An aftershock of California's acrimonious battle over same-sex marriage last fall rumbles into federal court on Thursday.
A judge in Sacramento is being asked to halt the disclosure of the names of donors to two groups that supported Proposition 8, the voter-approved initiative banning gay marriage. Public disclosure, however, is at the core of the campaign finance laws.
Two organizations that worked to pass the initiative — ProtectMarriage.com and the National Organization for Marriage California — say their donors have been targeted by opponents of Proposition 8.
They say it was worse just after Election Day. Their court filing includes anonymous declarations from several donors.
One donor says he made a five-figure contribution. When it became public, he says, three Facebook groups formed to boycott his stores, and the stores were picketed. The donor says he "would not donate like this again."
The plaintiffs' attorney, James Bopp, says Proposition 8 opponents committed vandalism, demonstrations, even death threats against donors.
"It presents a serious issue for the kind of civil society we're going to have and whether or not democracy is going to continue to flourish," Bopp says.
He is asking U.S. Judge Morrison England Jr. to stop the disclosure of donors who made small contributions later in the campaign. The names of major donors have already been disclosed.
"It's just hard to believe that anyone, if this information had been available before the election, would care that Joe Blow had given $100 to a multimillion-dollar initiative campaign," Bopp says.
Bopp also wants all of the donor lists for ProtectMarriage.com and the Organization for Marriage California removed from government records.
There's no doubt that many gay rights advocates are angry. There's an anonymous Web site that mashes up the Proposition 8 donor lists with Google Maps, so people can identify the donor's house down the street and how much that donor gave.
But it cuts both ways.
In October, ProtectMarriage.com wrote to big donors to the gay rights group Equality California. The letter noted the contributions and respectfully requested that donors correct this error with a big check to ProtectMarriage. Those who didn't donate would have their names published.
The director of Equality California, Geoff Kors, monitored who got the letter.
"It went to unions, it went to other businesses, it went to a whole variety of people," Kors says. "So for them now to be saying they want to hide their donors is incredibly hypocritical."
The U.S. Supreme Court has allowed some exceptions to the campaign finance disclosure laws if a group can show that revealing its donors could put them at risk. But Bopp's challenge is broader — arguing that the two groups were raising money for a ballot initiative, not for candidates, and so they should be exempt from California's disclosure law.
Rick Hasen, who teaches campaign finance law at Loyola Law School in Los Angeles, says, "There is something very disturbing about people being harassed because they've given money to a particular ballot measure.
"On the other hand," he says, "I think that the idea that a court would come in and strike down a long-standing statute that serves an important public purpose is unlikely."
Hasen also says that in California, politicians are usually involved in the initiative campaigns.
"It's a well-worn tradition here," he says. "And so the idea that there's no potential for corruption of candidates or elected officials through contributions to ballot-measure committees is simply incorrect as a factual matter here in California."
California state officials are fighting the complaint. They're scheduled to release the donor lists Feb. 2.