An Epiphany for the New Political Year Print
By Hadley Arkes   
Tuesday, 04 January 2011

Days of the Epiphany: God comes into the world as a baby, fragile and weak, disarming men who may be wary of kings-in-the-making, and eliciting, as babies do, the desire to comfort and protect. And we’re reminded that even the most formidable of beings may at times need the protective care of others.

From friends in Boston came a reminder this past week of those people who signed petitions to put on the ballot, in Massachusetts, a measure to restore traditional marriage within the state. The laws on marriage were struck down in November 2003 in the Goodridge case, as the Supreme Judicial Council installed same-sex marriage. From that point forward, the engines of law revved up to sweep away any lingering reservations about the homosexual life. But revved up too were the activists: People who signed petitions to restore traditional marriage were picked out for a campaign of personal attacks, the kind of campaign we have seen now in forms, even more dramatic and virulent, in other states.

In the State of Washington, a law signed in May 2009 expanded the legal recognitions given to “state-registered domestic partners,” including partners of the same-sex. People attuned to these issues saw in these moves the steps that would undermine traditional marriage and prepare the ground for same-sex marriage. They formed Project Marriage Washington to put, in a referendum, a measure to overturn that law, and they brought forth a petition with over 137,000 signatures. Activists on the other side sought access to the names on those petitions under the Public Records Act, and with the issue joined, the argument moved into the courts. 

The people in Project Marriage were acutely aware of the campaigns of intimidation orchestrated in other states. They claimed that the requirement of disclosure would chill the freedom to associate in this project and discourage ordinary folks from engaging in this public advocacy. When the matter reached the Supreme Court of the United States in Doe v. Reed, the Court was reluctant to strike down the laws that mandated this kind of disclosure for involvement in the electoral process. That requirement of disclosure had become central now to the laws, state and federal, that put restraints on the amounts of money that could be donated to political campaigns. And yet, the Court also expressed a willingness to look at the matter anew if the petitioners came back with evidence of intimidation on a scale that could not be ignored.

           Justice Clarence Thomas: Taking the lead in protecting defenders of marriage.  

But Clarence Thomas was alert already to a record of evidence quite striking. The Supreme Court of California had installed same-sex marriage, but the voters in this deeply Blue state had nevertheless voted on Proposition 8 to overturn that judgment and restore marriage as we have known it. As the reactions flared, they brought forth a record vivid and poisonous. Justice Thomas recounted the events: Web sites were put up with maps showing the location of homes and businesses of people who had contributed to Proposition 8. The director of the California Musical Theater was forced to resign after igniting bursts of protest. A woman who had managed her family-owned restaurant for twenty-six years was forced to resign because “throngs of [angry] protesters” repeatedly arrived at the restaurant, shouting at customers.

Justice Thomas was prepared to strike down those laws that expose ordinary citizens to this kind of intimidation – and discourage them from this participation in civic life – by requiring them to divulge their contributions. Justice Scalia saw no objection if states sought to bar that disclosure, but he was deeply reluctant to recognize a constitutional right to be protected from that disclosure. For he did not savor a notion of citizens “hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave."

The hard nut to crack here, though was the famous case of NAACP v. Alabama (1958). A law in Alabama required the NAACP along with other organizations to reveal their list of members and donors. Teachers who were members could be threatened with the loss of their jobs, and sympathetic whites faced with ostracism or other forms of retaliation. The Court struck down that requirement of disclosure. And from that decision some of us drew this lesson: that the freedom to engage in a legitimate association may entail the freedom to engage in that association with confidentiality – if there was reason to think that disclosure could subject a person to acts of intimidation and retaliation designed to discourage him from participating in an association quite legitimate. Some of us also understood that the decision would have to lie with the person himself, for he would know, better than anyone else, the threats he was facing and how acute in fact they were. For all we know, he could be a white businessman, contributing to a black candidate now, and fearful that he would lose business or standing within his social circle.

So much of our litigation over campaign funding, with its requirements of disclosure, have steered around that hard, primary truth. But with Clarence Thomas taking the lead, sounding the call, the courts may yet work back, step by step, to that anchoring ground. And when they do, we may recall that it is not demeaning, even for the most manly and formidable, that the law cast up barriers to intimidation.

Hadley Arkes
is the Ney Professor of Jurisprudence at Amherst College. His most recent book is 
Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law

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