HRC Blog

EQUALITY IN THE COURTS: Supremes to Hear Ref. 71 Petition Disclosure Case

In the Equality in the Courts blog series, HRC attorneys discuss news and break down the legal theories in Supreme Court and federal court cases. This post is from Mike Wilson, HRC’s Staff Counsel for Special Projects: On January 15, 2010, the U.S. Supreme Court agreed to hear the case of Doe No. 1 v. Reed, which involves whether a state can require that information about the signers of a petition for referendum be released to the public. The case arises from Washington, where in 2009 anti-equality forces were gathering signatures to place the “everything but marriage” domestic partnership law that was passed by the legislature in May on the ballot. In November 2009, Referendum 71 was approved by the voters by a margin of 53-47%, preserving the domestic partnership law. But before Referendum 71 was passed, pro-equality supporters questioned whether the supporters of the petition had acquired the necessary number of signatures that is required to put the measure on the ballot. These supporters requested a disclosure from the Washington State government under the Washington Public Records Act, which includes a section that declares that referendum petitions must be disclosed as they are a matter of public record. The signers of the petition alleged that confidentiality of the petition records was necessary because some requesting parties were only interested in taking the names and personal information of petition signers in order to harass and intimidate them. They allege that they have a First Amendment right to privacy in their political speech in this circumstance. LGBT groups, in conjunction with the Washington State government, have argued that such political transparency is necessary. Not lost on LGBT groups is the irony of anti-equality forces relying on a “right to privacy” for political speech of a public nature, when these same groups objected to the Supreme Court’s finding of a “right to privacy” in overruling sodomy laws in Lawrence v. Texas. At the district court in Washington, the petition signers successfully received a temporary restraining order that prevented the state from releasing the information. On appeal to the U.S. Court of Appeals for the Ninth Circuit, the district court’s decision was reversed; however, before the decision could go into effect, Justice Kennedy stayed the order of the Ninth Circuit until the Supreme Court could review the decision. This decision to stay the order was approved by the Supreme Court 8-1 so that the Court could decide whether it wanted to review the case. Today’s grant of certiorari means that the Court has indeed decided to review the case. Doe No. 1 v. Reed is the third instance where the Supreme Court has tackled an issue weighing on LGBT rights in the last several weeks. First, the Supreme Court accepted review of the Ninth Circuit’s decision in Christian Legal Society v. Martinez. And just earlier this week, the Court blocked the live airing of the Prop 8 trial in San Francisco, Strauss v. Horton, stating that publicity from media exposure would “irreparably harm” Prop 8 defenders.

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