WASHINGTON (BP)–The U.S. Supreme Court will protect the identities of supporters of a state initiative to defend marriage in spite of the apparent skepticism of one of its most conservative justices, predicted religious freedom lawyer Jordan Lorence.
The forecast by the senior counsel for the Alliance Defense Fund came after oral arguments in a case involving whether the state of Washington may make public the identities of citizens who signed a petition seeking to place an initiative on the ballot overturning a law granting marriage-like benefits to same-sex couples.
The case regards a recent pattern regarding state ballot initiatives: Homosexual activists have posted online the names of individuals who support efforts to defend traditional marriage, reportedly resulting in harassment of some of those citizens, especially in California.
A constitutional issue in the case is whether signing a petition to place an initiative on the ballot is political speech protected by the First Amendment, and thereby the identities of signers are guarded from public disclosure.
During oral arguments, Associate Justice Antonin Scalia – considered one of the court’s two most conservative, or strict constructionist, members — largely dismissed points made by lawyer James Bopp in support of protecting the petition signers’ identities. Yet, Associate Justice Stephen Breyer — normally a vote for the liberal bloc of the court — seemed to be concerned about protecting such citizens from violence and harassment.
“I am encouraged in that I think the pro-marriage people are going to prevail in their claim of privacy and protection against the harassment by the activists who want to redefine marriage, but I think the decision is not going to come down on the traditional conservative-liberal lines that you see in other cases, like on abortion or something like that,” Lorence told Baptist Press outside the court building after the arguments.
While Scalia “seemed to be very dismissive of the claims,” other justices were not, Lorence said. He thought Breyer “clearly understands the implications of this, that people should not get caught up in whether they support or oppose redefining marriage, that this issue can come up in many, many different contexts and that protecting people from harassment, intimidation is important to do.
“I think we’re going to get a favorable decision,” Lorence said. It might be narrower than the original lawsuit requested, “but I think the names will not be disclosed,” he said.
The case involves Washington’s Referendum 71, an initiative seeking to overturn a 2009 state law that granted marriage’s benefits, without its title, to the domestic partnerships of homosexual couples. The law did not legalize “gay marriage.” The vote was 53-47 percent to endorse the law and reject the referendum supporters’ attempt to veto it.
Arguing to protect the petition signers’ identities, Bopp told the high court, “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 their private associations.”
Scalia challenged Bopp, telling him, “[I]n light of the fact that for the first century of our existence, even voting was public — you either did it raising your hand or by voice, or later, you had a ballot that was very visibly red or blue so that people knew which party you were voting for — the fact is that running a democracy takes a certain amount of civic courage. And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate or to take part in the legislative process.”
Scalia later described an aspect of Bopp’s argument as “touchy-feely.” He said, “You know, you can’t run a democracy this way, with everybody being afraid of having his political positions known.”
Bopp responded by telling him the campaign manager for Referendum 71 made his family members sleep in the living room instead of their bedrooms following threats to their safety.
“The threats should be moved against vigorously,” Scalia said, but that doesn’t mean “you have to eliminate a procedure that is otherwise perfectly reasonable.”
In response to Washington Attorney General Robert McKenna’s defense of state law, Breyer expressed concern for citizens’ safety by recalling the battle over school desegregation.
“Suppose that in 1957 in Little Rock, a group of Little Rock citizens had wanted to put on the ballot a petition to require the school board to reopen Central High school, which had been closed because there was a sentiment in the community that they didn’t want integration,” Breyer said. “And it was pointed out that if they signed this petition there was a very good chance that their businesses would be bombed, that they would certainly be boycotted, that their children might be harassed.
“Now, is there no First Amendment right in protecting those people?”
Such situations could be addressed on a case-by-case basis, McKenna replied.
McKenna defended Washington citizens’ right to know under the state’s Public Records Act. The “heart” of the law is “trust and verify,” he told the justices. “The people did not leave to the state the idea that, well, we will let you know what you need to know.”
An opinion in the case, Doe No. 1 v. Reed, is expected before the high court adjourns in late June or early July. Oral arguments were heard April 28.
A federal judge blocked the state’s release of the names of the petition signers in September, but the Ninth Circuit Court of Appeals decided in October to permit the release of the names. The Supreme Court, however, blocked the disclosure of the signers until it could consider the case.
Some homosexual groups had asked for the names of the petition signers under the Public Records Act, saying they planned to publish them on the Internet. One website, www.knowthyneighbor.org, has posted the names and addresses of signers in other states of petitions that sought to place on the ballot initiatives opposed by homosexual activists.
The Supreme Court’s Jan. 15 order to review the Ninth Circuit ruling came two days after it blocked the broadcast of a high-profile California case, citing the possibility of harm to witnesses. The constitutionality of Proposition 8, a 2008 California ballot initiative approved by voters that restored the traditional definition of marriage, was under scrutiny at the time in a federal court in San Francisco.
The justices pointed to evidence that backers of Prop 8 have “been forced to resign their jobs after it became public that they had donated to groups supporting” Prop 8; been put on “Internet blacklists,” where businesses who supported Prop 8 were boycotted, and “received death threats and envelopes containing a powdery white substance.”
Tom Strode is Washington bureau chief for Baptist Press. With reporting by Michael Foust, assistant editor of Baptist Press.