Shortly after 10 am Wednesday, the Supreme Court will hear oral arguments in the Doe v. Reed case. This is the case stemming from Referendum 71. Religious conservatives led by Protect Marriage Washington were unsuccessful in using R-71 to repeal Washington’s domestic partnership law, and Washington became the first state in the nation where voters approved, by a 53.2% margin, a comprehensive relationship recognition law for gays and lesbians.
A few days ago PMW posted an essay written by their attorneys, James Bopp, Jr. and Scott F. Bieniek. Presumably this piece was meant to be their final stage-setting statement in advance of the hearing. The essay, which is reproduced in full at the end of this diary, is a regurgitation of the same flimsy legal reasoning, conflation of marriage with domestic partnership, and projection of PMW’s own bullying onto The Scary GaysTM we’ve come to expect from PMW. But there was one new element which was frankly shocking, even amid all that. PMW chose to impugn, without a shred of evidence, Washington’s Secretary of State Sam Reed.
Now [Attorney General Sam Reed] is willing to allow access to petitions knowing that they will be used to harass and intimidate individual citizens.
“Knowing”? This is a serious personal attack against Mr. Reed, because nobody can know what will happen in the future. What Bopp & Bieniek should know is that not one of the over 1 million referendum and initiative petition signers whose names have been posted on the internet has ever been hurt as a result. They also surely know that the Washington Public Disclosure Commission voted unanimously against PMW’s request to hide the names of their campaign donors because PMW failed to identify even one individual donor who was mistreated because their names were posted online by the PDC. So what PMW and their attorneys have done here is choose to find Sam Reed guilty of an imaginary future crime based on non-existent evidence. Remind me who the bullies are again?
While we wait for the SCOTUS to post transcripts from the hearing, it’s worth watching a 3 minute story aired on Monday by KCPQ’s Q13 Fox News (video below the fold). The show sought comments on Doe from representatives from both sides of the Referendum 71 campaign: Anne Levinson, Chair of Washington Families Standing Together, and Bob Struble for PMW. Levinson lays out a clear and rational description of the deeper anti-gay and anti-democratic agenda behind Doe. Struble simply categorically attacks gay people as “vicious”, “shrieking self-proclaiming homosexuals” bent on “mainstreaming sodomy”. (Is Struble on the WAFST payroll? He’s the next best thing to Fred Phelps, I swear.) Notice the images of the normal, loving gay and lesbian couples and families that Q13 intersperses throughout the story. I guess their vicious.homo.cam was out for repair.
* Conservatives and progressives unite to defend Open Government
* I, Citizen Legislator
* Gary Randall makes puzzling claims about the Doe v. Reed lawsuit
* Challenge to Washington’s Public Records Act to get hearing by USSC
Transcript and video of KCPQ’s Q13 Fox News story on Doe v. Reed, broadcast Monday, April 26, 2010.
Bill Wixey: Washington Attorney General Rob Mckenna will go before the Supreme Court on Wednesday to argue one of the biggest cases of his career. It centers around Referendum 71. But as James Lynch tells us, this case goes way beyond gay rights, and could impact every state in the country.
James Lynch: What started as a debate over “everything but marriage” for gay and lesbian couples here in Washington will end before the United States Supreme Court in a case involving free speech and public records.
Anne Levinson: What these folks are trying to do is drive a truck through the Public Records Act.
James Lynch: At issue, should the names of some 138,000 people who signed Referendum 71 petitions be released under the state’s public disclosure law? Or, was their signing Constitutionally protected political speech, which can be anonymous?
Bob Struble: Half the states have initiatives and referendums, and if these can be compromised by threats and harassment, why it undermines the entire democratic process.
James Lynch: Bob Struble is a spokesman for Protect Marriage Washington. He himself signed the Referendum 71 petition. He says his group opposes the release of the names for this reason: fear of those who support marriage rights for all.
Struble: These people, I think it’s not an exaggeration to use the word vicious. They are sometimes vicious because we dare to oppose their agenda of mainstreaming sodomy, which is what it is.
James Lynch: Struble says he himself has known harassment first-hand while gathering petition signatures.
Bob Struble: Some shrieking self-proclaiming homosexuals started stalking me and raising quite the commotion and screaming and demanding that I stop handing out these petitions.
James Lynch: The threat of that kind of harassment, Struble says, deters people from signing petitions, so the names should not be made public.
Ann Levinson: We’ve had more than 600,000 individuals sign petitions in the last decade in this state. There’s not been evidence of a single person who’s in any way been chilled or in any way discouraged from signing a petition out of an alleged fear of harassment. There’s simply no evidence to that point.
James Lynch: Anne Levinson is with Washington Families Standing Together. Her group wants the names released.
Anne Levinson: In our state we have a requirement, as does every other state except one that has public disclosure laws that initiatives and referenda are public records. And they are released to the public so that the public can help insure that elections happen fairly.
James Lynch: Levinson says that opponents of expanded domestic partnership rights have an agenda.
Anne Levinson: They’ve used ballot campaigns – referenda and initiatives – to try to take away other people’s rights, and they’d like to do that in secret. They’d like to hide who their contributors are, they’d like to hide who their signators are and they’d like to hide who their sponsors are. And, that’s not the way we operate in a democracy.
James Lynch: The high court has at times been receptive to arguments based on the fear of harassment and retaliation. In this case the justices will have to balance the public’s right to privacy and the public’s right to know. James Lynch, Q 13, Fox News.
Bill Wixey: Now a ruling on this case could take a few months, and this isn’t the first time McKenna has gone before the high court. He’s two for two there. The court sided with him when he defended an initiative involving teacher union dues, as well as the state’s top-2 primary.
Same-Sex Marriage Takes Center Stage at the Supreme Court
Posted April 24, 2010: Will the Court take a step to remove threats and intimidation from the political playbook?
By: James Bopp, Jr. and Scott F. Bieniek
In November 2008, Californians went to the polls and voted in favor of a referendum to define marriage as between one man and one woman. Instead of celebrating the victory, supporters of the referendum became targets of an intense backlash that included death threats and property damage. The retaliation was enabled in part by a California law requiring contributors of as little as $100 to publicly disclose their names, addresses, occupations and employers. The information, which is made available on the Internet by California, was combined with an online map, providing would-be harassers with directions to supporters’ homes. And the retaliation was as much about trying to influence the next vote on same-sex marriage as it was about anger over what had just occurred in California.
On Wednesday, April 28, 2010, the Supreme Court of the United States will consider a case that can begin to put an end to such campaign tactics. The case, Doe v. Reed, involves that next vote, a referendum from the state of Washington to repeal a statute granting domestic partners the same rights and responsibilities as married couples. Protect Marriage Washington, the group that sponsored the referendum, submitted a petition containing the names, addresses, and signatures of more than 138,000 voters who felt the issue was too important to leave to elected representatives.
Rather than embrace the opportunity to publicly debate the merits of the recently enacted statute, opponents threatened to make use of Washington’s public records law to access copies of the petitions in an effort to prevent the debate from even occurring. The opponents hoped to place the names and addressees of the petition signers on the Internet to encourage “uncomfortable conversations.” But after what transpired in California, it is clear that these are confrontations, not conversations, and that they chill political speech.
Petitions have not been routinely released throughout Washington’s history. Sam Reed became the first Secretary of State to release copies of petitions when he released two initiative petitions in 2006, and R-71 would be only the ninth petition of more than 1,100 petitions filed with the Secretary of State since the public records act was adopted in 1972. Now, he is willing to allow access to petitions knowing that they will be used to harass and intimidate individual citizens. Protect Marriage Washington refused to let harassment and intimidation influence the debate about an important social issue and obtained an emergency court order to prevent the release of the petitions. The Ninth Circuit Court of Appeals lifted that order, and only an emergency stay by the Supreme Court on the eve of the election prevented opponents from using tactics usually reserved for the schoolyard bully.
Washington argues petition signers are like legislators, and because there is no right to legislate in secret, petitions must be released. But petition signers are not elected representatives, they are sovereign citizens, exercising a right they reserved for themselves in their state constitution. The petition is nothing more than a statement that the issue is too important to be left to the men and women serving in the state house. And petition signers are no more legislators than the 1.8 million voters that cast a ballot for or against the referendum at the ensuing election. The entire process was good for Washington, and it would not have happened if opponents had been allowed to harass and intimidate petition signers.
The case is a blockbuster because of the social issue, but Doe v. Reed is bigger than same-sex marriage, Protect Marriage Washington, or the 138,000 individuals that signed the petition. The case is about the right of everyone to speak freely on the most important and controversial issues facing our nation, and to do so free from threats and intimidation. And we all benefit when the discussion of those issues is uninhibited, robust, and wide-open. The names of the 138,000 individuals that sought to start the conversation are simply irrelevant to that debate.
Fittingly, Wednesday’s case is Justice Stevens’ last as a member of the Supreme Court. In a few weeks, the attention will turn to the individual nominated to fill his vacancy, and no doubt, the nominee’s record. The question is, should the fact that the nominee signed a petition thirty years ago be part of that record? And should it be part of your record the next time that you apply for a job? If the First Amendment means anything, the answer must be no.
Mr. Bopp and Mr. Bieniek are attorneys at Bopp, Coleson & Bostrom. Mr. Bopp will deliver the oral argument on behalf of Protect Marriage Washington before the Supreme Court.
Cross-posted at Washblog.