with one Justice dissenting. So reports SCOTUSblog; I’ll post more when I learn more.
My post about Justice Kennedy’s similar action yesterday is here. For now, I continue to think that the Ninth Circuit’s decision overturning the district court’s preliminary injunction against release of the signatories’ names — and thus allowing the state to release the names — is correct, and I think the Supreme Court won’t even agree to reconsider the decision on the merits. But it makes sense that the Court would temporarily stay the opinion below, at least pending the state’s filing its arguments and possibly pending the Court’s considering the petition for certiorari (which in turn won’t come until after the Ninth Circuit announces its reasoning): Once the names are released, the attempt to enjoin the release will become moot, so it makes sense to take some time now to consider the matter on the merits.
Thanks to Rick Hasen (Election Law Blog) for the pointer.
UPDATE: Justice Stevens was the one dissenter, but he didn’t issue a written opinion explaining his vote (and neither did the majority). The order says,
The September 10, 2009 order of the United States District Court for the Western District of Washington, case No. C09-5456BHS, granting the motion for preliminary injunction shall remain in effect pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.
That makes sense, for the reasons I mentioned above — in order for the Court to even be able to consider the petition for certiorari, the names can’t be released, since their release would make the matter moot. But I still think that the Court won’t grant certiorari, for reasons I mentioned earlier.
Oren says:
I don’t mean this the wrong way, but perhaps the Supreme Court ought to rework their schedule so as to dispose of the matter before the election? I understand the merits of a preliminary injunction to prevent the irreversible release of the names until you can get to the merits, but the case has a natural deadline associated with it.
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October 20, 2009, 3:38 pmLibertad says:
This is great news. Hopefully the Court will also decide to take up the issue of mandatory disclosure for contributions to ballot issue committees. There is simply no compelling government interest in disclosure of either to the general public and, for petition signatories, the law is not narrowly tailored.
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October 20, 2009, 3:41 pmHans Bader says:
I have no opinion on whether the names’ release should be blocked.
But the REASONING given for releasing the names in same-sex marriage ballot initiatives by lower court judges has often been dead wrong.
Lower court judges have claimed that signatories to same-sex marriage bans can be denied the protection against disclosure given to communist and socialist-workers-party donors, under the theory that they are less subject to reprisals than Marxists.
That is certainly not true. It is obvious to any fool that being a member of the Socialist Workers Party is less likely to get you fired than supporting Proposition 8 or similar ballot initiatives. (And I say that as one who criticized Proposition 8 at this very blog). The judges themselves drip with hostility to such signatories and supporters.
A Seinfeld episode once illustrated the truth that taking a position on a social issue like abortion can infuriate people more than being a Marxist. What is true for the abortion issue is even more true for the gay marriage issue. People are enraged about the issue to an extent that simply dwarfs its limited importance.
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October 20, 2009, 3:47 pmMark N. says:
I don’t quite follow how the election’s date is related. The stated purpose of those seeking the release isn’t the influence the election or otherwise engage in campaigning for the election, which would of course become moot when the election actually happens. Rather, their purpose is to publicly shame those who signed the petition by putting their names on a website. Surely they can do that after the election, too?
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October 20, 2009, 3:58 pmPlugInMonster says:
It’s not limited importance if for one person the issue means everything. You do not have a right to assign a value amount to someone’s cherished beliefs. However, I also have a right to my beliefs and a right not be harassed.
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October 20, 2009, 3:59 pmSteve says:
It is obvious to any fool that being a member of the Socialist Workers Party is less likely to get you fired than supporting Proposition 8 or similar ballot initiatives.
Apparently I’m not a fool, since this assertion is hardly “obvious” to me. We’re supposed to believe that the broad class of employers consists of a bunch of leftists?
A Seinfeld episode once illustrated the truth that taking a position on a social issue like abortion can infuriate people more than being a Marxist.
Oh. Well with evidence like a Seinfeld episode, maybe I stand corrected...
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October 20, 2009, 3:59 pmJoe says:
I think it is true that being an opponent of gay marriage is more professionally risky than being a Marxist, even though the general public doesn’t Marxism, and isn’t enthusiastic about gay marriage.
Why?
Well, the employer that fires a communist is likely to be sued by a left-wing employment lawyer like Brad Seligman, claiming that violates a state labor code’s ban on discrimination based on political affiliation.
But an employer who fires a same-sex marriage opponent won’t face any scrutiny, since lawyers all seem to like same-sex marriage (even Republicans like Ted Olson), and even conservatives will view it as a matter of the employer’s freedom of association.
And outside pressure groups may well force a restaurant to fire an employee who signs a same-sex marriage ban petition, as has happened.
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October 20, 2009, 4:10 pmSueSimp says:
I tend to agree, actually, that being against gay marriage probably is more risky for your career, at least in a liberal-ish state like California.
It’s more likely to strike a personal nerve with a boss. Having an employee who believes the economy works differently from what you happen to believe just isn’t going to cause the same sort of friction as is having an employee who wants to deny you the right to marry your partner. The latter’s a lot more likely cause workplace tension than is an intellectual disagreement.
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October 20, 2009, 4:19 pmtamerlane says:
A significant factor in this case is that Oregon has traditionally not released lists of those who’ve signed petitions. This certainly suggests that those who are opposed to homosexual marriages are being specially targeted for harassment.
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October 20, 2009, 4:51 pmanonymous says:
The release of the names could cause some very unpleasant situations in the state of Washington. Voter intimidation is a federal and state felony; and in the state of Washington, those threatened with intimidation would have a very lawful basis to conduct a citizens arrest of the intimidators using the minimum force necessary to physically restrain them and deliever them to a law enforcement officer. Taking them down to the local county jail is more likely to get them actually booked.
And, yes, there is case law to support such actions.
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October 20, 2009, 4:53 pmAdam J says:
Joe– “But an employer who fires a same-sex marriage opponent won’t face any scrutiny, since lawyers all seem to like same-sex marriage (even Republicans like Ted Olson), and even conservatives will view it as a matter of the employer’s freedom of association.”
Lemme get this straight... your argument is that someone is more likely to get fired because they won’t be able to find an attorney? Seriously?
Also... doesn’t the public have a right to know who is petitioning various government acts? And isn’t the whole point of signing a petition to make your support known?
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October 20, 2009, 5:01 pmCan't find a good name says:
Tamerlane: This case is from Washington, not Oregon.
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October 20, 2009, 5:02 pmChrisTS says:
Adam J:
That’s what I have always assumed — and I’ve assumed that anyone who wanted to could see if I had signed a petition. That’s a very good reason to be careful about what you sign your name to.
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October 20, 2009, 5:10 pmMark N. says:
Traditionally, yes, but in the modern ballot-initiative process, it’s not really a “petition” in the normal English meaning of the term, but rather some sort of preliminary vote-counting used to vet whether proposed initiatives have enough support to be worth putting on the ballot at all.
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October 20, 2009, 5:12 pmmidasear says:
If the court blocks release until after the election, it has done the opponents of Referendum 71 a HUGE favor. Has it occurred to the geniuses who dreamed up KnowThyNeighbor.org and WhopSigned.org what the likely result at the ballot box will be if any of the “discussions” they are promoting take an unfortunate turn before the election? All it would take is one emotionally unstable hot-head to demoralize their own supporters and energize the other side.
I continue to be astounded at the bone-headed stupidity of those who believe this approach is a good idea, even in the short term.
The flip side to this scenario is an employer annoyed that one of his employees has “helped to promote the decadent homosexual agenda.” Which do you think is going to be more likely as you leave the West Coast and try to enact legislation in places like Texas, Tennessee and Florida?
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October 20, 2009, 5:13 pmptt says:
Yes, it could be like California. Let’s see, if you adjust for population, why Washington could experience, what, one or two resignations.
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October 20, 2009, 5:16 pmShelbyC says:
I’m not sure what constitutes harassment here. Legal picketing? Is it legal in Washington to fire someone for their political beliefs?
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October 20, 2009, 5:18 pmCurious Reader says:
Eugene,
While I understand your empirical assessment of the likelihood of the Court’s procedural action in the Referendum 71 case, I wonder why your view of the merits of the anti-disclosure proponents’ case is so dim. To be sure, there are factual distinctions between NAACP v. Alabama and this case, but the First Amendment principles at stake seem substantially similar, if not identical. What, at the level of First Amendment principle, especially from the viewpoint of a libertarian constitutionalist, distinguishes this case from those in which civil rights groups sought to influence local politics from out-of-state without fear of reprisal and harassment? Were it not for the ability of civil rights groups to amass financing and other support from individuals anonymously, such groups would have been unable to function effectively in the Jim Crow South. There is little doubt that such groups represented the interests of individuals in the polity who otherwise would have kept silent, for fear of social coercion. To the extent that social coercion impedes democracy by creating a collective action problem, repudiating social coercion promotes democracy by lowering the individual cost of organizing politically. Why is this an unserious argument unworthy of Supreme Court attention, given the weighty civil rights precedents on the matter that seem to support the anti-disclosure side?
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October 20, 2009, 5:20 pmdcp says:
Actually, it kind of is — the “one person” being a tip off.
If my neighbor backs out of his driveway and runs over my dog, that is of major importance to me. But it’s irrelevant to the other 300 million people in this country.
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October 20, 2009, 7:05 pmEugene Volokh says:
Curious Reader: Here’s what I wrote about this a couple of days ago:
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October 20, 2009, 7:09 pmsecond history says:
Libertad says:
This is great news. Hopefully the Court will also decide to take up the issue of mandatory disclosure for contributions to ballot issue committees. There is simply no compelling government interest in disclosure of either to the general public and, for petition signatories, the law is not narrowly tailored.
There may not be a governmental interest, but there certainly is a public interest. The referendum and initiative process has been corrupted from its origins as a check on governmental power by the people to become a tool of corporations and the wealthy that haven’t gotten their way with the legislature.
For example, the Nov.2008 election featured five initiatives that were pet projects of billionaires–Peter and John Sperling; T. Boone Pickens; Henry T. Nicholas III; and George Soros. In the case of Pickens, he underwrote nearly the entire campaign, and he stood to benefit from nearly $5 billion in public subsidies if it passed. Hardly the best use of the initiative process. But if campaign contributions to committees were kept secret, the public would never know about the “investment” made by Pickens and his companies (corporate contributions to initiatives are legal in California.)
As long as an interest group (whether a group of citizens, individuals, or a corporation) want to use a publicly financed forum like an election to impose their policy choices on the rest of the state, then the public has a right to know who is supporting their cause.
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October 20, 2009, 7:29 pmChrisTS says:
I am ...astonished .. to find myself in agreement with PIM.
Still, I am. Of course, we do not want to restrict the liberty of many persons because of the mere feelings (‘inconvenience’ in Mill’s usage). But I think PIM was making the point that what counts as a matter of limited importance depends in part on the views of those who are directly affected.
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October 20, 2009, 7:31 pmChrisTS says:
I think these are important questions.
Perhaps I have been inhaling too much of the libertarian fumes here at VC. Still, it seems to me that if you are not willing to be known for having signed a petition (even a pre-ballot one), then you should not sign it.
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October 20, 2009, 7:34 pmSteve says:
There’s always a way to fire someone.
Does the release of names means that the State has the obligation to release the names for all petition signers — including those in favor of same-sex marriage? There are some fairly conservative portions of Washington State where one may not want to be identified, with similar concerns for a backlash.
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October 20, 2009, 7:40 pmSFBurke says:
I think what is interesting about this case is that in the past the WA state has not released the names of signatories to these petitions. One wonders whether there is an implied right to privacy. Or if these people are being treated differently because of their beliefs. However, it is not clear whether those issues rise to First Amendment claims.
It does seem clear to me that the best policy of the state would be to not release the names of the signatories. With 100,000 names (or whatever) what does any one persons name matter. What value is there to anyone in knowing the names? On the other hand, the clear reason that pro-gay marriage people want these names released is so that they can harass and intimidate those with whom they disagree — They did that in California and there is every reason to believe they will do it in Washington.
I can’t see how a functioning democracy is facilitated by providing one group with the ability to harass and intimidate those with whom they disagree. And, unlike campaign contributions, I can’t see any anti-corruption or other argument in favor of releasing the names.
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October 20, 2009, 7:45 pmGuest12345 says:
I think a big part of the problem is that the people who want to publicize who signed the petition want to imply “these people are bigots who want to violate the civil rights of gays.” When what it really means to have signed the petition is that you think the question is important enough that it should be answered by the public at large, not by a few representatives who may be influenced by special interest groups.
In my opinion, the thing to do if the court orders the release of the names on the petition is to wait until someone does picket or otherwise make a public statement re. a person having signed the petition. If they say anything other than “Person X believes that all of citizens should have a say in government”, well, then a defamation suit seems appropriate.
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October 20, 2009, 7:54 pmAnthony says:
It is worth distinguishing between ‘good idea’ and ‘legal’; the court decision deals with the second, not the first. As a matter of public policy, I think that if names of signatories are going to be released, it should be obvious before the fact, not after the fact, but other than that I have no strong feelings one way or the other.
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October 20, 2009, 8:14 pmRandy says:
When a person or an entity makes a donation to proponents and opponents of SSM, the names, employers and amounts are all public knowledge. If I want to harass somebody, it would be best to harass those who actually gave money in opposition to something I believe in, and the info is already public
Of course, I haven’t heard any horror stories about that.
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October 20, 2009, 8:37 pmSteve says:
Randy — you are incorrect; the Mormon Church was harassed for their political donations to Prop 8. See this article in the LA times for starters.
Besides, political donations are well-known to be public information. I fully expect that my name/corporation will be listed; there is no expectation of privacy.
This is not the case with signing petitions, at least in Washington State, where the names of signers have never (as far as I can tell) been released.
For the record, I support this measure (i.e. gay marriage should be legal), but think the petition signer names should be kept sealed.
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October 20, 2009, 9:05 pmfirst history says:
Libertad says:
This is great news. Hopefully the Court will also decide to take up the issue of mandatory disclosure for contributions to ballot issue committees. There is simply no compelling government interest in disclosure of either to the general public and, for petition signatories, the law is not narrowly tailored.
There may not be a governmental interest, but there certainly is a public interest. The referendum and initiative process has been corrupted from its origins as a check on governmental power by the people to become a tool of corporations and the wealthy that haven’t gotten their way with the legislature.
For example, the Nov. 2008 election in California featured five initiatives that were pet projects of billionaires–Peter and John Sperling; T. Boone Pickens; Henry T. Nicholas III; and George Soros. In the case of Pickens, he underwrote nearly the entire campaign, and he stood to benefit from nearly $5 billion in public subsidies if it passed. Hardly the best use of the initiative process. But if campaign contributions to committees were kept secret, the public would never know about the “investment” made by Pickens and his companies (corporate contributions to initiatives are legal in California.)
As long as an interest group (whether a group of citizens, individuals, or a corporation) want to use a publicly financed forum like an election to impose their policy choices on the rest of the state, then the public has a right to know who is supporting their cause.
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October 20, 2009, 10:06 pmCurious Reader says:
Thanks, Eugene. I hadn’t caught the earlier post. I see now that you believe there are plausible arguments on both sides. (Also, thank you for not misinterpreting my usage of “dim.”)
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October 20, 2009, 10:46 pmRandy says:
Steve: “esides, political donations are well-known to be public information. I fully expect that my name/corporation will be listed; there is no expectation of privacy.”
So what? The information is public. Therefore, if I want to harass anyone, it’s right there. So if the sole purpose of this is to harass opponents of SSM, then we certainly don’t need this new law.
And yes, of course, there was “harassment” of the Mormon Church. To wit: “Protesters have massed outside Mormon temples nationwide. For every donation to a fund to overturn Proposition 8, a postcard is sent to the president of the Mormon Church. Supporters of gay marriage have proposed a boycott of Utah businesses, and someone burned a Book of Mormon outside a temple near Denver.”
So you are saying that people massed outside a church is ‘harassment’? That’s a stretch. Postcards were mailed? Oh boy! and one book was burned. Wow. I’m sure that stopped the Mormon church dead in its tracks!
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October 20, 2009, 11:08 pmTweets that mention The Volokh Conspiracy » Blog Archive » Supreme Court Blocks Washington State Officials From Disclosing Names of Anti-Same-Sex-Marriage Petition Signers, -- Topsy.com says:
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Alex says:
I have a procedural question, though I’m not sure anyone can answer it: Since the district court has not decided the merits of the case (whether Washington’s Public Records Law unconstitutional violates free speech), would the Supreme Court grant cert on the narrow question decided by the 9th Circuit — namely whether the correct preliminary injunction standard was applied?
I re-read the District Court Order, and it states that the preliminary injunction was not consolidated with a trial on the merits, so no court has decided whether there is a conflict between the state law and the Constitution.
Since the status quo is being maintained with the blessing of the Supreme Court, why wouldn’t the case get sent back down to the District Court for a decision on the merits?
I realize that everyone would rather argue about who’s a bigot and who’s a victim of harassment, but it seems like this is a pretty boring civil procedure case at this point. I think the 9th Circuit’s reference to the “wrong standard” was referring only to the test for a preliminary injunction, but without an opinion, it’s hard to know why they thought it was wrong.
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October 21, 2009, 3:15 amJames T. Carrington says:
And if you decide to sign a petition, we have the right to know that as well, don’t you think? I agree that you should be able to not be harassed, but that’s a different issue entirely.
If it was just a belief, then why the need for a ballot initiative? Or if the belief meant depriving someone else of something they wanted, where does the right to be free from harassment begin for you and for the person who will be deprived? I agree that you don’t have the right to assign value amounts.
And for the record, these SSM items don’t do a damn thing to your personal choices or to your own marriage, so why do people care so much? It’s as stupid as a sodomy law between consenting adults.
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October 21, 2009, 10:14 amTamerlane says:
Can’t find a good name says:
An obvious typo on my part. I meant Washington. Another blogger made the same point.
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October 21, 2009, 10:44 amUU2L says:
Perhaps this is a chance for the Supreme Court to definitively state the preliminary injunction standard. In Winter v. NRDC 129 S. Ct. 365 they suggested that the 9th Circuit’s approach to preliminary injunctions was non-standard, but it might have been dicta. Since the Winter decision came down 9th Circuit has sporadically ignored this advice. Maybe the Supreme Court wants to help them sort this question out.
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October 21, 2009, 12:22 pmJohn Moore says:
And if you decide to vote in an election, we have the right to know your votes as well.
Do you see the parallel? As others have pointed out, signing an initiative petition is more akin to voting than to speaking. Initiative petition signer lists should be protected just like individual votes are protected.
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October 21, 2009, 11:17 pmThe Watcher says:
At first I was opposed to the release of the petition signatures. I figured that the pro-gay marriage forces wanted the information so they can harass the signers, the usual. Death threat calls, trying to get them fired from jobs, keeping the signers and their children out of good colleges, failing their children in college classes. The usual activist game plan for those who disagree with them.
However, in reading here just how important it is to disclose a person’s position on ballot issues is, I have come completely around in my thinking.
From now on, a person’s vote choices from the last election should be posted for all to see, on their car, home/apartment/clothing. By law, they should be posted—since it is so important for the public to know. If the person supports gay things, mandatory pink triangle, against, pink triangle with the ‘no’ sign over it. It they voted for Obama or Teddy K, they have to wear his face. McCain, same deal.
The choices should also be listed on all job applications and all college applications, and should be updated each election cycle with each employer and educator. Parent’s choices should also be sent to each school district that their child is in.
There is no reason for any person to have, or to use, a secret ballot. I now support the brave judges out west who are willing to do what is right and help the public correct the wrong thinkers and ensure right thoughts by all in the future.
This is a good first step to a better tomorrow.
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October 22, 2009, 9:10 amJohn D says:
Wow, the tortured logic that has gone to support the idea that petitions should be held secret.
I live in California, where petitions are not released to the public. However, I can’t really say that my signatures on petitions have been secret.
My specific support has been seen by officials of the state, the person gathering the signatures, and probably the person who signed after me. In this, it’s not the same as casting a vote.
When I cast my vote, a poll worker (acting as an official of the state), marks off that I’ve shown up to the polls and taken a ballot. Once I’m in the election booth, everything else is unknown to them. Sure I showed up and went into a booth. I could have waited three minutes and walked out without casting a vote.
Further, the issue here is Washington state law which says that petitions are part of the public record. Those who were collecting signatures for Referendum 71 should have known that.
Yet further, I must belatedly correct Professor Volokh on the title of this post. Referendum 71 is not an “anti-same-sex-marriage petition.” Approval of Referendum will not create or permit same-sex marriage in Washington State. The legislature there approved a domestic partnership bill. The crowd that says it’s trying to “protect marriage” is, however, also against domestic partnerships.
And, finally, several posters here have raised the issue of Prop 8 supporters being harassed. I suspect that receiving angry e-mails, or being told that gay people won’t want to frequent your restaurant any more, does not actually constitute harassment. Nor does the presence of picketers in front of your establishment.
If picketing is harassment, we’d better inform the unions and Operation Rescue. I don’t think any credible claims of post-Prop 8 harassment have actually been made. I would be gratified is someone would link to any real claims that have resulted in charges. Harassment is illegal, after all.
As for the restaurant in Los Angeles, okay if the manager (daughter of the owner) was so true to her LDS beliefs that she had to contribute to Prop 8, how did she manage to be so untrue to her beliefs that she served alcoholic beverages in her establishment?
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October 22, 2009, 9:22 pm