The Supreme Court issued a fascinating decision this morning in connection with the marriage equality movement. It pits Justice Scalia against the anti-gay folks, and I’m not totally sure which side I agree with here.

Last year, in Washington State, the governor signed a same-sex domestic partnership bill into law. In response, a group called Protect Marriage Washington tried to get an initiative onto the ballot to repeal the law. They managed to get enough signatures to do so. In response to that, a coalition of groups sued under the state’s Public Records Act to learn the names of everyone who signed the petition.

Protect Marriage Washington argued that this would be a violation of the First Amendment rights of everyone who signed the petition, because it would have a chilling effect on speech. They argued that if you can’t sign a petition without staying anonymous, this will discourage people from signing petitions and thereby their free speech rights will be curtailed. They also argued that in this particular instance, the signers of the petition were subject to threats from gay-rights people.

This morning, the Court, in Doe v. Reed, ruled that there is no blanket right to anonymity if you sign a petition. But they refrained from ruling on the particular circumstances of this case; they kicked back to the lower court the issue of whether there’s a legitimate threat against the petition signers that would necessitate keeping their identities secret.

Chief Justice Roberts wrote the majority opinion, which was 6-3, although the lineup is a little splintered. Only Justice Thomas dissented completely, arguing that the First Amendment in all cases protects the anonymity of petition signers.

Scalia’s concurrence is the most interesting, though. He argues that there is no protection of anonymity regardless of whether there are threats; he examines American history and finds that there is not even a First Amendment right to a secret ballot in an ordinary election, because until the late 19th century, most states didn’t have secret ballots, and the secret ballot was instituted not because of First Amendment concerns, but in order to minimize election fraud.

The highlight of his concurrence is at the end:

There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously… and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

He’s basically saying to the anti-equality people: don’t be such wimps. Have the courage to argue your opinions in public.

And I kind of respect that.

I’m still not sure if I agree whether petition signers should have the right to their anonymity. I think I’d say, no, except in certain circumstances, such as someone signing a petition for racial equality in the South during the 1960s, in a time and place where there was a history and demonstrated threat of racial violence.

And I don’t like the idea that you can sign a petition to take away someone’s rights and then turn around and falsely complain that you’re subject to the threat of violence for doing so.

Finally, it’s interesting to read this decision alongside the Court’s January ruling that the Prop 8 trial in California shouldn’t be broadcast because it could cause “irreparable harm” to the anti-equality side’s witnesses.

It’s always funny to me that lots of anti-gay people make fun of gay men for being sissies and yet cower in fear of physical harm from them.

I recently finished reading a brilliant book that’s greatly affected my thinking about constitutional theory: Restoring the Lost Constitution: The Presumption of Liberty, by Randy Barnett. Here’s a summary of the book. Barnett, a law professor at Boston University, is a libertarian and a believer in an originalist interpretation of the Constitution. Because there is no true way for 100 percent of the population to consent to the Constitution, Barnett believes there should be a “presumption of liberty” – people have the right to be left alone unless it’s really necessary for them not to be. He states that the courts have wrongly eviscerated the Ninth Amendment – which protects unenumerated rights from the federal government – and the Privileges or Immunities clause of the Fourteenth Amendment – which he contends protects unenumerated rights from the state governments. These unenumerated rights are a subset of natural rights, which philosophers like John Locke said are the rights we hold merely because we are human beings, even before government comes into existence.

He disagrees with the Supreme Court’s creation of the doctrine of “fundamental rights,” or rights that deserve greater protection than others. Rights are rights, Barnett says, and there should be a presumption in favor of all of them. One thing I really like about this book is how Barnett criticizes many Supreme Court doctrines, such as the doctrine of fundamental rights and the doctrine of the various levels of scrutiny used in equal protection analysis. These doctrines are nowhere to be found in the constitution and don’t always make sense. (While I’m on this, I’d really like to find out more about the original meaning of the Fourteenth Amendment’s equal protection clause. Was it meant to apply exclusively to racial classifications? And does “equal protection of the laws” really mean what we say it means today?)

Barnett’s reason for being an originalist is very persuasive. Unlike many ideologues, such as Bork and Scalia, he’s not a results-oriented originalist. He believes in originalism because he believes in the importance of a written constitution. He says that if you believe in a “living constitution,” what you’re really saying is that you believe the constitution is flawed and needs to be changed. He finds nothing inherently wrong with this position, but he says that its proponents should acknowledge it so that there can be an honest debate. There is a valid way to change the constitution, of course: via the amendment process.

The only problem I have with this theory is that I’m not sure how much it protects equal rights for minorities. Barnett barely discusses equality in his book. Constitutional amendments require the support of supermajorities, and majorities are not usually concerned about granting equal rights to minorities. James Madison himself was concerned about oppression by a majority as well as by a minority.

Specifically, of course, I’m most interested in how Barnett’s theory applies to gay rights. Barnett supports the outcome of Lawrence v. Texas, stating that Justice Kennedy properly grounded his opinion in the right to liberty rather than the iffier right to privacy. (The article linked in the previous sentence is a great introduction to Barnett’s thought, actually.) But Barnett doesn’t discuss same-sex marriage in his book, and I can’t find anything online about whether he thinks same-sex marriage bans are constitutional.

Is marriage a natural right? A liberty? Technically it’s a government benefit. Libertarians probably believe there should be no marriage at all. I’m not a libertarian and I disagree. At any rate, you can argue that although the government is not required to allow marriage, because it does allow it, it should do so on an equal basis. But is that necessarily a justiciable court claim? Hard to say.

I would much prefer that same-sex marriage be permitted by legislatures instead of by courts. I think litigation is a last resort.

What do you do when something is right, but the legislature won’t allow it? That’s the question.