Many of the other opinions were also informative. For example, Justice Alito wrote separately to say that he believed such court findings of harassment could be made very early in the petition process, such that petition supporters could receive assurances from the outset that their identities would be protected.
Justice Clarence Thomas—the most conservative justice on the Court—dissented from denying the categorical rule. Justice Thomas wrote that because many people would not know whether their identities would be protected, that only a blanket rule forbidding any disclosure of any signers’ names is sufficient to protect the First Amendment right to speak out on public issues.
To the surprise of some, the vote most against the marriage supporters was delivered by Justice Antonin Scalia. Writing separately, Scalia argued that when a person signs a petition to change the law, they are acting as a legislator, not a private citizen, and as such the First Amendment does not apply at all. Therefore, Scalia argued, the Constitution never requires signer names to be kept confidential.
The record of atrocious harassment in the wake of California’s Proposition 8 makes perfectly clear that these marriage supporters can make a strong case that they could be harassed. As such, by the standard the Court announced today, the marriage supporters should win.
The question will then be how the liberal justices that voted for this standard today will rule once that issue comes before them. Will they acknowledge the likelihood of harassment? Or will any of them adopt the attitude expressed by many leftist politicians that gay marriage is like the civil rights movement, that it’s a fundamental right, and that they don’t mind subjecting those they consider narrow-minded bigots from being subject to abuse by having their names (and addresses, and maps to their houses) made public.
So now the case goes back to the federal district court, which will consider whether Washington’s public disclosure law is unconstitutional in this instance. An appeal to the Ninth Circuit is inevitable. What’s not inevitable is whether this case will make it all the way back up the Supreme Court, or what the end result will be.
The defenders of traditional marriage should be protected by the First Amendment in this instance. We’ll see if that’s what happens.