Gender & Sexuality Law Blog

The passage of Proposition 8 in California a year ago unleashed a troubling new strategy in the movement to extend marriage rights to same-sex couples: public shaming.  In an effort to slow down the ever-increasing use of propositions and referenda that forestall or overturn court or legislatively created marriage rights for same-sex couples, some advocates have been pushing hard to publicly disclose the names of people who sign petitions that get these measures on the ballot or who make donations to the organizations that support them.

The thinking goes like this: there ought to be some cost to supporting these homophobic (or at least same-sex marriage -ophobic) propositions/referenda through your signature or financial contributions.   Shame on you.  And we’ll bring shame on you by publicizing your name on the internet and elsewhere.  (See, for instance knowthyneighbors.org.)  You may then risk boycotts or picketing and angry gay people showing up on your front lawn throwing rotten lavender fruits at your home.  As the Wall Street Journal reported last winter about the fall-out after the donors to the Yes on Proposition 8 campaign were revealed:

A Palo Alto dentist lost patients as a result of his $1,000 donation. A restaurant manager in Los Angeles gave a $100 personal donation, triggering a demonstration and boycott against her restaurant. The pressure was so intense that Marjorie Christoffersen, who had managed the place for 26 years, resigned.

After all, what’s wrong with making the people who support these retrograde propositions face some kind of public accountability for the role they play in the denials of lesbian and gay people’s civil rights?

Well, first off all, isn’t there something rather, um I don’t know, ironic about gay people seeking to use shame as a political tool to combat their enemies by dragging them out of the closet?  I know, we heard this argument in the 1980s and 1990s when “Outing” was in fashion, and the likes of Michael Signorile sought to “out”  gay public figures who took positions hostile to the lgbt communities’ interests.

But maybe there’s something a bit different than the same form of “outing” going on now.  The current political and legal strategy to force disclosure of supporters/contributors to anti- marriage equality measures smells a lot like the strategies that were used by racists, anti-communists, anti-unionists, and others in the 1950s and 1960s when they demanded that organizations such as the NAACP, the ACLU, the National Lawyers Guild, unions, SDS chapters, the Social Workers Party among others divulge their membership lists.  There was a spate of Supreme Court cases in this period that found pretty consistently that these disclosure laws violated the First Amendment associational rights of the members of these organizations.  This was particularly the case when, as the Court held,

There was substantial uncontroverted evidence that public identification of persons in the community as members of the organizations had been followed by harassment and threats of bodily harm. There was also evidence that fear of community hostility and economic reprisals that would follow public disclosure of the membership lists had discouraged new members from joining the organizations and induced former members to withdraw. This repressive effect, while in part the result of private attitudes and presures, was brought to bear only after the exercise of governmental power had threatened to force disclosure of the members’ names.

This language came from Bates v. City of Little Rock, the 1960 case that challenged the Arkansas law forcing the NAACP to disclose the identity of their membership.  But it could just as well describe the current aims and effects of efforts to gain disclosure of anti-gay marriage supporters.

Perhaps more important, it was quite common for public and private actors to seek disclosure of the membership lists of various lesbian and gay rights organizations not so long ago.  After all, until recently, the membership of the organizations was made up of felons – admitted sodomites.  Perhaps we’ve forgotten what a risk we all felt we were taking when we joined the Daughters of Bilitis or the Mattachine Society, or what courage it took to subscribe to their magazines – The Ladder and the Mattachine Review.

Today, in New York, San Francisco we take it as common-place, if not irritating, when we are stopped on the street by the young person with an HRC clip-board paid by the hour to get new members, and thus membership in lgbt organizations seems like such a trivial matter.  But joining these organizations is not a trivial matter everywhere in the U.S. and not that long ago it wasn’t in the homo-metropoles either.  (Notably, the lesbian and gay lawyers organization in San Francisco still has a closet name: BALIF- Bay Area Lawyers for Individual Freedom, and not too long ago New York’s lgbt lawyers group was called BAHR-GNY – the Bar Association for Human Rights of Greater New York.)

A rather shocked colleague commented to me after I gave a paper the other day:  “Katherine, you really are a radical,” and it’s true, but I don’t countenance strategies committed to “by any means necessary.”   Just as I didn’t support liberal groups’ plans in 1990 to queer-bait David Souter on account of his being unmarried when he was nominated to the Supreme Court, I find myself recoiling at today’s turn to shaming as political tactic.

There are important issues at stake in the disclosure of the names of those who support these propositions we abhor.   Associational rights have been highlighted in the Supreme Court’s discussion of this strategy in other settings, but there are important concerns of chilling political participation, privacy, and the anti-deliberative impulses of mob-based retribution as well.  Then there’s the goose and gander issue – just because the climate in some places right now might make disclosure of these names “useful” to the marriage equality movement, that doesn’t mean that we aren’t establishing a precedent for a strategy that will likely come to bite us in the butt in the future – or bite the butts right now of allied movements whose vulnerabilities we ought to be keeping in mind (try giving a donation to a benevolent organization in Iran or Palestine these days, as I have: you know your donation cannot be made anonymously).

Sure, I delight in these moments riddled with schadenfreude as much as the next person, but as my mother used to say, that doesn’t make it right.