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Thomas More Law Center v. Bonta and Americans for Prosperity Foundation v. Bonta.

(Somehow we missed this.)

Back in the early 2000’s, the people of California put on the ballot what was then called “Proposition 8,” which mandated that marriage be between a man and a woman, and that California should not perform or acknowledge single sex marriages. As one can imagine, the issue was a hot topic. However for the purposes of this post, what happened was that people that had donated money in favor of Prop 8 were attacked personally and their businesses damaged and disrupted by often violent protestors.

Two non-profit groups, the Thomas Moore Law Center (TMLC) and Americans for Prosperity had always followed California law when it comes to their charity’s mission, officers, finances, etc. What California did not require was a list of donors to those charities. Such disclosure was voluntary, and the two groups declined to disclose their donor lists.

Fast forward to 2010 when the California Attorney General decided that the groups must disclose donors. The State promised that the lists would remain confidential, but this is California and California has a horrible history in keeping confidential information out of the public eye.

There was a problem. The Supreme Court had already ruled that such mandatory disclosures without a basis of wrong doing, was unConstitutional.

In 1959, the Supreme Court ruled in the case of NAACP v. Alabama that people had the First and Fourteenth Amendment to associate with whom they chose and to advance ideas and beliefs.

In 2012, the State of California came calling to both groups saying the groups had to turn over their list of donors. (It should be noted that California was saying they had the right to all donors – even those who did not live in California.)

TMLC and the Americans for Prosperity sued and won in a federal court.

California appealed to the Ninth Circuit which ignored the Supreme Court precedent and said “turn over the names.”

In the fall of 2020, the Supreme Court heard the case and on July 21, 2021, issued a ruling.

By a vote of 6-3, the Supreme Court held that the law was unConstitutional. (Justices Sotomayor, Breyer and Kagan dissented.)

The Supreme Court on Thursday struck down California’s requirement that charities and nonprofits operating in the state provide the state attorney general’s office with the names and addresses of their largest donors. The 6-3 ruling in Americans for Prosperity Foundation v. Bonta was a major victory for the two nonprofit challengers, which had argued that the rule violates the First Amendment by deterring their donors from making contributions. In a dissent, Justice Sonia Sotomayor suggested that the ruling could have an effect beyond the nonprofit and charitable spheres, including on campaign contributions, writing that the ruling “marks reporting and disclosure requirements with a bull’s-eye.”

Actually, our first impression when reading about this case was exactly that of Justice Sotomayor – what about political contributions?

It is an interesting point, but it may not be germane.

California admitted in their arguments that they seldom, if ever used the lists to start or end any criminal investigation into the wrong doings of a charity or its donors. The State also admitted that it could get the information through a subpoena if there were allegations of criminal wrong doing and impropriety.

In addition, there is a difference in advocating for or against something, and using donations to buy votes and or political clout with the hope of a return of investment.

So why did California want the list of donors in every state for every charity registered in California?

It seems the only real answer would be that with the information, state employees could leak the information resulting in harassment just as had happened Prop 8 and with the NAACP. Instead of protecting people’s First Amendment right to donate to causes they wanted to support, the State could effectively seek the mob upon those donors if state workers at any level disagreed with the position of charities.

The six justices on the Supreme Court saw through California’s suppression of rights and smacked them and the Ninth Circuit down.

We would be remiss if we did not mention that the Thomas More Law Center and Americans for Prosperity Foundation were represented by the Alliance Defending Freedom who often take on cases concerning freedom of speech and religious freedom.

They were not alone:

TMLC was not the only organization concerned about California’s donor disclosure law, either. In fact, over 40 organizations across the ideological spectrum filed friend-of-the-court briefs in support of Thomas More Law Center. This even includes groups whose values conflict with TMLC’s—such as the Southern Poverty Law Center, the American Civil Liberties Union, and the Human Rights Campaign. As the Supreme Court noted in its opinion, the gravity of TMLC’s donor-privacy concerns was “underscored by the filings of hundreds of organizations” that “span the ideological spectrum.”

The bottom line is that the Supreme Court once again confirmed that people have the right to associate and support causes in which they believe.

What is sad is that the State of California and the Ninth Circuit sat there with their bare faces hanging out and defied Supreme Court precedence and the Constitution.

It takes literally millions of dollars to bring a case before the Supreme Court and yet the politicians in California and the justices from the Ninth Circuit won’t have to pay a dime.

In a case about money and donations, that may be the most ironic thing of all.




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