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Prop. 8 cuts both ways

The fight over same-sex marriage has spawned unsavory political tactics on both sides of the issue.

October 28, 2009|Tim Rutten

California is America's incubator, the place where transforming trends in culture, clothing, commerce and -- unfortunately -- politics often begin. Proposition 13 ignited a national anti-tax fervor; Proposition 187 inflamed anti- immigrant sentiment. Most recently, the state has spawned the tea-party movement's inchoate anger.

Proposition 8, the ballot initiative that overturned a California Supreme Court ruling recognizing the fundamental right of gays and lesbians to marry, is one of those rare measures whose impact has cut both ways.

On the one hand, the proposition's success has inspired efforts to roll back same-sex marriage and even domestic partnership laws. On the other, some of the most militant supporters of marriage equality have built on the example of their angry California brethren and assembled data banks containing not only the names of financial contributors to anti-gay-rights measures but also those of individuals who have signed petitions required to put Proposition 8-style initiatives on their states' ballots. (California makes the names of donors public, but not those of petition-signers.)

As The Times' David G. Savage and Carol J. Williams reported this week, the largest of these activist groups -- Boston-based KnowThyNeighbor.org -- has collected and made available online the names of people who signed petitions seeking restrictions on gay rights in Massachusetts, Florida, Arkansas and Oregon. When the group sought to add the names of those who'd petitioned to overturn a domestic partnership law in Washington, traditional-marriage advocates sued in federal court to block release of the information, citing the harassment suffered by some Californians who were "outed" as contributors to the Proposition 8 campaign.

The lower court issued a protective order blocking release of the names. The U.S. 9th Circuit Court of Appeals overturned it, but last week, the U.S. Supreme Court intervened to maintain the order until it determines whether the 1st Amendment protects not only the right to petition the government but to do so in confidence.

The language of the Supreme Court clearly signaled a willingness to take that argument seriously. That is in keeping with a whole line of rulings dating back to the court's landmark 1958 decision in the case of NAACP vs. Alabama, which held that the civil rights organization did not have to turn over its membership roles to the state's segregationist government. In effect, the court held that privacy was an irreducible component of the fundamental liberty to assemble peacefully. Various justices have gone on to cite the force of that 1958 precedent in privacy cases ranging from Griswold vs. Connecticut -- which overturned a ban on contraceptive devices -- to Lawrence vs. Texas -- which struck down an anti-sodomy law.

Whether it's ultimately wise to expand the right to assemble in private to a national right to petition state governments anonymously is not an easy question. Serious legal scholars are divided on the question of whether such petitions are a quasi-legislative act -- where there's an imperative toward openness -- or a form of political speech, entitled to full 1st Amendment protections, including privacy. Both are true.

Given the nature of modern initiative campaigns, which are less the product of grass-roots organizing than interest-group fundraising and professional campaigning, our "direct democracy" would seem to require the same degree of transparency we expect of the normative legislative process. Moreover, if state governments are allowed to hold the names and information on petitions secret, how will we know for certain that certifications are honest?

Yet California's post-Proposition 8 experience clearly shows that transparency carries risk for individuals who participate in the political process, though it's also true that the state's disclosure of political contributions made clear the key role that members of national religious organizations, like the Mormon Church and Knights of Columbus, played in influencing the outcome.

This confrontation has arisen because some gay activists -- understandably outraged by the abrogation of a fundamental right by popular vote -- pressed forward with a retaliatory political tactic whose potential for abuse is self-evident. While I unequivocally support marriage equality, I also believe that extending the struggle against its opponents into extra-political venues, such as the home or workplace, is reckless and dangerous. Once established, it's a tactic that won't be discarded when marriage equality is achieved, as it inevitably will be in the near future.

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timothy.rutten@latimes.com

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