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Protectmarriage.Com, et al v. Debra Bowen

November 4, 2011


The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge


Presently before the Court are Plaintiffs'*fn1 Motion for Summary Judgment ("Plaintiffs' Motion"), Defendants'*fn2 Motion for Summary Judgment ("Defendants' Motion") and Defendants' Motion to Strike ("Motion to Strike"). These matters came on for hearing before the Court at 2:00 p.m. on Thursday, October 20, 2011. For the following reasons, Plaintiffs' Motion for Summary Judgment is DENIED, and Defendants' Motion for Summary Judgment is GRANTED. Defendants' Motion to Strike is DENIED as moot.


A. Factual History

On November 4, 2008, the citizens of California adopted a ballot measure, Proposition 8, that changed the California Constitution such that marriage would thereafter exist only "between a man and a woman." Plaintiffs' Separate Statement of Undisputed Facts ("SSUF"), ¶ 29; Cal. Const. art. 1, § 7.5.

Plaintiffs ProtectMarriage and NOM-California were primarily formed ballot committees established under California's Political Reform Act of 1974, Cal. Gov. Code § 81000 et seq. ("PRA"). Their specific purpose was to specifically support the passage of Proposition 8. SSUF, ¶¶ 1-2.

Plaintiff John Doe #1 supported Proposition 8 and is considered a "committee" under the PRA because he contributed in excess of $10,000 to a committee that itself supported Proposition 8. Id., ¶ 3. In support of the Proposition 8 campaign, such committees raised in excess of $42 million from more than 46,000 individual contributors. See Declaration of Lynda Cassady, ¶ 15 and its attached chart. Plaintiff National Organization for Marriage California PAC ("NOM-California PAC"), to the contrary, was formed post-election to raise and spend money on ballot initiatives and candidates relating to the issue of marriage. SSUF, ¶ 4.

California's PRA requires committees such as Plaintiffs to report certain information regarding their contributors. Specifically, Plaintiffs are required to file semiannual reports including the name, street address, occupation, name of employer, (if self-employed, the name of the business), as well as the date and amount received during the period covered by the statement of anyone who contributes more than $100 to them, both during and after active campaigns. Cal. Gov. Code §§ 84200, 84211(f). This information is then available, inter alia, on the website of the California Secretary of State.

Plaintiffs allege that, as a consequence of their support of Proposition 8, their contributors have been subjected to threats of violence, harassment and reprisals. Plaintiffs further allege that the PRA's $100 reporting threshold is unconstitutional, both facially and as applied to Plaintiffs. Plaintiffs further maintain that the PRA's post-election reporting requirements and the failure to purge reports post-election are facially unconstitutional as well.

In support of their first claim, Plaintiffs submitted 58 John Doe Declarations (Plaintiffs' Exhibit 1). The first nine of those declarations were drafted in January 2009, and the rest were prepared prior to June 3, 2009. Plaintiffs have further provided a variety of media accounts, videos and articles pulled from various internet sources (Plaintiffs' Exhibits 3-4).

Plaintiffs' John Doe declarations document the following incidents that Plaintiffs allege constitute "threats, harassments and reprisals" sufficient to warrant exempting from disclosure the names of Plaintiffs' contributors:

* Establishments owned by or employing persons who contributed to or otherwise publicly supported Proposition 8 were the subjects of proposed boycotts. Declarations of John Doe #1, #53.

* Establishments whose owners supported or contributed to Proposition 8 were subject to picketing or protests. Declaration of John Doe #1.

* A protest took place at a declarant's in-home Proposition 8 political rally. Declaration of John Doe #4.

* Unsolicited phone calls, emails and letters voicing disagreement with the positions of those contributing to or supporting Proposition 8 were received by supporters of Proposition 8. Declarations of John Doe #1, #4-10, #17, #19, #22-23, #28-30, #51-54, #56.

* Flyers were circulated denouncing contributors' support of Proposition 8. Declaration of John Doe #2.

* "Yes on 8" bumper stickers and yard signs were vandalized or stolen. In at least one instance, a sign was used to break a church window. Declarations of John Does #3, #7-8, #13-14, #16, #18, #22, #24, #26, #31, #33-48, #50, #55-58.

* Cars of "Yes on 8" supporters were keyed or vandalized

(i.e., windows were smashed or vehicles were egged and floured) and at least one supporter's home was egged and floured. Declarations of John Doe, #11-14.

* Individuals at "Yes on 8" sign waving events, protests or flyer distribution events encountered negative responses (including individuals shouting obscenities and arguing with sign-waivers, individuals blocking "Yes on 8" signs with "No on 8" signs, and in one instance, an individual throwing an object at a sign waver). Declarations of John Doe #13, #16, #25, #26.

* Conflicts arose with friends, family or neighbors. Declarations of John Doe #13, #15, #18, #20-21, #49.

* Individuals or businesses supporting Proposition 8 had negative reviews posted on a variety of websites. Declarations of John Doe #20, #27, #32, #51.

Most of the incidents alleged above were responses to public shows of support the declarants had made in favor of Proposition 8. See, e.g., Decl. of John Doe #4 (protest held outside the entrance to declarant's gated community when declarant held a fundraiser in support of Proposition 8 at his home); Decl. of John Doe #8 (declarant "attended numerous rallies, three press conferences, and spoke at a number of churches...[,] also participated on panel discussions" and "attended an election night gathering at a hotel...with other supporters of Proposition 8" where the supporter's picture was taken and eventually published); Decl. Of John Doe #9 (photograph of individual at election night gathering prompted receipt of unsolicited messages on MySpace and Facebook accounts, emails and phone calls);

Decl. of John Doe #20 (after seeing a yard sign supporting Proposition 8 in the yard of a shop owner, two neighbors advised declarant they would no longer frequent his store).

Although immaterial to the Court's decision, it is not at all clear from some of the declarations whether the alleged incidents were actually connected to a particular declarant's support of Proposition 8. See, e.g., Decl. Of John Doe #11 (individual maintaining "Yes on 8" yard signs on her lawn and a bumper sticker on her car had her car window smashed); Decl. of John Doe #13 (believes car was keyed in retaliation for posting "Yes on 8" bumper stickers); Decl. of John Doe #23 (believes the statue of Mary, Mother of Jesus, at his church was painted orange in connection with Proposition 8).

Plaintiffs' remaining evidence, Exhibits 3 and 4, is comprised of a collection of online media, including YouTube videos, blogs, court filings in other cases, and numerous articles.*fn3

Because the incidents reported within these Exhibits are highly repetitive, and perhaps deceptively overwhelming, they are catalogued by type of occurrence, rather than by exhibit number, here.*fn4

* Yard sign theft and vandalism. First, as with their Doe declarations, Plaintiffs' evidence recounts a variety of incidences of yard-sign theft and vandalism. In some instances church windows were broken or churches were spray-painted with "No on 8" messages. One church was egged and toilet-papered. Another had adhesive poured on a doormat, keypad and window. A neighborhood in San Bernardino was targeted by vandals who spray-painted cars, fences, garages and "Yes on 8" signs. Vandals also spray-painted residential and commercial buildings in Fullerton, and a church in San Francisco was spray-painted with swastikas and angry Proposition 8 messages. Likewise, in October, 2008, someone spray-painted "No on 8" on a San Jose couple's car and garage and on their neighbor's garage. Also in San Jose, someone painted an SUV with "Bigots Live Here" and an arrow pointing to a house that had a "Yes on 8" sign on the lawn. Some of the articles make mention that law enforcement responded and, in some instances, was even able to make arrests. Exhs. 4-7, 4-29, 4-30, 4-31, 4-32, 4-33, 4-34, 4-36, 4-37, 4-38, 4-39, 4-40, 4-41, 4-45, 4-46, 4-50.

* Disclosure lists. Plaintiffs also provide documentation of a number of websites that, in approximately November 2008, began publishing the names of individuals and businesses that contributed to Proposition 8. Some of Plaintiffs's evidence extends beyond Proposition 8 to websites reporting the names of supporters of similar issues in other states. Exhs. 4-10, 4-11, 4-12, 4-21, 4-28, 4-83, 4-84, 4-98, 4-99, 4-103, 4-105, 4-106, 4-108, 4-109, 4-110, 4-113, 4-114, 4-128, 4-138, 4-139, 4-142, 4-152, 4-153, 4-154.

* Protests and rallies. In addition, Plaintiffs provide evidence of protests and rallies undertaken in approximately November 2008. For example, a small group staged a peaceful "kiss-in" near the Mormon temple in Salt Lake City. Other protests had to be broken up by law enforcement and some protesters were arrested. Exh. 3-3, 3-8, 3-9, 4-64, 4-65, 4-66, 4-68, 4-69, 4-70, 4-71, 4-120.

* Death threats. Plaintiffs allege that, after participating in a rally in favor of Proposition 8 in front of City Hall, Fresno, California mayor Alan Autry and a local pastor received death threats. The pastor's church and house were also purportedly egged. According to Plaintiffs's evidence, police promptly investigated those threats and the pastor acknowledged he was confident in the investigation. Mayor Autry made clear that supporters of Proposition 8 should not "blame the gay and lesbian community" and that he believed "[m]ost of the opponents of Prop 8 and the vast, vast, majority of the gay community would condemn this type of thing." See, Exhs. 4-2, 4-3, 4-4, 4-5, 4-6, 4-34, 4-44.

* Bash Back. Plaintiffs' evidence also repeatedly documents the actions taken by radical gay activist group "Bash Back." That organization allegedly interrupted services at a Michigan church and, among other things, arranged for two women to kiss in front of the pastor. The incident was investigated and the offenders later agreed in federal court to entry of a permanent injunction preventing them from invading churches anywhere in the country. Violators of that injunction could be held in contempt of court and be subject to a $10,000 fine. In addition, a Washington Bash Back chapter also purportedly glued door locks and spray-painted messages on a Mormon church. Finally, the same group appears to have targeted a conference in Washington via an anonymous online post. Exhs. 3-5, 3-6, 4-7, 4-13, 4-16, 4-17, 4-34, 4-42, 4-43, 4-53, 4-54, 4-82.

* Disruption of a prayer walk. In addition, Plaintiffs include several reports of a prayer walk by a group that met every Friday night in San Francisco's Castro District, which has a large gay community, to try to convert gay and lesbian individuals to a "straight lifestyle." During a November protest, a crowd convened and began shouting lewd remarks at the marchers, pushing them and throwing hot coffee, soda and alcohol at them. One man is alleged to have hit a marcher on the head with her own Bible before pushing her to the ground and kicking her. Another marcher reported that someone tried to pull his pants down. Law enforcement intervened and escorted the marchers back to their van. Exhs. 3-1, 4-7, 4-8, 4-9, 4-34.

* Physical assaults. A sixty-nine year old woman at a November 2008 Proposition 8 rally in Palm Springs, California was pushed and spit on. Law enforcement convinced her to press charges against the attackers. Likewise, a supporter of Proposition 8 was waiting to distribute yard signs outside of a Modesto church when someone absconded with approximately 75 signs. The Proposition 8 supporter gave chase, was allegedly punched in the face and received 16 stitches. Detectives responded and investigated the incident. Exhs. 4-7, 4-22, 4-23, 4-24, 4-25, 4-34.

Much of Plaintiffs' remaining evidence goes to alleged boycotts and "economic reprisals." By way of example:

* The chair of the 2012 U.S. Olympic team allegedly stepped down after controversy emerged over his opposition to gay marriage. Exhs. 4-18, 4-144, 4-145, 4-146.

* Negative reviews of a Sacramento ice cream parlor were posted online after it was disclosed that the company supported Proposition 8. The parlor was later the target of protesters giving out free rainbow sherbert. Exhs. 4-27, 4-120, 4-130.

* The manager of an El Coyote restaurant, who was also the daughter of the owners, left town after her $100 contribution to Yes on 8 led protesters to target the restaurant. Protests have since faded and the manager said she has received calls and other shows of support. Exhs. 4-34, 4-58, 4-77, 4-117, 4-123, 4-124, 4-125, 4-126, 4-127, 4-129, 4-133, 4-139.

* Despite some similar shows of support in his favor, the artistic director of Sacramento's California Musical Theater resigned after opponents to Proposition 8 discovered he had donated $1000 to the Yes on 8 campaign. Exhs. 4-34, 4-58, 4-77, 4-115, 4-116, 4-117, 4-118, 4-119, 4-120, 4-121, 4-124, 4-129, 4-142, 4-154.

* The director of the Los Angeles Film Festival also resigned under alleged pressure from gay-rights groups after his $1500 contribution to "Yes on 8" was publicized. Though the festival board initially tried to block his resignation, the director eventually did tender his resignation when pressure continued. Exhs. 4-34, 4-58, 4-116, 4-117, 4-122.

* A Palo Alto dentist featured on a boycott website as a result of his $1000 contribution to the "Yes on 8" campaign claims he consequently lost two patients. Exhs. 4-67, 4-117, 4-154.

* An artist who had captured images from New York's gay pride parade was the subject of verbal retaliation and an article condemning her contribution to Proposition 8. Exhs. 4-96. * A movie theater chain, a Ventura County health food store, a San Diego hotelier, a self-storage company, and a Utah-based car dealer were all boycotted after their or their employees' contributions to Proposition 8 were publicized. Exhs. 4-111, 4-116, 4-117, 4-123, 4-129, 4-131, 4-132, 4-133, 4-134, 4-136, 4-141.

Plaintiffs also cite to evidence purportedly documenting Proposition 8-related backlash directed at the Mormon church primarily in October and November of 2008. For example:

* Two Mormon Temples (and a Knights of Columbus printing plant) received envelopes containing a white, powdery substance. Plaintiffs presume these incidents were connected to Proposition 8, though their evidence does not indicate a connection. Regardless, the FBI investigated the incidents and determined the powder was not a biological agent or toxin. Exhs. 4-34, 4-52, 4-67, 4-75, 4-76, 4-79, 4-92.

* Several churches were also spray-painted with graffiti or otherwise vandalized. Police in at least one town investigated the vandalism as a hate crime potentially linked to Proposition 8, though police in another town refused to characterize the vandalism as the work of opponents to Proposition 8. Exhs. 4-7, 4-47, 4-48, 4-49, 4-51, 4-52, 4-73, 4-90, 4-91.

* Other groups or individuals reported the Mormon church to California's Fair Elections Commission for failing to report contributions to the "Yes on 8" campaign. Similarly, websites were initiated encouraging people to petition to have the tax exempt status of the Mormon church revoked. Exhs. 4-14, 4-15, 4-19, 4-61, 4-62, 4-107.

* During the campaign, same-sex marriage advocates also allegedly produced a commercial depicting Mormon missionaries destroying the marriage license of a gay couple. Exhs. 3-7, 4-59, 4-63.

* Fires were set at Mormon churches in Washington, Utah and Colorado, and a man was prevented from starting a fire at a Los Angeles Temple. Some of the articles speculatively linked the acts or arson to Proposition 8, and in each of instance, authorities undertook an investigation into the crimes. Exhs. 4-79, 4-80, 4-85, 4-86, 4-87, 4-88, 4-89.

* Some protests were directed specifically at the Mormon church. Exhs. 3-8, 3-9, 4-60, 4-68, 4-73, 4-75, 4-80, 4-120.

* Comedian Margaret Cho wrote and performed a song called "Fuck You Mormons" directed at the Mormon Church and its support of Proposition 8. Exh. 3-12.

Finally, Plaintiffs catalog a variety of other miscellaneous events they believe are relevant as well. For example:

* Miss California suffered backlash after stating at the Miss USA pageant that she believed marriage should exist between a man and a woman. Exh. 4-112, 4-147, 4-148, 4-149, 4-150, 4-151.

* A law firm entertaining an agreement with Republicans to defend the federal same-sex marriage ban, withdrew from the agreement after drawing fire from gay-rights groups. Exhs. 4-18, 4-135, 4-155, 4-156, 4-157.

* A New York state senator purportedly received death threats due to his opposition to same-sex marriage. Exh. 18.

* Apple, Inc., allegedly withdrew two iPhone apps from its app Store after receiving complaints from gay-rights supporters. Exh. 18.

* Neighbors engaged in a fist-fight when one attempted to steal and replace the other's yard sign. Exh. 4-34.

* A man was attacked and bitten by a dog while trying to prevent theft of a "Yes on 8" sign. Exh. 4-34.

* Cars bearing "Yes on 8" bumper stickers were keyed. Exh. 4-35.

* A "Yes on 8" table set up in the quad at the University of California, Davis, was hit with water balloons, and students yelled "you teach hate" at those manning the table. Exh. 4-35.

* Individuals left comments, sometimes characterized as "inciting and directly threatening violence" against supporters of Proposition 8 on a variety of blogs and websites. Exh. 4-56, 4-57.

* The parent of a Galt High School student alleges his son was harassed by a teacher for his stance supporting Proposition 8. Exh. 4-102.

B. Procedural History

In light of the above alleged acts, and because they were statutorily required to file semiannual reports on January 31, 2009, Plaintiffs initiated this action against Defendants on January 7, 2009. Plaintiffs have amended their Complaint several times, resulting in the now operative Third Amended Complaint.

On January 9, 2009, Plaintiffs filed a Motion for Preliminary Injunction, raising essentially the same arguments they raise in their current Motion, which this Court denied by formal order on January 30, 2009. At the same time, Plaintiffs also requested a Protective Order, which the Court granted. That Protective Order remains in place to date and permits the parties to redact personal information from filings not under seal. The Protective Order also grants the parties leave to file reference lists pursuant to FRCP 5.2(g).

Plaintiffs did not appeal this Court's Order Denying Preliminary Injunction, nor did they seek, from either this Court or from the Ninth Circuit, a stay of that decision.

On August 25, 2011, Plaintiffs moved for summary judgment. Defendants, with two exceptions, filed a Cross-Motion and Opposition to Plaintiffs' Motion on September 15, 2011.*fn5 At the same time, Defendants moved to strike a large portion of Plaintiffs' evidence. Plaintiffs filed a Reply as to their own Motion and Oppositions to Defendants' Motions on September 29, 2011. Defendants filed a Reply to both their Motion for Summary Judgment ("Defendants' Reply") and their Motion to Strike on October 13, 2011.


The Federal Rules of Civil Procedure provide for summary judgment when "materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations..., admissions interrogatory answers, or other materials" "show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a), (c)). One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-324 (1986).

Rule 56 also allows a court to grant summary adjudication on part of a claim or defense. See Fed. R. Civ. P. 56(a) ("A party may move for summary judgment, identifying each claim or defense-the part of each claim or defense--on which summary judgment is sought."); see also Allstate Ins. Co. v. Madan, 889 F. Supp. 374, 378-79 (C.D. Cal. 1995); France Stone Co., Inc. v. Charter Township of Monroe, 790 F. Supp. 707, 710 (E.D. Mich. 1992).

The standard that applies to a motion for summary adjudication is the same as that which applies to a motion for summary judgment. See Fed. R. Civ. P. 56(a), 56(c)); Mora v. ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998).

A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323 (quoting Rule 56(c)).

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968).

In attempting to establish the existence of this factual dispute, the opposing party must tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed. R. Civ. P. 56(c)). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251-52 (1986); Owens v. Local No. 169, Assoc. of Western Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1987). Stated another way, "before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." Anderson, 477 U.S. at 251 (quoting Schuylkill and Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)).

As the Supreme Court explained, "[w]hen the moving party has carried its burden under Rule 56(c)), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts .... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 586-87.

In resolving a summary judgment motion, the evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. ...

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