I want to start by posing a couple of questions. Are the people in the anti-gay camp ashamed of and embarrassed by their beliefs and actions? As gay people come out of the closet, are homophobes trying to crawl into the darkness of their own private little closets?
Yesterday (Jan. 15) the U.S. Supreme Court granted a writ of certiorari (cert) for Doe v. Reed . "Cert" means they’ll hear the case. Sam Reed is the WA Secretary of State; he’s in charge of elections in Washington State. Here’s a link from Scotusblog: Today’s orders. It’s not scheduled yet, but the hearing may happen in April and there may be a decision by June. Keep reading, there’s more below.
Short version: The State of Washington is required by law to make public records available to the public. This includes the names of people who signed Referendum 71 (titled "Preserve Marriage, Protect Children"), sponsored by the homophobic group called Protect Marriage Washington. PMW sued the Secretary of State to keep secret the names of the petition signers, claiming that they would be harassed, threatened, or even harmed.
Doe v Reed isn’t really a case about gay rights. The election is over; the WA voters did the right thing. They didn’t repeal the gay partnership law. The question before SCOTUS is this: Should the people who signed the anti-gay referendum have their names made public?
I’ll quickly mention in passing the current Prop 8 case (Perry v. Schwarzenegger). You probably know that the judge, Vaughn Walker, said he would allow cameras in the courtroom for real-time broadcast/streaming of the trial. The lawyer from Protect Marriage CA (the anti-gay guy), Andy Pugno, claimed that broadcasting the trial would subject the witnesses to harassment, vicious emails, boycotts, and death threats. (Oh, Lord, protect me from the vicious emails!) The SCOTUS voted 5-4 against allowing cameras to broadcast the trial. This topic was covered quite well in a DKos diary by Adam B: SCOTUS: Prop 8 Trial Will Not Be Broadcast (For Now).
But enough about California. Let's look at Washington.
A Brief History of Gay Rights in WA
In 1998, the WA legislature passed a state version of the Defense of Marriage Act (DOMA). It was challenged in court, but it was ultimately upheld by state supreme court. Bad news for gay rights, but it’s ancient history.
There are currently six openly gay legislators in the WA legislature, including Sen. Ed Murray (my senator) and Rep. Jamie Pedersen (my representative). Senator Murray has an admirable history of pushing, year after year, for more and better rights for the LGBT community:
2006: LGBT civil rights law passes.
2007: First domestic partnership law passes.
2008: Law extending/expanding domestic partnerships passes.
2009: The "everything but marriage" law passes (Senate Bill 5688/HB 1727).
Sen. Murray has said he will continue to work for the ultimate goal – which is full, total, equal marriage. I’m certain that he’ll succeed.
After "everything but marriage" passed and was signed, Protect Marriage Washington (PMW) filed Referendum 71 and began to collect signatures. This delayed implementation of the law until after the vote.
PMW turned in 137,881 signatures. After examination, 121,757 signatures were found to be valid. To qualify, PMW needed 120,577, so they just barely got onto the ballot.
One of the funniest comments came from Stephen Colbert. He showed a PMW ad that made this claim: "In May of 2004, gay marriage was legalized in Scandinavia. What happened? Did you know that, that year alone, suicide rates doubled and the illegal drug rate increased 19 times?" Here’s Colbert’s reaction:
Terrifying. And that ad is no less terrifying just because there is no country called "Scandinavia," none of the countries in Scandinavia passed gay marriage laws in 2004, and the statistics on suicide and drug use are made-up. I say it just proves the terrible toll gay marriage has on fact-checking.
In November 2009, the voters of WA voted 53% to 47% to keep the domestic partnership law. The law subsequently went into effect on December 3, 2009.
The Argument for Publishing the Names
The Washington Public Records Act (first passed in 1972) is our state version of the Federal Freedom of Information Act (from 1966). Incidentally, Republican Presidents (Reagan and GW Bush) have tried to restrict the scope of FOIA, whereas Democrats (Clinton and Obama) have been more open in their interpretation.
I remember from Latin class that the word "republic" comes from 'res publica' (the public thing). It seems obvious that government records should be available to the public. Here’s a direct quote from the state law:
Section 42.56.030. The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created. This chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy and to assure that the public interest will be fully protected.
All of the WA state laws are available (free) on the internet, thanks to the Public Records Act, so I could sit at home in my pajamas and see exactly what it says. In Washington, state agencies have to make available state laws, agency regulations, public meetings, court records, administrative policies, licenses/permits/deeds, even things like employee manuals.
There are a bunch of exceptions: Rape crisis centers and battered spouse shelters aren’t required to disclose client names. There are exemptions for disclosing nesting sites of endangered species, locations of archaeological sites, library records, names of people collecting unemployment, lists of customers of public utilities (water/sewer/electricity), and so on.
When people file an initiative or referendum, the names of people who signed the petition are made public. However, the organizers at Protect Marriage Washington filed suit to keep the names secret.
In October, the Ninth Circuit Court (PDF file here) decided that the names should be made public. PMW appealed to SCOTUS, who granted cert on Friday.
The Argument Against Publishing the Names
There are at least two Supreme Court cases that might be relevant to this case:
• In 1958, the Supremes ruled (NAACP v Alabama) that the NAACP wasn’t required to turn over lists of members before opening an office in Alabama.
• In 1982, the Supremes ruled (Brown v. Socialist Workers) that the Socialist Workers Party (SWP) is not required to disclose the names of people who contributed money to the party in Ohio, because it could lead to harassment by private individuals and government entities.
In addition, the Federal Election Commission has occasionally allowed political campaigns to keep their lists secret. I’m not sure this applies because this wasn’t a federal election.
I think this case is different. Civil rights workers in the 1950s and Socialists in the 1980s had legitimate reasons to fear that disclosing the names of their members or donors might lead to harassment by the police or government agencies. I doubt that the anti-gay people fear persecution by the state. Furthermore, many of the people who signed Referendum 71 did so in a public place, like a shopping center or a church.
There one more huge factor: the power of the internet. After California voted on Proposition 8, someone took the names of the donors to Yes-On-8 and plugged them into Google Maps. You can see the map here: Donors to Prop 8. Notice all the people from Utah donating money to a California campaign. Bill O’Reilly was shocked (shocked!) to find that this was available. He thought it might lead to violence against homophobic bigots, although he didn’t phrase it exactly that way. He suggested that someone should go to Google and unplug their computer. No doubt the anti-gay people in WA are worried that a similar map will be created.
Openness or Secrecy?
Linda Greenhouse wrote an excellent commentary in the NY Times on both the California case and the Washington case: Into the Closet. She begins with this:
Has anyone noticed that now that lesbians and gay men have left the closet to assert their equal rights as citizens, their adversaries seem to be running for a closet of their own?
Several of the reader comments that follow are interesting, especially the second one, from Marie Burns, who says:
Conservatives tend to be ashamed of themselves, & they are especially ashamed of themselves about matters that relate, actually or tangentially, to sex. So conservatives who want to limit the rights of OTHER people, based on the sexuality of OTHER people, still find it shameful to talk about in the light of day. Indeed, their very reason for opposing the rights of others is that they don’t want to think about other people having sexual relationships.
Why the insistence on secrecy? Do they believe that gangs of homosexual thugs will straightbash them? Do they really think they’ll face harassment at work? Does the Constitution prohibit snarky sarcasm and withering derision?
I’ll ask my question again: Are the people in the anti-gay camp ashamed of and embarrassed by their beliefs and actions? I think the answer might be yes.