Do Gay Rights Trump Privacy Rights?

Monday, May 17th, 2010

Written By Cliff Dunn

On April 28, the U.S. Supreme Court took up the question of whether the Constitution offers protection to persons who fear harassment because they signed a referendum petition.

Voters in Washington State, who object to the disclosure of their signatures on petitions that challenge a gay-rights law, are arguing, in the words of their attorney, that "the First Amendment protects citizens from intimidation resulting from compelled disclosure of their identity."

Those same voters who oppose gay rights protections may have been surprised that some of the strongest questions challenging their case came from the conservative lion of the High Court, Justice Antonin Scalia.

Said Scalia: "The fact is that running a democracy takes a certain amount of civic courage. And the First Amendment does not protect you from criticism or even nasty phone calls."

Adding to the sense of surrealism, Scalia joined liberal Justices Ruth Bader Ginsburg and Sonia Sotomayor as the primary inquisitors of attorney James Bopp Jr., who represents the Washington State voters who opposed that state's domestic partners law but are now battling to maintain their privacy.

The State of Washington was represented by its Attorney General, Robert McKenna, who said the state had a legitimate interest ensuring that the petition process is open to the public.

Chief Justice John Roberts Jr. and Justice Samuel A. Alito Jr. saved their toughest questions for McKenna. Alito inquired if the state could also force a petition-signer to state his or her ethnicity or religion.

"I would like to know how far you want to go," Alito asked. McKenna answered that he didn't think the state would have legitimate interests in either instance.

Wilton Manors-based attorney George Castrataro, whose practice often deals with Constitutional matters, thinks the High Court has some tough navigating to do.

"There is a difficult balance between protecting the public's right to information while also protecting individual privacy in political speech and the political process," Castrataro said.

"In this case there is an added challenge as to the need to verify and ensure the accuracy of the referendum," he added.

The case arose out of a Washington State law passed in 2009 that allows gay couples and individuals older than 65 to register as domestic partners.

Known as the "everything but marriage" act, its opponents sought its repeal and gathered enough signatures to put a repeal referendum on the ballot; the law was upheld by voters in November.

During an often acrimonious repeal campaign, groups supporting the law requested the names of signatories to the petition under the state's public records laws.

Those who signed the petition persuaded a federal court to forbid the disclosure of names, saying it violated their constitutional rights to engage in anonymous political speech. They also said the requirement would open them to harassment.

Does privacy trump civil rights? Says Castrataro: "I believe that the political process should be reasonably open to review and verification. I do not believe however that openness and verification in the political process should be extended so far as to publish voter decisions."

Indeed, the future use of such a precedent has Castrataro and other legal experts concerned.   "While the case may favor LGBT rights, future application of the public disclosure logic could result in harm if not carefully evaluated," he reasoned.

Over the objections of Justice John Paul Stevens, the Supreme Court agreed that the injunction should remain in place while the justices consider the case, John Doe v. Reed.

Hanging over this case is California's Proposition 8. In that state, individuals who donated to the referendum to overturn the state Supreme Court decision that legalized same-sex marriages said they were harassed, threatened, and experienced economic hardships as a result.

Chief Justice Roberts wanted to know whether "having your name revealed on a petition of this sort might have a chilling effect on whether you sign it."

McKenna, representing Washington State and the gay rights groups wanting access to the names, said the interest was different and compared the disclosure requirements to having to register with a political party or revealing whether you have donated to a political campaign.

Bopp, the attorney for the petitioners, said Washington State has a right to the information for the purpose of validating the petitions.

But he argued that the public shouldn't have access to it, and said the only reason people would want the information was to intimidate petition signers.

Scalia, who is known for his urbane wit and humor, drew laughter from the gallery, saying "Oh, this is such a touchy-feely, oh, so sensitive." He continued: "You know, you can't run a democracy this way, with everybody being afraid of having his political positions known."

But Bopp shot back. "I'm sorry, Justice Scalia, but the campaign manager of this initiative had his family sleep in his living room because of the threats."

"Well, that's bad," Scalia answered. "The threats should be moved against vigorously, but just because there can be criminal activity doesn't mean that you have to eliminate a procedure that is otherwise perfectly reasonable."

Cliff Dunn has over 20 years of broadcasting and journalistic experience. He lives in Wilton Manors.