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Originally published October 2, 2011 at 9:01 PM | Page modified October 3, 2011 at 8:49 PM

Judge to rule in two weeks on releasing Ref. 71 names

Doe v. Reed, the lawsuit borne of a contentious dispute over granting domestic-partner benefits to same-sex couples in Washington state, is scheduled for a hearing at 2 p.m. Monday before U.S. District Judge Benjamin Settle in Tacoma. At issue is whether the names of people who signed Ref. 17, which sought to roll back those benefits, should be made public.

Seattle Times staff reporter

Referendum 71 timeline

2009

May 18: Gov. Chris Gregoire signs Senate Bill 5688, which extends domestic-partnership benefits for same-sex couples and some seniors. The measure allowed same-sex and some unmarried senior couples to use sick leave to care for each other and to claim one another's death benefits.

A coalition of religious conservatives, organized under Protect Marriage Washington, immediately begins collecting signatures to place the measure on the November ballot, hoping voters would repeal it.

June 1: Two gay-rights groups — whosigned.org and knowthyneighbor.org — announce they will post the names of those who signed the petition online and make it searchable.

July 25: Protect Marriage turns in more than 137,000 signatures in 68 days.

July 28: Protect Marriage immediately files suit to block the secretary of state from publicly releasing the names.

July 29: U.S. District Judge Benjamin Settle grants a temporary restraining order blocking release of the petitions.

Sept. 10: Settle grants a preliminary injunction preventing the state from releasing the names. In his ruling, he says Protect Marriage is likely to prevail in proving that the Public Records Act is unconstitutional as applied to the disclosure of all referendum petitions, but he does not rule on the group's specific claim regarding Ref. 71.

The secretary of state appeals to the 9th Circuit, which reverses Settle's decision.

Oct. 19: U.S. Supreme Court Justice Anthony Kennedy stays the 9th Circuit ruling. The next day, the U.S. Supreme Court extends that stay and agrees to hear the case.

Nov. 3: Washington voters approve Ref. 71, keeping intact the final piece of the state's domestic-partnership law that extends marriagelike state benefits to same-sex and some senior couples.

2010

April 28: The U.S. Supreme Court hears oral arguments and two months later issues its ruling. It upheld the 9th Circuit ruling, saying the state's Public Records Act generally does not violate the First Amendment. It remanded the case back to District Court to allow Protect Marriage, if it chose, to challenge the act specifically as it relates to Ref. 71.

quotes What, again? When you choose to legislate by signing a petition or referendum you take... Read more
quotes "He described being mooned by a passenger in a passing car and "flipped... Read more
quotes @Van Damme... no one went to any "great lengths" to make the names of the... Read more

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Update: 4:30 p.m. Oct. 3

After hearing arguments this afternoon, a federal judge in Tacoma said he will issue an opinion in two weeks about whether the names of people who signed Referendum 71 petitions should be kept confidential or made public.

Protect Marriage Washington, which sued to block release of the names, argued that disclosure would subject signers to the kinds of threats and harassment that occurred in California after voters there repealed same-sex marriage. The group asked U.S. District Court Judge Benjamin Settle to declare the state's Public Records Act unconstitutional as it relates to Ref. 71.

Lawyers from the state Attorney General's office and two intervening organizations argued that the Prop. 8 experiences are irrelevant in Washington and that the plaintiffs failed to make a case for why signers should be exempt from the state's disclosure laws.

Original post: 9:01 p.m. Oct. 2

He's known in federal-court documents as John Doe #2, a former youth pastor and unabashed opponent of gay marriage who two years ago signed a petition to put benefits for same-sex couples up to a statewide vote.

Doe is unnamed because Protect Marriage Washington, the conservative organization that ran the Referendum 71 campaign to roll back those benefits, worries about harassment and reprisals against him and 137,500 others who signed the petition.

He is the second of two John Doe plaintiffs in a lawsuit the group filed in 2009 against Washington's secretary of state. The action succeeded in blocking release of all their names.

Doe v. Reed, a tome of a lawsuit that reached the U.S. Supreme Court within a year, is scheduled for oral arguments Monday before U.S. District Judge Benjamin Settle in Tacoma. Protect Marriage has requested the hearing be closed for confidentiality — extremely rare in federal cases — and that is likely to be Settle's first order of business Monday.

Ultimately, the judge will have to consider the merits of Protect Marriage's claim that releasing the names would subject signers to widespread threats and harassment — based on standards set forth by the Supreme Court in prior cases.

Now in its 26th month, Doe v. Reed has consumed tens of thousands of pages of court filings. Dozens of witnesses have been deposed and the case has used up thousands of attorney hours, some of them pro bono.

After all parties had been preparing for a weeklong trial for more than a year, Settle last month announced he was canceling the trial and would hear oral arguments and rule on motions for summary judgment "as a matter of law."

That usually happens in cases where the judge determines there's no dispute in fact.

Protect Marriage wants the judge to keep the petitions permanently blocked, to declare the state's Public Records Act unconstitutional as it applies specifically to Ref. 71, which voters in the end narrowly approved.

The measure expanded the state's existing domestic-partnership law, among other things allowing same-sex and some senior couples to use sick leave to care for each other and to claim one another's death benefits.

Protect Marriage points to hostile fallout across California after voters repealed gay marriage there three years ago under Proposition 8: Churches and personal property were defaced and vandalized, and people lost their jobs — incidents documented in 263 news and blog clippings and videos submitted as evidence in the case.

Before, during and after the Ref. 71 campaign, the group says, supporters of traditional marriage here and across the country reported a litany of abuses — "death threats, physical assaults and threats of violence ... angry protests ... intimidating emails and phone calls ... multiple websites dedicated to blacklisting those who support traditional marriage and similar causes ... economic reprisals and demands for 'hush money.' "

Using its email list, the group invited those who had been threatened because of their involvement with Ref. 71 to come forward.

About 20 who did described a range of incidents of harassment in redacted declarations and depositions, from phoned-in death threats to roadside mooning.

One Russian immigrant, who signed the petition at his church in Vancouver, for example, stated that a group of men had pulled up in a bus to a site where youth from the church were having a sign-waving rally and began offering sexual favors.

A state senator, who was involved in the passage of Washington's 17-year-old Defense of Marriage Act, which defines marriage as between a man and a woman, recalled a series of disturbing phone calls during the campaign in which she was called vile names.

And then there's John Doe #2, who told state attorneys during his deposition that his position on homosexuality is derived from his religious beliefs and is rooted in the Bible.

He described being mooned by a passenger in a passing car and "flipped off" by motorists while holding campaign signs from an overpass.

The state and its interveners — Washington Coalition for Open Government and Washington Families Standing Together, which campaigned to retain the domestic-partnership laws — say the integrity of the state's public-disclosure law is at stake.

They argue that Protect Marriage has failed to establish a "reasonable probability of serious and widespread harassment that the State is unwilling or unable to control."

The plaintiffs, they say, provide no evidence that any of the 850 people who made campaign contributions to Protect Marriage's campaign (their names and employer information have been public for two years) have been subject to harassment or threats.

Most of the organization's witnesses, they further point out, were actively involved in the Ref. 71 campaign or are religious and political leaders whose positions on homosexuality in general and gay marriage in particular are well publicized.

In any case, say the state and its interveners, the experiences described by petition signers amount to little more than the rough and tumble of a heated political campaign — with the name-calling and jostling that occur on both sides.

Lornet Turnbull: 206-464-2420 or lturnbull@seattletimes.com

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