The US Supreme Court is set to hear a case Wednesday that tests the right of gay marriage opponents in Washington State to keep their identities private, even when they sign a public petition calling for the repeal of a gay rights law.
The case represents the latest flash point in a national debate over gay marriage that some analysts say is inevitably headed to the high court. How the court resolves the Washington State dispute may influence the tactics and tone of both sides in contentious campaigns for and against government recognition of gay marriage.
Gay marriage opponents are organizing efforts to fight – and, if necessary, repeal – gay rights advances at the state level. On the other side, some gay rights activists are embracing an aggressive program using the Internet to publicize the names, home addresses, employment, and other associations of gay rights opponents. The activists then encourage boycotts and confrontations to punish gay rights opponents for their political advocacy.
That was the situation in Washington State last year, when a group, Protect Marriage Washington, collected 122,000 valid signatures to force a statewide vote to repeal a recently passed domestic partnership law.
Referendum 71 was set for a vote in November 2009. The question was whether Washington’s same-sex domestic partnership law should be approved or repealed. (Voters ultimately decided to approve it, 53 to 47 percent.)
A request to see the names on the petitions
Three groups supporting same-sex marriage entered the fray, seeking to block the referendum. All three filed public documents requests, seeking disclosure of the signed petitions that authorized the referendum.
Protect Marriage Washington objected to the public disclosure of the names on the petitions and other identifying information, citing harassment and death threats received by gay rights opponents involved in the Proposition 8 campaign in California. The Washington State group requested and obtained a temporary restraining order blocking public release of the names.
In granting the order, a federal judge ruled that disclosing the names would violate the petition signers’ First Amendment right to engage in anonymous political speech.
“At this time the court is not persuaded that full public disclosure of referendum petitions is necessary as an important check on the integrity of the referendum election process,” the court said. The judge noted that the state had already verified the authenticity of the signatures on the petitions.
Washington official would allow release of the names
Washington Secretary of State Sam Reed appealed. The Ninth US Circuit Court of Appeals reversed the district judge, saying that signing a referendum petition is not a form of anonymous political speech protected by the First Amendment.
The appeals court panel saw no reason the petition names could not be made public. The panel lifted the judge’s restraining order, clearing the way for the immediate public disclosure of the names.
Protect Marriage Washington appealed to the US Supreme Court, which reinstated the federal judge’s restraining order and agreed to hear the appeal.
The case, John Doe #1 and John Doe #2 v. Sam Reed, explores the issue of whether petition signatures are a constitutionally protected form of free speech or whether the identifying information of petition signatories becomes part of the public record and thus may be disclosed once the petition signatures are determined to be valid.
What the high court has said so far about signers' privacy
The Supreme Court addressed a related issue in January as part of a landmark decision on campaign-finance reform in a case called Citizens United v. FEC. In that case, the majority justices struck down limits on the ability of corporations and labor unions to engage in issue advocacy during campaign season. The justices also upheld campaign-finance regulations requiring public disclosure of those who contribute to a political effort by a corporation or labor union.
The justices, however, laid down an important caveat. They said a group would be authorized to mount a legal challenge to the public disclosure section of the campaign-finance law if the group could show a “reasonable probability that disclosure of its contributors’ names will subject them to threats, harassment, or reprisals from either government officials or private parties.”
The Washington State public records law is not the federal campaign-finance law. But the facts surrounding the dispute are similar to the facts that prompted the court’s caveat – the tactics used in the wake of Proposition 8 in California.
Justice Clarence Thomas issued a lone dissent to that section of the Citizens United decision. He said the disclosure, disclaimer, and reporting requirements in the federal campaign finance law always violate the constitutional right of Americans to engage in anonymous speech.
He used the experience of Proposition 8 as an example of how such disclosure laws can help aggressive activists retaliate against political opponents and frighten others away from contributing money or participating in the political process.
“I cannot endorse a view of the First Amendment that subjects citizens of this nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in core political speech,” Justice Thomas wrote.
Does signing a petition equal political speech?
Washington Attorney General Robert McKenna apparently isn’t counting on Thomas's support. His brief suggests a sharp disagreement on the issue.
“The act of signing a referendum petition is very different from speech or expressive conduct. It is not core political speech and involves no substantial expressive element,” the Washington State brief says. “Signing a petition is a public act, not anonymous speech.”
The attorney general also argues that the federal judge and appeals court did not specifically address the harassment aspect of the Washington State case. As a result, he said, the Supreme Court may not consider the harassment and retaliation issue at this stage of the litigation.