(Gay) Love Letters

What Happens When the Irresistible Force of Conservative Judicial Activism Meets the Immovable Object of Conservative Strict Construction?

Back when you were in middle school – we called it “junior high” in my day – if there was a boy or girl you liked and you wanted to find out if they liked you too, the standard procedure was to send one of your friends to ask him/her what they thought about you. Included was a note to give the other person if his/her response was positive. As your friend departed on their errand, they typically carried instructions from you not to tell the other person that you liked him/her or that you were the one really asking.

It was an attempt to make something happen that you wanted while remaining anonymous; you could reap the rewards if your crush said yes but you might avoid painful humiliation if they said no. Whether you were the petitioner, the object of affection, or the intermediary, it was all rather silly and embarrassing.

Even though we are adults now, things like this sometimes still happen in politics and government. The Supreme Court enters the picture as Vice-Principal in charge of discipline. The Justices need to decide whether, when somebody notices this clandestine note passing between amorous conspirators, they can read the missives too and maybe even share them with the rest of the class.

The case in question is Doe v. Reed.

In 2009, the state of Washington’s legislature passed a law significantly expanding legal rights and protections for gay couples. Fearing this as a springboard to legalizing gay marriage, a group called Protect Marriage Washington submitted petitions, signed by 138,500 Washington residents, calling for repeal of the new law to be placed on the ballot and subjected to a public vote.

Gay-rights activists asked to review the collected signatures in order to check for fraud. They cited Washington's Public Records Act, passed in 1972, as giving them the right to do so.

Protect Marriage Washington sued to block disclosure, contending that petition signers were entitled to anonymity under the Constitution. They pointed to harassment and threats against those who organized for Proposition 8 repealing gay marriage in California as well as one gay blogger in Washington, who called for names posted on the Internet to encourage the new law’s supporters to have “uncomfortable conversations” with petition signers.

A federal district judge issued a broad ruling barring the state of Washington from releasing the names of signers in this or any other petition drive. The Ninth Circuit Court of Appeals reversed this ruling. It reasoned that collecting signatures already occurs in public and free access to information is more in the public interest than protecting the privacy of certain political speech under the First Amendment.

Protect Marriage Washington appealed to the Supreme Court, which stepped in and temporarily blocked release of the names. As a result, the initiative to repeal the law went on the ballot with the identities of petitioners remaining private. The Supreme Court then granted review of the case at the first opportunity and expedited its hearing on the docket to assure a ruling during the current term.

Those supporting disclosure find claims of possible persecution from gay activists to be disingenuous. “Given our small numbers and the disadvantages we have faced over the years, and the decades and decades of harassment, and even death, it is more than ironic that petitioners would take the position that somehow it is they who are the victims and they who need protection,” says gay-rights activist Anne Levinson. She points to Justice Department statistics showing a consistent rise in hate crimes against homosexuals.

On the other hand, Larry Stickney, who served as campaign manager for Protect Marriage Washington, reports opponents bombarded his home with emails, telephone calls, and letters containing obscenities, threats, and other serious harassments.

“Mandatory disclosure laws don't inform voters; they squelch speech,” according to Dick Carpenter, Director of Strategic Research at the Institute for Justice. He conducted a survey in 2007 of more than two thousand citizens in six states, including Washington. He concluded that forcing people to comply with disclosure rules in order to exercise their First Amendment rights might result in many staying silent or uninvolved.

Carpenter found that while most people support mandatory disclosure in general, their support wanes when forced to consider personal costs. Fifty-six percent disagreed that disclosure of their identity should be a condition of signing a petition or donating to a ballot issue committee. Opposition grew to seventy-one percent when personal information disclosed included details such as name of employer.

The Supreme Court heard Reed this Wednesday. The conventional wisdom ran that conservative Justices were eager to flex some activist muscle again, just as they did on Citizens United, and the Court would overrule the Ninth Circuit, probably by a five-to-four vote.

Things seemed to shape up that way during oral arguments, with Chief Justice Roberts and Justice Alito sympathizing with lawyer James Bopp, representing the defendants, on the need for privacy and imagining all sort of slippery slope horrors resulting from public disclosure.

Grilling Bopp from the other side, liberal Justice Ginsberg crisply pointed out that Protect Marriage Washington sometimes sells its list of signatures for fundraising purposes. “So that would be the end of a person's privacy,” she concluded and wondered why this type of disclosure is Constitutional if the Washington Public Records Act is not.

Justice Stevens, after hearing Bopp’s argument that maintaining anonymity is in the public’s interest to ensure voter participation, asks, “Isn't there another possible public interest? Would it be legitimate public interest to say, ‘I would like to know who signed the petition, because I would like to try to persuade them that their views should be modified?’ Is there public interest in encouraging debate on the underlying issue?”

Stevens’s take on the matter seems wholly in line with the Washington Public Records Act’s statement of purpose. “The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created.”

However, if the Court ultimately upholds the Ninth Circuit or at least finds that names of petition signers, although not necessarily contact information and other details, may be made public, it will be due to support from a seemingly unexpected figure – conservative Justice Antonin Scalia.

Bopp bewailed the results of public disclosure could include, “We’re all going to have to stand in public and announce who we're voting for and whether or not we're voting yes or no on this initiative. That's the way tyrannical governments control and do phony elections.”

Scalia countered him with a history lesson. “For the first century of [the United State’s] existence, even voting was public – you either did it raising your hand or by voice . . . So the country was acting unconstitutionally for a whole century before we adopted the Australian secret ballot? Do you really think that?”

Then Scalia takes it a step further. “The First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate . . . You can't run a democracy this way, with everybody being afraid of having his political positions known . . . Running a democracy takes a certain amount of civic courage!”

Finally, Scalia asks Bopp a question that seems aimed in equal parts at his own Chief Justice. “Do you have any case in which we have held that the First Amendment applies to activity that consists of legislating or of adopting legislation? . . . [You] are asking us to enter into a whole new field where we have never gone before.”

It seems that Roberts, the conservative judicial activist, has finally dragged Scalia, the conservative strict Constructionist, somewhere he is unwilling to go – even in the name of opposition to gay marriage. And I might add that conservatives everywhere ought to be glad if Scalia holds the line on the continued Constitutionality of public disclosure laws in the twenty plus states that have adopted them.

Last November, Washington voters overwhelmingly rejected repeal of the new gay rights law, even with the petition signatures protected. If liberals pursue the next step and attempt to place legalizing gay marriage on the ballot, liberal groups along the lines of ACORN will collect those petitions. Given the deliberate fraud in which many conservatives believe such groups engage, a ruling by the Supreme Court on Reed protecting petitioners’ privacy in political speech today could make it all that much harder for conservatives to uncover liberal mischief tomorrow.

Wars consist of many battles and you have to be sure you do not seek to outlaw a weapon or strategy used against you in one battle that you might be able to use to your advantage in another. This is true in both love and politics/government.