Gay rights opponents arguing before the U.S. Supreme Court to keep secret the names of petitioners who opposed a Washington state domestic partnership law said on Wednesday that such disclosure would have a chilling effect on freedom of speech.
During oral arguments in Doe v. Reed — a lawsuit arising from Washington’s Referendum 71, in which voters ultimately approved an “everything but marriage” law for gay couples — Protect Marriage Washington attorney James Bopp. Jr. argued that “no person should suffer harassment” as a result of participating in the political process by signing a petition. He added that the Constitution protects people from “intimidation.”
Protect Marriage Washington’s argument echoed that of pro-Proposition 8 forces in California, who complained of isolated incidences of vandalism and violence following the antigay ballot measure in the federal case against Prop. 8, currently before a U.S. district judge. Bopp compared an effort to disclose the names of antigay proponents in Washington to the disclosure of Prop. 8 supporters, many whose names and addresses were publicized following the ballot measure.
Several justices appeared skeptical of Bopp’s arguments, however. Justice Antonin Scalia, who has historically voted against protecting anonymous speech, was particularly aggressive in questioning Bopp, saying that, “Running a democracy takes a certain amount of civic courage.”
“The First Amendment does not protect you from criticism, or even nasty phone calls when you exercise your political rights to legislate,” Scalia said.
Scalia told Bopp that he is asking the Court “to enter into a whole new field” by asking the justices to overturn Washington’s open records law.
"The people of Washington evidently think that this is not too much of an imposition upon people's courage, to stand up and sign something and be willing to stand behind it," Scalia said.
Scalia further ridiculed Protect Marriage Washington's attempt to block disclosure of the signatures, calling the arguments "touchy-feely."
"I'm sorry, Justice Scalia, but the campaign manager of this initiative had his family sleep in his living room because of the threats," Bopp said.
"Well, that's bad," Scalia replied. "The threats should be moved against vigorously, but just because there can be criminal activity doesn't mean that you have to eliminate a procedure that is otherwise perfectly reasonable."
Washington attorney general Rob McKenna argued that public disclosure of petition signatures, is, like campaign contributions and voter rolls, vital to the state’s interest in protecting against fraud.
In his last oral argument prior to his retirement this summer, Justice
John Paul Stevens questioned whether keeping petition signatures
private would also stifle political debate. “Would it be legitimate
public interest to say, ‘I would like to know who signed the petition,
because I would like to try to persuade them that their views should be
modified?’” Stevens asked.
Bopp argued that such public interest would be “marginal.”
Though the case involves a petition to overturn a state domestic partnership law, the question before the Court is not specifically one of gay rights, but rather of anonymous speech in political referendums. “If the Court says that there’s no right to anonymity in signing petitions, the presumption will remain in favor of anonymous speech,” says Eugene Volokh, a professor at UCLA School of Law. “I don’t think people need to worry that the government would then require you to identify yourself on your website, for example.”
However, if the Court rules in favor of Protect Marriage Washington, Volokh says it raises the question of whether states can reveal other types of currently public information in the political process — including voters’ party registration in primary elections.
Originally signed into law last year by Washington governor Christine Gregoire, the domestic partnership bill was subject to a referendum after groups opposed to LGBT rights collected 138,000 signatures — more than the required amount to qualify a ballot measure.
A majority of Washington voters approved the expanded domestic partnership rights for same-sex couples in November.
Following the referendum, Protect Marriage Washington sued to block the release of the signatures it had collected, fearing that those in favor of stripping gays and lesbians of expanded domestic partnership rights would face harassment and retribution.