Legal Commentary

Opponents of Prop 8 have put up a map purporting to show where donors to the "Yes on 8" campaign live. You can get the name, occupation and amounts of donation for each mapped donor. While you can't get the exact address, it would be quite easy to use the map to find the homes of donors.

The information used to create the map is all publicly available, but it does make it more accessible and convenient to use. But for what end?

Others have asked whether there is an implicit threat in the creation of a map like this and it does seem that those who created it must have contemplated, if they did not intend,  that it be used to place pressure on supporters of Prop 8. Of course that doesn't mean violence or even economic reprisal. It could be used to create a march route or even to facilitate social ostracization.

I appreciate that the reaction of many - who see support for 8 as a form of hatred and support for a profound injustice - won't care. Whatever happens to donors (short of violence, for most) is well deserved.

Legal questions might revolve around whether this type of speech targeted at donors to a political campaign can or should be banned (I think not) or whether campaign disclosure laws ought to or even must be modified. Eugene Volokh points out that the state may not compel the disclosure of contributors "to a minor political party that can show a 'reasonable probability' that the compelled disclosures will subject those identified to 'threats, harassment, or reprisals.'"

It seems unlikely that this rule would apply to supporters of 8 which did. after all, win. I don't think that  supporters of 8 could make the requisite showing, but a series of interesting questions present themselves. 

Does a constitutionally significant likelihood of threats and reprisals turn on whether the threatened party is associated with a political minority? Even if it does, what is the relevant community for the purposes of ascertaining minority status. Supporters of 8 who live in San Francisco are certainly a political minority - even a despised one - in the city that they leave. What of those who work in an industry - say academia or the arts - in which opposition to 8 is strong?

But beyond these legal questions, I wonder if this type of strategy is smart? Can you really convince the larger society to expand its notions of tolerance by being intolerant of those who resist? Supporters of SSM often draw analogies to the civil rights movement. We do not tolerate racism. Why should we tolerate what they see as similar attitudes towards gays and lesbians?

The political problem, it seems to me, is that there is nothing like a consensus that the analogy is apt, particularly when the issue is marriage (for which many people seem to believe gender and sexual orientation is relevant) and not the denial of other civil rights on the basis of sexual orientation. I wonder, in particular, if the embrace of the civil rights analogy has cost supporters of same sex marriage support in the African American community where I suspect there are a fair number of people who do not believe that gays and lesbians have been subject to the same type of oppression as blacks.

Supporters of same sex marriage would argue that they are engaged in an attempt to change attitudes and, over the long run, the civil rights theme will work. Maybe so. But boycotts and other attempts to ostracize those that have simply supported a particular view of marriage (as opposed to discriminating against gays and lesbians in other ways that would provoke public outrage) do provide the supporters of 8 and similar measures with, whether or not you buy it, their own civil rights narrative.

Cross posted at Marquette University Law School Faculty Blog