Ken Klukowski

Today the Supreme Court dealt a setback to supporters of traditional marriage. But it’s not the defeat that gay-rights supporters (and many of their fans on the media) are hailing it as, and leaves open the possibility that traditional-marriage supporters may be the ones celebrating at the end.

Washington State passed a law providing many of the benefits of marriage to gay couples. Groups sought to get enough signatures to put the issue on the ballot, so that the voters could decide directly whether to change this law.

Two gay-rights groups wanted to make public the names of everyone who signed this petition, putting it on the Internet in searchable form, and encourage opponents to seek them out. Given that such information was recently published in California on the gay-marriage issue, along with addresses and maps to the homes of petition signers, it’s beyond doubt that this disclosure is intended to threaten and intimidate people who sign the petition.

So when gay-rights supporters in Washington pushed to have these names released under Washington’s public-disclosure law (which the Washington secretary of state was willing to do), traditional-marriage supporters pushed back, concerned about the threats and intimidation. When Secretary of State Sam Reed tried to release them anyway, marriage supporters got a court order blocking release until the Supreme Court could decide the issue.

On June 24, the Supreme Court handed down its opinion in this case, Doe v. Reed. The Court split between seven different opinions, with some justices writing just for themselves and others writing for several.

The Court clarified that the issue before it was whether all disclosures of all signers on all petitions nationwide are always unconstitutional. Noting that most ballot measures involve mundane issues such as local school zoning proposals or local construction bonds, the Court held 8-1 that the First Amendment does not categorically bar all disclosures.

The Court went on to hold—and you’re likely to not see this in many press reports—in a different 8-1 split that the First Amendment does bar disclosure when the plaintiffs can show a reasonable probability that they may be subject to threats of harassment or intimidation for signing the petition. The Court expressly noted that such a consideration of this marriage petition was currently pending in a lower court, and signaled the High Court would consider that issue if necessary.

Ken Klukowski

Ken Klukowski is a bestselling author and Townhall’s legal contributor covering the U.S. Supreme Court, and a fellow with the Family Research Council, American Civil Rights Union, and Liberty University School of Law.