Proposition 8 proponents' complaint that a California campaign-finance disclosure law has led to harassment of same-sex marriage opponents failed to sway a federal judge, who refused Thursday to throw out the law or shield donors' names.
"If there ever needs to be sunshine on a particular issue, it's a ballot measure," U.S. District Judge Morrison England said after a one-hour hearing in his Sacramento courtroom.
A lawyer for the Prop. 8 campaign said it would ask an appeals court to modify or overturn the law, which requires disclosure of all contributors of $100 or more.
Prop. 8, approved by voters Nov. 4, amended the state Constitution to recognize only marriage between a man and a woman, overturning the state Supreme Court's May 15 ruling that gay and lesbian couples have a constitutional right to marry.
Same-sex couples and local governments led by the city of San Francisco have filed suits to overturn Prop. 8, a case that the state's high court could hear as early as the first week in March.
The federal lawsuit, unrelated to the validity of Prop. 8, was filed Jan. 8 by the ballot measure's sponsoring committee, Protect Marriage. The suit said Internet disclosure of donors' names and other identifying information in state-mandated reports has led to consumer boycotts, picketing and even death threats.
By requiring disclosure, "the government is getting in the middle (of the issue) and saying, 'Here are the people to go after,' " Richard Coleson, a lawyer for the committee, told England.
He argued that the $100 disclosure requirement - adopted by California voters in 1974 - should be struck down, modified to raise the dollar limits, or at least not applied to Prop. 8's contributors. As a first step, Coleson said, the campaign should be exempted from the state's post-election contribution report, due next Monday.
Otherwise, he said, in future initiative campaigns "you will have donations dry up, and one side will be able to overcome another by intimidation and not be persuasion."
The U.S. Supreme Court upheld campaign disclosure laws in 1976 but ruled in 1982 that the Socialist Workers Party in Ohio could shield its donors' names because of a history of attacks and reprisals.
Protect Marriage argued that it was entitled to the same exemption because of retaliation against some of its contributors, but lawyers for the state said the two cases weren't comparable. They noted that the Prop. 8 campaign raised nearly $30 million from 36,000 donors.
If the Prop. 8 campaign was exempted from disclosure because of reports of harassments of individual donors, said Deputy Attorney General Zackery Morazzini, the same case could be made for any controversial initiative. Courts would have to "keep the entire California electorate in the dark as to who was funding these ballot measures," he said.
He noted that some of the reprisals reported by the Prop. 8 committee involve legal activities such as boycotts and picketing. Other alleged actions, such as death threats, mailings of white powder and vandalism, may constitute "repugnant and despicable acts" but can be reported to law enforcement, the judge said.
Even if there have been illegal reprisals, that would be insufficient reason to grant a wholesale exemption for a multimillion-dollar initiative campaign, England said. He also rejected the Prop. 8 campaign's argument that the $100 disclosure limit established in 1974 should be increased for inflation, saying some states require reports of contributions as low as $25 and the Supreme Court has never invalidated them.
Any desire by donors to remain anonymous is outweighed by the state's authority to require "full and fair disclosure of everyone who's involved in these political campaigns," England said.
Protect Marriage still has a request pending before England to require the state to remove its past disclosure reports from the Internet. But the state says such an order would be futile because the reports have been widely distributed on private Web sites.
Coleson said the campaign would take its case against the disclosure law to the Ninth U.S. Circuit Court of Appeals in San Francisco.
Referring to the donors whose names will appear in Monday's public report, campaign spokesman Frank Schubert said England's ruling "puts 1,600 people in harm's way."
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