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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.

Originally posted to Dbug on Sat Jan 16, 2010 at 10:20 AM PST.

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Comment Preferences

  •  Tips for open records (17+ / 0-)

    Hope you liked it.

    I know there are lots of other things to read this morning (Haiti, Coakley, and hate-mail-a-palooza, to name a few). Thanks for taking the time to look at my essay.

    Listen, strange women lying in ponds distributing swords is no basis for a system of government.

    by Dbug on Sat Jan 16, 2010 at 10:20:13 AM PST

  •  Ironic (4+ / 0-)
    Recommended by:
    sberel, rserven, cn4st4datrees, Dbug

    Go ahead... let the roaches scatter to the dark. We will shine the light on them.

    My moral compass is just fine... now where was I going?

    by cooper888 on Sat Jan 16, 2010 at 10:32:42 AM PST

  •  Yeah. (8+ / 0-)

    Apparently some of the witnesses have decided not to testify in Perry v Schwarzenegger because they fear that someone will know what they say.

    Gangs of anti-anti-gay people are apparently roaming the streets looking for homophobes to assault.

  •  I did a terrible thing as a child. (4+ / 0-)
    Recommended by:
    sberel, sfbob, Clarknt67, Dbug

    It was about in the third grade, I think, along the time a school child starts thinking for himself.

    There were several black kids in my elementary school, and I was friends with them.  One day, right after school just as I left the school grounds, one of those black kids came walking out.  I hollered out "nigger" at him, don't know why for sure, it just came out.  Well, he chased me down (he ran a heck of a lot faster that I could run, and run I did), and was set on beating me up.  I instantly said I was sorry, it was just a joke, and he backed down, but I learned a good lesson that day.

    You say or do hateful things, and when you're called on them your natural impulse is to run.  Because you know you have done wrong.

    I think that's the case here.  These bigots know they have done wrong, and now they're trying to run and hide, as it were.

    Well, we've caught up with them, and no, we're not going to beat them up (lucky for them; they deserve it, but still there's no cause for violence), but we are going to hold them accountable.

    The question is not what, but who you want to be. --F.R. Prince

    by cn4st4datrees on Sat Jan 16, 2010 at 10:58:06 AM PST

    •  Thanks for the story (3+ / 0-)
      Recommended by:
      sberel, sfbob, Clarknt67

      Something similar happened to me in about 8th grade. A girl said something to me, I called her a "bitch," she ripped my shirt, and we both ended up in the principal's office. I had to go home to get a new shirt. Thinking back on it now (several decades later), I still feel bad about it. I don't think I've used the b-word since then. Except to tell this story, of course.

      You're right. They know there's something shameful in what they're doing. At least some of them do.

      Listen, strange women lying in ponds distributing swords is no basis for a system of government.

      by Dbug on Sat Jan 16, 2010 at 11:46:49 AM PST

      [ Parent ]

  •  Secrecy in Judicial Proceedings (5+ / 0-)

    Here is another theory on why the SCOTUS denied cameras in the Prop-8 trial.  

    There is a pretty hefty battle being fought right now between the federal judicial conference and the judicial councils of each circuit over increasing transparency in the federal judiciary to the levels already commonplace in many state courts.

    The Supreme Court warned the Judicial Councils to follow the Judicial Conference in maintaining secrecy.  Here is the relevant language from the opinion:

    In 1996, the Judicial Conference of the United States adopted a policy opposing the public broadcast of court proceedings...In more than a decade since its adoption the Judicial Conference has continued to adhere to its position on the broadcast of court proceedings. While the policy conclusions of the Judicial Conference may not be binding on the lower courts, they are "at the very least entitled to respectful consideration."

    (emphasis added)

    •  Good point (4+ / 0-)

      It's likely that SCOTUS said "no cameras" because they've traditionally opposed cameras. I think they probably would have said no to cameras regardless of the type of case.

      But the arguments used against cameras by the anti-gay people is "Oh no! We're gonna be harassed!"

      ---

      And Doe v Reed has nothing to do with cameras. The anti-gay people are still saying "Oh no! Harassment!"

      Listen, strange women lying in ponds distributing swords is no basis for a system of government.

      by Dbug on Sat Jan 16, 2010 at 11:40:42 AM PST

      [ Parent ]

      •  One of the weaknesses of the SCT position (4+ / 0-)
        Recommended by:
        sberel, Cassandra Waites, Clarknt67, Dbug

        which I think is one of the reasons they felt a need to defend it right now, is that they had to cite 1965 authority for the proposition that cameras might chill testimony, and the 1996 Judicial Conference policy is based on studies that occurred prior to the advent of the web, and even the modern prevalence of camcorders.

        In other words, there is no longer any valid empirical basis supporting to federal anti-camera policy.

        As you point out, the same fig leaf is held up in Washington even without cameras, and it proves their true interest.

        The irony that anti-gays, rather than gays, should worry about harassment just about explodes my brain.

  •  Why would the 1958 and 1982 rulings be relevant? (2+ / 0-)
    Recommended by:
    sberel, Dbug

    They both pertained to disclosure of lists held by private entities (NAACP and Socialist Workers Party respectively). The petitions placing Amendment 71 on the ballot are public records, held by the State of Washington. So the earlier rulings quite different from and (if you ask me) not applicable to the current case.

    Other than that, thanks for getting this issue out.

    •  in '58 and '82 (1+ / 0-)
      Recommended by:
      sberel

      both the naacp and swp argued that disclosure would put people in danger. If the protect marriage people argue that there are death threats, they could argue it's kinda, a little bit, slightly similar.

      I agree with you. Those cases don't really apply. But the pmw people might say they do. They'll find some idiot who got drunk in a bar and got punched in the face. Or someone who received a sarcastic email.

      Listen, strange women lying in ponds distributing swords is no basis for a system of government.

      by Dbug on Sat Jan 16, 2010 at 01:24:51 PM PST

      [ Parent ]

  •  Hackers assemble (0+ / 0-)

    We need to get our hands on the list, no matter what the legal authorities say.

    It must exist somewhere, so we need a hero to go get it and put it online.

    If SCOTUS rules the wrong way, we must tell them to go fuck themselves. This is a war for civil rights. We will do whatever it takes.

    Is it not written "There's a lot goes on we don't get told."? (Lu Tze)

    by MakeChessNotWar on Sat Jan 16, 2010 at 01:00:36 PM PST

  •  3 things should be pointed out (3+ / 0-)
    Recommended by:
    sberel, Clarknt67, Dbug

    three additional items to add to your excellent diary.  

    first, this isn't the first time that names of petition signers would be released to the public.  the papers sometimes make it sound like "the gay" have dreamed up some novel way of annoying the anti-equality crowd, but the fact is that the names from numerous prior petitions have been released to the public.

    second, the organization behind any referendum or initiative is allowed to utilize the names and addresses on the petitions in any way they see fit.  in fact, they can rent or sell those lists, and certainly use them to build their own org's database.  Protect Marriage Washington asked for people's email addresses on the petition (not required by law), so to the extend people gave them, they currently have sole use of that information.

    third, news outlets fail to recall that the anti-gay prop 8 people used public information on "no on 8" donors to try to blackmailthem into giving to the "yes on 8" campaign!  for some reason the few in the press ever vet the integrity of the anti-gay crowd when "those gays are scaring me!" accusations are being made.

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