Marriage equality opponents vow rematch over public disclosure case

Chief Justice John Roberts (Photo credit: Steve Petteway, Collection of the Supreme Court of the United States)

In a ruling hailed by gay activists, the U.S. Supreme Court on June 24 upheld a law that requires public disclosure of the names of people who signed a petition to put an anti-gay referendum on the ballot in Washington State. But litigation over the domestic partnership battle may not yet be finished and may be back before the court in a year or so.

The 8 to 1 decision, with only Justice Clarence Thomas in dissent, said a state law requiring the names and addresses of petition signers be available to the public does not violate the First Amendment of the U.S. Constitution.

Chief Justice John Roberts wrote the decision—a bit of a surprise given that his questions during oral argument seemed to indicate he would be inclined to rule in favor of the plaintiffs. However, in the opinion, Roberts suggested plaintiffs could do better by limiting their challenge to the state law’s impact in the Referendum 71.

James Bopp, who represented Protect Marriage Washington, said Thursday plaintiffs “absolutely” intend to pursue that route.

The case, Doe v. Reed, questioned the constitutionality of Washington’s Public Record Act (PRA).

Protect Marriage Washington and two “John Doe” plaintiffs brought the lawsuit on behalf of citizens who signed a petition to put Referendum 71 on the ballot in 2009. The defendant was Washington Secretary of State Sam Reed, a coalition that supported the state’s new domestic partnership law, and a group that sought to preserve openness in government.

Referendum 71 sought to repeal the domestic partnership law that had been recently approved by the legislature. And Protect Marriage said the public disclosure of the names of people signing the petition to put it on the ballot had a chilling effect on their freedom of speech. According to Protect Marriage, the law enabled persons who disagreed with petition-signers to target them for harassment and threats.

A federal district court judge in Seattle agreed with the group, but the 9th Circuit U.S. Court of Appeals did not, so plaintiffs appealed to the U.S. Supreme Court.

Chief Justice Roberts said that the state law furthered the state’s interest in preserving the “integrity of the electoral process” and that this is sufficient justification for it. He said the law helps prevent fraud, mitigates mistakes, and promotes “transparency and accountability in the electoral process.”

Anne Levinson, chairman of the pro-gay Washington Families Standing Together group, applauded the result, calling it “a significant defeat for those who have sought to enshrine discrimination into law at the ballot box.”

“Perhaps no other group has witnessed its rights put up for public vote more than LGBT Americans,” said Levinson. “Social conservatives have used ballot measures in state after state, over more than 30 years, to keep LGBT Americans from being able to adopt children, to marry and even to be protected from discrimination in housing and employment.”

Attorneys for Protect Marriage had argued that the “First Amendment protects citizens from intimidation resulting from compelled disclosure of their identity and beliefs and their private associations.” And during oral argument in April, Justice Stephen Breyer seemed to signal some sympathy with this argument. He asked whether people who supported integration would ever have signed a pro-integration petition if “there was a very good chance that their businesses would be bombed, that they would certainly be boycotted, that their children might be harassed.”

Washington State Attorney General Robert McKenna responded by noting that the high court, in the controversial Citizens United v. Federal Election Commission decision in January, had already allowed for case-by-case exceptions to be made concerning the disclosures of campaign contributors. That decision held that contributors would have to show a “reasonable probability” that disclosure of their names “would subject them to threats, harassment, or reprisals from either government officials or private parties.”

McKenna added, and the majority clearly agreed, that Protect Marriage plaintiffs had failed to offer any evidence to support their concern for harassment. And, noted McKenna, three other states with public disclosure laws held gay-related ballot measures and offered “no evidence…that anyone who signed any of these petitions in those three States was subjected to harassment.”

Citizens United has been one of the Supreme Court’s most controversial decisions, ever. The decision said the government could not put a limit on how much money a corporation contributes to a political campaign. The 5 to 4 ruling was harshly criticized by many as opening a door for corporate domination of electoral politics. But the decision also said that contributors could not hide public disclosure of their contributions without demonstrating a “reasonable probability” that disclosure “would subject them to threats, harassment, or reprisals from either government officials or private parties.”

Chief Justice Roberts said plaintiffs’ contention that the Washington disclosure law subjected supporters of ballot measures to harassment could not justify striking down the public records law for all referenda; but, he suggested plaintiffs might have more luck with a more narrowly focused legal challenge.

Protect Marriage did make a more narrow claim—that supporters of Referendum 71 were vulnerable to significant threats—but that claim was not before the Supreme Court—only its claim that the state public disclosure law was, in and of itself, unconstitutional.

Even though voters in November 2009 rejected Referendum 71 and the domestic partnership law will mark its first anniversary next month, Bopp said the litigation will continue.

But five justices wrote or joined concurring opinions to signal that they will be hard to convince on a case specific to Referendum 71. Justice Sonia Sotomayor, writing for herself and Justices John Paul Stevens and Ruth Bader Ginsburg, said “courts presented with an as-applied challenge” to public disclosure laws “should be deeply skeptical of any assertion that the Constitution, which embraces political transparency, compels States to conceal the identity of persons who seek to participate in lawmaking through a state-created referendum process.”

Justice Stevens, writing for himself and Justice Breyer, also said he thinks the as-applied scenario is “unlikely” to be successful. He characterized Protect Marriage’s fear of harassment as “speculative.” (Stevens is retiring this month.)

“For an as-applied challenge to a law such as the PRA to succeed, there would have to be a significant threat of harassment directed at those who sign the petition law enforcement measures,” wrote Stevens. “…Debates about tax policy and regulation of private property can become just as heated as debates about domestic partnerships.”

Justice Antonin Scalia wrote a concurring opinion, too, though his position against plaintiffs seemed evident at oral argument.

“There are laws against threats and intimidation,” wrote Scalia, “and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which—thanks to the Supreme Court—campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.”

Scalia’s point that laws already exist to deal with harassment and threats was one highlighted by a brief filed by Lambda Legal Defense and Education Fund, Gay and Lesbian Advocates and Defenders, and the National Center for Lesbian Rights, along with the Human Rights Campaign and the National Gay and Lesbian Task Force.

Only two justices suggested hope for Protect Marriage in an as-applied challenge—Justices Sam Alito and Clarence Thomas.

Alito wrote a concurring opinion but said he believes Protect Marriage has a “strong” case through an as-applied challenge.

“The widespread harassment and intimidation suffered by supporters of California’s Proposition 8 provides strong support for an as-applied exemption in the present case,” wrote Alito. He said Yes on 8 supporters submitted “substantial evidence of harassment suffered by Proposition 8 supporters” during their request to keep cameras out of the courtroom during the Proposition 8 trial.

Thomas said he thinks the “compelled” disclosure of names “severely burdens [First Amendment] rights and chills citizen participation in the referendum process.”

Lambda’s Legal Director Jon Davidson, who was the principal author of the gay groups’ brief, said he thought the majority struck an important balance.

“It’s good the court reaffirmed a high test here,” said Davidson. “You can’t, as a blanket matter, bar the disclosure of the petitions. But if you’re trying to bar [disclosure], you have to show a reasonable probability of harassment –not just a possibility, but a probability.”

Davidson said the ruling is “incredibly important to our community, given the number of measures that have gone on ballots to block gay people’s rights.”

“We have been the target of more initiatives to do that than any other group in the history of initiatives,” said Davidson, “so it’s important for us to be able to see if measures are properly qualified.”

“The real thing going on here,” said Davidson, “has been an attempt by right-wing groups to take away our rights secretly.

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