The Supreme Court issued a fascinating decision this morning in connection with the marriage equality movement. It pits Justice Scalia against the anti-gay folks, and I’m not totally sure which side I agree with here.
Last year, in Washington State, the governor signed a same-sex domestic partnership bill into law. In response, a group called Protect Marriage Washington tried to get an initiative onto the ballot to repeal the law. They managed to get enough signatures to do so. In response to that, a coalition of groups sued under the state’s Public Records Act to learn the names of everyone who signed the petition.
Protect Marriage Washington argued that this would be a violation of the First Amendment rights of everyone who signed the petition, because it would have a chilling effect on speech. They argued that if you can’t sign a petition without staying anonymous, this will discourage people from signing petitions and thereby their free speech rights will be curtailed. They also argued that in this particular instance, the signers of the petition were subject to threats from gay-rights people.
This morning, the Court, in Doe v. Reed, ruled that there is no blanket right to anonymity if you sign a petition. But they refrained from ruling on the particular circumstances of this case; they kicked back to the lower court the issue of whether there’s a legitimate threat against the petition signers that would necessitate keeping their identities secret.
Chief Justice Roberts wrote the majority opinion, which was 6-3, although the lineup is a little splintered. Only Justice Thomas dissented completely, arguing that the First Amendment in all cases protects the anonymity of petition signers.
Scalia’s concurrence is the most interesting, though. He argues that there is no protection of anonymity regardless of whether there are threats; he examines American history and finds that there is not even a First Amendment right to a secret ballot in an ordinary election, because until the late 19th century, most states didn’t have secret ballots, and the secret ballot was instituted not because of First Amendment concerns, but in order to minimize election fraud.
The highlight of his concurrence is at the end:
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. 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.
He’s basically saying to the anti-equality people: don’t be such wimps. Have the courage to argue your opinions in public.
And I kind of respect that.
I’m still not sure if I agree whether petition signers should have the right to their anonymity. I think I’d say, no, except in certain circumstances, such as someone signing a petition for racial equality in the South during the 1960s, in a time and place where there was a history and demonstrated threat of racial violence.
And I don’t like the idea that you can sign a petition to take away someone’s rights and then turn around and falsely complain that you’re subject to the threat of violence for doing so.
Finally, it’s interesting to read this decision alongside the Court’s January ruling that the Prop 8 trial in California shouldn’t be broadcast because it could cause “irreparable harm” to the anti-equality side’s witnesses.
It’s always funny to me that lots of anti-gay people make fun of gay men for being sissies and yet cower in fear of physical harm from them.