Just in time for Pride Weekend, the Supreme Court has booted thousands of anti-gay activists out of the closet yesterday, who were terrified of being outed as bigots. In an unusual, near unanimous 8 to 1 decision, the court ruled that people who signed a petition to repeal Washington State’s “everything but marriage” bill did not have a valid claim to anonymity under the First Amendment’s right to free speech.
Last year, the group Protect Marriage Washington gathered over 120,000 signatures to put a referendum on Washington State’s ballot, to try to roll back gay civil rights. Earlier in 2009, the state legislature had expanded gay domestic partnership rights to basically include everything but the word “marriage,” and Referendum 71 was a (failed) attempt to overturn that bill via a direct vote.
Several gay rights groups had sought the petitions under the Washington Public Records Act, and were rebuffed. They wanted to know who had voted against them. Some suggested using the list of names, as Harvey Milk might have considered, so that the signers’ gay relatives could initiate hard conversations with them and ask for their support. Others wanted to simply shame the people who wanted to keep them from getting equal rights.
The “protect marriage” crowd was nervous about anyone knowing who they actually were, and said outing them would infringe on their right to free speech. If they lived in a town with a lot of gay people, they could then be harassed, they argued. Then, they would be less likely to sign a petition in the future, and that would infringe on their right to free speech. (Never mind that the petition they’d signed was blatantly trying to curtail others’ rights.)
The Washington State anti-marriage crowd was not alone in wanting to snuff others’ civil rights, while cloaking themselves in anonymity like members of the KKK who hid behind their hoods. In California, proponents of Prop 8 have been fighting to stay anonymous for years now. They wanted to spare their donors potential boycotts (didn’t work), and they successfully fought to keep the trial off TV so that their supporters and experts would not appear on
camera and potentially be harassed. (Their case, which entered closing arguments last week, is not looking particularly good for them.)
A federal judge initially agreed with Protect Marriage Washington, and upheld their request to not disclose the petition signers’ names. The judge was overruled by the Ninth Circuit Court of Appeals, and it seemed as if bigotry would be exposed to the light of day. Then the Supreme Court quickly intervened, staying the Ninth Circuit’s reversal and holding off on releasing the names until they reached a decision.
But if anti-equality advocates were hoping for a permanent reprieve from the Roberts Court, they were sadly mistaken. In oral arguments, Justice Scalia of all people openly mocked Protect Marriage’s idea that the mere threat of potential criticism was a reason for anonymity. Yesterday, the court issued a rare 8 to 1 ruling (with only Justice Thomas dissenting), saying there was no blanket First Amendment right for petition signers. And as the Times reported, “Justice Scalia, in his own concurrence — said it was not clear that petition signers deserved any First Amendment protection.”
Said the Times: “‘Harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance,’ [Scalia] wrote. ‘Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.'”
The decision comes just in time for Pride Weekend here in New York. The New York Civil Liberties Union marked today by noting that, although our own marriage equality bill failed last year in the state senate, 24 senators did vote for it. Especially as the budget debates go on and the deadlines pass, it’s hard to feel very inspired by our state senate, but a video does remind us of some of the great moments of a few of our senators, even in a moment of defeat.