Washblog

SCOTUS leaves door open to Doe plaintiffs to return to District Court for a Count II decision

The Supreme Court has left the door open for the Doe plaintiffs to return to US District Court for the purpose of adjudicating Count II from their complaint.  Count II alleges that, as applied to the Referendum 71 petition specifically, the Public Records Act is unconstitutional because "there is a reasonable probability that the signatories...will be subjected to threats, harassment, and reprisals" if the Referendum 71 petitions are made public.

This is in no way a validation of PMW/NOM's wild claims of imagined persecution, but rather is a procedural step made necessary because the District Court judge issued then extended a Temporary Restraining Order preventing the release of the Referendum 71 petitions without holding a hearing to examine the alleged evidence.  The Supreme Court couldn't evaluate a record that doesn't yet exist and thus didn't rule on Count II.  Yet a majority of justices did indicate skepticism regarding the plaintiff's chances of success on Count II.  Tom Goldstein, publisher of SCOTUSblog.com, put it this way:

The plaintiffs, having lost their broad facial claim, thus also face significant difficulty in prevailing in their remaining challenge to the disclosure of their identities with respect to this specific referendum.  Justices Thomas and Alito are obviously sympathetic to that claim.  But five Justices - a majority of the Court - take the opposite view; Justice Scalia rejects it outright and the four more liberal members of the Court express significant doubts about the claim's viability.

Although PMW is using the wrong kind of alleged evidence for its Count II challenge (alleged harassment of campaign donors from California instead of referendum petition signers from Washington), it's not like PMW hasn't also tried to keep its donors secret.  It's just that they failed.  The Washington Public Disclosure Commission (PDC), which posts the names of campaign donors online, said no to PMW when PMW tried last summer to hide the identities of their Referendum 71 donors.  PMW was unable at the time to provide the PDC with any evidence that any donors had been harassed because their names were reported by the PDC.  By now the names of PMW's donors have been public for about a year and none have reported harm as a result.

Doe plaintiffs have failed to identify even a single case -- anywhere, ever -- in which a voter signing a petition has actually been subject to any form of harassment or intimidation as a result of public disclosure of that voter's signature, name and address on the petition.  Not surprising, since even scholars who study this sort of thing report:

[We] have been unable, after researching the public record and media accounts, to identify a single individual in the State of Washington who refused to sign a petition because of the possibility of having her name publicly disclosed or who claimed to have been harassed or intimidated as a result of such disclosure of his or her signature.

As for PMW's claims of harassment of their campaign manager or other campaign leaders, they are irrelevant because those are not petition signers and are in fact people who placed themselves in the public eye by debating WAFST's Chair Anne Levinson on tv and radio across the state.

Although ProtectMarriage.com v. Bowen has not yet gone to trial, District Court Judge Morrison C. England, Jr., has rejected Bowen plaintiffs' Motion for Preliminary Injunction, saying (emphasis added):

Because the Court finds very little chance of success on the merits of Plaintiffs' claims, because there is likewise minimal probability of the occurrence of irreparable harm to Plaintiffs or their contributors, and because the balance of interests, including the public's interest, weighs against it, Plaintiffs' Motion for Preliminary Injunction is DENIED.

They've got no evidence, and now their allies are bailing

The ongoing Family PAC v. Reed case is an attempt by Family Policy Institute of Washington (FPIW) to hide the identity of its future donors to anti-LGBT ballot measures.  Curiously, FPIW's executive director and the lead attorney on the case, Joseph Backholm, wrote a post titled "Does it Matter if Signatures are Released?" on FPIW's blog the day of the Doe decision:

In the coming months, a judge will determine whether the facts surrounding Referendum 71 justify keeping the signatures private.

While the final answer has not been given, this might be the time for those who signed Referendum 71 to ask themselves, "Does it really matter?" ...

At this moment, those who oppose the redefinition of marriage are in the awkward position of claiming that they will be less likely to speak up if their names are made public. I can't help but wonder how John Hancock would feel about that argument.

Of course, violence and threats of violence have no place in civil public discourse. To the extent that it has occurred or does occur, it should be dealt with. Still, my true concern is that those who claim to be commitment to timeless truth would wilt at the mere threat that their position would become public knowledge. Didn't a wise man once say something about not hiding your candle und a bushel?

If mean-spiritedness is sufficient to silence those of us who say we are committed to Truth, principle, freedom, and the family as God designed it, then I submit to you that we were never really committed to those things. Instead, we just claimed to be, while committing principally to something else; perhaps our own comfort.  ...

In the coming months we will learn whether the names on these petitions will be made public or not. Still, those who stand to be "outed" need to ask themselves if it really matters. For the sake of our future, I sure hope not. If it does, then we have already lost.

Joseph Backholm's backflip is stunning and raises the question: Can the alleged threats to R-71 petition signers and campaign donors be genuine if this (former?) major proponent of secrecy now proposes that his supporters are merely concerned with "our own comfort"?  If the alleged threats were real and donors would be "subjected to deplorable acts" as a Family PAC document alleges, would Backholm be reminding his supporters not to hide their "candle under a bushel"?  Backholm's post is an admission that the NOM allies have been crying wolf and are now concerned that they have intimidated their own supporters into inaction.  

NOM isn't doing well in Washington. First they lost at the ballot box, then they lost in the Supreme Court of the United States. And now, besides losing the illusion that they have any evidence to support their legal cases, NOM's latest loss appears to be their former allies Joseph Backholm and Family Policy Institute of Washington. How many more will they go for?

Related:

• Breaking: SCOTUS to anti-gays - can't keep keep petitioner IDs private
  
• Protect Marriage Washington argues for petition signer privacy while infringing on it themselves
  
• Concerned Women for America in damage control mode after Doe v. Reed hearing
  
• Justice Scalia: "Democracy requires a certain amount of civic courage."
  
• Protect Marriage Washington impugns WA Secretary of State on eve of SCOTUS hearing
  
• Conservatives and progressives unite to defend Open Government
  
• I, Citizen Legislator
  
• Gary Randall makes puzzling claims about the Doe v. Reed lawsuit
  
• Challenge to Washington's Public Records Act to get hearing by USSC
  
• Iowa Rejects NOM-backed legislative candidate
  
• Larry Stickney's bid for Special Rights fails