Friday, June 25, 2010

Supreme Court Rules in Doe v. Reed - A Big Deal?

The Supreme Court yesterday handed down its opinion in Doe v. Reed, the First Amendment case that asked whether the names of individuals who signed petitions in Washington's Referendum 71, which would put same-sex marriage on the Washington ballot, may be released under the state's public disclosure law.

There have been plenty of stories about the decision, some of which are linked atSCOTUSBlog. SCOTUSBlog's Tom Goldstein also has an excellent summary of the decision, which held 8-1 (with Justice Thomas dissenting) first that referendum signatories do not have a right to keep their identities private. The Court also held (and this is where some other blogs are missing the holding of the decision) that in each situation a court should consider whether the specific circumstances of the given referendum do in fact call for anonymity (when the purpose and effect of the disclosure of the names would be to facilitate harassment). So, are the names of those that signed Referendum 71 being released? We still don't know - the Court remanded that question to the lower courts to apply the test to this particular case.

So what is the impact of this case on gay rights or gay marriage? Quite frankly, I don't see there being all that much. This is, first and foremost, a First Amendment case. The main issue here was whether a state law requiring public disclosure of certain records, including referendum petitions, was subject to First Amendment scrutiny. The fact that the referendum at issue was to put marriage equality up for a vote, and that the individuals whose identities would be disclosed were opposed to marriage equality, is just a side issue that implicates the analysis that will go to the lower courts. The referendum could well have been about medical marijuana or term limits.

So why is the decision such a big deal for LGBT rights? My first reaction - it isn't. The analysis for whether the disclosure of those that signed Referendum 71 would facilitate harassment is unofficially discussed in dicta in the opinion (and outlined by Arthur Leonard here), and will be re-addressed by the lower courts. That analysis will have an effect on how later courts address similar situations, but even then each case will be specific to the facts of that particular time and state.

But on another level there is the feeling that the Supreme Court made the decision today to refuse to allow those who would deny rights to others to hide behind a referendum. And that is important.

So maybe this is more about the sentiment - we finally got a win! Or at least it feels like it.

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