On the morning of April 28, during oral arguments before the United States Supreme Court, it became quite clear that the people who brought the landmark Washington State case Doe v. Reed could lose big-time.
While the court likely won’t issue its formal ruling until this summer, the questions asked by the justices—including conservative icon Antonin Scalia—suggested that there isn’t much support among them for the conservative Christian activists behind the case. Protect Marriage Washington is asking the court to block the release of the petitions for Referendum 71, which attempted to repeal domestic-partnership rights for same-sex partners, thereby shielding the names of those who signed the anti-gay petition. It was, in its way, a supreme irony: Scalia, among the rightest of right-wingers on the bench, describing a plea for anonymity by Christian fundamentalists as lacking “civic courage.” As a result, the fundamentalists’ hopes for finding an anonymity-backing majority on the court crumbled; without Scalia on board, it’s virtually impossible to imagine five justices granting the R-71 signers’ request.
A firm accounting of the winners and losers will have to wait until the ruling officially comes down. Even so, the historic—and highly entertaining—oral arguments featured some instructive moments, as well as hints as to who in this case’s wide cast of characters is headed for redemption, reputation rehabilitation, and the historical dustbin.
Consider, for example, Washington State attorney general Rob McKenna, who stood before the Supreme Court for the third time in his career and presented an articulate and well-prepared defense of the Washington State Public Records Act, which he believes requires the petition signatures to be made public. It was exactly the kind of smart legal maneuvering you’d expect from a serious attorney general, and a small step toward political recovery for McKenna, a Democrat’s Republican who seemed in March to be trying to become a Tea Partyer’s Republican (when he joined 12 other conservative attorneys general in suing to block President Obama’s new health-care law). McKenna’s ability to—in another irony—be completely in sync with the court’s four liberal justices provided a reminder that he isn’t always sucking up to right-wing Republicans.
Also confounding the expectations of liberals: Scalia, who, as mentioned, is one of the last people on the court you’d expect to see aligning himself with gay-rights advocates. Scalia has ruled against gay rights repeatedly, most notoriously in his 2003 vote against the court’s decision to overturn anti-sodomy laws. (He wrote the dissent against that decision, in which he denounced his colleagues for “largely sign[ing] on to the so-called homosexual agenda” and went on to claim that laws against gay sex “served the same interest” as laws against bestiality and incest.) But during the oral arguments in Doe v. Reed—the petitioners signed on as “Doe” because they feared threats of violence from gay-rights activists—Scalia essentially called the anti-gay petitioners cowards for trying to anonymously roll back domestic-partnership rights. “The fact is that running a democracy takes a certain amount of civic courage,” he said. Perhaps he’s had a change of heart on gay-rights issues; more likely he just believes everyone should do as he does and sign their names to their anti-gay opinions. Which is, at least, a somewhat more respectable way to discriminate against an entire class of Americans.
When Scalia and McKenna weren’t grabbing the spotlight, a far more mundane aspect of the lawsuit was getting some long-overdue notice: the Washington State Public Records Act, which was adopted by voters in 1972 and requires that most records kept by state, county, and local governments be made accessible to the public upon request. The R-71 backers have been arguing that their petition sheets should be exempt from the act because signing a petition is protected political speech, like voting. McKenna and others have argued that such an understanding would seriously undermine government transparency laws everywhere, making it impossible for citizens to fact-check a petition for fraud and error, and possibly opening the path to anonymous campaign contributions. McKenna’s argument seems most likely to win, but in any case, whenever people pay serious attention to the Public Records Act, it’s a win for one of the most important public-interest laws in this state.
Meanwhile, possibly getting the boot as a result of the anti-gay activists’ poor showing in Doe v. Reed: the up-is-down narrative of victimhood that bigots have been putting forward, not just in Washington but around the country, as they try to take away people’s rights while claiming they’re really the ones being attacked. This narrative seemed to have won support from the Supreme Court last year, when anti-same-sex-marriage advocates in California successfully lobbied the justices to kill a plan to provide a live video feed to the Proposition 8 trial because they feared harassment. But this time, the Supreme Court seems set to rule the other way, suggesting the justices have had enough with the idea that anti-gay activists need special privacy protections not afforded to others. Scalia, on a tear at the oral arguments, derided the demands of the anti-gay activists as “oh so sensitive” and logistically unworkable. “You can’t run a democracy this way, with everyone afraid of having his political positions known,” he said. 
That illustration will give me nightmares.
I’d sign a petition to uphold the Public Records Act, provided that my name isn’t released with it.
The R-71 case is not about gay rights at all. The Court will decide whether the state would violate the petition signers’ Constitutional rights to freedom of speech and privacy by making their names public. The issues would be exactly the same if it was a pro-gay-rights petition, i.e., the message is irrelevant. And there is no irony involved. This is just how the system works.
@3- But it’s still refreshing to see that Scalia is objective enough to say poo-poo to their notions, even if he agrees that gays should have no rights at all. Others in this culture war might not be.
As a former fundie, I can say that they have as much or more persecution-complex as queers do. The entire world is out to stomp on devout Xtians just for existing, doncha know? I made the transition from born-again to out fag without having to drop my paranoia in the least.
Why is it always pro-gay versus ant-gay with The Stranger?
Could it possibly be that Justice Scalia is more concerned with the US Constitution than The Stranger’s Liberal Gay Agenda?
It is impossible to second guess the Supremes. This piece of written tripe is nothing but a lazy reporter calling one in for his rice bowl. What is more pathetic are publications and bloggers who buy into this twaddle as if it is authoritative. It is not.
Oh I get it now. The faults we first think we see in others we know to be true in ourselves. It’s The Stranger that would compromise the law and the constitution in order to move forward their personal agenda….
I see your true colors shining through…..
Doe v. Reed is a disclosure case, not a gay rights case, but search this stupid article for “First Amendment” or “Citizens United” and you come up blank. Anyone with some familiarity with Scalia’s jurisprudence could have easily predicted this ruling.
I know The Stranger is a free paper, but I’m sure you could find some first year law student at UW to write these kinds of articles. Jake Blumgart’s ignorance of the issues here is just deep and pure.
the constitution and “the liberal gay agenda” are the same fucking thing, you moron.
Only in your jaundice eyes Adrian Ryan, you self-serving potty mouthed mooncalf.
Jesus.
It’s not the fact that y’all have an agenda that bothers me. Everyone has an agenda. It’s that every once in a while you don’t know what you’re talking about and you overreach and end up looking just as bad as any other special interest group.
Not everything is about you, kids.
“Which is, at least, a somewhat more respectable way to discriminate against an entire class of Americans.”
Please resist the urge to sound cool and casual while writing a serious article in print. For further guidance, consult Jesse Vernon regarding the correct use of relative pronouns.
I lost my agenda.
I’m using post-it notes in the interim.
Let’s see … “change the world, peanut butter strawberry goodness, feed next door dog bacon …”
Damn.
TylTay is still incredibly bitter that R-71 passed, twisting his narrative that we should let the people have the last word.
Baconcat
Your appalling attempt at antagonism reveals a yearlong, festering, self-inflicted wound that you will not stop licking to let it heal.
It’s clouding your judgment to the point that you cannot even see this pathetic excuse of an article by Jake Blumcart was as poorly written piece of The Stranger tripe as ever to grace a less than fresh fish on Pike Street.
This is not just my humble opinion; none of the other 12 comments including yours state that this is a first-class article or well written. Why?; because it wasn’t.
Blumcart completely called this one in for his rice bowl. It is racked with rhetoric and reeks of irrational speculation as other comments have indicated.
Instead of contributing something of substance or improving the author’s conclusions in the article, you attacked congenial me.
Your word choice in your last post was particularly poor, indicating you might have been inebriated or high when you blogged…hopefully not due to the aforementioned wound…if it was, then Baconcat, dude; either get over R-71 or get some therapy.
Oh no, there’s no wound. We won and you were wrong about everything. Click on your profile link to check your predictions from the past and then get back to me with any corrections or points of order.
Great Article Jake!
Baconcat dude or dudette, get some therapy…you are angry and overly antagonistic…as well as off point.
@15 Jake: It is considered crass to blog under a different name and complement your sub par work….
@5 sorry to disappoint you but there is no such thing as a ‘liberal gay agenda’, just people wanting to be treated equally with the rest of the human race
Oh god, why am I besieging you with facts and your own record, TylTay? Shame on me.
My understanding is the anti Referendum 71 folks went too far in attacking the Public Disclosure Act all the way to the US Supreme Court. Apparently even after this rigmarole they can still seek to block the names by invoking an exemption to the PDA.
Could it possibly be that Justice Scalia is more concerned with the US Constitution than The Stranger’s Liberal Gay Agenda?
Only if you ignore the article’s explicit point that he ruled against the 4th Amendment in “his 2003 vote against the court’s decision to overturn anti-sodomy laws.”
Once again facts show their liberal (pro-gay) agenda
TylTay is an ass. And not the kind that I like.
Blumcart blumcart blumcart
@TylTay
Referring to yourself as “congenial me” shows that you at least have a well-developed sense of humor.
To David U:
Everyone has a Constitution Right to free speech. That is not in question. You can say what you want, join others in saying it all you want, and sign documents with your statements.
The questions are, do you get to hide who you are while making your statement? How does the public know that the correct number of people signed and that all the signatories are legitimate voters? That’s it. It’s not about whether you can say what you want – please do, say what you want, David. If that’s your real name.
@3 is right. I’m very disappointed about the reporting on this issue. The Stranger refused to acknowledge that the other side has a point. What if the roles were reversed? What if there was an initiative to allow Gay Marriage? What if a lot of people wanted to sign it, but were afraid of harassment or violence?
Too unrealistic? OK, how about this one. Imagine the state bans abortion and there is an initiative to overturn the law. Would you want to sign it? Before you say yes, remember that lots of people have died for supporting reproductive freedom. I would want to sign it, but I would sure want it to be private.
Still too hypothetical for you? OK, one more. How about the new marijuana legalization initiative. Would you sign it if you were a cop in say, Richland? How about a teacher? A small business owner in an uptight area next to a school?
There are trade-offs with this issue and The Stranger has only shown one side because it benefits them in this case.
Guess what? Cops, Teachers, Doctors, Lawyers, and Politicians have been signing pro-marijuana petitions for YEARS. The braves ones, the best of us, speak out without disguise, without hiding. Only pussies, afraid of pissing off their boss, hide behind their nanny’s apron while stating their true beliefs. It’s called Coming Out. You should try it.