The Supreme Court will hear oral arguments today in a
Washington state case in which religious conservatives fear retaliation
from gay rights groups if the names of the 138,000 people who signed ballot
petitions to overturn a same-sex domestic partnership law are released.
State officials say the Washington Public Disclosure Act, approved by
voters nearly 40 years ago, requires the release of signatures on
initiative and referenda petitions. Until now, no one had ever challenged
their release.
Though Referendum 71 is at the heart of the legal dispute, the issues are
far broader, including how open the state's initiative process will be.
State officials also fear that if this challenge to the state disclosure
law is successful, it will open the door to other challenges.
"It's the public's right to know versus the right to privacy," said
Secretary of State Sam Reed, who is named in the lawsuit. "It's exactly the
type of case the Supreme Court likes."
Lawyers for Protect Marriage Washington, which sponsored R71, say gay
rights groups in California have harassed and intimidated those who signed
petitions for an initiative barring gay marriages in that state. They fear
the same thing will happen in Washington state.
"The government is compelling people to identify their political beliefs
and then outing them," said James Bopp Jr., who will argue the case before
the Supreme Court for Protect Marriage Washington. "There couldn't be
anything more chilling to free speech."
Bopp is an Indiana lawyer who represents conservative groups and has
argued previously before the Supreme Court. He is also involved in a
lawsuit against the Washington State Public Disclosure Commission seeking
to overturn a state law requiring the release of the name of anyone who has
contributed $25 or more to a political campaign. The federal disclosure
limit is $200.
Washington Attorney General Rob McKenna will argue for the state.
The case has attracted national attention, with dozens of groups ranging
from The New York Times to the American Civil Rights Union to 23 states
with similar disclosure laws including Idaho, Florida, Mississippi and
South Carolina filing friend-of-the-court briefs.
R71 was an effort by conservative Christian organizations to repeal a law
passed by the Washington Legislature that granted expanded domestic
partnership rights to same-sex couples. The referendum, which was on the
November 2009 ballot, asked voters to approve or reject the domestic
partnership law. Voters upheld the law.
Gay rights activists had asked the Washington secretary of state for the
names of those signing the petition to get R71 on the ballot, adding they
would post the names on a website that would be searchable.
Protect Marriage Washington asked a U.S. District Court for an injunction
against the state that would bar the release of the names. Lawyers for the
group argued there was a right to "anonymous free speech," which would
allow people to exercise their First Amendment rights without facing
criticism.
The lower court granted the injunction, but the 9th U.S. Circuit Court of
Appeals stayed it, saying an "incorrect legal standard" had been used.
Protect Marriage Washington then appealed to the Supreme Court. The
signatures have not been released.
In its Supreme Court brief, Protect Marriage Washington said the state's
Public Disclosure Act was unconstitutional as applied to ballot petitions
because it "violates the interest in privacy of identify, association and
belief."
The group's brief also said the disclosure law was unconstitutional
because there was a "reasonable probability" that those signing a petition
would face "threats, harassment and reprisals."
Protect Marriage Washington argued there were "two great enemies of
citizen participation in our Republic, corruption and intimidation in our
elections. Much attention has been paid to preventing corruption, but this
case is about protecting people from intimidation while engaging in
political speech."
In its brief, the state noted the issue of harassment had not been
considered by either the lower court or the appeals court and should not be
part of the Supreme Court argument.
The state argued that signing a petition was a public act, not like
voting, and dismissed "anonymous free speech" as a recognized right.
"The act of signing a petition is not core political speech and involves
no substantial expressive element," the brief said.
Reed, in a telephone interview, said he had never heard of anonymous free
speech, adding that the state had a responsibility to conduct its affairs
in an open manner.
"For people who believe in transparent government and a people's right to
know, this case could be a slippery slope," Reed said.
Reed said that the issue of harassment was a concern and it could have a
"chilling effect" on participation in the political process.
"But it is a separate issue," he said. "We have not heard of anyone who
signed a petition being harassed. We would turn such a case over to the
police."
But Bopp said the head of the R71 campaign was harassed and his children
ended up sleeping in the hallway of their house as a precaution.
"Reed did nothing," Bopp said.
Bopp said voters, in general, don't care who signed the petitions, and the
case involved First Amendment rights.
"It's a First Amendment right to be protected from intimidation and
harassment," he said.
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