Landmark Supreme Court Ruling on Anti-Gay Petitions Doesn’t End Controversy

by Kilian Melloy

EDGE Staff Reporter

Friday June 25, 2010

The United States Supreme Court ruled 8-1 on June 24 that when people sign petitions to put ballot initiatives before voters, the First Amendment does not shield them from public disclosure. But a more specific question still lingers: how credible are claims that supporters of anti-gay measures have cause to be "frightened" into seeking secrecy and anonymity when they attempt to put rights-repealing initiatives on the ballot?

The case involved Washington State seeking the release of the names of supporters of a Referendum 71, a ballot initiative that would, had voters approved it last fall, have deprived same-sex families of existing legal protections by repealing a domestic partnership law. In the event, voters defeated the measure. But a new legal battle was soon underway: Protect Marriage Washington, the group behind the ballot initiative, resisted demands from the state to comply with election law by providing the names of the ballot initiative's supporters. The group claimed that gays had issued death threats and other forms of intimidation against proponents of "traditional marriage" (the domestic partnership law did not provide for civil marriage, though it did provide a broad array of rights and protections for gay and lesbian families), and insisted that the lives, jobs, and property of supporters of the anti-gay measure would be put at risk if gays had access to their identities through laws designed to enforce transparency in the ballot initiative process.

The New York Times noted in a June 24 article that the Supreme Court identified two central questions in the case concerning the release of the names of Referendum 71 supporters. The broader question, which the Court addressed, was whether a promise of anonymity for those seeking to legislate through the ballot initiative process was implied by the First Amendment. The court ruled that such a provision was simply not there; Chief Justice John Roberts noted that requirements of transparency are crucial to ensure that the ballot initiative process is not abused.

"Public disclosure can help cure the inadequacies of the verification and canvassing process," Roberts wrote, as well as providing a hedge against "outright forgery and 'bait and switch' fraud, in which an individual signs the petition based on a misrepresentation of the underlying issue." Roberts added that, "The signer is in the best position to detect these types of fraud, and public disclosure can bring the issue to the signer's attention."

Antonin Scalia, a reliably conservative justice, was more scathing in his remarks; during the hearing he had referred to the wish by anti-gay petitioners to remain anonymous as "touchy-feely," and derided the desire to operate unseen as antithetical to the democratic process.

But while he agreed with the majority, Justice Samuel Alito touched upon the secondary question, which the court identified but did not address: whether, in rare and selected instances, when a palpable threat is feared as the result of exercising the ballot initiative process as part of the democratic process, petitioners might legitimately seek anonymity. Alito referenced the court's decision regarding the televising of the Proposition 8 trial, and wrote of "The widespread harassment and intimidation suffered by supporters of California's Proposition 8," the New York Times reported. "The widespread harassment and intimidation suffered by supporters of California's Proposition 8 provides strong support for an as-applied exemption in the present case," Alito opined.

In effect, the court once again gave credence to an image, cultivated by anti-gay groups, of GLBTs as violent, lawless, and prone to physically assaulting the person or property of anyone identified as having supported efforts to curtail the rights and freedoms of sexual minorities.

But not all of the justices endorsed this line of thinking uncritically. Justice John Paul Stevens, reputed to be a liberal justice, wrote that "there would have to be a significant threat of harassment directed at those who sign the petition that cannot be mitigated by law enforcement measures" for such an exemption to be granted.

And Scalia spoke once again, echoing his earlier comments: "Harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance," Scalia declared. "Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed." Added Scalia, "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."

Only Clarence Thomas dissented with the court's ruling.

Exemptions a Possibility to Pursue?

Still, the court's reference to "exemptions" being legitimately sought was, in effect, a suggestion for the next step. Washington's anti-gay set are not finished yet: Protect Marriage Washington will be heading back to federal court to seek just such an exemption, and their argument will rely once again on the carefully cultivated image of gay thugs waiting to take names--and take revenge. "Supporters of traditional marriage have been subject to death threats, vandalism, and even the loss of their jobs merely for exercising their right to free speech," claimed a lawyer for the group, James Bopp, in a press release, Everett newspaper The Daily Herald reported on June 25.

"We are confident that the District Court will agree that these tactics have no place in the discussion of marriage and will prevent the release of the personal information on those who support traditional marriage," added Bopp.

Washington state Attorney General Rob McKenna, who argued the state's side before the Supreme Court, remained unconvinced, noting that the group's claims of "intimidation," "death threats," and "harassment" were not accompanied by any evidence. McKenna dismissed the group's chances in the next trial, saying that Protect Marriage Washington had a "steep hill to climb and high standard to meet" in proving their case.

"There is no evidence in the record of any significant harassment, violence or threatening behavior directed toward those who signed the Referendum 71 petitions," noted attorney Kevin Hamilton, who also represented the state's side in the case, reported Seattle Pi.com in a June 24 op-ed. "And there is certainly none that would justify any further obstruction of the public's right to obtain these public records."

"Hamilton is, of course, right," op-ed author Joel Connelly wrote. "The history of hate talk and violent acts in America is that its targets are minorities and advocates of minority rights--gays and lesbians, civil rights activists, immigration supporters, even feminists in the early 20th Century. Bullies tend to be bigots.

"Just ask anybody who's been on the receiving end of hate e-mail and crank calls after being abused on-air by Fox News mouth Bill O'Reilly," continued Connelly. "Or look at district offices of Reps. Slaughter and Gifford, defaced after they voted for health care reform. Or talk, as I did recently, to the mother of Matthew Shepard."

"It's not surprising that the Love the Sinner, Hate the Sin set wants to shield their views from public scrutiny," a June 24 posting at a Salon.com blog read. "Their increasingly nonsensical arguments against expansion of basic civil rights and benefits for same-sex couples and their children are an embarrassment to any thinking person.

"If I signed a petition designed to destroy my neighbor's life, liberty, and pursuit of happiness, I wouldn't want her to know about it either," the blog continued. "But the 1st Amendment was not designed to allow people with unpopular views to use a public process to express and impose them in total secrecy. It is designed to encourage the free and public flow of ideas, which is precisely the opposite. Absent an actual danger, voters who choose to initiate referendums should not be allowed to use the political process to terminate the rights of their fellow citizens without having to look them in the eyes the next day."

Not Over Yet

But at Townhall.com, a posting by columnist Ken Klukowski posited that "supporters of traditional marriage" would ultimately prevail. Klukowski promoted the notion that demands for transparency in the ballot initiative process were rooted in a desire to threaten and harass--"it's beyond doubt that this disclosure is intended to threaten and intimidate people who sign the petition" he wrote, going on to cite what he dubbed "The record of atrocious harassment in the wake of California's Proposition 8"--before going on to lump Scalia, Alito, and Roberts with the less conservative members of the Supreme Court bench. "The question will then be how the liberal justices that voted for this standard today will rule once that issue comes before them," Klukowski wrote, after noting that the court had suggested that groups setting out to promote controversial issues could plead fear and vulnerability to attack from the beginning, gaining a guarantee of anonymity from the very start.

The principle of legislative transparency in the ballot initiative process outlined by the Supreme Court cuts both ways. The idea hinted at by Connelly, that progressives are more likely than conservatives to be on the receiving end of violence and intimidation, was seemingly in play in Utah when a federal judge there intervened to stop the release of the names of 73,000 supporters of a government ethics reform initiative after the group behind the measure, Utahns for Ethical Government, sought anonymity for the petition's signatories, lest they face "political retaliation," according to a June 25 article in the Deseret News.

"Some of the people who signed are fearful that their jobs may be jeopardized because they are state employees, for instance," said Kim Burningham, chair of the group backing the Utah measure. "They worry that there will be implications for their job, and for them a degree of anonymity is extremely invaluable, and we think it is justified in that case, certainly."

Kilian Melloy serves as EDGE Media Network's Associate Arts Editor and Staff Contributor. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.