I continue to find Santa Fe Independent School Dist. v. Doe (prayer at football games) tremendously interesting. Today I was reading the oral argument transcript, where the Supreme Court justices begin their questioning of the families' attorney by discussing whether they should have been granted anonymity.
MR. GRIFFIN: Mr. Chief Justice, may it please the Court: In July of 1996 there was a hearing held in the district court in Galveston, Texas. In that hearing, the court, the district court, took testimony and part of the testimony came from the Dogs, as they're affectionately known, in this case.
JUSTICE SCALIA: Could I ask you about that? That's just a curiosity I have in this case. I don't even know who the plaintiffs are. Is there -- how come it's Jane Doe? I mean, are these minors? Is -- or what?
MR. GRIFFIN: One parent is -- one parent, one group of plaintiffs were Catholic, a Catholic family. Another group of families were a Mormon family.
JUSTICE SCALIA: Do people have rights to sue anonymously in Federal court? Is anybody who just doesn't want it known that he's bring a lawsuit, he's ashamed of it for one reason or another, can sue anonymously? I didn't know we could do that.
MR. GRIFFIN: I think the jurisprudence is, if there is a threat of intimidation, if there's a threat of violence, if there's a threat -- and I think there was testimony that -- within the temporary injunction when the case first started that there was this threat, and the district court had entered an order instructing not to ferret out the names, and when there was an attempt to ferret out the names --
CHIEF JUSTICE REHNQUIST: Well, how does the district court have authority to do that?
MR. GRIFFIN: Well, he had an attempt -- he had the authority to protect the plaintiffs, in other words, from any threat. The names of the plaintiffs were known to the defendant.The existence of such intimidation and harassment preceded the suit, as this article notes, and also followed its filing:
CHIEF JUSTICE REHNQUIST: What was the threat?
MR. GRIFFIN: The threat was, we had information that certain children were intimidated, certain children were pushed, certain plaintiffs, certain people who were not plaintiffs had to pull their children out of the school because of protesting the prayer policies that existed in Santa Fe, and that there was a intimate threat that the district court saw it necessary to protect.
CHIEF JUSTICE REHNQUIST: Well, do you think the district court just has complete discretion to grant anonymity that way?
MR. GRIFFIN: I don't think the district court has the complete discretion, and I think that one of the issues that we briefed at the trial court below was that issue, and when we got to the -- into the hearing of July of 1996, the district court said, now that we're going into a hearing, these names must be revealed, but we will do it under protection. He did not seal that courtroom. He asked the press not to publish their names, but their names ultimately became --
CHIEF JUSTICE REHNQUIST: Their names ultimately were --
MR. GRIFFIN: Yes. Their names ultimately became known to the public and -- but they were not published in the newspaper, and in this hearing one of the most fundamental things that happened in the hearing after the district court had gone through the problem of the injunction, after the district court had instructed not to ferret out the names, after the court had heard testimony in terms of intimidation, the district court looked at the plaintiff, known as Susan Doe in the record, and he asked her, what is the big deal?
And she looked at the court and she said, I teach my children at home religion, and I don't want to go down, and I don't think it's necessary for me to go down to the school and interview every one of the teachers and find out their religious faith. That's the backdrop of this case. ...
Because of the climate, the families decided that they needed protection, and filed their lawsuit anonymously. But the district actively sought to find out their identities, according to one report going as far as to interrogate some students in an effort to discover the identities of the families. These efforts led the district court to threaten "the harshest possible contempt sanctions" if school employees continued trying "to ferret out the identities of" the families. It specifically enjoined the district from using "bogus petitions, questionnaires, individual interrogation, or downright 'snooping'"to discover who the families are.There are a variety of circumstances that seem to demand protecting the identity of plaintiffs: abortion, as in Roe v. Wade, as well as merely embarassing sexual situations, as in Moe v. Doe. The plaintiffs who gave Newdow standing all were anonymous, and his motion to keep their true names off the suit was unopposed by the U.S. Justice Department.