Supreme Court justices appeared
unwilling Wednesday to shield the names of signers of a Washington
state ballot measure that sought to repeal a gay rights law.
Social conservatives want to block the
public release of the nearly 138,000 signatures that put Referendum
71 on the state's ballot last fall. The ballot initiative asked
voters to accept – or reject – an expansion of an existing
domestic partnership law approved by lawmakers that gave gay couples
all the rights of marriage. Voters opted 53-to-46 to keep the law
dubbed “everything but marriage” by the media.
Led by lawyer James Bopp Jr., opponents
argued that releasing the names would put signers at risk of
harassment, reprisals and boycotts of their businesses, amounting to
an unconstitutional infringement of free speech rights.
“No person should suffer harassment
for participating in our political system, and the First Amendment
protects citizens from intimidation resulting from compelled
disclosure of their identity and beliefs and their private
associations,” Bopp told the court.
But Bopp failed to find an ally in even
the court's most conservative justice, Antonin Scalia.
“Oh, this is such a touchy-feely, so
sensitive” point of view, Scalia said as the court erupted in
laughter. “You know, you can't run a democracy this way, with
everybody being afraid of having his political positions known.”
“I'm sorry, Justice Scalia, but the
campaign manager of this initiative had his family sleep in his
living room because of the threats,” Bopp said.
“Well, that's bad,” Scalia
responded. “The threats should be moved against vigorously, but
just because there can be criminal activity doesn't mean that you
have to eliminate a procedure that is otherwise perfectly
In an amicus brief filed with the
court, four gay rights groups – GLAD, the Human Rights Campaign
(HRC), the National Center for Lesbian Rights and the National Gay &
Lesbian Task Force – argued that opponents were feigning
“Petitioners seek, through their
feint of victimization, to take away one of the few defenses that
lesbian and gay individuals have to defend against hostile
initiatives: the use of public records to stop the fraudulent
qualification of such measures in the first place, and to lobby,
through personal advocacy, the people who legislate using such
measures,” the groups wrote.
“The Court should decline the
invitation to scrap these protections based on a poorly-supported and
largely fictitious tale that those who seek to deprive lesbian and
gay Americans of rights are the ones being victimized.”
Under Washington state law, names of
people who sign petitions become public record after the Secretary of
State verifies a petition, but Referendum 71 names have remained
sealed pending the court's decision. State officials argue that the
names should be released because signers are acting in place of
lawmakers, who do not approve laws in secret.
“What the anti-gay groups are
attempting to do is get a sweeping constitutional rule that will
allow them to continue to operate in secret in terms of ballot
measures all across the country,” Anne Levinson, chairwoman of
Washington Families Standing Together, the gay rights group which
campaigned to keep the state's domestic partnership expansion, told
the Seattle Times.
While the case – Doe v. Reed –
does not affect gay rights legislation directly – it deals with
questions of free speech and privacy – it does provide early clues
as to how the court might rule on several gay rights cases wending
their way through the federal system.
Gay rights advocates worry that the
court remains too conservative to rule in their favor in three cases
likely to reach the Supreme Court within the next couple of years.
All of the cases involve the right of gay and lesbian couples to
Two of the cases challenge the federal
Defense of Marriage Act (DOMA), which blocks married gay couples from
accessing federal benefits, while a third questions the
constitutionality of California's gay marriage ban, Proposition 8.
The court is expected to rule on Doe
v. Reed later this summer.