Associate Justice Antonin Scalia, the most conservative member of the court, dismissed the arguments as “touchy feely,” adding, “the fact is, running a democracy requires a certain amount of civic courage.”
Associate Justice Ruth Bader Ginsburg, one of the court’s more liberal members, said that organizations that sponsor initiative and referendum petitions sometimes sell or trade the lists of names.
“They use them for fundraising purposes,” she said. “So that would be the end of a person’s privacy ...”
The Supreme Court faces a balancing act as it tries to decide a case that pits openness in government against the right to take part in the political process without fear of intimidation. No matter which way the high court rules, it will likely set a legal precedent.
James Bopp Jr., a lawyer for Protect Marriage Washington, argued that those who signed the petition for Referendum 71 face possible harassment and intimidation from gay rights groups if their names are released. He maintained the right to privacy trumped the public’s right to know.
Washington Attorney General Robert McKenna, who argued for the state, also faced some tough questioning. He said that the state’s voter-approved Public Records Act required the release of the names and there has been no evidence of intimidation or harassment.
R71 was an effort by conservative Christian organizations to repeal an “anything but marriage” law passed by the Washington state Legislature, which granted expanded partnership rights to same-sex couples. The referendum, which was on the November 2009 ballot, put the question to voters, who upheld the law.
Following the oral arguments, McKenna said he could see a “clear path” to a favorable ruling for the state, while Bopp said it was too close to call.
The court is expected to rule by the end of its term in June.
Wednesday’s arguments also marked the last oral arguments for Associate Justice John Paul Stevens, who is retiring at the end of the term.
Protect Marriage Washington had filed a lawsuit in federal court seeking an injunction barring publication of the names of those who signed the R71 petitions. The district court granted the injunction, but that ruling was overturned by the 9th Circuit Court of Appeals. Protect Marriage Washington appealed to the Supreme Court. The names of those who signed the R71 petitions have not been released.
“No person should suffer harassment for participating in our political system, and the First Amendment protects citizens from intimidation resulting from compelled disclosure of their identity and beliefs and private associations,” Bopp said as he began his oral arguments.
He was interrupted immediately by Scalia – and it may have been one of the few full sentences he spoke without interruption.
Justices wanted to know if they blocked the release of the names in this case, would the government also have to withhold voter registration rolls or the names of campaign contributors?
Chief Justice John Roberts suggested the court may have to differentiate between releasing the names of people who signed a controversial initiative or referendum petition or those who signed a non-controversial one such as raising the debt ceiling.
“You are not going to get a crowd outside your house because you signed that petition,” Roberts said.
Scalia badgered Bopp the most.
“You know, you can’t run a democracy this way, with everybody being afraid of having his political positions known,” Scalia said. “And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise you political rights to legislate or take part in the legislative process.
“You are asking us to enter into a whole new field where we have never gone before.”
McKenna said Arkansas, Florida and Massachusetts all had initiatives or referendum similar to Washington’s, in which petition signatures were released without incident.
But in a hypothetical question, Associate Justice Stephen Breyer asked McKenna what would have happened if in 1957 in Little Rock, Ark., a group of citizens wanted to put on the ballot a petition requiring the school board to reopen Central High School, which was closed because the community refused to integrate it.
Beyer said that there was a “good chance” that anyone who signed that petition would be intimidated, harassed and even have their businesses bombed. Beyer wanted to know if there was a First Amendment right to protect those people.
McKenna said the lower courts had yet to address the issue of harassment and intimidation in the R71 case, but conceded the Supreme Court had previously ruled that such situations should be evaluated on a case-by-case basis.
McKenna said there was no history in Washington of harassment against those who signed controversial petitions, including the recent physician-assisted suicide initiative.
In releasing the names, McKenna said, state government was allowing the public to review a petition for fraud or error and to determine who might be behind it.
Scalia said that sometimes the public might not trust a secretary of state who certifies ballot petitions.
“That goes to the heart of the Public Records Act, trust but verify,” McKenna said.
“I like that,” Scalia responded.
Les Blumenthal: 202-383-0008