Supreme Court grants cert in Washington state referendum case
Yesterday the Supreme Court agreed to resolve the question of whether persons who signed a petition seeking a voter referendum to repeal a domestic partner benefits law could stop public release of their names. (The Court had earlier granted a stay to block release of the names pending further proceedings below.) Under review will be the Ninth Circuit decision in Doe v Reed, which upheld a Washington state law that permits the names to be made public. (The referendum measure that gave rise to the dispute over disclosure, R-71, was placed on the ballot and defeated in November.)
As I noted on Wednesday when the Court blocked the plan to webcast the trial in Perry v. Schwarzenegger, this new case is also highlighting claims by gay marriage opponents that they fear intimidation for speaking publicly. Unfortunately, the accident of the two cases arriving at the Court in such rapid fire succession may make the claims in each seem to reinforce each other. (A Heritage Foundation briefing paper spells out this argument; see "The Price of Prop 8.") For example, the Doe v. Reed cert petition cited knowthyneighbor.org, a searchable database with the names of persons who have signed petitions opposing gay marriage in several states, to illustrate organizations that "encourage harassment and intimidation."
Watching how the Court responds to the factual context of the case will be the most interesting aspect of it from a lgbt rights perspective, since there will be nothing pro- or anti-gay about the outcome. If, for example, the "pro gay" side wins and the names have to be disclosed, you can bet that anyone signing a petition in Alabama asking a city council to pass an anti-discrimination law or a school board to pass an anti-bullying law will see his/her name on the internet in a New York minute. So a "pro gay" result is likely to chill petition campaigns, but which movements will suffer most from that is anyone's guess. In other words, there is no "pro gay" position at issue, only a question about the tension between openness of political processes and protection of political expression.
I haven't yet decided exactly what my own position is. I take some comfort in noting that legal scholars for whom I have much respect have also expressed wariness about forcing disclosure of the names of those advocating a given political position, not to mention the irony of that argument coming from the lgbt movement, which in the past has fought hard to maintain the secrecy of names of members of lgbt organizations. As Katherine Franke points out, attempts to protect names of political adherents have generally come from civil rights groups. Mike Dorf argues that precedent probably supports upholding the state law (and allowing name disclosure), but good public policy suggests altering that law to protect the names (which would also be constitutionally permissible). I share Katherine's and Mike's ambivalence over what the best outcome would be, and I'll be chewing on these arguments in the weeks to come.