WA Referendum 74 and 2012 Marriage Equality Outlook

Referendum 74 is the name of the potential ballot measure which voters in Washington State will face on November 6, 2012 to determine whether they want to APPROVE or REJECT the marriage equality bill recently passed by the Washington State legislature and signed by Governor Chris Gregoire on Monday February 13.

According to the Washington Secretary of State, what voters will see is:

Ballot Title
The legislature passed Engrossed Substitute Senate Bill 6239 concerning marriage [and voters have filed a sufficient referendum petition on this bill.] 

This bill would redefine marriage to allow same-sex couples to marry, modify existing domestic-partnership laws, allow clergy to refuse to solemnize or recognize marriages and religious organizations to refuse to accommodate marriage celebrations. 

Should this bill be 

___ Approved 

___ Rejected

Ballot Measure Summary
The bill would redefine marriage to allow same-sex couples to marry, apply marriage eligibility requirements without regard to gender, and specify that laws using gender-specific terms like “husband” and “wife” include same-sex spouses. Clergy could refuse to solemnize or recognize any marriages. Religious organizations and religiously affiliated educational institutions could refuse to accommodate weddings. The measure would not affect licensing of religious organizations providing adoption, foster-care, or child-placement. Domestic partnerships for seniors would be preserved. 

The reference to domestic partnerships is significant (as is the use of the word "redefine" but we'll get to that in a moment). In 2009, Washington State passed a comprehensive domestic partnership statute which included same-sex couples and opposite sex couples where one partner is over 65. That law was also subject to a referendum, known as Referendum 71. Referendum 71 was approved by voters 53% to 47%.
Most people expect Referendum 74 to also be approved as well, but you never know because voters have never voted in favor of a ballot measure which would legalize marriage equality. There have been 31 statewide ballot measures since 1998 on the issue of same-sex marriage and the pro-equality side has one once (in Arizona in 2006 and that was then overturned by another ballot measure in 2008). It is true, however, that usually the issue on the ballot has been whether to ban same-sex marriage outright, not whether should same-sex marriage be illegal or legal. The only votes where that has occurred are in Maine 2009 (Question 1: No 53%, Yes 47%) and California (Proposition 8: No 52.3%, Yes 47.7%). Maine's Question 1 is basically identical to Washington's Referendum 74 while California's Proposition 8 was an initiative constitutional amendment taking away the right of same-sex couples to marry in the future (or have their out of state marriage recognized by California) 173 days after the California Supreme Court ruled that the California constitution included such a right. Proposition 8 has been declared to violate the United States Constitution by a 3-judge panel of the 9th U.S. Circuit Court of Appeals.

Interestingly, Maine voters will have an opportunity to affirmatively legalize marriage equality at the ballot box again in November 2012, and it is very likely an identical situation to Washington's Referendum 74 and Maine's Question 1 will occur in Maryland this November.

So, there will most likely be 3 opportunities for voters to have the specific up or down question on ending discrimination against same-sex couples in marriage this November (Maine, Washington and Maryland).

Polling in the first two situations (Proposition 8 in 2008 and Question 1 in 2009) and subsequent polling nationally and in other states have showed that the wording of the specific question presented to voters makes a huge difference in how they respond. This is why the choice of the words "redefine marriage" by Washington State Attorney general Rob McKenna (who is a declared Republican candidate for Governor) is noteworthy (and problematic). Marriage is not being "redefined" when same-sex couples are allowed to receive civil marriage licenses in addition to opposite-sex couples. To believe otherwise is to believe in a heterosexual supremacist talking point. Exactly the same piece of paper from the government will be given to same-sex couples as are given to opposite-sex couples, if the legal ban on providing such marriage licenses is ended. This piece of paper has nothing to do with any church or mosque or synagogue.

Additionally, one's person's ability to marry has absolutely no impact on anyone else's marriage. This is self-evident. There are tens of thousands of couples who are legally married around the country. How has this impacted the other legally married couples in opposite-sex relationships? The people of Massachusetts were the first to experience marriage equality in 2004 and they readily acknowledge this truth (67% said in a poll that marriage equality in 2004 has had little or no impact on their lives). Whether same-sex couples are issued civil marriage licenses by a state has no impact on someone's religious views about what marriage should be. To believe otherwise is to impose one's own religious views on a secular society, forcing one religion's views on people who believe otherwise, and that itself violates religious freedom!

Names Of Referendum 71 Signers Released

Finally! After losing a Supreme Court decision Doe v. Reed last year, the heterosexual supremacists who forced the voters of Washington State to vote on whether that state's comprehensive domestic partnership law should go into effect have lost their battle to keep secret the names of the voters who signed the petitions to get the measure on the ballot.

A federal judge ordered the state of Washington to release the names on Monday, and the Secretary of State released a DVD with 138, 000 names of petitioners to the press.

The Seattle Post-Intelligencer reports:

The 138,000 people who signed petitions to force a vote on a 2009 domestic partnership law are unlikely to face harassment if their names are disclosed a judge said Friday while ordering the release of signatures.

U.S. District Judge Benjamin Settle said the petitioners who advocated for privacy provided only a few experiences of indecent statements and other uncomfortable conversations. Also, there was only speculation that those incidents were connected to the issue, he said.

Disclosure would become the exception, rather than the rule, if just a few instances of harassment were used as the standard for preventing the release of names, Settle said.

And the heterosexual supremacists lost the referendum campaign in 2009 as well. Washington voters approved the referendum (upheld Washington's comprehensive domestic partnership law) and it has been in effect since November 2009.

SCOTUS Rules 8-1 To Support R-71 Names Disclosure

The Supreme Court has ruled 8-1 in the case of Doe v. Reed that heterosexual supremacist petition signers in Washington who placed Referendum 71 (which would have repealed a comprehensive domestic partnership statute) on the ballot have no implicit First Amendment expectation of privacy, affirming last year's excellent 9th Circuit appellate decision.

Washington Families Standing Together, the organization that managed the campaign to defend the domestic partnership law by approving Referendum 71 issued a statement:

The Court has made clear today that public disclosure requirements are an important means of making sure measures are not put on the ballot by fraudulent means or mistake.

“Public disclosure thus helps ensure that the only signatures counted are those that should be, and that the only referenda placed on the ballot are those that garner enough valid signatures. Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot. In light of the foregoing, we reject plaintiffs’ argument and conclude that public disclosure of referendum petitions in general is substantially related to the important interest of preserving the integrity of the electoral process.”

This 8- 1 ruling by the highest court in the land is a significant defeat for those who have sought to enshrine discrimination into law at the ballot box. Nowhere is the integrity and transparency of elections more important than where the ballot box is being used in an attempt to take away fundamental rights. Nowhere is it more important for the public to know that attempts to affect the lives of their fellow citizens by promoting ballot measures are free from fraud and error. Perhaps no other group has witnessed its rights put up for public vote more than LGBT Americans. Social conservatives have used ballot measures in state after state, over more than 30 years, to keep LGBT Americans from being able to adopt children, to marry and even to be protected from discrimination in housing and employment.

This is the third loss for these groups in our state over the past year as they tried to repeal legislation ensuring that all families are treated equally under Washington State law. First the State PDC said no when these same groups tried to hide their donors. Then voters approved Referendum 71, retaining the law, by more than 53%. Now the U.S. Supreme Court has ruled against the proponents’ attempt to undermine disclosure laws.

With regard to the assertion by the anti-gay groups that they would be harmed if petition signatures were subject to public disclosure, as Justice Stevens said in his concurring opinion,

“Any burden on speech that petitioners posit is speculative as well as indirect. For an as-applied challenge to a law such as the PRA to succeed, there would have to be a significant threat of harassment directed at those who sign the petition that cannot be mitigated by law enforcement measures.”

The Supreme Court has in the past allowed narrow exemptions to public disclosure where there’s a clear minority party that has suffered both official and societal retaliation by the majority and where there is strong evidence that such disclosure presents a serious threat. With regard to Referendum 71, however, the groups making this claim were not the minority, but to the contrary, were the ones trying to diminish the rights of the minority. They will be hard pressed to convince a judge the record here is otherwise.

In an amicus brief provided to the Supreme Court in Doe v. Reed, a group of political scientists reported that not only was the assertion of alleged harassment unsubstantiated in Washington State, but the plaintiffs did not present a single verified threat to any signer of a ballot measure petition in any state in any election. As their brief said, “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 retaliation or harassment by reason of that disclosure.”

WAFST applauds today’s decision and thanks all those who filed briefs and supported our collective efforts as we fought over the last year to protect the rights of all Washingtonians.

Congratulations to Washington State, this is a big loss for the heterosexual supremacist haters like National Organization for Marriage.

SCOTUS Hears Doe v. Reed Argument Today

Today is the final oral argument of the 2009-10 Supreme Court term, and the last one of John Paul Stevens long career. The case in question is Doe v. Reed, which involves whether petition signers of Washington state's Referendum 71 can have their identities shielded, in violation of that state's robust open records law. Referendum 71 asked voters whether they approved of Washington state's comprehensive domestic partnership law, commonly known as the "everything but marriage" law.

SCOTUSblog covers the issues in today's oral arguments:

The Court, perhaps, has tipped its hand in the case, not only by its order in October, temporarily protecting the Washington signers’ privacy, but also by its 5-4 ruling in January in the Proposition 8 TV trial coverage ruling. But both of those actions tend largely to exhibit sympathy for the argument that opponents of gay marriage do face threats and other forms of harassment or outright violence. That sentiment, perhaps, cannot be translated directly into a conclusion that signing a petition is a form of protected political speech.

The Court has never before analyzed, as it must in this case, just exactly what occurs – in a constitutional sense – when a citizen writes a signature, and enters personal information, on a political petition. The Referendum 71 case presents that issue very directly, with the signers making a vigorous argument that it is a purely expressive form of political speech, while those favoring public disclosure of petitions make an equally vigorous argument that the role of citizen as legislative sponsor is no different from that of an elected lawmaker. To side with the former and against the latter, the Court would have to make a sizeable constitutional leap from past rulings on electoral anonymity. Perhaps some of the Justices voted to grant review of the case precisely anticipating that they might well do just that. The briefing, though, has sharpened the issue, far more than did the content submitted to the Court prior to the October order and that presented before review was granted.

For a Court that has recently shown, especially in the Citizens United v. Federal Election Commission decision in January, that it reads the First Amendment expansively in the context of election campaigns, there may be little hesitancy now in deciding the Referendum 71 case by lengthening that trend, to elevate the constitutional significance of signing a political petition. Much may be revealed on this score at oral argument.

Whether the Court will see this case as a test of the Constitution’s role in mediating the heavy political controversy, being waged across the country, over gay rights, is unclear at this point. That controversy, to be sure, has a bearing on the intimidation issue that is so central to the Referendum 71 signers’ case.

However, just as central to the other side’s argument is a plea for open government, coupled with a plea for state control of their own initiative and referendum processes. Choosing between those two conflicting approaches to the case may be difficult, indeed.

More than 24 states allow citizen-initiated ballot measures, so a ruling in Doe v. Reed could have a wide impact, especially in California where another Proposition 8-like battle over marriage equality will happen in the future, probably sooner rather than later.

UPDATE: 04/28/2010 11:51AM PDT
It should be noted that LGBT groups have filed a very strong amicus brief in support of the respondents (Washington Secretary of State Sam Reed) and today issued a press release where they basically mock the arguments of the homophobes who want the right to legislate their position from the ballot box while wearing a shroud of First Amendment non-disclosure.

From the release:

Some of the instances of supposed "intimidation" cited by opponents and noted in the amicus brief include:

- A country club member in California, a supporter of Proposition 8, noted that "the openly gay members of the country club have changed their attitudes toward me. They used to greet me warmly; now, they give me looks of disdain and do not greet me as I pass."

- A person with a yard sign supporting Proposition 8 was disturbed on Halloween that some people "pointed and whispered to one another in disapproval" during trick-or-treating.

- A woman was upset that her brother, who is gay, would no longer speak to her after she told him she might vote for Proposition 8.

As the amicus brief says, these complaints "are not only trivial, they reflect a fundamental refusal to accept the legitimacy of speech that disagrees with the complainants' viewpoints, deeming it 'hateful' or 'harassing' simply because they do not like hearing it."

"There's nothing to see here, folks," said Jon Davidson, Legal Director of Lambda Legal. "There's no comparison between a few scattered instances of whispers and disapproving glares and the very real discrimination, harassment and even violence LGBT people experience every day all over the country. After all, more hate crimes are reported against gay people than any other group per capita in the United States."

"The Petitioners are attempting to create a through-the-looking-glass world in which the aggressors are the victims and the victims the aggressors," said Gary Buseck, Legal Director of GLAD.

"This is an outrageous attempt by anti-gay groups to use false claims of persecution to undermine laws that protect the integrity of the democratic process," said Shannon Price Minter, NCLR Legal Director.

We'll see what the Supremes say about that. As always, they have the last word.

SCOTUS Oral Argument in Doe v. Reed: April 28

The Supreme Court has set the oral argument date of April 28th in the closely watched case of Doe v. Reed, which is the case in which proponents of the anti-gay ballot measure Referendum 71 (which, if rejected by voters would have prevented Washington's comprehensive domestic partnership statute from going into effect) won an emergency injunction from the US Supreme Court prior to the November 2009 election barring the release of the information of those who had signed to get the question on the ballot. Referendum 71 was approved so that the anti-gay side lost their bid to use the ballot box to write their homophobic views into state law, but the question of whether Washington State's public disclosure law trumps the right of heterosexual supremacists who sign petitions to eliminate the rights of others is still a matter of judicial dispute.

Specifically, the questions to be considered on April 28th will be:

1. Whether the First Amendment right to privacy in political speech, association, and belief requires strict scrutiny when a state compels public release of identifying information about petition signers.

2. Whether compelled public disclosure of identifying information about petition signers is narrowly tailored to a compelling interest, and whether Petitioners met all the elements required for a preliminary injunction.

I believe that both the answers to these questions could be Yes (though, actually there are two questions in Question #2, the second of which is moot at this point) and Petitioners should lose their case. Respondent (the State of Washington being represented by Secretary of State Sam Reed) should rely heavily on the excellent 9th Circuit Court appellate opinion in this case.

Even conservative UCLA law professor Eugene Volokh believes that "you don't have a constitutional right to essentially engage in a legally significant action anonymously" and election law expert Rick Hasen is similarly dubious about petitioner's chances of prevailing. This is on appeal from the 9tyh Circuit, the Circuit the conservative majority loves to slap down.

Also, even though the issues are different from the Proposition 8 injunction case, it is clear which side if the "pro-gay" side (Respondent) and which is the "anti-gay" side (Petitioner) so it should be very interesting to see the final ruling in this case by the end of June.

SCOTUS To Hear WA's Referendum 71 Case Doe v Reed

The United States Supreme Court granted certiorari in the now high-profile case of Doe v. Reed on Friday, just like I had hoped for in late October.

This was the second time this week the nation's highest court has intervened in the controversy over whether heterosexual supremacists will be able to shield themselves from public oversight while advocating for public policy changes which would harm the LGBT community. The first action was in their ruling upholding a stay preventing the broadcast of the Perry v. Schwarzenegger federal trial.

The second action is summarized by the Washington Post:

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.

Protect Marriage Washington was successful in getting the issue to referendum last fall, but not at the ballot box. Washington voters endorsed the law by a margin of 53 percent to 47 percent.

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.

It should be interesting to see if the Supreme Court will really decide to strike down Washington State's public disclosure law because of an alleged right of people to participate in enacting (and abolishing) laws through the electoral process anonymously.
This claim makes a mockery of the notion that democracy occurs in an open exchange of ideas and I hope the Supreme Court realizes that and rules for the defendant-appellants, the State of Washington, and upholds the 9th Circuit Court of Appeals.

(It should be noted tat the Supreme Court under Chief Justices Roberts and Rehnquist has taken great delight in overturning the 9th Circuit on multiple occasions.)

UPDATED 11:59 01/17/2010:

The specific questions the Supreme Court has asked both sides to consider are:

1. Whether the First Amendment right to privacy in political speech, association, and belief requires strict scrutiny when a state compels public release of identifying information about petition signers.

2. Whether compelled public disclosure of identifying information about petition signers is narrowly tailored to a compelling interest, and whether Petitioners met all the elements required for a preliminary injunction.

I would say the answer to both questions is "Yes." Let's hope the SCOTUS agrees.