By Robert Barnes
Washington Post Staff Writer
Thursday, April 29, 2010; A04
The Supreme Court seemed skeptical Wednesday that the Constitution offers protection to individuals who fear harassment over their signature on referendum petitions, with the toughest questioning coming from Justice Antonin Scalia.
James Bopp Jr., representing voters in Washington state who objected to disclosure of their signatures on petitions challenging a gay-rights law, told the justices that "the First Amendment protects citizens from intimidation resulting from compelled disclosure of their identity."
Scalia, the first to question Bopp's assertion, was unrelenting in his opposition.
"The fact is that running a democracy takes a certain amount of civic courage," Scalia said. "And the First Amendment does not protect you from criticism or even nasty phone calls."
In a turnabout from the court's usual deliberations, Scalia teamed with liberal Justices Ruth Bader Ginsburg and Sonia Sotomayor as Bopp's sharpest inquisitors. Justice Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr. were more challenging of Washington Attorney General Robert M. McKenna, who said the state had a legitimate interest in making sure the petition process was open to the public.
Alito asked whether the state could compel a petition-signer to reveal his or her religion or ethnicity. "I would like to know how far you want to go," he asked McKenna.
McKenna said he didn't think either would be legitimate state interests.
The case, John Doe v. Reed, arose out of a 2009 Washington law that allows gay couples and those older than 65 to register as domestic partners; it was called the "everything but marriage" act. Opponents of the law sought to repeal it and gathered enough signatures to put Referendum 71 on the ballot. Voters upheld the law in November.
During the campaign, groups that supported the law requested the names of signatories to the repeal petition under Washington's public records laws. The signers persuaded a federal court to forbid the disclosure, saying it violated their constitutional rights to engage in anonymous political speech and would subject them to harassment. The Supreme Court, with Justice John Paul Stevens objecting, agreed the injunction should remain in place while the high court considered the case.
The backdrop to the case is California's Proposition 8. Individuals who donated to the referendum campaign to overturn a state Supreme Court decision legalizing same-sex marriages said that they were subjected to harassment, threats and economic recriminations.
Bopp said Washington has a right to the information in order to validate the petitions. But he said there was no reason for the public to have access and said the only reason others would want the information was to intimidate the signers.
"Oh, this is such a touchy-feely, oh, so sensitive," Scalia said, drawing laughter. "You know, you can't run a democracy this way, with everybody being afraid of having his political positions known."
Bopp shot back: "I'm sorry, Justice Scalia, but the campaign manager of this initiative had his family sleep in his living room because of the threats."
"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 -- you have to eliminate a procedure that is otherwise perfectly reasonable."
Roberts asked whether "having your name revealed on a petition of this sort might have a chilling effect on whether you sign it."
McKenna said the interest was not the same and compared the petition disclosure requirements to having to register with a political party or reveal that you have donated to a campaign or candidate.