Supreme Court: No Privacy For Opponents Of Gay Rights

If you campaign to take away someone else’s rights, do you have the right to privacy while you do it? In a Supreme Court case involving Washington state’s domestic partner law, it appears the answer is no.

Timothy M. Phelps reports for the LA Times that opponents of the law — which was once described as providing gays and other domestic partners with “everything but marriage” — wanted to launch a referendum to overturn it, without having their names made public. Domestic partnership supporters, meanwhile, wanted to put the names of their adversaries online, writes Phelps, “in an attempt to instigate ‘uncomfortable’ conversations.” A lawyer for the anti-domestic-partnership side, James Bopp, said his clients were concerned about threats, but Justice Scalia — not usually known for his support of gay rights — wasn’t buying it. He said yesterday,

Oh, this is such a touchy-feely, oh so sensitive [point of view]. You know, you can’t run a democracy this way, with everybody being afraid of having his political positions known.

Though the Court has not yet ruled, most justices seemed to agree with Scalia, albeit using less dismissive language. The usually liberal Stephen Breyer did wonder whether 1950s civil rights activists would have faced danger had their efforts to integrate schools been made public — which is an interesting comparison, except that these efforts often were public, and the activists often did face danger. While making threats because of someone’s political news is wrong, and even those with objectionable politics deserve protection from physical harm, people who want to take away the rights of others should be at least as brave as those who fight for those rights.

The justices seemed to take a more pragmatic tack, with Anthony Kennedy pointing out the public’s interest in knowing who sponsors legislation:

Don’t you think it’s relevant for the public to know that, say, a public employees union had paid solicitors to put…signatures on the ballot, or that the Chamber of Commerce, the National Assn. of Manufacturers, had paid solicitors to put [them] on the ballot? Isn’t that part of assessing the reasons why this initiative was proposed? And isn’t that vital to the voters… in making an informed decision?

While the names of private citizens might be less useful to the public than, say, information about union backing, the idea of a right to privacy while influencing public policy — which Bopp was arguing for — is a troubling one. Gay couples who protested against Prop. 8 — and, presumably, those who advocated for Washington’s domestic partnership law in the first place — had to open themselves up to homophobic slurs and worse in order to stand up for their rights, and to allow their opponents to operate in private would create a disturbing asymmetry. The court appears poised to agree — and, encouragingly, the effort to overturn domestic partnerships in Washington ultimately failed.