Convoluted logic is at the heart of a case now heading to the Ninth Circuit Court of Appeals: Anonymous John Does, who signed a petition intended to deny partnership rights to same-sex couples, argue that they constitute a minority in need of protection.

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The case stems from the actions of Brian Murphy, who blogs as the Gay Curmudgeon. Murphy filed a records request for the 9,359 petitions sheets used to get Referendum 71 on the ballot. R-71 puts a law passed by the legislature earlier this year—expanding the domestic-partnership law—up for a vote. In June, Murphy announced he would post the signers' names and addresses on WhoSigned.org, thereby allowing gay people and gay-rights supporters to civilly confront anyone who signed the petition.

Petition filers Protect Marriage Washington argued in U.S. district court that releasing the information would cause petition signers "immediate and irreparable deprivations of their First Amendment liberties." The group asserted that "individuals whose names are already connected with Referendum 71 have been subjected to threats, harassment, and reprisals simply for exercising their First Amendment freedoms." Attorneys for the plaintiffs submitted blog posts and e-mails by supporters of marriage equality, most of whom expressed their disapproval of bigots in civil terms. But one person wrote in an e-mail, "I look forward to kicking your ass." Judge Benjamin Settle ruled on September 10 that the petitions could remain sealed, based largely on the ideas that releasing them provided no public benefit and that signing petitions, like engaging in free speech, may be done anonymously.

For Republican state attorney general Rob McKenna, who appealed Judge Settle's ruling to the Ninth Circuit Court on September 11, this is a battle to protect Washington State's open government laws.

"We don't see this case as being about Referendum 71," says Jim Pharris, Washington State deputy solicitor general, who is litigating the case. "We look at it as the principle of access to public documents."

McKenna isn't the only Republican elected official who is fighting on the side of gay-rights interests. Republican secretary of state Sam Reed, represented by McKenna's office, is leading the fight to overturn Judge Settle's ruling, in concert with the Washington Coalition for Open Government (WCOG), a nonprofit run by former Republican state representative Toby Nixon. Ironically, the state Republican Party officially seeks to repeal the state domestic-partnership law.

WCOG director Nixon warns that Settle's decision, which allows for anonymous lawmaking, could have more sweeping ramifications. "This could very easily be interpreted as saying that people [also] have a right to make campaign contributions anonymously," says Nixon. That path could allow lobbyists to go unnamed, and thus money and entities that influence every piece of legislation would be invisible to the public. And if petitions are not released to the public—in this or other cases—Washington citizens could forever lose the ability to independently verify that the secretary of state's office is following the rules.

"If this has to go all the way to the U.S. Supreme Court, we will do that," Nixon says.

The attorney general's office reviewed over 60 affidavits filed in the case, many from people in California whose names wound up on a website after Proposition 8 was approved last November.

"There was some property damage, broken windows, a bumper sticker was torn off," Pharris says. "Most of it, however, was much milder stuff. People saying that 'people didn't speak to me.'" The argument against releasing the petitions boiled down to "my neighbors might... glare at me over the fence."

And the risk of being glared at, says Pharris, "just isn't enough" to alter public-records rules.

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"There is a larger discussion we need to be having," says Murphy, the man who sparked the entire case. "We have one part of the constitution being used to hide people who are advocating to take away the rights [of people who should be protected by] another part of the constitution," he says.

"When equal protection doesn't work," Murphy says, "the only thing minorities can do is get the greatest level of public scrutiny they can on a process to take away their rights or continue discrimination." recommended

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