Last week, the U.S. Supreme Court rejected an application by Protect Marriage Washington to block the names of its supporters from being open to the public.
The case relates to Referendum 71, an unsuccessful attempt in 2009 by opponents of gay marriage to repeal Washington's "everything but marriage" law, which gives domestic partners almost all of the same rights as married couples. Backers of R-71 were able to get the measure on the ballot, but voters upheld the law 53%-47%.
Since the vote, PMW has been fighting the Secretary of State's release of the names of the 137,000 people who signed the R-71 petition, arguing that it violates the signers' First Amendment rights. "A reasonable person would conclude that if he speaks up about traditional marriage in Washington, he risks facing a reasonable probability of threats, harassment, or reprisals and, therefore, his speech is chilled," PMW wrote in an appeal to the 9th Circuit.
The initial filings by PMW in District Court cite alleged threats against supporters of traditional marriage, like in one case where "a militant homosexual group took over a church service while it was in progress, while two women kissed each other near the podium." Another case cites a group called Bash Back!, which allegedly took credit for gluing the doors shut on an LDS Church as a retaliation for Prop 8.
The case has been making its way through the court system over the past year, with the Supreme Court initially ruling in June 2010 that the names should be made public. But SCOTUS kicked the case back down to District Court Judge Benjamin Settle, who was left to determine whether the court could block the names from being released if PMW could prove it warranted an exception to the Public Records Act as "a fringe organization with unpopular or unorthodox beliefs or one that is seeking to further ideas that have been 'historically and pervasively rejected and vilified by both this country's government and its citizens.'" In the past, groups like the NAACP and the Socialist Worker Party have received this type of exemption.
Settle ruled in October that the group did not prove that it needed this exemption. Protect Marriage Washington "has not provided competent evidence that it is in any material way similar to the organizations, groups, or parties who have received the as-applied exemption in the past," he wrote. "Instead, the evidence before the Court logically leads only to the opposite conclusion," and witnesses "only supplied evidence that hurts rather than helps its case," Courthouse News reported.
Among those witnesses was a former Republican candidate for state legislature, Elizabeth Scott, who said she had received death threats after giving an interview in which she backed repealing domestic partnership laws. But Settle determined that "other than speculation, Scott does not attribute to R-71 this death threat or any other incident that she claimed could be considered harassment." Another witness, Gary Randall, head of the Faith and Freedom Network, claimed that a blog made death threats against him, though according to court documents he "finally [conceded] that no actual death threat was made on the website."
Protect Marriage appealed to the 9th Circuit Court of Appeals, which is currently reviewing the case. But in the meantime the group has sought an injunction against the state's release of the names, pending the 9th Circuit's ruling on the merits. So far, Settle, the 9th Circuit, and now the Supreme Court have rejected PMW's requests for an injunction.
James Bopp, Jr. argued to TPM that "the lower courts have erroneously said that only fringe groups can get the exception. Actually, any victim of harassment can get it. We expect the appellate court to get this right."
You can currently buy a DVD of the names from the state archives office for $15, and according to Brian Zylstra, deputy communications director for Washington Secretary of State Sam Reed, only 34 copies had been sold as of mid-October when the injunction was lifted. "The names of people who donated money to the R-71 campaign have been posted on the PDC's website since 2009 and we are not aware of any threats or harassment in the 2.5 years since those names have been publicly available," Zlystra told TPM. "We are not aware of any reports of threats or harassment due to the release of the petition images."
Referendum 71 is just one of several (so far unsuccessful) efforts by anti-gay marriage groups to keep supporters' anonymity.
In California, U.S. District Judge Morrison England rejected an effort by Prop 8 proponents to keep its members and contributions secret. ProtectMarriage.com and the National Organization for Marriage had presented 58 declarations that alleged Prop 8 supporters had received death threats and were harassed, in violation of their First Amendment rights.
"Absent the prospect of protection in future cases, I think the whole idea here by the homosexual lobby is they now have a threat," Bopp said of the case in California, which he is also spearheading. "They announced months before the (Washington) petitions were submitted that they were going to seek those names and put them on the Internet. So they already know they've got a weapon of intimidation, and without the courts' protection, they'll continue to use it."
Meanwhile in Minnesota, a group called the Minnesota for Marriage coalition is fighting against state rules that require donors to be disclosed, based on the state's new donor disclosure rules signed into law by Tim Pawlenty in 2010. The group is pushing for a 2012 constitutional amendment that would define marriage as between a man and a woman, but it objects to new guidelines put forth by the Minnesota Campaign Finance and Public Disclosure Board.
Tom Prichard, president of Minnesota Family Council, told the board in June that "the concern is harassment, property damage, a chilling effect. If I know I have to disclose my name, I'm not going to get involved with the Minnesota Family Council."
According to the American Independent, NOM has also mounted unsuccessful challenges to disclosure laws in Iowa, Maine, New York and Rhode Island.