The U.S. Supreme Court has rejected a request by Protect Marriage Washington that the state be blocked from releasing further copies of Referendum 71 petitions while PMW appeals an earlier Federal District Court decision that ordered their release.

The request had been made to U.S. Supreme Court Justice Anthony Kennedy who apparently referred it to the entire Court. Justice Alito alone would have granted an injunction and Justice Kagan “took no part in the consideration or decision”, making this a 7-1 decision.

This means that we can once again release these public records,” said Katie Blinn, the state elections co-director.

In 2010 the Supreme Court ruled 8-1 against Protect Marriage Washington in an earlier phase of the same case, Doe v. Reed. At that time, PMW was trying to strike down all public records laws across the country that give the public access to initiative or referendum petitions once those petitions are submitted to the state. In the current phase of the case, PMW is asking for a special exception to keep only R-71 petitions secret.

Referendum 71 was the 2009 ballot measure that PMW used to try to repeal Washington’s domestic partnership law. In November, 2009 over 53% of the Washington electorate voted to approve Referendum 71, making Washington the first state in the nation to vote affirmatively in support of comprehensive relationship recognition for LGBT families.

In the Supreme Court’s 2010 opinion on the first phase of the case, Justice Antonin Scalia made this now-famous statement:

There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is the price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.

Undoubtedly with the Supreme Court’s 2010 ruling in mind, Federal District Court Judge Benjamin Settle rejected in his October 17th ruling PMW’s claims that R-71 signatories needed a special exemption from the state’s Public Records Act (PRA). Rejecting PMW’s claims that R-71 signatories would be threatened or harassed if their names became public, he said:

Doe has only supplied evidence that hurts rather than helps its case. … Doe asked the Court to grant an exemption to the PRA based on a few experiences of what Doe believes constitutes harassment or threats, the majority of which are only connected to R-71 by speculation. If Doe’s position were correct, then . . . anyone could prevail under such a standard in the context of referenda, which are often heated, regardless of the subject matter.

The question remains whether PMW will proceed with their plans to appeal Judge Settle’s ruling in the 9th Circuit Court of Appeals. It would seem foolish, since after Judge Settle’s ruling dozens of sets of the R-71 petitions were released by the state to the public. Several sets of the petitions have since been posted online by members of the public and are therefore beyond the Court’s control. In addition, some Doe witnesses have outed themselves. And now, of course, the U.S. Supreme Court itself has left the spigot open.

The list of Doe plaintiffs and witnesses includes some anti-gay activists whose names Blend readers will recognize, including Pastor Ken Hutcherson, PMW spokesperson Pastor Gary Randall, former legislative candidate Elizabeth Scott (endorsed by supposedly “not anti-gay” Republican gubernatorial candidate Rob McKenna), state Senator Val Stevens, PMW’s campaign manager Larry Stickney, PMW spokesperson Robert Struble, Ronald Perkins, and alleged fraudsters Pastors Roy Hartwell and Valerie Hartwell.

PMW is affiliated with the anti-gay hate group National Organization for Marriage. Doe v. Reed is just one in a string of NOM-linked cases seeking — unsuccessfully — to use ballot measures and legislative campaigns about domestic partnerships or marriage equality as vehicles for attacking campaign finance disclosure and other open government laws. Recent articles describing related NOM-linked cases can be found here and here.

Laurel Ramseyer

Laurel Ramseyer