Privacy v Transparency, and the Battle Over Equal Marriage

If you sign a petition supporting a controversial ballot referendum should your name and address be publicized (posted online) in the interests of transparency?  Do you have a right to privacy or relative anonymity when you engage in political advocacy that trumps the public right to know your identity?  These difficult, increasingly familiar questions are at the heart of a lawsuit brought by Protect Marriage Washington, which has just won a temporary restraining order enjoining the Washington Secretary of State from publishing the names and addresses of people who signed a petition putting the state domestic partnership law on the ballot.  (The law extends to domestic partners all the rights of married couples under state law.)

Protect Marriage Washington alleges that people who signed the referendum petition in support of repealing the law are likely to be harassed and intimidated by the law's proponents if their identities are not protected.  "The State cannot allow the release of the names on the Referendum 71 petition when the purpose is to harass and intimidate people who are merely exercising their right to speak," lead counsel James Bopp asserted in a July 28th press release.

Are supporters of the domestic partnership law generally intent on harassing their opponents?  Not according to Josh Friedes, campaign manager for a coalition of supporters, Washington Families Standing Together (WAFST), which takes no position on the litigation to enjoin publication of the petition names (and notes that some domestic partners are "troubled" that the domestic partner registry is available online.) Friedes says that the controversy over publicizing the names began with a website (whosigned.org), posted by someone not affiliated with WAFST; he expresses frustration that a coalition of numerous mainstream groups is apt to be blamed when "one individual puts up a website;" and he stresses the Coalition's concern that litigation over publicizing the petition names might "distract people from the fundamental issues" of fairness for domestic partners.

Personally I'm sympathetic to Friedes's position (I strongly support domestic partnerships and same sex marriage and contribute financially to gay rights groups and the equal marriage movement.)  But I don't consider the Protect Marriage Washington lawsuit frivolous or dismiss the concerns of people who signed the repeal referendum and oppose publication of their names.  Their fears are not unreasonable, or unprecedented. (Similar allegations of harassment followed passage of Proposition 8 in California.)  

The claim that publicizing the names of people who sign controversial petitions will chill political participation is not far-fetched or trivial.  The countervailing interest in transparency -- when it requires exposing private citizens (not public officials or organizational leaders) -- to public opprobrium for their political views, seems relatively weak by comparison.  Transparency is not an end in itself but a means of insuring accountability - of public officials and, arguably, public figures and movement leaders.  But why should ordinary, private citizens be held to account for their views in the public sphere?  If privacy rights sometimes conflict with free speech, they also enable it.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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