Supreme Court Speaks - With Divided Tongue - Doe v. Reed

About an hour ago the U.S. Supreme Court issued its decision (and opinions) in Doe v. Reed, No. 09-559, one of the two pending cases that LGBT rights fans have been tracking this term.  (The other is Christian Legal Society v. University of California, which will be announced on Monday, June 28, which will be the last day of the Court's term.  Due to the other cases being release that day as well, a major patent case and the gun regulation case, CLS v. UC may get overshadowed in the press.) 

The Court ruled 8-1, opinion by Chief Justice Roberts, that the Washington State law providing that petitions filed to get initiatives on the ballot are subject to public disclosure does not, in general, violate the First Amendment rights of petition signers, thus affirming the 9th Circuit and reversing the District Court.  At the same time, Chief Justice Roberts indicated that the Court's ruling does not mean that plaintiffs may not be able to prevail on their second claim, not strictly speaking before the Court, that due to the circumstances of this case, the state should keep the names and addresses of petition signers confidential to protect them from harassment.  Appropriately, the decision for the Court does not get into details about the second claim - if Roberts had tried that, he would be writing a plurality opinion, because he could not cabin Scalia, Alito, Sotomayor, Stevens, Ginsburg and Breyer within the same opinion....

Here is where the major divisions on the Court emerge as to the second claim (and all of this, of course, is just dicta since the second claim was not before the Court and everybody who signed on to the Court's opinion agrees that claim 2 remains alive).  So far, I've just quickly skimmed the opinions (67 pages). 

My quick summary - Concur by Sotomayor with Ginsburg and Stevens - it should be difficult for plaintiffs to keep the names confidential; Concur by Alito - it should be easy for the plaintiffs to keep the names confidential; Concur by Stevens and Breyer - it should be difficult for plaintiffs to keep the names confidential; Concur by Scalia - originalist view of the First Amendment and characterization of petition signers as actually being involved in "legislating" means there is only a weak First Amendment interest, if any, in keeping these names confidential.  So Scalia is sees no problem with the statute, as such, and is very unfavorably disposed to the second claim.  Dissent by Thomas - Strong First Amendment protection for privacy of petition signers, so statute violates the First Amendment.  Interesting to see Thomas and Scalia sharply split. 

C.J. Roberts' opinion is a majority opinion (6 signatures - he lost Scalia, Stevens, and Thomas), but with concurrences there are 8 votes to uphold the Washington statute.  On whether the plaintiffs can get an injunction in this case on narrower grounds, it looks like the majority of the Court would find that they have a significant burden to meet.

This is a preliminary quick summary.  More later when I've had a chance to read it over at leisure.

Comments

[BobN]

"Monday, June 28, which will be the last day of the Court's term"

And, coincidentally, just as with the release of the decision in Bowers v. Hardwick, the day AFTER the nation's largest Gay Pride parades in NYC and SF.

I will not be paranoid. I will not be paranoid.