The New York Times
April 19, 2010
By Adam Liptak
It will be a couple of years until that central issue in the culture wars reaches the court. But two early skirmishes — if not proxy battles — arrived this month. Both are fights over the First Amendment ground rules for the debate.
On Monday, the justices considered the rights of a Christian student group to bar gay members from leadership positions. Next week, the court will hear arguments about whether the names of people who signed a petition to place an anti-gay-rights measure on the ballot in Washington State should be kept secret.
The student group, the Christian Legal Society, bars “unrepentant participation in or advocacy of a sexually immoral lifestyle,” which it says includes “all acts of sexual conduct outside of God’s design for marriage between one man and one woman, which acts include fornication, adultery and homosexual conduct.”
A public law school, Hastings College of the Law in San Francisco, part of the University of California, withdrew official recognition from the group after it refused to comply with a school policy that forbids discrimination on various grounds, including religion and sexual orientation.
At Monday’s argument, Justice Stephen G. Breyer wondered what the group would have to say about a prospective member who said, “I don’t believe in sexual relationships before marriage, and that’s why I want to work for homosexual marriage.”
Michael W. McConnell, the group’s lawyer and a former federal judge, said taking that position would be enough to disqualify the student.
“If he does not agree with the organization on the point of marriage, then he can be excluded from leadership in the group,” Mr. McConnell said.
In an interview last week, Mr. McConnell said the issue in the case, Christian Legal Society v. Martinez, No. 08-1371, was an instance of a larger problem of intolerance for disfavored views, one that sometimes affects gay groups and at other times religious ones.
“I have no doubt at all that different parts of the country at different times present different threats to free speech,” Mr. McConnell said. “What we’ve been doing is ostracizing large segments of the American public.”
Advocates of traditional marriage say their free speech rights are under assault, as a brief in Monday’s case put it, for holding views “contrary to the reigning zeitgeist.” Proponents of same-sex marriage say their adversaries mistake debate for harassment and have a lot of nerve to claim the mantle of victim.
The divide between the two sides is even starker in the case to be argued next week, Doe v. Reed, No. 09-559. The question there is whether Washington State’s open records law violates the free speech rights of people who signed ballot petitions by requiring their names to be made public. Some of those people say they fear retaliation and harassment from advocates of same-sex marriage.
A number of news organizations, including The New York Times Company, filed a brief in the case, arguing that the petitions should be treated as public records.
But a supporting brief filed by the American Civil Rights Union, a group that says it supports “all constitutional rights, not just those that might be politically correct,” warned that openness could have dire consequences and likened gay rights activists to Nazis.
“There must be no place in our democracy for Brownshirts seeking to force their way through thuggery and violent intimidation,” the brief said.
A supporting brief filed by gay rights groups accused the other side of using a “largely fictitious tale that those who seek to deprive lesbian and gay Americans of rights are the ones being victimized.” It added that the civil rights of gay men and lesbians had been put to a popular vote more than those of any other group and that hate crimes against them had risen while such initiatives were under consideration by voters.
Evan Wolfson, the executive director of Freedom to Marry, a group that supports same-sex marriage, said its opponents were using a sort of rhetorical jujitsu. “When they pour tens of millions of dollars to strip rights away in the Constitution, that’s just speech,” Mr. Wolfson said. “When people don’t like it, that’s harassment.”
A brief filed by four political scientists analyzed the evidence on harassment, drawing a distinction between financial supporters of Proposition 8, the California ballot initiative that did away with same-sex marriage there, and people who merely signed petitions to place an issue on the ballot.
“More than a million names of signers of petitions for referenda and initiatives opposing gay marriage have been posted on the Internet,” the political scientists’ brief said. “Yet there is no evidence that any of these signers has faced any threat of retaliation or harassment by reason of that disclosure.”
The Supreme Court has, however, been receptive to arguments based on fear of retaliation. It shut down camera coverage of the same-sex marriage trial in San Francisco in January, partly on the theory that witnesses might be subject to harassment.
In Citizens United, the big campaign finance case, eight justices endorsed disclosure requirements for corporate election spending. But the court suggested that it would have a different answer in the context of same-sex marriage.
Laws requiring disclosure would be unconstitutional, Justice Anthony M. Kennedy wrote, “if there were a reasonable probability that the group’s members would face threats, harassment or reprisals if their names were disclosed.”
That cannot be heartening for gay rights advocates. Mr. Wolfson said debate about free speech, anonymity and retaliation was a worrisome distraction from a direct discussion of the meaning of marriage.
In law school, Mr. Wolfson said, you learn three possible ways to win a case. You can argue the law. You can argue the facts. Or you can make a fuss.
He said opponents of same-sex marriage were down to the last tactic. “They’ve lost the argument on the facts and increasingly on the law,” Mr. Wolfson said. “What they’re doing now is pounding the table.”