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October 21, 2009

Supreme Court Blocks Disclosure of Anti-Gay-Marriage Petition Signers

Yesterday the Supreme Court issued a temporary stay which prohibits the release of the names of individuals who signed petitions for Washington's Referendum 71.

Referendum 71 was placed on the ballot to challenge the legislative expansion of domestic partnerships in Washington to include all the rights and responsibilities of marriage except for the name "marriage." Ordinarily, Washington releases the signatures of ballot referendum petitioners upon request because they are public documents, but the group mainly responsible for collecting the R-71 signatures sued to prevent their release in this instance.

The group argues (PDF) that "due to the highly charged nature of the topic of Referendum 71, (domestic partnerships, gay rights, the traditional definition of marriage, etc.) that the personal information on the petitions for Referendum 71 warrant particular protection." The idea is that the signers' First Amendment rights could be stifled if not stymied by disclosure, especially if we see the type of bad behavior which occurred around California's Prop 8.

A panel of the Ninth Circuit ultimately disagreed and ordered that the group could not prevent the release of the documents. But Justice Kennedy stepped in and referred the question to the full Court, which voted 8-1 to preserve the injunction until the parties have a chance to file a full petition for certiorari.

I've been chewing on this case for a few weeks now and I was initially sympathetic to the petition signers because of the Prop 8-like mischief that might follow disclosure. Now, some of that mischief was constitutionally protected, for example picketing and boycotts. But some of it was criminal, like vandalism and assault.

To the extent that signers want to avoid First Amendment activities like picketing by asserting their own First Amendment rights, the signers don't have a leg to stand on. It also creates a perverse incentive on the part of future petitioners to make every issue a highly contentious one.

I would be persuaded that the signers' First Amendment right to petition (as a form of speech and of redress) would be chilled if the signers' names were made public, except that in Washington the names of petition signers are routinely made public. So the signers knew—or should have known—that by participating they were making a public act. It's disingenuous to come out now and claim that their speech rights could be infringed after they've already exercised their speech rights.

And that was the key for me. If Olympia wants to pass a law which prohibits the release of signatures for ballot referenda, that's great. And then petition signers will have a reasonable belief that their names will not be disclosed. A few states have laws like that. On the other hand, states should be free to make that choice and Washington has decided not to give that protection.

Anyway, the practical result of the Supreme Court's stay is that the issue will not be resolved and the names will not be released before the November 3 election. At the moment R-71 appears likely to be approved, reconfirming the legislative expansion of domestic partnership rights. The Supreme Court's decision might be a blessing in disguise for folks hoping for approval. If bad behavior had been in the offing, backlash might have pushed the vote the other way.

I've tucked a poll under the fold.


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posted by Gabriel Malor at 09:51 AM

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