ACRU Senior Legal Analyst Ken Klukowski wrote this column appearing on Townhall.com on June 25, 2010.
Today the Supreme Court dealt a setback to supporters of traditional marriage. But it’s not the defeat that gay-rights supporters (and many of their fans on the media) are hailing it as, and leaves open the possibility that traditional-marriage supporters may be the ones celebrating at the end.
Washington State passed a law providing many of the benefits of marriage to gay couples. Groups sought to get enough signatures to put the issue on the ballot, so that the voters could decide directly whether to change this law.
Two gay-rights groups wanted to make public the names of everyone who signed this petition, putting it on the Internet in searchable form, and encourage opponents to seek them out. Given that such information was recently published in California on the gay-marriage issue, along with addresses and maps to the homes of petition signers, it’s beyond doubt that this disclosure is intended to threaten and intimidate people who sign the petition.
So when gay-rights supporters in Washington pushed to have these names released under Washington’s public-disclosure law (which the Washington secretary of state was willing to do), traditional-marriage supporters pushed back, concerned about the threats and intimidation. When Secretary of State Sam Reed tried to release them anyway, marriage supporters got a court order blocking release until the Supreme Court could decide the issue.
On June 24, the Supreme Court handed down its opinion in this case, Doe v. Reed. The Court split between seven different opinions, with some justices writing just for themselves and others writing for several.
The Court clarified that the issue before it was whether all disclosures of all signers on all petitions nationwide are always unconstitutional. Noting that most ballot measures involve mundane issues such as local school zoning proposals or local construction bonds, the Court held 8-1 that the First Amendment does not categorically bar all disclosures.
The Court went on to hold—and you’re likely to not see this in many press reports—in a different 8-1 split that the First Amendment does bar disclosure when the plaintiffs can show a reasonable probability that they may be subject to threats of harassment or intimidation for signing the petition. The Court expressly noted that such a consideration of this marriage petition was currently pending in a lower court, and signaled the High Court would consider that issue if necessary.
Many of the other opinions were also informative. For example, Justice Alito wrote separately to say that he believed such court findings of harassment could be made very early in the petition process, such that petition supporters could receive assurances from the outset that their identities would be protected.
Justice Clarence Thomas—the most conservative justice on the Court—dissented from denying the categorical rule. Justice Thomas wrote that because many people would not know whether their identities would be protected, that only a blanket rule forbidding any disclosure of any signers’ names is sufficient to protect the First Amendment right to speak out on public issues.
To the surprise of some, the vote most against the marriage supporters was delivered by Justice Antonin Scalia. Writing separately, Scalia argued that when a person signs a petition to change the law, they are acting as a legislator, not a private citizen, and as such the First Amendment does not apply at all. Therefore, Scalia argued, the Constitution never requires signer names to be kept confidential.
The record of atrocious harassment in the wake of California’s Proposition 8 makes perfectly clear that these marriage supporters can make a strong case that they could be harassed. As such, by the standard the Court announced today, the marriage supporters should win.
The question will then be how the liberal justices that voted for this standard today will rule once that issue comes before them. Will they acknowledge the likelihood of harassment? Or will any of them adopt the attitude expressed by many leftist politicians that gay marriage is like the civil rights movement, that it’s a fundamental right, and that they don’t mind subjecting those they consider narrow-minded bigots from being subject to abuse by having their names (and addresses, and maps to their houses) made public.
So now the case goes back to the federal district court, which will consider whether Washington’s public disclosure law is unconstitutional in this instance. An appeal to the Ninth Circuit is inevitable. What’s not inevitable is whether this case will make it all the way back up the Supreme Court, or what the end result will be.
The defenders of traditional marriage should be protected by the First Amendment in this instance. We’ll see if that’s what happens.