U.S. Supreme Court justices posed tough questions Wednesday to plaintiffs seeking to keep secret the names of Washington state petitioners who last year put an anti-gay referendum on the state ballot.
In the case of Doe v. Reed, plaintiffs contend a state law requiring public disclosure of petition signatures violates the First Amendment rights of signers who placed on the ballot an initiative, known as Referendum 71, to rescind the state’s recently expanded domestic partner registry.
Despite the efforts, Washington residents upheld the state’s domestic partner registry, 53-47 percent. In the aftermath, opponents of the registry have sought to keep secret the names of people who put the measure on the ballot. The state contends it has a legitimate governmental interest in public disclosure of the names because it preserves electoral integrity and provides important information to voters.
Representing plaintiffs during oral arguments was James Bopp, a conservative attorney who also serves as general counsel for Focus on the Family. He argued the public disclosure would subject people who signed the petition to possible danger.
“No person should suffer harassment from participating in the political system,” Bopp said.
But many justices expressed skepticism about Bopp’s argument during his appearance before the court. Some of the toughest questions came from justices known for holding conservative views.
Associate Justice Antonin Scalia noted openness is a component of democracy, and said petitioning the court to strike the Washington law as unconstitutional was “asking us to go into a whole new field where we’ve never gone before.”
“The fact is running a democracy takes a certain amount of civic courage, and the First Amendment doesn’t protect you from criticism — or even nasty phone calls,” Scalia.
Also expressing skepticism about the plaintiffs’ arguments was Chief Justice John Roberts, who noted that striking down the Washington law would also mean the court would also strike down similar public disclosure laws throughout the country.
Associate Justice Ruth Bader Ginsburg questioned whether the names on the list would remain confidential without the public disclosure law. She noted that Protect Marriage, the organization that launched the initiative, would still have access to the names and could use them for fundraising or sell them to others.
As justices challenged his assertion that petitioners could be subject to harassment, Bopp replied that the campaign manager for Protect Marriage had his entire family sleep together in one room of his home because of threats he received.
Scalia replied that such threats “should be moved against vigorously,” but said they shouldn’t necessarily stop the political process as established by Washington law.
Defending the law on behalf of Washington during oral arguments was Washington Attorney General Robert McKenna, who maintained the law as it stood provided no information about signers that was unconstitutional.
He noted that Washington has had other controversial matters on the ballot, including a question regarding assisted suicide, and said there was no evidence that petition signers for those referenda were harassed.
Associate Justice Samuel Alito directed some of the toughest questions toward McKenna. The justice questioned why it’s necessary to disclose signatures to preserve electoral integrity when the secretary of state could crosscheck the names in a voter registration database.
Additionally, Alito asked whether the attorney general would disclose the names and addresses of people working at his office so people could come to employees’ homes and have “uncomfortable conversations” with them.
McKenna replied the office wouldn’t disclose the names, noting people with concerns can come to the attorney general’s office to have these “uncomfortable conversations.”
Multiple LGBT groups, including Lambda Legal, Gay & Lesbian Advocates & Defenders and the National Center for Lesbian Rights, filed friend-of-the-court briefs in the case on behalf of Washington state.
In a statement, Jon Davidson, Lambda’s legal director, criticized the notion that potential harassment against people who signed the petition compares to discrimination endured by the LGBT community.
“There’s no comparison between a few scattered instances of whispers and disapproving glares and the very real discrimination, harassment and even violence LGBT people experience every day all over the country,” he said. “After all, more hate crimes are reported against gay people than any other group per capita in the United States.”
Shannon Minter, legal director for the National Center for Lesbian Rights, called the plaintiffs’ arguments “an outrageous attempt by anti-gay groups to use false claims of persecution to undermine laws that protect the integrity of the democratic process.”
A decision in the case is expected before the end of the current term for the Supreme Court in July.