There’s a lot in play before the Supreme Court in Doe v. Reed

by on April 28, 2010  •  In Elections, Supreme Court

In terms of litigator star power, the case being argued before the Supreme Court today – Doe v. Reed – comes in a pretty distant second to the one the Court heard 10 days ago – Christian Legal Society v. Martinez. The CLS case featured a former Solicitor General arguing against a star scholar turned 10th Circuit judge, now returned to the academy.  Yet the CLS argument turned into a messy hash over the facts, and the case may end up with no decision on the merits. By contrast, Reed may lack superstar lawyers, but in the end it could produce a far more important decision.

In Reed, Petitioners are challenging the constitutionality of a Washington state statute that provides for the public disclosure of the names of persons who sign petitions to put a referendum on the ballot. The case arose out of a dispute over Referendum 71, which gave voters the option to repeal the state's domestic partners law, an option they declined.

The lgbt angle of the case is more than coincidental because petitioners and their supporters have argued for all it's worth – and gauging what it is worth may become a key factor in the case – that gay rights advocates intimidate people who support proposals like Referendum 71 or Prop 8. If nothing else, the case has provided an opportunity for Lambda Legal and other lgbt rights organizations to file a powerful amicus brief detailing the irrationality of those claims.

As I have noted before, the gay intimidation argument has surfaced as this year's latest variation on the old standby that gays control the banks — oops, sorry, that was the Jews, but the gays control something they shouldn't control, which threatens right-thinking people. It is the conservatives' favorite new anti-gay argument, and the outcome in the Reed case may measure how far it has gotten them.

Doctrinally, Reed is all about speech. It pits an argument that signing a petition should be treated as core political speech, subject to the highest level of scrutiny, against an argument that the government has important interests in transparency and protection against fraud in signature-gathering that trump individual privacy. Lots of good questions, from both perspectives, seem likely — the case is one of those professor or judge dream situations, in which it is easy to play devil's advocate from both sides.

Gay rights is not the only or even the major frame into which this case fits. The lawyer arguing for protecting the anonymity of those signing petitions is James Bopp, a conservative cause lawyer who successfully argued the Citizens United v. FEC case, which deregulated  corporate campaign contributions. Bopp has said that the Reed case is a stepping stone toward his long-term goal of eliminating all limits on financial contributions. His role has drawn an amicus brief in Reed from the Brennan Center at NYU Law School, which does not support either party, but stresses that financial contributions should be treated differently (and be made subject to more disclosure) than the identities of those who signed petitions.

All of these dynamics are operating at a moment when the Court seems to be on a libertarian streak in First Amendment issues – first the Citizens United opinion, then the unanimous rejection of a ban on videos depicting cruelty to animals. The Court's decision in Reed is likely to either consolidate or offset this nascent trend. Given how late in the term the case is being argued, it will almost surely be one of the last opinions issued – probably in early to mid June. But it may also be one of the most significant public law opinions this term.


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