In April, I observed how opponents of marriage equality were trying to use the courts to paint themselves as victims of violence and discrimination. In Washington state, Protect Marriage Washington (PMW) — a group opposing marriage equality — successfully put to a vote a law that granted “same-sex (and older opposite-sex) domestic partners virtually all of the same rights that straight married couples receive from the state.” The referendum failed “by a margin of 53% to 47% in November” but the group refused to comply with the state’s Public Records Act (PRA) and release the names of the petitioners. PMW claimed that publicizing the names of the petitioners violated their First Amendment rights and would have “subject the signatories to harassment, injury, or property damage.”
Today, in a vote of 8-1, the Supreme Court ruled that generally, disclosing the names of the individuals who sign referendum petition does not violate the First Amendment, but said that the plaintiffs may still ask the District Court to rule as to whether or not this specific act infringes their First Amendment. Generally, the states have a “sufficiently important’ governmental interest” in requiring disclosure, the Court found:
The State’s interest in preserving the integrity of the electoral process suffices to defeat the argument that the PRA is unconstitutional with respect to referendum petitions in general. That interest is particularly strong with respect to efforts to root out fraud. But the State’s interest is not limited to combating fraud; it extends to ef-forts to ferret out invalid signatures caused not by fraud but by sim-ple mistake, such as duplicate signatures or signatures of individuals who are not registered to vote in the State. The State’s interest also extends more generally to promoting transparency and accountability in the electoral process. [...]
According to plaintiffs, the objective of those seeking disclosure is not to prevent fraud, but to publicly identify signatories and broadcast their political views on the subject of the petition. Plaintiffs allege, for example, that several groups plan to post the petitions in searchable form on the Internet, and then encourage other citizens to seek out R–71 petition signers. That, plaintiffs argue, would subject them to threats,harassment, and reprisals.
The problem for plaintiffs is that their argument rests almost entirely on the specific harm that would attend the disclosure of information on the R–71 petition. But the question before the Court at this stage of the litigation is whether disclosure of referendum petitions in general violates the First Amendment. Faced with the State’s unrebutted arguments that only modest burdens attend the disclosure of a typical petition, plaintiffs’ broad challenge to the PRA must be rejected. [...]
We leave it to the lower courts to consider in the first instance the signers’ more focused claim concerning disclosure of the information on this particular petition, which is pend-ing before the District Court
This decision will make it harder for same sex marriage opponents to put LGBT rights to a vote, but what’s annoying is the Court’s tacit acceptance of the plantiff’s victimization argument. Here is how Chief Justice Roberts put it: “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 sub-jct them to threats, harassment, or reprisals from either Government officials or private parties.’” “The question before us, however, is not whether PRA disclosure violates the First Amendment with respect to those who signed the R–71 petition, or other particularly controversial petitions. The question instead is whether such disclosure in general violates the First Amendment rights of those who sign referendum petitions.” Ok, fair enough, but then Roberts goes on to describes this petition as different from a “typical” referendum:
The problem for plaintiffs is that their argument rests almost entirely on the specific harm they say would attend disclosure of the information on the R–71 petition, or on similarly controversial ones….But typical referendum petitions “concern tax policy, revenue, budget, or other state law issues.”…(stating that in recent years the State has received PRA requests for petitions supporting initiatives concerning limiting motor vehicle charges; government regulation of private property; energy resource use by certain electric utilities; long-term care services for the elderly and persons with disabilities; and state, county, and city revenue)…. Voters care about such issues, some quite deeply—but there is no reason to assume that any burdens imposed by disclosure of typical referendum petitions would be remotely like the burdens plaintiffs fear in this case.….Several other petitions in the State “have been subject to release in recent years,” plaintiffs tell us, Brief for Petitioners 50, but apparently that release has come without incident.
Same-sex marriage may be “controversial,” but there is actually very little evidence to suggest that releasing the names for this particular petition will be any different than those that have been released “without incident.” As Jeff Krehely notes in this piece, the LGBT community received much more harassment and intimidation than any of the opponents of marriage equality.
SCOTUSBlog dissects Scalia’s sarcastic concurrence.