Outing the Majority: Gay Rights, Public Debate, and Polarization after Doe v. Reed

In 2010, the United States Supreme Court ruled in Doe v. Reed that Washington citizens who signed a petition to eliminate legal rights for LGBT couples did not have a right to keep their names secret. A year later, in ProtectMarriage.com v. Bowen, a district court in California partially relied on Reed to reject a similar request from groups who lobbied for California Proposition 8-a constitutional amendment that overturned the California Supreme Court\u27s landmark 2008 gay marriage decision. These holdings are important to election law, feminist, and first amendment scholars for a number of reasons. First, they flip the traditional roles of the civil rights litigants from earlier cases, like NAACP v. Alabama. In those early cases, publicly persecuted groups sought protection from disclosure laws, but, here, the persecutors themselves are looking for help. Second, the Doe v. Reed opinion, and especially Justice Scalia\u27s concurrence, articulate an age-old conception of republican citizenship, one supported by a number of modern and contemporary political theorists. Last, this conception of citizenship has interesting, and largely positive, implications for political polarization, especially in the context of LGBT rights. It facilitates the realization of the fruits of hard-fought public opinion victories by the LGBT community and their allies. The Reed holding has the potential to help turn the ever-growing support for LGBT rights into concrete policies in the next decade. Marriage rights and employment protections for gays, lesbians, and transgender Americans have been put up for public referenda in a number of states. While the last few months have seen a number of key victories for the LGBT community, most states still have laws preventing gay and lesbian couples from marrying. Increased transparency might be good for LGBT legislative battles for a number of reasons. I argue that the LGBT movement is at a place where embracing Scalia\u27s combative public citizenship is a winning strategy. Justice Scalia has provided the LGBT community with a critical weapon in its fight for marriage equality. By examining political science literature and public opinion polling, I hope to show that making public ballot initiatives transparent will curb the trend of states taking away rights and privileges from their LGBT citizens. I share the concerns of commentators like Cass Sunstein, who fear the phenomenon of insular political communities moving to extremes. I also share the concerns of thinkers ranging from James Madison to Alexis de Tocqueville to modern day political scientists about political majorities targeting unpopular minorities in winner-take-all elections. The brave citizen of Scalia\u27s concurrence is a conception of deliberative democracy that serves the LGBT community well. In this Note I look at the likely impact of Doe v. Reed on the politics of the fight for LGBT rights