Transparency, and hate: the names in Washington are released

In the referendum on domestic partnerships in Washington state last year, there was a bitter signature gathering campaign. Our side was suspicious that bad guys were not fairly describing the petitions, and getting signatures under false pretenses. There was also concern about their validity. For these reasons, under state law, petitioner names are supposed to be public.

However, in the now-typical fashion, the anti-equality forces whined that they would be attacked by marauding gays if the names were released and asked to make an exception to the law to keep them hidden. This case has bounced up to the SCOTUS and back down again, and now the judge has issued a smackdown of the anti-equality forces in his ruling (H/T Pam's House Blend)

“Doe has failed to supply sufficient, competent evidence that the publically known donors–as active supporters of R-71–have experienced sufficient threats, harassment, or reprisals based on the disclosure of their information in connection to R-71 that would satisfy the reasonable probability standard that Doe must meet in this case.”

“Doe has only supplied evidence that hurts rather than helps its case.”

He details the descriptions, which include things like one man getting a mean email from his brother in law . Oh, the horror!

The FACT is that despite their desire to hide their bigotry, they can't.  And the consequences have been mild.  Some rude remarks.  A business boycott.  (Remember that the anti-gay forces ROUTINELY boycott pro-gay businesses.  Goose, gander?)   Yes, there have been some glitter bombs.

But remember the aftermath to Prop8 in California, hate crimes against LGBT people went up by nearly 17%.  Crimes against whining religious rightists, not so much.

Let's be clear on what real hate looks like. Let's be clear on which side is doing the hurting. And let's be clear on which side is doing the hating.  

Update In California, state law requires that the names of donors of >$100 be public. There was much fussing over the website that had the donor names on it (note that this includes donors on both sides). In a bid to keep Prop8 donors secret in retrospect has also been denied. Yes, the election was three years ago, but the Prop8 supporters consider that this is such a volatile issue that their donors are "at risk".

The judge read from a batch of declarations in which people claimed yard signs were stolen, that they received harassing phone calls, or, in one case, that people protested outside someone's business. "That's the extent of what happened," he said.

Get over yourselves, H8-ers! If "defending marriage" is so important to you, show the courage of your conviction.

What about the threats?

In Doe v. Reed, marriage equality opponents from Washington argued for secrecy for the signatures on the petitions that qualified Referendum 71 for the ballot (and thus allowed people to vote on whether or not domestic partner benefits should be expanded). They claimed that to reveal the signatures would expose the signers to violence.

As we know the Supreme Court decided that generally, signatures should be public. (See my previous post here). So the bad guys lost this round.

One of the amicus briefs filed with the court to support the good guys specifically addressed this claim of violence and intimidation. Several social scientists who study direct democracy and the initiative process actually did the research to see whether there is credible evidence that publicizing the names of petition signers leads to threats.

BRIEF AMICI CURIAE OF DIRECT DEMOCRACY SCHOLARS IN SUPPORT OF RESPONDENTS
The take home message?

More than a million names of signers of petitions for referenda and initiatives opposing gay marriage have been posted on the internet. Yet there is no evidence that any of these signers has faced any threat of retalia-tion or harassment by reason of that disclosure.

First they looked at Washington state petitions on all subjects

Petitioners do not, however, identify a single case in which a voter signing a petition has actually been subject to any form of harassment or intimidation as a result of public disclosure of that voter’s signature, name and address on the petition.
...
The lack of any demonstrable threat of intimidation or harassment is not limited to Washington. In fact, it is difficult to identify any case of intimidation or harassment of a petition signer occurring during the entire previous century.

Then they take on the claims about one particular organization around the gay marriage issue:

Petitioners state that an organization called KnowThyNeighbor.org, an organization supporting equal marriage rights for lesbian and gay couples, “posted the names of traditional marriage supporters signing petitions in Arkansas, Florida, Massachusetts, and Oregon.5 ” .... Upwards of a million names and addresses of these individuals in three states (Arkansas, Florida, and Massachusetts) have been posted online by KnowThyNeighbor. org. Petitioners, however, have not identified a single individual who has actually faced any threat of intimidation, retaliation or harassment as a result of merely signing any of these petitions and having that signature publicly disclosed.

And, in a sting to the tail, the publication of the signatures actually helps weed out fraud, which they show is epidemic in proportion in these initiative campaigns:

In Massachusetts, the public disclosure on the web by KnowThyNeighbor.org of the individuals who signed petitions to ban gay marriage led not to harassment or intimidation of those signers, but rather to the realization by thousands of citizens that they had been duped into signing the petition, thinking they were signing a petition to permit gay marriage.

The anti-gay side is fighting hard to make themselves the victim. Those marauding homos, doing violence against old ladies! Those terrible gays, destroying straight marriages! Those Godless 'mos, viciously attacking religious values!

It is imperative that we challenge these lies. The harassment that there was during Prop8 affected both sides --almost certainly, ours more than theirs. As I've said before, I was spit at, cursed, cut off on the freeway and had my car vandalized. During the post-8 mega-marches I attended, the only arrests were of THEIR side. And it's their campaign who wrote threatening letters to pro-equality donors.

No straight marriage ever failed because two gay people married. And plenty of GLBT and GLBT-friendly folks are very religious (just check out the crowded Episcopal Cathedral in San Diego for an example). The right-wing does not own the term "Christian" (and it's past time progressive Christians managed to wrest that name back again, but that's a subject for a different post).

And NO ONE has ever been harassed or threatened because their petition signature was made public.

Facts matter. Get them out there!

Update a great review of this and another relevant amicus brief at LGBT POV.

Also see another amicus brief at GLAD

SCOTUS: Signatures must be public

Doe v Reed is a case that came to us from Washington State in the aftermath of Referendum 71 that tried to overturn their state Domestic Partner law.* As I told you before, the Forces of Darkness brought a case up to the Supreme Court claiming that the signatures of the people who signed the petitions putting Referendum 71 on the ballot should remain private, because of their fictitious fears that the Rampaging Homos would injure them if they knew who they were.

More likely this had to do with verification of signatures and fraud, but then, I'm a cynic.

The Supreme Court decided 8-1 that the signatures must be made public. Only Justice Thomas, which seems ironic, supported the metaphorical hood of secrecy over hatred.

It's important to note that this is not a complete victory for this case. What they do is send the case back down for consideration. They found that generally things should be public, but several justices seemed to say that there might be times where secrecy could be justified.

Not Justice Scalia, though. I'll hand it to him, he's for transparency all the way:

Plaintiffs raise concerns that the disclosure of petition signatures may lead to threats and intimidation. Of course nothing prevents the people of Washington from keeping petition signatures secret to avoid that—just as nothing prevented the States from moving to the secret ballot. But there is no constitutional basis for this Court to impose that course upon the States—or to insist (as today’s opinion does) that it can only be avoided by the demonstration of a “sufficiently important governmental interest,” ....And it may even be a bad idea to keep petition signatures secret. There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

The real question will be whether everyone who signed that petition, (a) really signed it, or (b) knew what they were signing. During the campaign there were numerous allegations of fraud and there were barely enough signatures to get it on the ballot.

UpdateGood background from the Keen News Service:

[Washington State Attorney General Robert] McKenna added, and the majority clearly agreed, that Protect Marriage plaintiffs had failed to offer any evidence to support their concern for harassment. And, noted McKenna, three other states with public disclosure laws held gay-related ballot measures and offered “no evidence…that anyone who signed any of these petitions in those three States was subjected to harassment.”

There's an amicus brief about the lack of credible threats. I'll track that down and tell you about it here.

*Aside: this kind of campaign proves that it's not marriage the bad guys are after, it's any recognition of GLBT couples, because this was about DPs, NOT civil marriage. And still the right opposes it.

Arguments in the Doe case

I've told you before about the case from Washington State, Doe v Reed, where the Forces of Evil claim that if the law is followed, and the state reveals the names of people who signed petitions against domestic partnerships, then bands of marauding homosexuals will savagely attack the signers./

Indeed, as Pam's House Blend reports, the bad guys actually accuse the state AG of KNOWING that violence will occur!

[Attorney General Sam Reed] is willing to allow access to petitions knowing that they will be used to harass and intimidate individual citizens

What evidence do they have that he KNOWS any such thing?

Fortunately, SCOTUS may not have lost its mind in this matter. the AP reports a certain skepticism:

Supreme Court justices appeared skeptical Wednesday about keeping secret the names of people who signed a petition to repeal Washington state's gay rights law, suggesting citizens cannot always hide behind anonymity if they want to be heard.

Opponents of gay rights want the court to keep the names private to avoid intimidation by the other side. But several justices questioned whether allowing petitioners to stay anonymous might imperil other vital open records like voter registration and lists of donors to political candidates.

"The fact is that running a democracy takes a certain amount of civic courage," Justice Antonin Scalia said. "And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process."

Unfortunately, Justice Roberts (and probably Justice Thomas) may synpathize with secrecy.

Chief Justice John Roberts compared signing a petition to voting, saying a person's vote might be chilled if it was revealed which candidate they voted for. McKenna argued that chill would be no more significant than it is for having campaign contributions or voter registration disclosed.

Look, NOTHING serious happened in CA: everyone's names were public. Oh, sure, the Bad Guys claim awful things, but there is relatively little evidence that most of it happened. There were some scuffles, but the Pro-H8 side were just as likely to be perps as victims. I was spit at, cursed, and my car had paint thrown on it. But they claim THEY are the only victims. They just want the right to hide behind their sheets.

I've written a lot about this, and I refer you to a previous post here:

The opponents of marriage equality (AND civil unions) are claiming the mantle of honor for themselves, and as they strip the rights away from a persecuted GLBT community, they have the utter audacity to compare themselves to freedom marchers in the Civil Rights movement.

It is gob-smacking: those hiding under the hoods are pretending to be forces for justice. And it is even more outrageous if the courts let them get away with it.

Update Dahlia Lithwick at Slate has more quotes from the arguments.

GLBT cases in front of the SCOTUS, 1

We're all anxiously waiting progress on the Prop8 federal case, Perry v. Schwarzenegger, which at the moment is awaiting a series of legal maneuvers because the bad guys (the defendent-interveners, who are defending Prop8) want campaign documents from groups who opposed the initiative, even though those groups are not parties to this suit. This case will eventually be decided by Judge Vaughn Walker in US District Court, and then almost certainly will be appealed to the 9th Circuit Court of Appeals. After that, it may get to the SCOTUS, depending on if it is appealed there, and whether SCOTUS chooses to hear it. So there is a long, long way to go.

As that wends its way through the legal arcana, there are two other cases affecting our rights that are already on their way to the Supreme Court. I'll discuss them in turn.

The first is Doe #1 v Reed in which arguments are scheduled for Monday, 19th April. That's Doe, as in John Doe: an anonymous! We have talked extensively here about the new right-wing anti-equality meme, that it's THEY who are the victims of those EEEEEvvvvvviiiiillll rampaging homos. This appears to be based entirely on a few incidents post-Prop8, and the mean things said about them in the papers and on the internet. Most of the incidents are completely unsubstantiated, and moreover, they conveniently ignore substantiated incidents where the conservatives attacked GLBT supporters.

In the wake of California Prop8, a web site was published that contained all the donor information from the pro-H8 side. (The information from BOTH sides was published by the state and freely searchable). This led to howls of outrage from the right, and fears that they would be attacked. And you know what happened? Absolutely nothing! That's right, no one was firebombed for being a donor. Oh, I'm sure some words may have been exchanged, but there was no evidence of violence.

Still, pointing at this, the supporters of referendum 71 in Washington State (which wanted to overturn domestic partnerships--remember this next time They claim it's only about marriage) have filed suit to prevent the release of the names of those who signed the petition to put its intolerance on the ballot,

Washington's laws, like California's, have transparency rules that require the release of names. So this is nothing special. But Their Side claims they fear intimidation. There's again absolutely NO evidence that this has or would occur.

Our side has two major arguments, I think. First, there were widespread accusations of signature violations on the petitions, in which signatures were invalid, or obtained under false pretenses. It seems to me that the rule of open government works on the side of release, here. Petitioners had no expectation of privacy and there is a legitimate public interest in seeing those names.

Second, we do not allow people to wear hoods and attack the rights of others. If you are ashamed of what you are doing, you are doing the wrong thing.

The problem for Our Side is that this Supreme Court has already bought into the intimidation argument EVEN THOUGH there is no evidence for it. As Chris Geidner reports,

The broad issue — the intimidation question — already has arisen twice in recent months at the Court, when the Court rejected the attempt to allow a live-streaming of the Proposition 8 trial to other courtrooms and in Justice Thomas’s opinion in Citizens United.

. That's the stunning case in which the court ruled corporations are people and can spend freely to influence elections.

I have just about lost any respect for Justice Thomas, but I really expected better of Justice Kennedy who is generally the swing vote between the sensible liberal side and the reactionary conservative bloc.

So although it seems obvious to me that Doe should be decided in a way that maintains an open government, I greatly fear that the current Supreme Court will decide in favor of secret cabals and blackballing.

SCOTUS and equality opponents: the courage of conviction?

As the Federal Prop8 trial (Perry v. Schwarzenegger) enters its second week, we are all relying heavily on the live-bloggers and tweeters to keep us informed, given that the SCOTUS agreed with the Defendant-Intervenors (the Bad Guys) and banned broadcast of the trial.

This decision was based ostensibly on the fear of the Prop8 proponents that their witnesses would be harassed, threatened and injured if people knew who they are. Because you KNOW how much violence there has been, right? Right? Yes, not so much. Despite the endless claims of roving bands of homos beating up on people, there is a paucity of evidence that anything dangerous has actually happened-- even though donor lists pro- and con- Prop8 were public in CA. Sure, there have been a few boycotts, but that tactic goes both ways.

In fact, in the aftermath of Prop8, its supporters made numerous unsubstantiated claims of violence. They accused the marriage equality supporters of terrorism --they even compared us to Al Qaeda for daring to march and claim the right of free speech! Let's not forget this.

And these experts and proponents of Prop8 who are reputedly so fearful, were certainly unafraid to be seen on camera during the run-up to the election, when you couldn't escape from them. Perhaps more telling is that, despite banning the broadcast, the Prop8 supporters' fearful witnesses have still retreated. It seems more likely that their withdrawal has something to do with the fact that their bias may actually be exposed-- see for example William Tam, who attempted to withdraw as a defendant-intervenor. His issue may be less about safety, than privacy, as noted by the Box Turtle Bulletin

I do not like the burden of complying with discovery requests. I do not like people questioning me on my private personal beliefs.

Of course he had no such qualms about sharing those beliefs to deny GLBT people of equal rights for months and years. (He also thinks the "gay agenda" is based on sex with children and was founded in Chicago in 1972. I am looking forward to his examination by the Olson / Boies team.)

Or perhaps it has something to do with the cross-examination of the expert witnesses, because some of them apparently don't look so good in the deposition tapes where they had to backtrack on their testimony.

In the end, these experts might end up blowing up in the defense’s face. If Boies and team is able to show what he claims, that their testimony was without basis, the experts have opened themselves to charges of perjury. Removing the possibility that the defense team knew about the baselessness of the depositions, because such a circumstance would be an egregious violation of professional responsibility, this also has huge implications for the case. If the defense experts admitted that there is no basis to say there is harm to straight marriages, that point becomes a big longshot to recover for the defense.

This embarrassment tends to happen when you are wrong, or careless, or somewhat ....stingy with the truth.

Both the LA Times and NY Times Op Ed pages decried the SCOTUS decision to hide the case. From the LA Times:

"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 Courage Campaign reminds of what's at stake in this:

The legal system exists precisely to counteract those kinds of situations, to provide those who have had their rights attacked or taken away the ability to confront those who have done so and take back their rights. And that in turn is precisely why ProtectMarriage.com wants to undermine the legal system in order to undermine marriage. If they can’t win fairly, then they’ll try to undermine the systems and institutions that ensure fairness.

Secret courtrooms and hidden testimony are antithetical to our principles of justice. And for an issue discussed almost exclusively in superficial media soundbites and advertising hyperbole, it is particularly disheartening to have hidden from public view the reasoned discussion of evidence in a courtroom that actually relies on facts and data, not lies and misinformation.

There's now another SCOTUS case, this one not just a request for an injunction, but a full-blown case, that the Court has agreed to hear, called John Doe vs. Reed. You may recall in Washington state last year the referendum on civil unions, in which the voters only narrowly approved generous partnership benefits. (The campaign against Referendum 71 provides yet another example of how the argument isn't about marriage, it's about ANY recognition of our families).

Washington has a law that releases the names of people who sign petitions to put referenda on the ballot. The proponents of discrimination want their names hidden, and in the case John Doe vs Reed, ask the SCOTUS to allow them to do so. From Pam's House Blend, a discussion of this case which asks the Court to

a. Declare Wash. Rev. Code § 42.56.070 unconstitutional to the extent that it requires the Secretary of State to make the Referendum 71 petition, or any petition related to the definition or [sic] marriage or the rights and responsibilities that should be accorded to same-sex couples, submitted to the Secretary of State's office available to the public;

b. Enjoin Defendants from making the Referendum 71 petition, or any petition related to the definition or [sic] marriage or the rights and responsibilities that should be accorded to same-sex couples, available to the public pursuant to the Public Records Act, Wash. Rev. Code § 42.56.001 et seq., or otherwise;....

ONLY for this issue, note. They are seeking to cover up ONLY the opponents to marriage equality and civil unions. Unlike NOM, which is trying to overturn completely the campaign transparency law in Maine, the Washington folks want protection specifically, and ONLY, for petitioners involving same sex marriage or civil unions.

The irony is noted by the NY Times Opinionator :

Has anyone noticed that now that lesbians and gay men have left the closet to assert their equal rights as citizens, their adversaries seem to be running for a closet of their own?

But the Opinionator comments, more disturbingly,

A question now is whether the opponents of same-sex marriage can plausibly claim, as their court papers have sought to do, that they face threats to their lives and property comparable to those faced by civil rights workers in the Deep South in the 1950s and 1960s.

Did you catch that? Let's make this clear. The opponents of marriage equality (AND civil unions) are claiming the mantle of honor for themselves, and as they strip the rights away from a persecuted GLBT community, they have the utter audacity to compare themselves to freedom marchers in the Civil Rights movement.

It is gob-smacking: those hiding under the hoods are pretending to be forces for justice. And it is even more outrageous if the courts let them get away with it.

David LInk at the conservative Independent Gay Forum writes,

People who believe they are right should be willing to own the morality of their cause, even when that means taking very real, sometimes severe risks such as going to jail, or even being killed — neither of which anyone opposed to gay equality can truthfully claim. That’s what lesbians and gay men have had to do to get where we are. Perhaps that’s harsh, but I’m having a very hard time seeing how name-calling really counts as a similar sort of abuse, or how risking some loss of government funds equates with actual peril in a way that would justify refusing to air arguments in a public forum like a court of law.

And Firedoglake chimes in, remarking upon the hypocrisy of the conservative viewpoint:

Sure, harassment is fine and dandy when you’re the one brandishing firearms and shouting down congresspeople at townhalls, or yelling at women going into family planning clinics, but when there’s even the slightest chance that someone might call you a bigot, well, that’s just as bad as the KKK killing Freedom Riders.

It’s a truly amazing lack of perspective. Gays are persecuted, discriminated against, bullied, beaten, raped, and murdered; many of them feel they have to conceal the very essence of who they are to fit in and be safe. Gay marriage opponents? The worst that’ll happen to them is that they’ll get picketed or insulted, or get the cold shoulder from residents of the 21st century. But apparently the risk of facing intolerance of one’s own intolerance is too steep a price to pay for defending The Most Important Institution Evar.

Many of these people who want to hide under a hood claim to be Christians (which insults the many, many Christian faith groups who support fairness and inclusivity.) Perhaps it is time for them to actually READ the Bible that they thump so passionately:

And this is the judgement, that the light has come into the world, and people loved darkness rather than light because their deeds were evil. For all who do evil hate the light and do not come to the light, so that their deeds may not be exposed. But those who do what is true come to the light, so that it may be clearly seen that their deeds have been done in God.’
John 3:19-21