HRC Blog

Supreme Court Expresses Skepticism of Anti-LGBT Group’s Anonymity Claims

Equality Courts The following post comes from HRC Assistant General Counsel Darrin Hurwitz:  Today, the U.S. Supreme Court heard oral arguments in Doe v. Reed, a case that arose out of the Referendum 71 fight in Washington last fall where opponents of equality were ultimately unsuccessful in rolling back the state’s “everything but marriage” domestic partnership law at the ballot box. The anti-LGBT group that proposed the referendum sued to hide the names of the petition signers responsible for qualifying the measure for the ballot. At issue before the Court is whether a state can require that information about the signers of a petition for a ballot measure be released to the public (more on the case here). In written briefs and in court today, Jim Bopp, a lawyer for Protect Marriage Washington, asserted that disclosure of the petition signers would subject them to harassment and perhaps even violence by supporters of LGBT rights. Earlier this month HRC joined an amicus brief that refuted the unsubstantiated and ridiculous argument that LGBT people, either in Washington in 2009 or in California during the Prop. 8 battle in 2008, engaged in a systematic campaign of intimidation of anti-equality groups and individuals. And the Center for American Progress noted yesterday that not only are these assertions by proponents of the two discriminatory ballot measures completely unfounded, but in fact “the LGBT community received much more harassment and intimidation in California during the Prop. 8 debate than any of the people opposed to marriage equality.” In today’s oral argument the Court also seemed dubious of the claims made by opponents of LGBT rights. Bopp found an unlikely skeptic in Justice Antonin Scalia, who seemed troubled by the argument that anti-LGBT petition signers should be shielded from public view. “Running a democracy takes a certain amount of civic courage,” noted Scalia, who told Bopp that “the First Amendment does not protect you from civic discourse – or even from nasty phone calls.” After the oral argument, law professor Rick Hasen asks why, if at least five justices including Scalia appear ready to reject the anti-LGBT group’s claims, did they decide to hear the case in the first place? “Perhaps [Scalia] did so to see if there was any real evidence of threats, harassment, etc.,” writes Hasen. “Once he was convinced that there was no evidence of such threats, he stood ready to reject Jim Bopp's pleas for anonymity.” A decision in the Referendum 71 case is expected by July.

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