Reporting from Washington — Social conservatives can usually count Justice Antonin Scalia as a faithful ally on the Supreme Court. But Wednesday, Scalia had only sarcasm for opponents of Washington state's domestic partner law, who wanted to overturn the law through a referendum without having their names made public.
"Oh, this is such a touchy-feely, oh so sensitive" point of view, Scalia said. "You know, you can't run a democracy this way, with everybody being afraid of having his political positions known."
"I'm sorry, Justice Scalia, but the campaign manager of this [Washington state] initiative had his family sleep in his living room because of the threats," said James Bopp, a prominent Indiana lawyer who persuaded the justices last October to temporarily block the release of the names and schedule arguments for Wednesday.
Supporters of the referendum had gathered 138,000 signatures in their successful effort to put it on last November's ballot. Supporters of domestic partnership were planning to put the names online in an attempt to instigate "uncomfortable" conversations.
Leaders of the referendum, which ultimately failed at the ballot box, said they were fearful of retaliation from gay-rights advocates, pointing to the abuse heaped on financial backers of California's ban on gay marriage through Proposition 8.
On Wednesday, Bopp underwent a barrage of questions from what appeared to be an unusually united court, with liberals and conservatives alike wondering how they could create a right of privacy in the political process based on the 1st Amendment's guarantee of free speech, as Bopp advocated.
"The 1st 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 lectured Bopp.
"You are asking us to enter into a whole new field where we have never gone before," said Scalia, whose vote probably would be crucial to Bopp's winning his case.
"Is there [not a] public interest in encouraging debate on the underlying issue" by releasing the names? asked Justice John Paul Stevens in his last scheduled oral argument before retirement.
Only Justice Samuel A. Alito Jr. spoke up clearly for Bopp's position, asking if laws mandating the release of a petition signer's telephone number or religion would be constitutional.
But just as Scalia seemed to switch roles, generally liberal Justice Stephen G. Breyer said he was concerned that civil rights activists in the South in the 1950s might have been bombed or boycotted if they had petitioned the school board for integration.
"Now, is there no 1st Amendment right in protecting those people? And if there is, how does it differ from your case?" Breyer asked Washington Atty. Gen. Robert M. McKenna.
McKenna said such situations should be handled on a case-by-case basis. Breyer did not clearly indicate how he would vote.
While roughly 20 states have disclosure laws similar to Washington's, McKenna said, California does not. But the nastiness after the success of Proposition 8, as well as the state's frequent use of referendums, was in the background of Wednesday's arguments.
"The state of California has very complicated referendum and initiative matters," said Justice Anthony M. Kennedy, who is from Sacramento.
"Don't you think it's relevant for the public to know that, say, a public employees union had paid solicitors to put…signatures on the ballot, or that the Chamber of Commerce, the National Assn. of Manufacturers, had paid solicitors to put [them] on the ballot? Isn't that part of assessing the reasons why this initiative was proposed? And isn't that vital to the voters… in making an informed decision?" Kennedy asked.