Justice Thomas on ‘Proposition 8-related retaliation’

Justice Thomas

In Citizens United v. Federal Election Commission, today’s campaign finance decision (full coverage at SCOTUSblog), Justice Clarence Thomas — in an opinion, characteristically, joined by no one — found the Supreme Court’s broad decision not to be broad enough.  He dissented from the part of Justice Anthony Kennedy’s majority opinion upholding  the “disclosure, disclaimer, and reporting requirements” in the Bipartisan Campaign Reform Act of 2002.

Why?

Thomas wrote, at length about the issues present in this past week’s Supreme Court decision prohibiting the broadcast of the Perry v. Schwarzenegger trial.  I’m not going to go into it at this time, but I wanted to get this out there and make sure that people see this.

From Justice Thomas:

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 propertydamage, 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.  The director of the nonprofit California Musical Theater gave $1,000 to support the initiative; he was forced to resign after artists complained to his employer. Lott & Smith, Donor Disclo­sure Has Its Downsides, Wall Street Journal, Dec. 26, 2008, p. A13.  The director of the Los Angeles Film Festi­val was forced to resign after giving $1,500 because oppo­nents threatened to boycott and picket the next festival. Ibid.  And a woman who had managed her popular, fam­ily-owned restaurant for 26 years was forced to resign after she gave $100, because “throngs of [angry] protest­ers” repeatedly arrived at the restaurant and “shout[ed] ‘shame on you’ at customers.”  Lopez, Prop. 8 Stance Up­ends Her Life, Los Angeles Times, Dec. 14, 2008, p. B1. The police even had to “arriv[e] in riot gear one night to quell the angry mob” at the restaurant.  Ibid.  Some sup­porters of Proposition 8 engaged in similar tactics; one real estate businessman in San Diego who had donated to a group opposing Proposition 8 “received a letter from the Prop. 8 Executive Committee threatening to publish his company’s name if he didn’t also donate to the ‘Yes on 8’ campaign.” Donor Disclosure, supra, at A13.

Citizens United, Slip Opinion of Thomas, J., at 2-3.

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