WASHINGTON - The Supreme Court will hear oral arguments Wednesday in a Washington case in which religious conservatives fear retaliation from gay rights groups if the names of the 138,000 people who signed ballot petitions to overturn a same-sex domestic partnership law are released.
State officials say the Washington Public Disclosure Act, approved by voters nearly 40 years ago, requires the release of signatures on initiative and referenda petitions. Until now, no one had ever challenged their release.
Though Referendum 71 is at the heart of the legal dispute, the issues are far broader, including how open the state’s initiative process will be. State officials also fear that if this challenge to the state disclosure law is successful, it will open the door to other challenges.
“It’s the public’s right to know versus the right to privacy,” said Secretary of State Sam Reed, who is named in the lawsuit. “It’s exactly the type of case the Supreme Court likes.”
Lawyers for Protect Marriage Washington, which sponsored R-71, say gay rights groups in California have harassed and intimidated those who signed petitions for an initiative barring gay marriages in that state. They fear the same thing will happen in Washington state.
“The government is compelling people to identify their political beliefs and then outing them,” said James Bopp Jr., who will argue the case before the Supreme Court for Protect Marriage Washington. “There couldn’t be anything more chilling to free speech.”
Bopp is an Indiana lawyer who represents conservative groups and has argued previously before the Supreme Court. He also is involved in a lawsuit against the Washington State Public Disclosure Commission seeking to overturn a state law requiring the release of the name of anyone who has contributed $25 or more to a political campaign. The federal disclosure limit is $200.
Washington Attorney General Rob McKenna will argue for the state.
The case has attracted national attention, with dozens of groups including The New York Times and the American Civil Rights Union, along with 23 states with similar disclosure laws including Idaho, Florida, Mississippi and South Carolina, filing friend-of-the-court briefs.
R-71 was an effort by conservative Christian organizations to repeal a law passed by the Washington Legislature that granted expanded domestic partnership rights to same-sex couples. The referendum, which was on the November 2009 ballot, asked voters to approve or reject the domestic partnership law. Voters upheld the law.
Gay rights activists had asked the Washington secretary of state for the names of those signing the petition to get R-71 on the ballot, adding they would post the names on a website that would be searchable.
Protect Marriage Washington asked a U.S. District Court for an injunction against the state that would bar the release of the names. Lawyers for the group argued there was a right to “anonymous free speech,” which would allow people to exercise their First Amendment rights without facing criticism.
The lower court granted the injunction, but the 9th U.S. Circuit Court of Appeals reversed the lower court’s decision, saying an “incorrect legal standard” had been used. Protect Marriage Washington then appealed to the Supreme Court. The signatures have not been released.
In its Supreme Court brief, Protect Marriage Washington said the state’s Public Disclosure Act was unconstitutional as applied to ballot petitions because it “violates the interest in privacy of identify, association and belief.”
The group’s brief also said the disclosure law was unconstitutional because there was a “reasonable probability” that those signing a petition would face “threats, harassment and reprisals.”
Protect Marriage Washington argued there were “two great enemies of citizen participation in our Republic, corruption and intimidation in our elections. Much attention has been paid to preventing corruption, but this case is about protecting people from intimidation while engaging in political speech.”
In its brief, the state noted that the issue of harassment had not been considered by either the lower court or the appeals court and should not be part of the Supreme Court argument.
The state argued that signing a petition was a public act, not like voting, and dismissed “anonymous free speech” as a recognized right.
“The act of signing a petition is not core political speech and involves no substantial expressive element,” the brief said.
Reed, in a telephone interview, said he had never heard of anonymous free speech, adding that the state had a responsibility to conduct its affairs in an open manner.
“For people who believe in transparent government and a people’s right to know, this case could be a slippery slope,” Reed said.
Reed said that the issue of harassment was a concern and it could have a “chilling effect” on participation in the political process.
“But it is a separate issue,” he said. “We have not heard of anyone who signed a petition being harassed. We would turn such a case over to the police.”
But Bopp said the head of the R-71 campaign was harassed and his children ended up sleeping in the hallway of their house as a precaution.
“Reed did nothing,” Bopp said.
Bopp said voters, in general, don’t care who signed the petitions, and the case involved First Amendment rights.
“It’s a First Amendment right to be protected from intimidation and harassment,” he said.
Les Blumenthal: 202-383-0008