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The Supreme Court Didn’t Take Kindly to Protect Marriage Washington. Does That Mean It’ll Rule Against Them?

At today’s Doe. v Reed oral arguments in front of the Supreme Court, attorneys posed the situation as a battle between democracy and the First Amendment — as if the two cannot, and do not, coexist together. Project Marriage Washington, which is fighting to keep secret the names of voters who helped put Referendum 71 on Washington State’s ballot, claimed releasing the identities would invite harm to people who just wanted to exercise their rights. James Bopp Jr. (above), attorney for PMW, insisted “no person should suffer harassment” by signing a petition. The justices weren’t buying it.

The pullquote to walk away with comes from Antonin Scalia, who told Bopp, “Running a democracy takes a certain amount of civic courage. … The people of Washington evidently think that this is not too much of an imposition upon people’s courage, to stand up and sign something and be willing to stand behind it.” Scalia and Ruth Bader Ginsburg were adamant about getting Bopp and Washington’s Attorney General Rob McKenna, representing Sec. of State Sam Reed (pictured, L-R) to argue whether signing a petition was a legislative act, or political speech. And Sonia Sotomayor jumped in to quiz Bopp about how, if the court were to rule unconstitutional the state’s disclosure laws, it would mesh with prior rulings affirming such disclosure laws in politics, particularly among candidates. Bopp’s response? In those situations, disclosure is more important, and thus justified.

Chief Justice John Roberts appeared to support Bopp’s arguments, but Samuel Alito was the only one to do it so vocally. Without Scalia’s nod, however, it’s unlikely PMW would be able to secure a five-vote majority.

It’ll be many weeks before the justices issue their ruling, but it’s notable that this will be Justice John Paul Stevens’ last case he will hear in his multi-decade tenure; today was the last day of oral arguments of the court’s season, and he’s retiring this summer.

But if the tone and questioning was any indication, at least among the justices who spoke (which would be all but Clarence Thomas), the majority was quite aghast at PMW’s claims.

[Atlantic, Metro Weekly, Advocate, SCOTUSblog]

  • 11 Comments
    • Michael
      Michael

      Once again the religious right seems to think they’re above the law when trying to enforce their religious views upon the law.

      Apr 28, 2010 at 7:04 pm · @ReplyReply to this comment ·
    • Wade MacMorrighan
      Wade MacMorrighan

      @Michael: Well, the irony is that they actually want SPECIAL RIGHTS, all the while they are decrying that others Z(like you and me) want “special rights”, which we merely call EQUAL RIGHTS.

      Apr 28, 2010 at 7:29 pm · @ReplyReply to this comment ·
    • Paschal
      Paschal

      The thing about this question is that it is very difficult to give a good answer. On one hand one could argue that a signature is like a vote and therefore requires the same protection, as much as is possible. Just imagine if there was a law meaning that all voters could not vote with a belief that their votes would always be secret. On the other, people who partake in the political process cannot expect other people not to give them a piece of their mind and surely it’s no harm to express different opinions and tell people that you think that they’re wrong. If signatures should be secret then what about campaign donations? This is not a simple issue and is not a gay rights issue. What is for sure is that gay rights opponents don’t have the right to pretend to be victims. The victims in relation to the Referendum 71 were the people who didn’t know if their rights would still exist after the election. Thankfully the people of Washington state approved of the bill.

      Apr 28, 2010 at 7:40 pm · @ReplyReply to this comment ·
    • Baxter
      Baxter

      The real issue is that the referendum process is stupid and states should stop doing it because it almost always creates a mess. We have a representative democracy for a reason.

      Apr 28, 2010 at 9:44 pm · @ReplyReply to this comment ·
    • onthemoney
      onthemoney

      Hey, y’all. In a world where Republicans who make headlines are almost universally douchebags, it really ought to be noted that Reed & McKenna are the two Republicans elected to statewide office in Washington state.

      Good for them for seeing this through. Judging by Scalia’s line of questioning, we might even win this one!

      Apr 28, 2010 at 10:47 pm · @ReplyReply to this comment ·
    • Jaroslaw
      Jaroslaw

      Right #2, special rights, I like that you phrased it that way. I would love to see some Gay activist on TV say that!

      Wrong #3 – (your second sentence). Petition signatures have always been available for public scrutiny. Can’t change the rules of the game now. Although I think you acquiesed later in your paragraph.

      Apr 29, 2010 at 8:51 am · @ReplyReply to this comment ·
    • Paschal
      Paschal

      @Paschal: Just to add to that which I’ve written, public disclosure of signatures helps fight fraud.

      Apr 29, 2010 at 9:25 am · @ReplyReply to this comment ·
    • Cam
      Cam

      No. 3 · Paschal
      The thing about this question is that it is very difficult to give a good answer. On one hand one could argue that a signature is like a vote and therefore requires the same protection, as much as is possible.
      ______________________

      1. A Signiture on a petition is not a vote…if it was, then all you would need to do would be to get a petition with enough signitures to change laws, you can’t do that. A Petition is political speech and is in line with showing up to march outside a Congresspersons office. You cannot complain if a TV camera gets a shot of you while you are marching, you shouldn’t be able to complain because a signiture you gave to a stranger holding a pad becomes legal.

      2. Signitures on petitions to put referendums on ballots etc… have to already be verified as valid, so their names are already being seen by other people.

      Apr 29, 2010 at 9:41 am · @ReplyReply to this comment ·
    • Kevin_BGFH
      Kevin_BGFH

      The petition gathering part of initiatives and referenda are not part of the voting process, they are part of the legislative process. The voting comes later, and the Constitution, rightly so, requires that people be allowed to vote anonymously. But other things — including their party registration and whether or not they actually voted — are not private.

      In a democracy, we cannot keep certain political activities because people need to have faith that the process is being handled fairly. Our legislators do not cast secret ballots. Their votes on pending legislation is public record, and must be so that voters can make information decisions.

      Campaign contributions cannot be kept private because voters need that information to make informed choices. If, for example, there’s an initiative on the ballot that purports to restrict offshore oil drilling, but it’s the oil companies that support it and the environmentalists who oppose, that would give you pause.

      The signature gathering process is prone to corruption. In Massachusetts, some voters were lied to and told they had to sign a petition twice — the first was something they supported, but the second was to repeal same sex marriage. And some people who never signed anything discovered that someone else had signed their names.

      Based on the questioning, I believe it will be a 6-3 decision with Roberts, Alito, and Thomas in the minority. (Though Thomas did not ask any questions, it’s clear from his concurring opinion with the cameras in the Prop 8 courtroom case that he wants to keep their names private. He said so.)

      Apr 29, 2010 at 12:40 pm · @ReplyReply to this comment ·
    • Paschal
      Paschal

      @Cam: I agree with you actually. Thanks. But I believe that it is a difficult question to answer.

      Apr 29, 2010 at 4:05 pm · @ReplyReply to this comment ·
    • Hyhybt
      Hyhybt

      When will the decision be released?

      May 1, 2010 at 12:41 am · @ReplyReply to this comment ·

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