October 1, 2012 | by Chris Johnson
Supreme Court refuses NOM’s challenge to Maine donor laws
Supreme Court, gay news, Washington Blade

The U.S. Supreme Court announced Monday it won’t hear a case challenging NOM’s disclosure laws (Washington Blade file photo by Michael Key)

The U.S. Supreme Court has denied another request from an anti-gay group challenging financial disclosure laws in Maine that require the organization to reveal who donated to the 2009 marriage ballot initiative campaign.

Justices announced on Monday they wouldn’t hear the case, filed by the National Organization for Marriage, on an order listing hundreds of lawsuits they have declined to hear over the course of the 2013 term.

The court’s decision not to hear the case, known as National Organization for Marriage v. McKee, was made during the September 24 conference, the first meeting of justices for this term, but wasn’t announced until Monday. Last week, the court announced six cases it had decided to consider during the conference.

NOM had filed the lawsuit against state disclosure laws in Maine after the organization in 2009 helped the anti-gay side in a referendum over recently the signed same-sex marriage law, which state voters ultimately rejected by 53 percent.

Among other things, NOM argued the same donor disclosure laws shouldn’t be applied to both political candidates and ballot questions and asserted the $100 reporting threshold in Maine is so low it doesn’t constitutionally further the state’s information interest. But the U.S. First Circuit Court of Appeals in January affirmed a district court ruling upholding the disclosure laws, which NOM later appealed to the Supreme Court.

Fred Sainz, vice president of communications at the Human Rights Campaign, took the opportunity of the decision to knock the anti-gay group.

“NOM has shown an unwillingness to play by the rules and this is yet another legal set-back,” Sainz added. “This is proof that their penchant for secrecy has run them afoul of the law.”

NOM won’t be required to reveal its donors immediately, but the decision means Maine can continue to pursue its investigation of the organization’s activities related to the 2009 ballot measure.

Phyllis Gardiner, a Maine assistant attorney general and counsel to the state’s Commission on Governmental Ethics & Election Practices, said the state is “pleased” the First Circuit’s ruling will be upheld, but acknowledged the investigation continues.

“The Maine Commission on Governmental Ethics & Election Practices has an ongoing investigation, and there’s pending state court litigation as well that has not yet been fully resolved,” Gardiner said. “So, the constitutionality of the statute was upheld by the First Circuit, and now it’s a matter of the commission completing its work and making its determination.”

Gardiner added she doesn’t know the exact timing for when the ethics commission will finish its investigation.

But NOM wasn’t happy with the decision. John Eastman, NOM’s chair, said in a statement his organization is “disappointed” with the Supreme Court’s decision not to hear the case, but “will be reviewing” the state’s requests, which the organization says is different now than in 2009.

“In their briefs before the U.S. Supreme Court, the state appeared to have substantially narrowed the type of information they were requesting from NOM,” Eastman said. “Had the state taken the position they took recently back in 2009, this litigation might well have been avoided. We will be reviewing the requests for information that the state has made in light if the narrow interpretation the State has now provided to its own statute.”

Darrin Hurwitz, HRC’s assistant general counsel, responded to NOM’s statement by saying the organization should have complied with Maine laws like other organizations did in the first place.

“This litigation could have been avoided in 2009 if NOM had chosen to abide by the law then and disclose donors to their Maine efforts as every other organization that participated in Question 1 did,” Hurwitz said. “It’s easy to say that you’ll respond to the state’s requests after you’ve lost a 3-year court battle and have no other options.”

Gardiner also took issue with the idea that Maine changed what it wanted from NOM since 2009.

“I think that may be based on a misunderstanding,” Gardiner said. “The commission’s interpretation of Maine’s statute — what it requires — has not narrowed or changed during the course of this litigation.”

On the same day as the court announced it wouldn’t hear the lawsuit, Brian Brown, NOM’s president, announced a new website, KeeptheRepublicandMarriage.com, on which donors can publicly declare they’ve contributed money to the organization.

“Even though donors to NOM are not subject to public disclosure, a number of our donors wanted to show that they would not be bullied and were not afraid to publicly proclaim their support for NOM as a way of encouraging others to publicly stand up to support marriage,” Brown said in a statement. “These key donors were inspired by the courage of Dan Cathy, CEO of Chick Fil A, who resolutely told Americans that he unabashedly believed in God’s design for marriage as the union of one man and one woman.”

The website already has 26 people listed, but no information other than an individual’s name is given. The top name listed is Sean Fieler, who presumably is the same Sean Fieler who’s chair of the American Principles Project, a conservative group that opposes same-sex marriage and abortion rights. That group didn’t immediately respond to a request to comment.

Under the headings of the announcement that it won’t take the NOM case, the order from the court states, “The motion of respondents for leave to file a brief in opposition under seal with redacted copies for the public record is granted.”

Hurwitz said this note is procedural and pertains to the respondent brief filed by Maine’s attorney general in the case. The document has lines relating to NOM’s fundraising that are redacted and the court is granting the state’s request to keep them sealed.

It’s not the first time the Supreme Court has declined to hear one of NOM’s challenges to Maine’s financial disclosure laws. In February, the Supreme Court announced it wouldn’t hear a different challenge to Maine’s laws also called National Organization for Marriage v. McKee. But, unlike the later lawsuit, the NOM’s argument in the earlier case was political action committee requirements in state were unconstitutionally broad and vague.

The news on the NOM case comes as many anticipate a decision from the court on whether it take up pending challenges to California’s Proposition 8, known as Hollingsworth v. Perry, and one of the cases against the Defense of Marriage Act, Windsor v. United States. Both were docketed for the September 24, but the order on Monday reveals that no announcements have been made on those high-profile cases.

The Supreme Court has also yet to make a decision on whether it’ll hear the case of Diaz v. Brewer. The request was filed by Arizona Gov. Jan Brewer (R), who was appealing an injunction placed by a district court prohibiting her from enforcing a law taking away domestic partner benefits from Arizona state employees.

NOTE: This article has been updated from its initial version to include NOM’s response to the decision as well as comments from Phyllis Gardiner.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

2 Comments
  • The Maine Ethics Committee hasn’t even determined NOM’s standing during all this time.

    Here is Maine Ethic Commission Jonathan Wayne’s response to the Portland Press Herald today.

    Jonathan Wayne, executive director of the Maine Ethics Commission, pointed out that, due to the legal challenges, the commission had yet to complete its initial investigation into whether NOM was a ballot question committee. Staff will likely report their findings to the commission in the coming months but not before the November elections, he said.

    But Wayne said Monday’s decision was important.

    “Today’s decision by the U.S. Supreme Court is a helpful development because it is another affirmation that our campaign finance laws are constitutional,” Wayne said.

    Bring a book!

  • Just find a friendly judge to issue a bench warrant and toss Maggie under the jail..

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