Jenny Pizer

In its second surprise move in a week, the U.S. Supreme Court on Friday, January 15, announced it would review another narrow dispute involving anti-gay activists’ alleged fear of harassment over their public opposition to legal recognition for same-sex relationships.

The court’s actions—because they are unusual involvements in two cases regarding same-sex relationships—have gay legal activists worried.

“With the first decision, it might have looked like it was mostly driven by justices who are just adamantly opposed to cameras in the courtroom,” said Jenny Pizer, head of Lambda Legal Defense and Education Fund’s National Marriage Project. “But with the second decision, it goes from being worrisome to alarming. Both decisions are based on quite absurd arguments” that the anti-gay activists are being “terribly persecuted by an angry mob, and that’s just ridiculous.”

The latest case, Doe v. Reed, stems from the controversy over a new law that recognizes domestic partnerships in Washington State. The legislature passed, and the voters—through Referendum 71—ratified that new law last year. But a lingering side issue in matter has been whether citizens who signed the petitions that forced the new law onto the ballot last November can block those petitions—normally, a part of the public record—from public view.

Those who want to keep the petitions secret say they are asking for this special dispensation because they fear that people who disagree with them will harass them for having taken the position that they did. Protect Marriage Washington, the group that sought, unsuccessfully, to overturn the domestic partnership law, filed a lawsuit in federal court seeking to seal the petitions from public scrutiny. A federal judge issued a temporary order stopping release of the signatures, pending a final decision, and the appeals of that decision are now before the high court.

The U.S. Supreme Court’s announcement that it would intervene in that dispute comes just two days after the Supreme Court took the unusual move of intervening in a procedural dispute surrounding California’s Proposition 8. Proponents of that November 2008 initiative, which was successful in banning legal recognition for same-sex relationships, claim they are opposed to making the trial proceedings available for even a very limited amount of public exposure because they fear harassment from people who disagree with them.

In Hollingsworth v. Perry, the Supreme Court voted 5 to 4 on January 13 to overturn lower court decisions from the 9th Circuit U.S. Court of Appeals. Those decisions would have allowed airing of the Proposition 8 trial on closed circuit television in several federal courthouses around the country and for delayed posting on YouTube.

In a 17-page opinion, to which no justice’s name was attached as author, the majority indicated its decision was based—not on the merits of whether this trial should be made available for public viewing, but rather because—“it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting.”

Nevertheless, the majority recounts that Proposition 8 “advocates claim that they have been subject to harassment as a result of public disclosure of their support,” including death threats and boycotts. And it stated that proponents of Proposition 8 “have demonstrated that irreparable harm would likely result from the District Court’s actions” to make the proceedings viewable by the public.

Specifically, the majority suggested that U.S. District Court Judge Vaughn Walker, who is presiding over the Proposition 8 trial, Perry v. Schwarzenegger, allowed only five business days for public comment on his plan to make the proceedings public, whereas “administrative agencies…usually” provide 30 days or more.

“There are qualitative differences between [pro-Proposition 8 witnesses] making public appearances regarding an issue and having one’s testimony broadcast throughout the country,” stated the majority opinion. “…It is difficult to demonstrate or analyze whether a witness would have testified differently if his or her testimony had not been broadcast.”

Dissenting from that decision were Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer, and the court’s newest justice, Sonia Sotomayor. Breyer, writing a 10-page dissent for the minority, called the majority’s decision “unusual” and said there was no reason for the high court to intervene on this issue. The dissent also noted that the majority was doing “harm to the public interest” by interfering with public’s right to have access to the trial proceedings.

The high court’s decision to review the Washington State battle, coupled with last week’s decision barring the public viewing of the Proposition 8 trial, is causing some anxiety among gay civil rights advocates.

The Perry case vote was 5 to 4; it required at least four justices to take Doe v. Reed, and it can be safely assumed that those four have reason to question the decision of the lower courts.

Lambda’s Pizer called the Supreme Court’s involvement in “extra-procedural micro meddling” over courtroom cameras and its decision to hear the Referendum 71 petitions dispute makes it “hard not to draw a bigger, bleaker conclusion” about the high court’s motives. In both cases, she said, anti-gay activists are making “absurd claims” in order to secure “special protection” from the government.

“Their claims would be comical,” said Pizer, “if they weren’t falling on such distressingly receptive high court ears.”