Friday June 25, 2010

Supreme Court Says Names on Washington Pro-family Petition Remain Public Domain

By Peter J. Smith

WASHINGTON, D.C., June 25, 2010 ( – The U.S. Supreme Court ruled against the organizers of a 2009 referendum to repeal Washington State’s civil unions law, saying that the state’s public disclosure law does not violate the U.S. Constitution by making the petition names public. However, the Court said that the pro-family advocates could ask for special protections if they proved that the public availability of their names would lead to political reprisal.

The high court voted 8-1 to reject Protect Marriage Washington’s (PMW) appeal to keep secret the identities of those who signed a petition to repeal R-71, the “everything but marriage” for homosexuals law. Associate Justice Clarence Thomas cast the lone dissenting vote.

Last year, the 9th U.S. Circuit Court of Appeals denied PMW’s request to prevent the signatures on its petition from going public before the vote. However, the Supreme Court intervened and blocked the release of the names until they could render a decision in the case.

Chief Justice John Roberts, writing the majority opinion, said that public disclosure “helps ensure that the only signatures counted are those that should be, and that the only referenda placed on the ballot are those that garner enough valid signatures.”

“Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot.”

However, in upholding the Public Records Act (PRA), which Protect Marriage Washington was contending had placed an undue burden on their First Amendment rights, Roberts said the court was ruling only on “whether such disclosure in general violates the First Amendment rights of those who sign referendum petitions.”

He said the question of whether the PRA disclosure would violate the First Amendment rights of the Referendum 71 petition signers, or other politically charged petitions, remains open for discussion. Roberts said that in particular cases a court could block the disclosure of names.

“[W]e 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,’” he said.

Roberts noted that individuals associated with Proposition 8 in California had been subject to harassment, and that homosexual activists had intended to use the PRA to create a searchable database of R-71 backers that could have been used for similar harassment in Washington. But other than this controversial case, he said PMW had “offered little in response” to evidence provided by attorneys for Washington State that the PRA in general provides an undue burden on voters.

Instead, he said that PMW could file for a “narrower challenge” before the U.S. District Court, and argue for an exemption from the disclosure law, citing their concerns over intimidation and reprisal.

Justice Thomas, however, asserted in his dissent that he would have found the PRA unconstitutional.

“In my view, compelled disclosure of signed referendum and initiative petitions under the Washington Public Records severely burdens those rights and chills citizen participation in the referendum process,” he wrote.

Thomas said the state could have found a less restrictive means than the public disclosure law to guarantee honesty in the referendum process. He said the Secretary of State could put the names and addresses of referendum signers into a similar electronic database that state employees could search without subjecting the name and address of each signer to wholesale public disclosure. He then said the secretary could cross-check the referendum list against a statewide voter registration list.

Justice Antonin Scalia, however, disagreed, and in concurring with Roberts’ opinion said the history of the United States’ legislative and voting traditions showed that citizens used to make their votes in public, and that this was part of a political culture in which free men were proud to stand by their vote.

This fact, he said, belied the notion that the First Amendment confers a right to anonymity, a notion he said was dangerous to the nation’s civic health.

“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,” Scalia observed.

“For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously 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.”

Read the full decision in Doe v. Reed, 09-559, here.

See related coverage by

US Supreme Court Blocks Public Release of Names behind Washington Pro-Marriage Petition

WA Homosexual Group Threatens to Publish Names, Addresses of Traditional Marriage Supporters

Federal Appeals Court Orders Washington Pro-Marriage Signatures Made Public

Washington’s Pro-Family Amendment Effort Defeated – R-71 Almost Certain to Pass