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Tuesday, January 13, 2009

We know where you live

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

Posted by Richard Esenberg on January 13, 2009 at 11:31 AM in Culture | Permalink


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I agree and acknowledge that many people would see it as cavalier because they buy into the notion that gender or sexual orientation (but not other potential bases for exclusion like age, consanguinity, or the "rule of two")are irrelevant to marriage. For these folks, the analogy to the movement for civil rights for African Americans seems more apt.

But there are many who do not believe this. Some of them (probably most)base that belief in one of the Abrahamic religious traditions. Some (I think of people like Maggie Gallagher) offer secular arguments.

Some combination of these arguments have, for now, tended to carry the day in public debate, even as there is much less - maybe even relatively little - support for discrimination against gays and lesbians in housing, employment, etc. In light of this, my point is simply (and only) that I think it is both unjust and perhaps politically foolish to equate opposition to same sex marriage with hatred or bigotry.

Posted by: Rick Esenberg | Jan 14, 2009 11:34:34 AM

Last sentence should have been "the end result is the same."

Posted by: Howard Wasserman | Jan 14, 2009 10:46:33 AM

I wonder if it is a bit too cavalier to speak of "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)" as the be-all distinction between anti-integrationists in the South and opponents of same-sex marriage. It conflates the conduct with the rationale. Prohibiting SSM does treat gays and lesbians differently than the rest of the population, at least as to that one facet of life; that differential treatment is *based on* or *justified by* a particular view of marriage. But it is still differential treatment in that one respect.

Nor do I think it works to say there is a difference because we are opposing equal treatment only in this one way, not in all the others. I seriously doubt we would have accepted the following argument from George Wallace or Orval Faubus in 1966: "OK, Blacks can vote, work with us on equal terms, live in our neighborhoods, and go to school with our children, but they can't marry our women because of our particular view of marriage." The difference is that the anti-SSM view is more legitimately religiously grounded than this hypothetical argument would be (although there were religious arguments made in support of anti-miscegination laws). And it is more popular and widely held than the views about inter-racial marriage. But for those who do not accept either underlying "particular view of marriage," there is no difference because the end results.

Posted by: Howard Wasserman | Jan 14, 2009 10:31:32 AM


The fellow did provide some half-hearted opposition to Prop. 8, but his countless public, oral statements against gay marriage (made directly by him and through his proxies, such as J. Biden during the debates) leave me no doubt on where he stands on equal rights. The fellow was in a position to do far more than any other single person to influence the debate in California, but offered only a meaningless letter, which could not counteract the countless robo-calls featuring his voice expressing his opposition to gay marriage.

Posted by: andy | Jan 13, 2009 8:05:54 PM

Alleluia, conservatives are pushing for more privacy!

Posted by: Anon | Jan 13, 2009 7:55:12 PM

Actually, the fellow moving into 1600 Pennsylvania Ave opposed Proposition 8. See http://www.sacbee.com/111/story/1051404.html

Posted by: J | Jan 13, 2009 7:14:17 PM

There are a few cases talking about group lobbying efforts being protected from discovery under the first amendment right to petition (e.g. the NAACP could not be forced to turn over their membership list).

I suppose here the competing interest involves campaign finance laws and the sort of "sunshine" required in disclosing financial support for a candidate or ballot provision.

It seems to me that if this information is used for the purpose of intimidation or with the intent to chill political activism, then we should, at least, rethink the disclosure of such information.

Posted by: PA | Jan 13, 2009 1:23:52 PM

Let's not forget that there is a prominent opponent of gay marriage moving into 1600 Pennsylvania Ave NW, Washington DC, next week. I doubt we'll be seeing any boycotts of that particular opponent, though; religious types (like Mormons) are a lot easier to demonize, harass, and ostracize.

Posted by: andy | Jan 13, 2009 1:16:40 PM

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