WASHINGTON AND LOS ANGELES — The fierce fight over same-sex marriage in California and elsewhere is creating pressure to recognize a new free-speech right that could keep petition signatures secret.
The Supreme Court voted last week to block release of the names of more than 138,000 people in Washington state who signed petitions seeking to repeal a same-sex domestic partner law in a ballot scheduled for Nov. 3.
The Supreme Court's intervention set off a broad debate among election-law experts and 1st Amendment scholars over what is private and what is public when it comes to politics.
Is signing a petition and delivering it to the government a public act, like voting on a bill in the legislature or contributing money to a campaign? Or is it more like casting a secret ballot at the polling place?
The case in Washington was the latest in which gay rights advocates had sought to use public records to expose supporters of anti-gay measures.
"We've put close to a million names online," said Aaron Toleos, co-founder of Boston-based KnowThyNeighbor.org. He said the group had posted the names on petitions seeking rollbacks in gay rights laws in Massachusetts, Florida, Arkansas and Oregon.
When Toleos announced plans in June to do the same in Washington, lawyers for Protect Marriage Washington went to federal court to block the release of the names. They pointed to the scorn and verbal abuse experienced by some who gave money last year to support California's Proposition 8 ban on gay marriage.
A lower court judge ordered the names withheld. On Oct. 15, the U.S. 9th Circuit Court of Appeals lifted this order in a brief decision, clarified in an opinion released Friday.
But on Tuesday the full Supreme Court, with one justice dissenting, accepted the claim -- at least until the case makes its way through the courts -- that freedom of speech as protected by the 1st Amendment includes both a right to petition the government and a right to do so in confidence.
In doing so, it reversed the 9th Circuit and ordered the protective order to remain in effect indefinitely, an indication the justices believe those objecting to the release will probably prevail.
"The process of signing a petition is political speech," James Bopp, a lawyer for Protect Marriage Washington, said in his appeal to the high court. This speech will be "chilled," he added, if the signers of a petition are "harassed, intimidated and threatened."
