WASHINGTON - The fierce fight over same-sex marriage is creating pressure to recognize a new free-speech right that could keep public records secret.
The U.S. Supreme Court voted last week to temporarily block release of the names of more than 138,000 people in Washington state who signed petitions seeking to repeal a same-sex domestic partner law in a ballot scheduled for Nov. 3.
The Supreme Court’s intervention set off a broad debate among election-law experts and First Amendment scholars over what is private and what is public when it comes to politics. Is signing a petition and delivering it to the government a public act, like voting on a bill in the legislature or contributing money to a campaign? Or is it more like casting a secret ballot at the polling place?
Washington was only the latest instance in which gay-rights advocates across the country had sought to use public records to expose supporters of anti-gay measures.
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“We’ve put close to a million names online,” said Aaron Toleos, co-founder of KnowThyNeighbor.org, a Boston-based Web site. He said the group had posted the names on petitions seeking rollbacks in gay-rights laws in Massachusetts, Florida, Arkansas and Oregon.
When Toleos announced plans in June to do the same in Washington, lawyers for Protect Marriage Washington went to federal court to block the release. They pointed to the scorn and verbal abuse experienced by some people who gave money last year to support California’s Proposition 8 ban on gay marriage.
A lower court judge ordered the names withheld. On Oct. 15, the 9th U.S. Circuit Court of Appeals lifted this order in a brief decision, clarified in an opinion released Friday. But Tuesday the full Supreme Court, with only one justice dissenting, accepted the claim — at least until the case makes its way through the courts — that the First Amendment’s right to freedom of speech includes both a right to petition the government and a right to do so in confidence.
In doing so it reversed the 9th Circuit and ordered the protective order to remain in effect indefinitely, an indication that the justices believe people objecting to the release probably will prevail.
“The process of signing a petition is political speech,” James Bopp, a lawyer for Protect Marriage, said in his appeal to the Supreme Court. This speech will be “chilled,” he added, if the signers of a petition are subjected to being “harassed, intimidated and threatened.”
In an interview, Bopp, an Indiana lawyer and a prominent conservative, portrayed the dispute as “part of a nationwide effort to harass and intimidate supporters of traditional marriage.”
Toleos said, “We don’t ask people to go confront strangers. This is about finding someone they already know — a cousin, a friend and co-worker — and having a civil dialogue.”
In California, petition signatures are not released as public records, but the names of campaign contributors are.
Fred Karger, founder of Californians Against Hate that organized some of the protests against big donors to the Prop 8 campaign, said his group targeted only people who contributed $5,000 or more to what gays and lesbians in the state considered an assault on their civil rights.
“All I’ve done is seek truth and transparency,” Karger said of the boycotts. He said he considered harassment of small donors, like a manager at the El Coyote Restaurant in Los Angeles who gave $100, inappropriate. She was shouted at coming and going to the restaurant by anti-Prop 8 protesters yelling, “Shame on you.”
Karger’s group has worked to spotlight what it considers interference by out-of-state religious groups opposed to gay rights, in particular the Church of Jesus Christ of Latter-day Saints. He pointed to a lawsuit filed Thursday by the National Organization for Marriage against Maine’s campaign finance reporting requirements as another attempt to evade scrutiny.
University of California, Los Angeles, Law Professor Eugene Volokh, a First Amendment expert, questioned whether petition signers have a constitutional right to anonymity.
“As a matter of First Amendment law, you have the right to speak anonymously but you don’t have a constitutional right to essentially engage in a legally significant action anonymously,” he said.
Signing a petition is more akin to lawmakers’ votes, which usually are required to be made in public so the citizenry can monitor the progress of the laws that will govern them, legal analysts say.
But Richard Hasen, a Loyola Law School professor, noted that the Supreme Court in the past has protected civil rights groupsfrom revealing the names of their members.