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Courts find conservatives can’t prove allegations of harassment by LGBT people

The Minnesota for Marriage coalition, a group that is is urging voters to pass a constitutional amendment banning same-sex marriage, has told the media and the Minnesota campaign finance board that if they have to disclose their donors, they will be subject to violence by supporters of marriage equality.

But a string of court cases across the country have shed serious doubt on those claims, with courts finding that conservative leaders were unable to provide credible evidence of threats or violence.

**Avoiding disclosure in Minnesota

**

The Minnesota Family Council and the National Organization for Marriage lobbied the campaign finance board to loosen disclosure on campaign spending by arguing that their donors will be targeted if their names are disclosed.

“To require groups, non profits like the Minnesota Family Council, to disclose their donors and make their donors names public would have a significant chilling effect on free speech. Even in Minnesota already it’s gotten heated in some respects,” Tom Prichard, president of MFC, told the board in June. “The concern is harassment, property damage, a chilling effect. If I know I have to disclose my name, I’m not going to get involved with the Minnesota Family Council.”

Prichard said he had knowledge of violence against donors to the Prop 8 campaign in California.

“They went after their employment, by challenging their employers. There was vandalism on certain organizations. I can think of one individual that his business suffered because he had to disclose,” he said. “I don’t think our organization should have to disclose our donors, period. We just don’t believe we should be forced to.”

Conservative Catholic columnist for the Star Tribune, Katherine Kersten, recently echoed the Minnesota Family Council’s claims.

“A block thrown through a home window. Cars vandalized. Hate-filled anonymous phone calls at home and work. Swastikas scrawled on houses of worship. Physical assaults. Dismissal from employment because of political views,” wrote Kersten. “[T]his is the sort of intimidation that Americans who support marriage as the union of a man and woman can face today. Persecution of opponents is becoming a tool of the trade for some gay-marriage activists, who—ironically—seem to view themselves as beacons of tolerance.”

She added, “Now, the groundwork for such intimidation is being laid in Minnesota.”

The groundwork is actually being laid for a lawsuit by NOM and the Minnesota for Marriage coalition against the state of Minnesota. When the campaign finance board rejected Minnesota for Marriage’s arguments that full disclosure of donors would put them at risk, the coalition announced that it would not follow the board’s disclosure rules.

But history shows that launching a lawsuit in Minnesota based on the possibility of violence against marriage amendment supporters would be an uphill battle.

Protect Marriage Washington falsified or exaggerated about threats

** **NOM’s claims were tested this fall in Washington state when Protect Marriage Washington (PMW), a group affiliated with NOM, lost its case in court. PMW wanted to overturn that state’s domestic partner laws through an initiative called R-71. The group was successful in gathering enough signatures to put the repeal on the ballot, but it did not want those signatures to be public arguing that “militant homosexual activist groups” would target them.

After a local paper did a feature with state legislator Elizabeth Scott, a feature that included her contact information and talked about her support for repealing the domestic partner law, she said she received death threats.

“Extremists issued multiple death threats to me and my children due to my being publicly questioned about my personal beliefs,” Scott told the Faith and Freedom Network. “I am greatly concerned for both the safety and the freedom of speech of those who believe that marriage is between one man and one woman.”

The court found that Scott’s story did not stand up to scrutiny.

“However, other than speculation, Scott does not attribute to R-71 this death threat or any other incident that she claimed could be considered harassment,” the court wrote.

After the court decision, she wrote, “I guess when the First Amendment is eliminated, we drop back to the Second.”

Gary Randall, who runs the Faith and Freedom Network that spearheaded the effort to repeal the domestic partner law, also had his own complaints about death threats, which he later retracted.

“Randall testified that he received death threats via a blog site; however, when asked to demonstrate where in the copy of the blog posting he believed a threat of his or another’s life was made he could not do so without relying on assumptions,” the court wrote, adding that Randall “finally conceding that no actual death threat was made on the website”

The court noted that Randall was referring to the website, PinkPistols.org, which is a group for LGBT people who hold conceal and carry licenses.

“This website appears to advocate for homosexuals to be armed if desired to use only in self defense,” the court said in a footnote. “[Randall] has not supplied competent evidence to the contrary.”

As a matter of fact, the website no longer exists and according to the Wayback Machine hasn’t been updated since 2006, well before Washington’s enacting of the domestic partnership law.

Other witnesses provided testimony in the Washington case that the court found lacking. One witness testified that he was harassed when two women came up to him while he was gathering signatures for R-71 and one said “we have feelings too.” Another said he found three Post-It notes on his car with vulgar language. Still another felt harassed when a passing motorist made offensive gestures at him.

In the court’s conclusion, Judge Benjamin Settle wrote:

Applied here, the Court finds that Doe has only supplied evidence that hurts rather than helps its case. Doe has supplied minimal testimony from a few witnesses who, in their respective deposition testimony, stated either that police efforts to mitigate reported incidents was sufficient or unnecessary. Doe has supplied no evidence that police were or are now unable or unwilling to mitigate any claimed harassment or are now unable or unwilling to control the same, should disclosure be made.

The court did say that they’d demonstrated that there was some hostility to a same-sex marriage ban in the state, but not that it could lead to threats or violence, and that there had been no evidence that advocates had been harassed in the two years since the ballot question was introduced to Washington state voters.

California and Prop 8

** **In October, NOM and ProtectMarriage.com lost their bid to keep donors to the Proposition 8 campaign anonymous. The groups worked to pass Proposition 8, which repealed the state’s legalization of same-sex marriage in 2008. NOM had argued that disclosing its donors would chill free speech and that widespread violence against Prop 8 supporters would put its donors at risk.

But the judge in the case, U.S. District Judge Morrison England, a Bush appointee, found the evidence a bit thin.

[T]he vast majority of the incidents cited by Plaintiffs are arguably, as characterized by defendants, typical of any controversial campaign. For example, picketing, protesting, boycotting, distributing flyers, destroying yard signs and voicing dissent do not necessarily rise to the level of “harassment” or “reprisals,” especially in comparison to acts directed at groups in the past.

Moreover, a good portion of these actions are themselves forms of speech protected by the United States Constitution.

The court also rejected the idea that any activity directed at entities that backed Prop 8, such as the Mormon church, necessarily meant it was due to Prop 8.

“Plaintiffs have produced insufficient evidence that the more incendiary events on which they rely were connected to Proposition 8 or to gay marriage at all,” the judge wrote. “Rather, a number of these incidents were directed at the Mormon church, which, though a backer of California’s proposition, may also have been a target for any of a number of other reasons.”

And while NOM and other anti-gay marriage amendment backers said that the violence against them was widespread, the judge disagreed.

Accordingly, while Plaintiffs can point to a relatively few unsavory acts committed by extremists or criminals, these acts are so small in number, and in some instances their connection to plaintiffs’ supporters so attenuated, that they do not show a reasonable probability plaintiffs’ contributors will suffer the same fate. Given the grand scale of plaintiffs’ campaign and the massive (and national) support they garnered for their cause, plaintiffs’ limited evidence is simply insufficient to support a finding that disclosure of contributors’ names will lead to threats, harassment or reprisals.

**The future in Minnesota

**Government transparency advocates have been watching NOM’s actions in Minnesota very carefully. In addition to California, Washington, and Minnesota, NOM has also unsuccessfully challenged disclosure laws in Iowa, Maine, New York and Rhode Island.

“Proponents and opponents of same-sex marriage certainly are engaged in a heated debate,” wrote Common Cause Minnesota’s Mike Dean and Mark Ladov of the Brennan Center for Justice at the New York Universtiy School of Law in a column for the Duluth News Tribune. “But it is insulting to claim transparency would leave major campaign donors vulnerable to the violent intimidation tactics civil-rights activists faced in the era of Bull Connor.”

Dean and Ladov pointed back to the outcry when Target Corporation gave money to a group supporting an anti-gay marriage candidate.

“[R]emember how these same groups howled about so-called ‘harassment’ when gay-rights advocates called for a boycott of Target over contributions supporting Republican gubernatorial candidate Tom Emmer. But that isn’t harassment. It’s a boycott — one of the time-honored ways in which ordinary people, without access to wealthy corporate treasuries, can organize for change and make sure their voices are heard in the political process.”

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