Only Clarence Thomas Brave Enough To Protect Bigots from Angry Gays

Today’s Supreme Court decision in Doe v. Reed is worth knowing about, if you can bear with it. Corrections to what follow are welcome, and yes, I’ve omitted lots of the arguments in the interest of clarity. So! Last year in Washington State, the Governor signed into law a Senate bill that “ensures that under state law state-registered domestic partners are treated the same as married spouses.” Anti-gay marriage forces quickly organized to put up a ballot measure to undo it. They got 137,000 to sign the necessary petition; the secretary of state certified those signatures. And then, when the secretary of state acknowledged that he was bound by state law to release this as a public document upon request, he was sued by the anti-gay marriage creeps, on grounds that those signatures were First Amendment speech — and on the grounds that they’d be harassed for their speech. Things moved pretty fast.

A federal district judge granted an injunction to the anti-gay marriage creeps.

The state appealed to the Ninth Circuit.

The Ninth Circuit agreed the petitions should be released.

The anti-gay marriage creeps appealed to the Supreme Court.

This led into an interesting area! Is petition-signing speech? If it is, what is it saying?

In most cases, the individual’s signature will express the view that the law subject to the petition should be overturned. Even if the signer is agnostic as to the merits of the underlying law, his signature still ex- presses the political view that the question should be considered “by the whole electorate.” Meyer v. Grant, 486 U. S. 414, 421. In either case, the expression of a political view implicates a First Amendment right.

(That is from the syllabus, not the decision.) And:

According to plaintiffs, the objective of those seeking disclosure is not to prevent fraud, but to publicly identify signatories and broadcast their political views on the subject of the petition. Plaintiffs allege, for example, that several groups plan to post the petitions in searchable form on the Internet, and then encourage other citizens to seek out R-71 petition signers. That, plaintiffs argue, would subject them to threats, harassment, and reprisals.

And yet, the decision was 8 to 1 in favor of releasing the petitions. (In part because it sounds like the anti-gay marriage creeps did some bad arguing.)

But that brave “1” was Clarence Thomas.

He rejects the arguments that secret petitions should be available to the people. “We should not abandon those principles merely because Washington and its amici can point to a mere eight instances of initiative-related fraud.” A mere eight instances! You need at least 17 instances of fraudulent signatures to make the case, I guess.

THEN he calls that whole section irrelevant (he was just bringing it up for fun) and then he goes on for a while about how Washington State should make petition-signers public but do it by not making them at all public! The idea is they “could put the names and addresses of referendum signers into a similar electronic database that state employees could search without subjecting the name and address of each signer to wholesale public disclosure.” So, actually, still secret.

AND THEN. He concludes that there is a right to privacy in signing a petition for a ballot measure. He says the Court’s “conclusion rests on the premise that some referendum measures are so benign that the fact of public disclosure will not chill protected First Amendment activity.” So, to not have secret petitions is chilling to speech.

And in the end, his historical example, maddeningly, of the sorts of people who would need privacy for their First Amendment activity of signing a petition? Lady suffragettes.