Referendum 71 case has implications for future free speech
Referendum 71 takes center stage at the U.S. Supreme Court Wednesday. Guest columnists James Bopp Jr. And Scott F. Bieniek write the court's decision could impact how, or even if, citizens ever speak on a controversial issue in the future.
Special to The Times
IN 2008, California voted to define marriage as between one man and one woman. The election was plagued by threats and intimidation levied against supporters of traditional marriage, and the harassment was facilitated by a law requiring contributors of $100 or more to publicly disclose their names, addresses, occupations and employers.
This personal information was even combined on the Internet with maps, providing would-be harassers with directions to supporters' homes. And the retaliation was as much about the next vote on same-sex marriage as the election in California.
Tomorrow, the Supreme Court will consider a case involving that next vote. The case, Doe v. Reed, involves a Washington referendum to repeal a domestic-partnership law. 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 their elected representatives.
Rather than embrace the opportunity to publicly debate the merits of the domestic-partnership law, opponents vowed to obtain copies of the petition, hoping to place the names and addresses of the signers on the Internet to encourage "uncomfortable conversations." After what transpired in California, it is clear these are confrontations, not conversations, and that they chill political speech. And the clear goal was to prevent the debate from even occurring.
After expressing reservations that petitions could be used to retaliate against petition signers, Secretary of State Sam Reed agreed to become a willing participant in such campaign tactics by ruling that the state Public Records Act required disclosure of the petitions. The decision came as a surprise because petitions have traditionally been exempt from public disclosure. More than 1,100 petitions have been filed with the secretary since the law was enacted in 1972.
In 2006, Reed became the first secretary to release copies of petitions and Referendum 71 would be only the ninth petition released pursuant to the law, or otherwise. Only an emergency order from the U.S. 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 the state constitution. Their signatures represent 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 who cast ballots 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. The case is about the right of everyone to speak freely on the most salient 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 who sought to start the conversation are simply irrelevant to that discussion.
Fittingly, Wednesday's case is Justice John Paul Stevens' last as a member of the U.S. Supreme Court.
After an appropriate celebration of his storied career, the attention will turn to the individual nominated to fill his vacancy, and no doubt, the nominee's record. The question in Doe v. Reed is, should the fact that the nominee signed a petition be part of that record? And should it be part of your record the next time that you apply for employment? If the First Amendment means anything, the answer is no.James Bopp Jr., left, and Scott F. Bieniek are attorneys at Bopp, Coleson & Bostrom. Bopp will argue on behalf of Protect Marriage Washington before the Supreme Court Wednesday.