Justice blocks release of Ref. 71 names

Constitutional-law experts scrambled to apply meaning to an order issued Monday by U.S. Supreme Court Justice Anthony Kennedy, temporarily blocking the release of the names of those who signed Referendum 71 petitions, in what has become a months-long legal back and forth.

Kennedy's order came only days after a three-member panel of the 9th U.S. Circuit Court of Appeals ruled that the state of Washington could release copies of the more than 9,000 petitions bearing addresses and signatures of signers.

The 9th Circuit decision overturned a ruling in September by U.S. District Judge Benjamin Settle in Tacoma, who barred the state from releasing the names, saying doing so could chill the First Amendment free-speech rights of voters.

Kennedy, who oversees the 9th Circuit, said his order would remain in effect while he considers a request to reverse the appeals-court ruling by Protect Marriage Washington, the religious conservative group that collected the signatures.

He ultimately could vacate his order or refer it to the full Supreme Court for review.

Stewart Jay, a University of Washington constitutional-law professor and an expert on the Supreme Court, said he believes Kennedy's ruling has "constitutional importance."

"I thought a good case was made for keeping the names secret, and I was surprised the 9th Circuit reversed," said Jay, who once clerked for the late Chief Justice Warren Burger. "It does not surprise me Kennedy has issued a stay."

Hugh Spitzer, a University of Washington affiliate professor of law who teaches state constitutional law, said he doesn't apply that much significance to the ruling, saying it's an effort to maintain the status quo.

He and others noted that once the state has released the information, it wouldn't be able to recall it — something akin to the unringing of a bell.

Jennifer Pizer, senior counsel for Lambda Legal, a national gay-rights legal advocacy group and a constitutional-law expert, said Kennedy's order is unusual, given the court grants a tiny fraction of the thousands of requests it receives to hear cases.

"What it indicates is that Justice Kennedy has a glimmer of interest in this issue, and he's thinking his colleagues on the court might have an interest, too," she said.

Kennedy's decision is the latest salvo in a contentious battle around Ref. 71. The measure asks voters to approve or reject the most recent expansion of the state's domestic-partnership law, granting marriagelike state benefits to registered gay and senior couples.

Protect Marriage sued the state to block release of the names of petition signers, saying many had been threatened.

The suit came after some gay-rights groups said they would post the names of all who signed on a searchable Web site to encourage "uncomfortable conversations" around the issue. Protect Marriage argued that releasing the names infringes on signers' constitutionally guaranteed right to free speech.

The secretary of state had argued in favor of disclosure, saying people waive their First Amendment protections when they sign such petitions.

Settle sided with Protect Marriage and barred the state from releasing the names.

As of Monday, the secretary of state was barred from releasing the names by both federal and state courts. In Olympia, a Superior Court judge who last week temporarily blocked release of all petitions for which the public had requested copies was to hear arguments in the case today.

In a brief to Kennedy on Monday, the state Attorney General's Office said that if Protect Marriage prevails in keeping the names concealed, "it would have succeeded in commanding a state election on Referendum 71, free of public scrutiny."

Material from The Associated Press was included in this report.

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