political contributions solicited for the Iowa campaign.
Why NOM doggedly fights donor disclosure is unclear. It has argued that complying with campaign finance laws is burdensome and unconstitutional. It has also argued that LGBT rights advocates and their supporters will harass, intimidate, even damage property of the donors should their identities be known. Serious scrutiny of these claims has revealed only isolated incidents, questionable reports and, more often than not, legitimate acts of public criticism typical of any hard-fought campaign.
In California, for example, the court debunked NOM’s harassment allegations, pointing out that “numerous of the acts about which [they] complain are mechanisms relied upon, both historically and lawfully, to voice dissent… This court cannot condemn those who have legally exercised their own constitutional rights in order to display their dissatisfaction with [NOM’s] cause.” Ultimately, vilifying the LGBT community is part of the group’s fake victimization crusade.
Even U.S. Supreme Court Justice Antonin Scalia has come down on the side of public disclosure and against NOM’s secrecy crusade. In Doe v. Reed, he wrote: “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…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.”