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.