On Wednesday came oral arguments in the Supreme Court case of Doe v. Reed, which deals with some of the same First Amendment issues as the divisive Citizens United case but falls along slightly different political lines.
Anti-same-sex marriage advocates in the state of Washington signed a petition to put a marriage equality law to a referendum. Same-sex marriage advocates want the names on that petition made public, but Project Marriage Washington, the group behind the referendum challenge to the law, objects. They hold that the signatures have traditionally been confidential and should remain that way, so signatories do not have to worry about retaliation.
So what's the counterargument, and what are the issues at stake? Here's how legal journalists, activists, and at least one Supreme Court justice see the case fitting into broader legal and political themes.
- Two Ways of Looking at This "On the one hand, individuals who sign petitions to get a policy measure on an election ballot are legislators, in a sense," explains the indispensable Lyle Denniston at SCOTUSblog. Legislators' votes aren't supposed to be anonymous. "But, in another sense, [signatories] are like voters themselves, signing a petition as if they were casting a vote for a policy measure, and thus expressing a political belief." Votes in this country are anonymous. This is an important case, he notes: "About half of the states--twenty-four in all--now have a process for citizen-driven legislation, through an initiative process or a referendum process."
- The Tie-In to Campaign Finance The case is "also a warmup for cases coming down the pipeline in California and Maine over whether disclosing the names of campaign donors violates free speech rights by exposing contributors to harassment and other unpleasantness," adds Mother Jones's Stephanie Mencimer. "Together, these cases form a backdoor assault on one of the most accepted tenets of clean elections: that the public should be able to see where the money is coming from."
- A Deliberate Distraction Evan Wolfson, Executive Director of Freedom to Marry, argues that distraction from the actual issues at hand--"the merits of gay people's freedom to marry"--is an acknowledged part of the Proposition 8 type of campaign. "The latest round in this diversion strategy has been to claim that the perpetrators of the anti-gay ballot-measures are somehow themselves the victims of a concocted 'harassment' campaign."
- Disclosure Discourages Democratic Participation, protests campaign finance reform expert Dick Carpenter in The Wall Street Journal. "My research reveals that forcing people to comply with disclosure rules in order to exercise their First Amendment rights means many will stay silent or uninvolved--with little or no benefit to the public. Mandatory disclosure laws don't inform voters; they squelch speech."
- Democracy Requires Courage Lyle Denniston reports Justice Scalia's scathing response during the oral argument to those against disclosure. Though Scalia is widely regarded as a solid conservative, he shows today that "conservative" with regard to the Constitution does not mean support for every socially conservative argument to come through the court:
Declaring that the rough-and-tumble of democracy is not for the faint-hearted, what Scalia referred to as the "touchy, feely" sensitivity of some political activists, the Justice said "you can't run a democracy" with political activity behind a First Amendment shroud. "You are asking us to enter into a whole new field," Scalia told James Bopp Jr., the lawyer for Washington State signers of an anti-gay rights petition. Politics, the Justice went on, "takes a certain amount of civic courage. The First Amendment does not protect you from civic discourse--or even from nasty phone calls."