Posted by: sweeneyblog | May 7, 2010

R-71 Citizen Legislator or Extra Vote

Right now, Washington State has come to the forefront of legal discussions because of the R-71 signature case, which is now being argued in front of the Supreme Court. Don’t go away, this gets interesting, I promise.

Referendum 71 was on the ballot last year; it was placed there by anti-gay activists who wanted to remove our civil union laws. They did this through the referendum process. They gathered signatures and put the issue up for a vote. Washington voted 53% to make our civil unions the legal equivalent of marriage. For the first time in the history of the United States, gay rights were expanded through a vote of the public. For the gay community, after being bludgeoned in California with Prop 8, this was welcome relief.
During this time, the gay rights proponents (the “Yes on Ref. 71” folks) wanted to know who signed the referendum to strip them of their rights. There were numerous talks about organizing boycotts of businesses owned by those who signed the referendum. This tactic was used, to great effect, on pharmacies that refused to dispense the birth control prescription, Plan B, for religious reasons. It is fine to make a statement about your values, (“I don’t believe in gay marriage.”) But when it comes to interfering with other people’s beliefs, (“I don’t want YOU to get gay marriage.”) then things get ugly. The gay community wanted to know who put this referendum on the ballot so they could make decisions about who to support with their business.
Naturally, the anti-gay activists went to court to keep this information secret. They said they were nervous about retaliation. The lead writer of the Referendum 71 told stories of having his three children sleep in the living room for fear someone was going to chuck a brick through their window.
The court case made its way to the Supreme Court. At each stage, the judge placed a hold on the list of names so that, to this day, they still have not been released to the public. Now it has been debated in the highest court in the land.
The crux of the issue has to do with our referendum/initiative process. Is this process about being a citizen legislator, or is it more akin to placing a vote that something should be on the ballot? When an elected legislator writes or supports legislation, they have to sign their name to it. However when you vote, your position remains secret. This basic sort of constitutional argument is exactly the reason we have a Supreme Court.
Right now, it looks like the court is leaning in favor of releasing the names. Even conservative Justice Antonin Scalia said, “Democracy requires a certain amount of civic courage.” If you are participating in the public process by drafting legislation, then you must accept that other people know about it.
Does the subject matter of the referendum or initiative make any difference? If this case was about an ‘Impeach Bush’ initiative, would the same people be arguing for releasing the names and sunshine laws? I find it ironic that the central figures pushing to release the names are two Republicans: Attorney General Rob McKenna and Secretary of State Sam Reed. It gives me hope to see that they are able to set aside politics and argue a basic constitutional argument, with little regard to the political content. That’s how it should be.
This does little to allay the concerns of retaliation. But I see that as a criminal matter. If someone is calling and harassing you, report them to the police. If someone is refusing to buy groceries from your store because they don’t like your politics, that’s perfectly fair.
We shall see what their final ruling is and how that affects our state in the coming months. But for now, it is an interesting matter to discuss. I welcome your thoughts.

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