When someone signs a petition for an initiative to appear on a ballot, he does not expect to be placing himself in harm’s way. But as aggressive retaliatory tactics of the homosexual agenda escalate, legitimate concerns about losing a job or worse have been raised by those who sign petitions in support of traditional marriage.

This issue reached the U.S. Supreme Court in Doe v. Reed, and it sparked the biggest conflict among conservatives in memory. On one side, Justice Antonin Scalia declared that politics is not for the faint-of-heart, and public disclosure is healthy. On the other side, Justice Sam Alito, perhaps recognizing the unique threat posed by the homosexual agenda, favored protecting the privacy of those who do participate in ballot initiatives.

Conservative attorney James Bopp, who often handles election-related issues for pro-lifers, appealed to the U.S. Supreme Court on behalf of signatories to a traditional-marriage initiative in the State of Washington who wish to keep their names and addresses from being made public and placed on the internet for homosexual activists to target.

On one side of this dispute was Bopp, representing people who had signed the petition but did not want their names and addresses made public and posted on the internet by enemies wanting to retaliate against them. On the other side of this dispute was the State of Washington, which has a law requiring public release of the names and addresses of such petitions. Some of the people who signed the petition likely work in restaurants or other industries vulnerable to boycotts, and their employers may fire them rather than risk vicious retaliation.

At oral argument before the U.S. Supreme Court in April, attorney Bopp had barely spoken a complete sentence before Justice Antonin Scalia tore into him. “[W]hat about requiring disclosure of campaign contributions?”, Justice Scalia demanded to know. http://www.supremecourt.gov/oral_arguments/argument_transcripts/09-559.pdf   Justice Scalia permitted Attorney Bopp to say only two words (“Well, the”) before interrupting him again. “Do you think that is unconstitutional?”

Bopp said that disclosure of contributions is constitutional as held by the Court in Buckley v. Valeo in 1976, to which Justice Scalia responded as though this proved his point. Bopp tried to distinguish between supporting initiatives and supporting candidates, but by that time other Justices were expressing their disapproval with Bopp’s attempt to prevent the State of Washington from disclosing the names and addresses of petition signers. Bopp even lost support from Chief Justice Roberts by presenting this case as a “facial challenge” to the Washington Public Records Act (PRA), rather than as facts about specific individuals who could lose their jobs if their names were disclosed as endorsing traditional marriage.

Justice Scalia declared that 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.” When Justice Scalia chided Mr. Bopp for being “touchy-feely”, Mr. Bopp responded that “the campaign manager of this initiative had his family sleep in his living room because of the threats.” Justice Scalia expressed his opposition to that result, but noted that criminal threats by some does not justify declaring the entire law unconstitutional. “[Y]ou can't run a democracy [sic] this way, with everybody being afraid of having his political positions known,” Justice Scalia concluded.

Next it was the State of Washington attorney’s turn at the podium. He had argued in his brief that public disclosure is desirable because it facilitates discussions with the people who signed the petition. Justice Alito pounced on him by asking if it should be constitutional to require petition-signers to include their telephone number, and for the State of Washington to require public disclosure of those numbers too. The attorney for the State of Washington shockingly answered yes. Then Justice Alito, picking up on an argument made by Washington’s co-defendant that public disclosure can reveal patterns about religious affiliations of signers, asked whether it would “be consistent with the First Amendment to require anybody who signs a petition to list the person's religion.” The attorney for the State of Washington, perhaps finally sensing that victory was slipping away from him, answered no.

The other Justices quickly chimed in with new concerns about public disclosures and possible retaliation. What Justice Scalia did for the State and public disclosure, Justice Alito did for the signers who want to remain private. A decision is expected in late June.