June 24, 2010
by Robert Cruickshank
As we await the decision in Perry v. Schwarzenegger from Judge Vaughn Walker – in a case we expect to make it to the US Supreme Court – the Supreme Court has today issued a ruling in another marriage equality case that has many implications for the fight here in California.
You might recall that in 2009, the state of Washington (where I lived from 2001 to 2007) passed a law providing domestic partner benefits to same-sex couples, as part of the LGBT equality movement’s strategy to slowly but steadily eliminate the state’s barriers to full equality. Almost immediately after Governor Christine Gregoire signed the bill, anti-gay groups organized a petition drive to have the law placed before voters as a referendum. They barely succeeded in gathering the signatures, but Washington voters approved the referendum, known as R-71, upholding the domestic partnership law at the November 2009 election.
In Washington, as in California, the names of those that sign a ballot initiative petition are a matter of public record. This has been the case for nearly 100 years, and flows from the basic legal principle that for the public to have trust in the system – whether it’s the legal system or the electoral system – there must be public disclosure. In this case, that means disclosing the names of those who signed the petitions.
However, the anti-gay groups did not want these names to be disclosed, as part of a broader strategy to hide their names and intentions from the public – a strategy that we have seen repeatedly in the Prop 8 trial, from the successful effort to keep cameras from the courtroom to the effort to suppress unfavorable testimony. The anti-gay groups in Washington, led by Protect Marriage Washington, sued the Secretary of State, Sam Reed, on behalf of the petition signers to block disclosure. Since some of the signers wished to remain anonymous, the case was filed on behalf of a John Doe – hence the name of the case, Doe v. Reed.
Last year a US federal judge in Tacoma agreed with the anti-gay groups and agreed to block the release of the names of the petition signers. The US 9th Circuit Court of Appeals – the same court that will hear the inevitable appeal of the Perry v. Schwarzenegger decision – overturned that decision, and Protect Marriage Washington appealed to the Supreme Court, which heard oral arguments in the Doe v. Reed case in April 2010.
Today the Supreme Court issued a complicated ruling in the case. In an 8-1 ruling, the Court held that generally these petitions ARE subject to public disclosure, and that there is no presumption that the petition signatures can be private. However, the court also ruled that it is possible for disclosure to be prevented if plaintiffs could prove that they would suffer specific harm as a result of disclosure. And most importantly, the court did NOT decide whether the R-71 petitions in particular could be disclosed or not, remanding that to a lower court.
The ambiguity of the decision was compounded by the fact that there were no less than seven different opinions written by the justices in this case. Some of them were more favorable and some of them gave a reed of hope to Protect Marriage Washington in their effort to block the disclosure of the names. Over at Daily Kos Adam Bonin has a good overview of these opinions, which I’ll summarize here.
The main decision, written by Chief Justice John Roberts and signed by Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito and Sonia Sotomayor, was very strong in its defense of the principle of public access and political disclosure:
The State’s interest is particularly strong with respect to efforts to root out fraud, which not only may produce fraudulent outcomes, but has a systemic effect as well: It “drives honest citizens out of the democratic process and breeds distrust of our government.”
Of course, we at the Courage Campaign said much the same thing in our letter to Judge Walker asking him to televise the trial, a letter that over 140,000 people signed and was cited by Justice Breyer in his dissent against the January 2010 SCOTUS ruling barring cameras from the Prop 8 trial. It’s unfortunate that Chief Justice Roberts has been inconsistent in his application of the public’s right to know, but at least here in Doe v. Reed he understood the need to err on the side of disclosure.
When it comes to the issue of when disclosure can be blocked – as it was, for example, in the 1950s when the state of Alabama sued to get the membership list of the NAACP – Chief Justice Roberts argued that disclosure could be blocked:
if there were a reasonable probability that the group’s members would face threats, harassment, or reprisals if their names were disclosed.
However, Breyer and retiring Justice John Paul Stevens (Doe v. Reed was his last case on the Supreme Court) argued that was too broad a formulation:
I would demand strong evidence before concluding that an indirect and speculative chain of events imposes a substantial burden on speech. A statute “is not to be upset upon hypothetical and unreal possibilities, if it would be good upon the facts as they are.”
And of all people, right-wing Justice Antonin Scalia wrote strongly in favor of the need for disclosure, and slammed the argument that somehow it is undemocratic to make petition signatures public:
And it may even be a bad idea to keep petition signatures secret. There are laws against threats and intimidation; 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 (McIntyre) 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.
Given this strong defense of disclosure by the majority of the Supreme Court, it is unfortunate that they did not rule on the R-71 disclosures themselves. We must hope that the federal court in Washington State will rule in favor of disclosure.
With regard to the assertion by the anti-gay groups that they would be harmed if petition signatures were subject to public disclosure … the Supreme Court has in the past allowed exemptions to public disclosure where there’s a clear minority party that has suffered both official and societal retaliation by the majority such that disclosure presents a very real threat. With regard to Referendum 71, however, the groups making this claim were not the minority, but to the contrary, were the ones trying to diminish the rights of the minority. They will be hard pressed to convince a judge the record here is otherwise.
WFST also reminded us that there has so far been no evidence of harassment of anyone who signed the petitions, indicating there is no legal basis to deny disclosure even according to today’s Supreme Court ruling:
In an amicus brief provided to the Supreme Court in Doe v. Reed, a group of political scientists reported that not only was the assertion of alleged harassment unsubstantiated in Washington State, but the plaintiffs did not present a single verified threat to any signer of a ballot measure petition in any state in any election. As their brief said, “More than a million names of signers of petitions for referenda and initiatives opposing gay marriage have been posted on the Internet, yet there is no evidence that any of these signers has faced any threat of retaliation or harassment by reason of that disclosure.”
We can expect the anti-gay groups to make such a claim and continue fighting to block public disclosure of petition signers’ names. It’s important to remember why they want to block that disclosure – and why they wanted to keep cameras out of the courtroom, why they tried to undermine California’s own disclosure laws to hide the names of donors to Prop 8.
The reason is simple: Because it helps them politically. By claiming that they would somehow be harmed by public scrutiny and disclosure, Prop 8 supporters are reinforcing a narrative of victimhood that serves their broader agenda of painting marriage equality supporters as the bad guys. They also are able to keep their true feelings hidden, as their radicalism is masked by vague and reassuring images of smiling people protecting children and families from some existential threat that is supposedly inherent in same-sex marriages.
Conservatives have for decades cultivated a politics of victimhood – presenting themselves as victims of some group, usually liberal and often an oppressed minority, in order to gain sympathy for their insane beliefs and to delegitimize progressive ideas and actions. The result is a massive distortion of the true effects of Prop 8, and the normalization of support for discriminatory policy.
In other words, what we’re witnessing in America right now is a broad right-wing effort to hide the truth from the public so that voters can be more easily manipulated to embrace right-wing and/or corporate-friendly policies that voters might otherwise reject. It is an insult to our democracy and to our intelligence.
Ultimately, the desire to prevent public disclosure is very deeply linked to the desire to block same-sex marriage. Those who oppose marriage equality want to make it safe in this country to discriminate against LGBT people. They understand that overt statements of dislike of LGBT people don’t fly in California, so they have to hide it, whether it’s in their deceptive campaigning, their push for a closed courtroom, or their efforts to hide their names from mandatory disclosure.
The Supreme Court’s ruling is ambiguous. But in one way it is quite clear: that disclosure and public access is essential to our democracy. That flies directly in the face of what the anti-gay groups have been arguing. In that sense, the Supreme Court has given us an important victory, even as we wait to see what happens with the R-71 signatures.