Transparency includes names on petitions for Referendum 71

Washington state voters in 2009 approved Referendum 71, variously known as the domestic-partners or "everything but marriage" law. While the issue itself was settled, an ancillary free-speech issue was not, and it received a hearing last week at U.S. District Court in Tacoma.

The referendum was placed on the ballot by the group Protect Marriage Washington, which sought to overturn the expansion of the state's domestic-partners laws that the Legislature recently had approved. The law's expansion allowed same-sex and some senior couples to use sick leave to care for each other and to claim one another's death benefits, among other provisions.

After the Legislature approved the measure, opponents successfully gathered enough signatures to put it up to a citizen's vote. The public vote, technically, was whether to uphold the Legislature's action; voters did so with a 53 percent yes vote.

In the midst of the petition drive, two gay-rights groups announced they would post online the names and addresses of those who signed the petition. The gay-rights activists claimed they wanted to give their supporters a chance to contact petition-signers and champion their cause for equal treatment.

Protect Marriage Washington and its supporters saw a darker motive. They said they feared releasing the signers' names would subject them to the kind of threats and harassment that had occurred the year before in California during a successful repeal of a law allowing same-sex marriage. Protect Marriage sought to block Secretary of State Sam Reed from releasing the names.

The case, Doe vs. Reed, made its way through the court system to the U.S. Supreme Court, which in June 2010 upheld public disclosure of the names but said Protect Marriage could present a narrow argument regarding intimidation in the Referendum 71 campaign.

That is what the group is doing in Tacoma. Protect Marriage is asking Judge Benjamin Settle to declare the state's Public Records Act unconstitutional as it applies to Referendum 71. Settle will consider the merits of the claim based on standards set by the Supreme Court from past cases.

The concerns of Protect Marriage and its supporters can resonate in an era of decreasing civility in public discourse. That said, we have long argued that perceived fear of intimidation should not be used to undermine the state's Public Records Act. Those who feel subjected to intimidation have other legal tools, such as restraining orders and anti-harassment charges, that law-enforcement officials routinely handle.

Anyone signing an initiative petition is actively taking part in the lawmaking process. The Supreme Court justices, in affirming by 8-1 the Public Records Act's application to signatures, ruled anything short of this kind of complete disclosure would undermine the process and call into question the authenticity of those who sign the petitions.

This is the flip side of free speech. Yes, you have the ability to speak, but somebody has the ability to speak back. Allowing the fear of intimidation -- whether the fear is real, perceived or manufactured -- to render secrecy into the initiative and referendum process limits government openness at a time of widespread citizen mistrust of government.

Those who report and document intimidation have legal tools at hand; meanwhile, we can't lose a tool that enables transparent governance. A ruling from Judge Settle is expected in a week or so, and we hope he sides with open government.

* Members of the Yakima Herald-Republic editorial board are Sharon J. Prill, Bob Crider, Frank Purdy and Karen Troianello.