Petitioners and Privacy

November 5, 2009

You probably know by now that Maine voters overturned a law approving same-sex marriage. But Tuesday brought one bit of good election news: voters in Washington approved Referendum 71, albeit by a narrow margin. Referendum 71 asked voters whether they supported the state legislature's decision in the summer to expand the rights of same-sex couples, effectively giving them most of the rights of married couples without using the term "marriage."

But why was Referendum 71 on the ballot anyway? As has happened in a few states now, voters opposed to same-sex unions decided to take action to block the state legislature's decision. Various groups opposed to same-sex marriage successfully launched a petition drive in Washington to place a referendum on the ballot that could overturn the newly enacted statute.

Which brings me to the subject of today's post. Some gay rights advocates wanted access to the names of those who signed the petition. The group principally responsible for sponsoring the petition drive, Protect Marriage Washington, sued to prevent release of the names, arguing that release of the identity of the signers placed them at risk of being harassed. A federal district court judge agreed, and after various rounds of litigation, the Supreme Court ruled on October 20, upholding the district judge's decision to ban release of the names.

Some gay rights groups have claimed foul, saying that the signatures should be considered a matter of public record. And that authority on all things, Stephen Colbert, even did a piece poking fun at the petitioners, who he claimed merely want to keep their bigotry private.

I disagree. Signing a petition is not that different from voting. And for the same reasons that we use the secret ballot, we should not disclose the identity of people who sign petitions. Presumably, we want to encourage people to express their true views, whatever they are, and not to suppress them out of fear of retaliation, even if those fears may be somewhat exaggerated (as I think they were in this instance).

Two arguments on the other side that I have heard are, first, that state and federal laws typically require the disclosure of financial contributors to political campaigns, including campaigns involving referenda. True, but disclosing the identity of contributors serves the purposes of deterring corruption and of enforcing limits on campaign contributions. We have a right to know who may be trying to buy influence and who may be funding campaigns. There is no comparable benefit to disclosure of signatories to a petition.

Another argument is that petitioners should have the courage of their convictions and should be willing to have their names disclosed to the public. In principle, I agree. In many cases, petitioners are proud to disclose their names, even when there is a clear risk to their safety, as opposed to a speculative risk. (To take but one example, think of the petitions the American colonists submitted to the British government.) But laws are made to protect the timid as well as the courageous. If someone does not want her/his name disclosed, we should not force disclosure.

Finally, it is unfair to maintain that the request to withhold petitioners' names serves only as a cover for bigotry. Depending on the circumstances, it can provide significant protection to those fighting bigotry. The only other time the Supreme Court addressed a comparable issue was in the 1950s when Alabama wanted to compel the NAACP to disclose membership lists. Wisely, the Court decided such a requirement was unconstitutional as it would have had a chilling effect on citizens' rights of free association.

Let petitioners keep their names hidden from public scrutiny if the want. It will not affect discussion of the substantive issues presented by any petition, and it may just foster participatory democracy.