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Turning A Policy Question Into A Constitutional Question

By Big Tent Democrat

AdamB at Daily Kos has an interesting post up about a lawsuit in Washington state seeking to keep the identity of persons who sign a petition for a referendum private. Adam writes:

[L]awyers on behalf of the petition-gatherers have sued the WA Secretary of State to block the public release of the signatures, arguing that the opponents' efforts "chill[] free speech ... particularly when it is reasonably probable that those exercising their First Amendment rights would be subjected to threats and harassment." Among other facts, they cited a stalker photographing of a petition organizer's house while his daughter played outside; late-night obscene and threatening phone calls; car windows broken; a house egged and floured repeatedly; a stairway at another supporter's house doused in urine.

A federal judge yesterday granted their motion for a temporary restraining order, blocking for now the release of the signatures citing the irreparable harm which could result, a sign that he sees the balance of the equities and constitutional values supporting individual privacy over mass disclosure.

While Adam focuses on the balancing of disclosure vs. privacy, I am more intrigued by the question of the petitioners seeking "judicial activism." I'll explain my thinking on the flip.

Adam writes:

How you come down on all this -- as to whether privacy is more important than disclosure, or whether the names should be published while trusting the police to deal with acts of harassment when they occur -- may well depend on one fact about which I've been deliberately coy up until this point. Because while I noted that this was a "gay marriage initiative," I didn't actually say whether it was pro gay marriage or against.

That is an interesting sidebar to me. The more interesting question is why would this question be decided by a court as opposed to the legislature? Adam provides a link (PDF) to the moving brief. Suffice it to say that the legal citations on point are sparse. Yes cases are cited and language is used but, to put it bluntly, the cases on point do not exist.

This is a novel argument. Now, because it is a novel argument does not mean that it is a bad or incorrect argument. Nor does it mean that a court would be acting inappropriately were it to find in favor of a First Amendment protection in this area.

What a court would be were it to do that is being what is called pejoratively by some, "activist." It would be "finding new rights."

As I have often written, being a "judicial activist" is not dispositive of whether a court is acting correctly or not. But for some it is.

It so happens that the petition in question is being forwarded by a group seeking to place on the ballot a referendum to rescind Washington state’s newly expanded domestic partnership law.

Surely an interesting group to be seeking "judicial activism."

Speaking for me only

Full post as published by TalkLeft on August 03, 2009 (boomark / email).