Preserving Marriage, Protecting Families

Posted April 24, 2010:  Will the Court take a step to remove threats and intimidation from the political playbook?

By: James Bopp, Jr. and Scott F. Bieniek

In November 2008, Californians went to the polls and voted in favor of a referendum to define marriage as between one man and one woman. Instead of celebrating the victory, supporters of the referendum became targets of an intense backlash that included death threats and property damage. The retaliation was enabled in part by a California law requiring contributors of as little as $100 to publicly disclose their names, addresses, occupations and employers. The information, which is made available on the Internet by California, was combined with an online map, providing would-be harassers with directions to supporters' homes. And the retaliation was as much about trying to influence the next vote on same-sex marriage as it was about anger over what had just occurred in California.

On Wednesday, April 28, 2010, the Supreme Court of the United States will consider a case that can begin to put an end to such campaign tactics. The case, Doe v. Reed, involves that next vote, a referendum from the state of Washington to repeal a statute granting domestic partners the same rights and responsibilities as married couples. Protect Marriage Washington, the group that sponsored the referendum, submitted a petition containing the names, addresses, and signatures of more than 138,000 voters who felt the issue was too important to leave to elected representatives.

Rather than embrace the opportunity to publicly debate the merits of the recently enacted statute, opponents threatened to make use of Washington's public records law to access copies of the petitions in an effort to prevent the debate from even occurring. The opponents hoped to place the names and addressees of the petition signers on the Internet to encourage "uncomfortable conversations." But after what transpired in California, it is clear that these are confrontations, not conversations, and that they chill political speech.

Petitions have not been routinely released throughout Washington's history. Sam Reed became the first Secretary of State to release copies of petitions when he released two initiative petitions in 2006, and R-71 would be only the ninth petition of more than 1,100 petitions filed with the Secretary of State since the public records act was adopted in 1972. Now, he is willing to allow access to petitions knowing that they will be used to harass and intimidate individual citizens. Protect Marriage Washington refused to let harassment and intimidation influence the debate about an important social issue and obtained an emergency court order to prevent the release of the petitions. The Ninth Circuit Court of Appeals lifted that order, and only an emergency stay by the Supreme Court on the eve of the election prevented opponents from using tactics usually reserved for the schoolyard bully.

Washington argues petition signers are like legislators, and because there is no right to legislate in secret, petitions must be released. But petition signers are not elected representatives, they are sovereign citizens, exercising a right they reserved for themselves in their state constitution. The petition is nothing more than a statement that the issue is too important to be left to the men and women serving in the state house. And petition signers are no more legislators than the 1.8 million voters that cast a ballot for or against the referendum at the ensuing election. The entire process was good for Washington, and it would not have happened if opponents had been allowed to harass and intimidate petition signers.

The case is a blockbuster because of the social issue, but Doe v. Reed is bigger than same-sex marriage, Protect Marriage Washington, or the 138,000 individuals that signed the petition. The case is about the right of everyone to speak freely on the most important and controversial issues facing our nation, and to do so free from threats and intimidation. And we all benefit when the discussion of those issues is uninhibited, robust, and wide-open. The names of the 138,000 individuals that sought to start the conversation are simply irrelevant to that debate.

Fittingly, Wednesday's case is Justice Stevens' last as a member of the Supreme Court. In a few weeks, the attention will turn to the individual nominated to fill his vacancy, and no doubt, the nominee's record. The question is, should the fact that the nominee signed a petition thirty years ago be part of that record? And should it be part of your record the next time that you  apply for a job? If the First Amendment means anything, the answer must be no.

Mr. Bopp and Mr. Bieniek are attorneys at Bopp, Coleson & Bostrom. Mr. Bopp will deliver the oral argument on behalf of Protect Marriage Washington before the Supreme Court.