Privacy and Petitions

After the 9th Circuit Court of Appeals ruled against keeping petition signers in the State of Washington private, the Supreme Court of the United States is considering the case, in which backers of a ballot initiative to repeal a domestic partnership law want to keep signers of petitions private, citing harassment. The Los Angeles Times editorial board wrote about certain aspects of the oral arguments.

We don't often agree with Supreme Court Justice Antonin Scalia, but he had it exactly right when he chastised supporters of an anti-gay rights ballot initiative for trying to keep their identities secret.

Notice how they characterize it as "anti-gay rights", even though people may be supporting the repeal of the domestic partnership law for the sake of defending marriage from incremental counterfeiting. Also notice that people like the editorial writers call domestic partnerships "gay rights" when they think it is the "best" a state will do and yet "unacceptable bigotry" when they think the state could possibly have neutered marriage instead.

Which is it?

"The 1st Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate or to take part in the legislative process," Scalia told a lawyer for a group that unsuccessfully sought to overturn the state of Washington's domestic partnership law.

Isn't voting on an initiative taking part in the legislative process? Should ballots on initiatives no longer be private?

Scalia's colorful comments during oral arguments last week focused on a key distinction between signing a petition to put an issue to the voters and casting a secret ballot.

And what is that distinction? What makes the difference? Where is the line drawn, and why? I do tend to favor more transparency, but I do not think equal protection under the law is happening when it comes to harassment.

[More after the jump.]

Unlike California's public records law, Washington's version doesn't make an exception for ballot signatures.

So, it is okay to keep the signers private in California? Somehow, I think this editorial board would say no.

We hope that the eventual opinion reflects one of Scalia's other observations at oral arguments: "You know, you can't run a democracy this way, with everybody being afraid of having his political positions known."

Yes, but you see, in a lot of places in this country, despite the freedoms of religion and speech, people are legally harassed and fired for a political position in favor of protecting marriage or judicial restraint, while someone advocating to neuter marriage is legally protected because they claim it is tied to them being attracted to someone of the same sex. Law enforcement is ordered and funded to aggressively pursue charges against those who commit assault and vandalism apparently because of the victim's sexual orientation, but not if the victim is targeted because their religious or political convictions lead them to defend marriage.

I suppose one could make the argument that their sex or sexual orientation compels them to defend marriage, but will law enforcement and the courts take that seriously and aggressively prosecute harassment? Why is asking a coworker on a date or offering a compliment actionable harassment, but not harassment based on their support of marriage?

If the folks in the State of Washington lose this one, I suggest recruiting abortionists as petition gatherers. This will absolutely guarantee privacy, and anyone hostile who gets near one will face a federal case.

Seriously, marriage defenders could respond in kind, "reaching out" to those who back marriage neutering legislation, the way they have reached our or are seeking to reach out to marriage defenders. (After all, isn't that why they want names?) The problem is that defenders of marriage are more likely to be law-abiding, civil, tolerant, and have families to tend to, while those seeking to neuter marriage are more likely to have the time and inclination to try to intimidate people. In California, nobody feared publicly stating their opposition to the California Marriage Amendment, while supportes of the amendment were afraid or had reason to be afraid - and yes, it was fear, not shame - fear of unstable, intolerant, and powerful people, not fear of having their covictions known.