Monday, June 28, 2010

Doe v. Reed: On Seeking the Special Privilege of Civic Cowardice

Last week, the Supreme Court held that laws requiring the disclosure of the names of those who sign referendum petitions does not violate the First Amendment (Doe v. Reed).

For some background on what brought this case about, Washington allows its citizens to challenge state laws by petioning the secretary of state via referendum containing voter signatures and their addresses. In 2009, a group called Protect Marriage Washington began collecting signatures for purposes of putting a referendum on the ballot that would challenge a law that gave same-sex partners domestic partnership rights. "One individual and four entities, including Washington Coalition for Open Government (WCOG) and Washington Families Standing Together (WFST)" then sought to obtain copies of the petition in accordance with Washington law.

The Protect Marriage Washington group asked a federal court to disallow these groups from obtaining the petition, making two arguments. They first argued that (I) referendum disclosure laws in general violated the First Amendment; and that (II) the disclosure law as applied to this case was unconstitutional because if the names of those who signed were disclosed, "there is a reasonable probability that the signatories … will be subjected to threats, harassment, and reprisals." Protect Marriage did not present evidence that this was in fact happening, only that it happened with respect to California's Prop 8 (which I address later).

The Court only addressed argument I.

Signing a petition falls under the purview of the First Amendment because, as Justice Roberts notes, "An individual expresses a view on a political matter when he [sic] signs a petition under Washington’s referendum procedure."

Those seeking disclosure argued that the state has two interests in disclosure:

"(1) preserving the integrity of the electoral process by combating fraud, detecting invalid signatures, and fostering government transparency and accountability; and (2) providing information to the electorate about who supports the petition."

The Court only addressed the first interest, and agreed that "preserving the integrity of the electoral process is undoubtedly important" and that "Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot."

Thus on the broad issue of whether referendum disclosure laws violate the First Amendment, the Court held that they do not. Left unanswered, however, was the narrower issue as to whether disclosure in this particular contentious case would violate the First Amendment. For, "In related contexts, we have explained that those resisting disclosure can prevail under the First Amendment if they can show 'a reasonable probability that the compelled disclosure [of personal information] will subject them to threats, harassment, or reprisals from either Government officials or private parties.'"

Although this is a victory for transparency in the legislative process, this case does leave open the possibility of anonymity in specific cases.

In his concurrence, noted (scathing) conservative Justice Scalia was even particularly harsh on Protect Marriage's claim, noting that referendum signers have made themselves legislators and should not seek to be hidden from accountability and criticism. I don't condone violence, threats, or intimidation, and such things have no place in political discourse. Furthermore, as Scalia notes:

"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."

As in many contentious issues, it is not surprising that a few people on both sides unfortunately resort to threats. Those should be and often are condemned. Yet, one can't help but wonder if Washington is anything like the post-Prop 8 Christian Persecution Complex scenario, whereby "marriage defenders" largely mischaracterized legitimate acts of protest and criticism as nothing short of domestic terrorism and exaggerated a few instances of potentially legit threats as being much worse and more pervasive than they actually were. Washington's Attorney General confirms:

"The identities of donors to the Ref. 71 campaign — not petition signers — have been public for months. While the Ref. 71 campaign chairman and some top lieutenants have brought forward allegations of threats and harassment, 'that's not the standard,' McKenna said. 'The issue is whether the average petition signer has a legitimate fear of threats, harassment or reprisals. And there just hasn't been evidence presented to date that that was the case.'"

Unless R-71 proponents can bring forth substantial evidence that amounts to more than pearl-clutchery at the fact that some people call them "bigots" for opposing equality, what this means is that these "marriage defenders" in Washington seem to actually be further vilifying LGBT people while legislating away minority rights and seeking the special privilege of not having to take criticism for it.

Little in this world is more cowardly than that.

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