The Supreme Court of the United States struck a blow against civil liberties and transparency by not one, but two decisions protecting the privacy of those who don't believe in Equal Protection under the 14th Amendment. Ironic, non?
The Supreme Court on Friday intervened for the second time this week in a question of whether those who oppose expanding gay rights face threats and harassment by public disclosure of their views.
The court agreed to decide whether it was unconstitutional for the state of Washington to make public the names of 138,500 voters who signed a petition for a referendum on whether to overturn a state "everything-but-marriage" law. The statute expanded rights for those who entered into domestic partnerships, both homosexual and heterosexual.
The group that championed the referendum said rival organizations planned to make the petitioners' names available on the Internet and subject them to "threats, harassment and reprisals." Those groups denied such intentions, and the state said its public-records law required disclosure of the names as part of the transparency that comes with democratic participation.[..]
But the petition-signers' names have not been disclosed. The Supreme Court blocked the release in October while considering whether the case presented a significant question about political speech. The U.S. Court of Appeals for the 9th Circuit said Washington's public-records law did not violate constitutional protections.[..]
The court earlier this week ruled 5 to 4 that a federal judge presiding over a trial in San Francisco contesting California's voter-approved ban on same-sex marriage may not transmit video of the proceedings to other courthouses. Proponents of Proposition 8 asked the court to act, warning of "harassment, economic reprisal, threat and even physical violence" against witnesses in the case if the video were widely distributed.
The conservative Christian group that started the petition drive in Washington is represented by James Bopp Jr., who has frequently challenged campaign finance laws before the Supreme Court. He told the justices in court papers the issue of whether confidentiality should be protected "is arising with great frequency across the country, as changes in technology have made it possible for individuals and groups seeking to prevent public debate from occurring to obtain the names and contact information of petition signers and post that information online to encourage harassment and intimidation."
Harassment and intimidation? You mean, like tying a homophobe to a fence post and beating him to death? Oh wait, it didn't happen that way, did it? It's not people who believe in equal protection that are advocating violence, you cowards, it's your group.
Worst yet, the decision--with more than a little whiff of the ridiculous "one off" justification of Bush v. Gore--signals exactly where SCOTUS is headed if this is appealed to the federal level:
Twice in the course of its 17-page opinion, the five-justice majority went out of its way to declare it was not ruling on the propriety of cameras in the courtroom. In another instance, the opinion digressed to recall that, when the trial of the Oklahoma City bombers was moved to Denver, Congress acted to ensure that the survivors and victims' families unable to go to Colorado would be able to watch the proceedings on closed-circuit TV.
"Reasonable minds," the majority wrote, can differ over televised court proceedings. Fair enough, but some significant number of them also will be troubled by the five justices' blanket adoption of the assertion that televising the testimony of expert witnesses called to defend Proposition 8 -- including those being paid -- would create "irreparable harm" by exposing them to embarrassment and "harassment." If you accept that, you're on a path whose logical conclusion is secret testimony. It's easy enough to excerpt trial transcripts and post them on the Web. Doesn't that "expose" witnesses in any socially or politically divisive case to potential harassment? Television may accelerate the process, but the way text and photographs ricochet around the Internet these days, it's just a matter of degree -- and a rapidly diminishing one at that.
Moreover, as Justice Stephen G. Breyer pointed out in a 10-page dissent, in this particular case the witnesses "are all experts or advocates who have either already appeared on television or Internet broadcasts, already toured the state advocating a 'yes' vote on Proposition 8." What is there about these proceedings that will make them more vulnerable to reprisals than they already are?
That brings us squarely to the majority's troubling subtextual suggestion that there is something uniquely threatening -- even sinister -- about the activities of gays and lesbians advocating marriage equality. It's true that a tiny handful of activists on the movement's fringe have behaved outrageously toward opponents of same-sex marriage, but that criticism can't be made against the plaintiffs in this case. They've simply sought vindication of their rights through the courts, the very definition of law-abiding.
The five justices, however, went out of their way to incorporate into their ruling citations from newspaper accounts of dubious and abusive behavior associated with the marriage-equality fringe -- from "confrontational phone calls and messages" to business boycotts to "vandalism and physical violence" and even "death threats." As this column has argued on several occasions, no such conduct can or should be tolerated. Can it really be the case, though, that expert witnesses testifying against marriage equality are at greater risk of retribution than, say, a doctor testifying against Big Pharma in a multibillion-dollar drug liability case?
