The Court, perhaps, has tipped its hand in the case, not only by its order in October, temporarily protecting the Washington signers’ privacy, but also by its 5-4 ruling in January in the Proposition 8 TV trial coverage ruling. But both of those actions tend largely to exhibit sympathy for the argument that opponents of gay marriage do face threats and other forms of harassment or outright violence. That sentiment, perhaps, cannot be translated directly into a conclusion that signing a petition is a form of protected political speech.
The Court has never before analyzed, as it must in this case, just exactly what occurs – in a constitutional sense – when a citizen writes a signature, and enters personal information, on a political petition. The Referendum 71 case presents that issue very directly, with the signers making a vigorous argument that it is a purely expressive form of political speech, while those favoring public disclosure of petitions make an equally vigorous argument that the role of citizen as legislative sponsor is no different from that of an elected lawmaker. To side with the former and against the latter, the Court would have to make a sizeable constitutional leap from past rulings on electoral anonymity. Perhaps some of the Justices voted to grant review of the case precisely anticipating that they might well do just that. The briefing, though, has sharpened the issue, far more than did the content submitted to the Court prior to the October order and that presented before review was granted.
For a Court that has recently shown, especially in the Citizens United v. Federal Election Commission decision in January, that it reads the First Amendment expansively in the context of election campaigns, there may be little hesitancy now in deciding the Referendum 71 case by lengthening that trend, to elevate the constitutional significance of signing a political petition. Much may be revealed on this score at oral argument.
Whether the Court will see this case as a test of the Constitution’s role in mediating the heavy political controversy, being waged across the country, over gay rights, is unclear at this point. That controversy, to be sure, has a bearing on the intimidation issue that is so central to the Referendum 71 signers’ case.
However, just as central to the other side’s argument is a plea for open government, coupled with a plea for state control of their own initiative and referendum processes. Choosing between those two conflicting approaches to the case may be difficult, indeed.
UPDATE: 04/28/2010 11:51AM PDT
It should be noted that LGBT groups have filed a very strong amicus brief in support of the respondents (Washington Secretary of State Sam Reed) and today issued a press release where they basically mock the arguments of the homophobes who want the right to legislate their position from the ballot box while wearing a shroud of First Amendment non-disclosure.
From the release:
Some of the instances of supposed "intimidation" cited by opponents and noted in the amicus brief include:We'll see what the Supremes say about that. As always, they have the last word.
- A country club member in California, a supporter of Proposition 8, noted that "the openly gay members of the country club have changed their attitudes toward me. They used to greet me warmly; now, they give me looks of disdain and do not greet me as I pass."
- A person with a yard sign supporting Proposition 8 was disturbed on Halloween that some people "pointed and whispered to one another in disapproval" during trick-or-treating.
- A woman was upset that her brother, who is gay, would no longer speak to her after she told him she might vote for Proposition 8.
As the amicus brief says, these complaints "are not only trivial, they reflect a fundamental refusal to accept the legitimacy of speech that disagrees with the complainants' viewpoints, deeming it 'hateful' or 'harassing' simply because they do not like hearing it."
"There's nothing to see here, folks," said Jon Davidson, Legal Director of Lambda Legal. "There's no comparison between a few scattered instances of whispers and disapproving glares and the very real discrimination, harassment and even violence LGBT people experience every day all over the country. After all, more hate crimes are reported against gay people than any other group per capita in the United States."
"The Petitioners are attempting to create a through-the-looking-glass world in which the aggressors are the victims and the victims the aggressors," said Gary Buseck, Legal Director of GLAD.
"This is an outrageous attempt by anti-gay groups to use false claims of persecution to undermine laws that protect the integrity of the democratic process," said Shannon Price Minter, NCLR Legal Director.
