The Supreme Court has ruled in Doe v. Reed that the names of people who signed petitions in an attempt to overturn a law providing expanded rights for same-sex couples in the State of Washington must be made public. In this 8-1 decision, in which the Chief Justice delivered the opinion of the Court, with Justice Thomas dissenting, the Court rejected the Petitioners’ First Amendment argument that signing petitions to obtain a referendum is constitutionally protected political speech which requires anonymity.
A group called Protect Marriage Washington sought to shield the names of the 138,000 people who signed petitions to obtain a Referendum on what they labeled the “everything but marriage” same-sex domestic partner law. In November, voters in the State of Washington upheld the new statute through the referendum. The Petitioners argued that publication of the names would subject the people who signed the referendum to potential harassment. The State argued that there were laws in place to protect people who might be threatened and that Open Government required transparency regarding who was behind a proposed change in state law.
In October 9, 2009, the United States Circuit Court of Appeals for the Ninth Circuit overruled a Seattle federal district court opinion shielding the petition signers’ identity, finding that signing a petition in public is not an anonymous activity, that other petition signers could see their names and that government officials would be verifying their identity. The Supreme Court stayed that lower court ruling.
Today’s ruling rejected the Petitioners’ broad challenge to the Washington statute under the First Amendment but left open the possibility of a successful challenge to the law “as applied” if specific facts warrant, an issue that may be pursued in the district court.
The case has potential significance not just on the transparency of the referendum process, but also for other “open government” laws like the disclosure of who contributes to political campaigns