TOPICS > Politics

High Court Hears Privacy Case, Allows Cross to Stand in Mojave

April 28, 2010 at 12:00 AM EDT
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The Supreme Court ruled to allow a cross to remain on government land and heard arguments on privacy rights for people who sign political petitions. Ray Suarez talks to Marcia Coyle of the National Law Journal for more on both cases and on retiring Justice John Paul Stevens' final day hearing arguments.

GWEN IFILL: Now: today’s actions at the Supreme Court.

Ray Suarez has our look.

RAY SUAREZ: The U.S. Supreme Court today heard arguments over privacy rights for political who sign political petitions. The case centers around a controversial domestic partnership law in Washington State.

And, in a split decision, the high court ruled 5-4 to allow a cross built on government land in the Mojave Desert to stay where it is. Today marked the final day of oral arguments for the term. It was also the last time retiring Justice John Paul Stevens would hear arguments with his fellow justices, after 34 years on the high court.

Marcia Coyle of “The National Law Journal” was there, and she joins us now.

And, Marcia, what was at issue in the case of Doe vs. Reed?

MARCIA COYLE, The National Law Journal: The key question here, Ray, is, how much protection does the First Amendment offer to your privacy when you sign a petition for — to get a ballot question — to get a question on a ballot, a petition for a referendum?

RAY SUAREZ: And, in Washington State, this involved a group seeking to repeal a law; is that correct?

MARCIA COYLE: That’s right. In 2009, there was a petition drive that tried to repeal Washington’s law which extends all the rights and duties of marriage, except marriage itself, to domestic partnerships.

The petition drive ultimately did get the issue on the ballot, but the law — the voters didn’t repeal the law. They supported the law. When the petitions were filed with the secretary of state, groups that opposed the law went into federal court to try to block any release of the identifying information of the signers of the petitions.

They felt that, if the information was released to the public — and there was a concern that it would be posted on the Internet, because it was available under Washington’s public records law — they were concerned that the signers would be subjected to harassment and threats of violence.

RAY SUAREZ: So, the petitioners were in court today. How did that argument, that a petition signature should be able to be rendered private, in effect, go down with the justices?

MARCIA COYLE: There was — there were many skeptical questions.

James Bopp represented Protect Marriage Washington, which wants to keep the signatures private. And he argued that signing a petition is really a political statement and is at the heart of First Amendment protection. The state of Washington has to have a compelling reason for making them public.

He immediately encountered Justice Scalia. He told Mr. Bopp that, in the first 100 years of our existence, even voting was public. The fact is, he said, running a democracy takes a certain amount of civic courage. And the First Amendment doesn’t protect people who engage in civic discourse, doesn’t protect them from nasty phone calls.

He said Mr. Bopp was asking for the court to create a whole new right, in essence, for petition-signers.

RAY SUAREZ: The state of Washington was seeking to preserve its existing public records law.


RAY SUAREZ: What did they say on their own behalf? And did they get a rough reception?

MARCIA COYLE: They — they did get some skeptical questioning, primarily from Chief Justice Roberts and from Justice Alito.

Washington Attorney General Robert McKenna, he argued that the state didn’t have a limited interest here, as Mr. Bopp claimed, but its interest was in combating fraud and also in correcting errors. He pointed to 2006 in Massachusetts, where a similar petition drive, the signature identification information was made public, under their public record law, and 2,000 voters found their names on petitions that they claimed they had never signed.

So, it is a very effective way, he said, to check for fraud and basic errors.

RAY SUAREZ: And he insisted, in effect, that it was a public document; any petition attempt to get a question on a ballot was a public petition.


And Justice Alito, though, said, well, you know, isn’t there some way that you can do this without it having — having the information posted on the Internet? And Mr. McKenna again countered that the state doesn’t put the information on the Internet. It’s available under the public records law. And, if you get it, you can put it on the Internet, and it still is a valuable, very valuable check on fraud and error.

RAY SUAREZ: Depending on how the justices rule, will this change the way states do this part of their business?

MARCIA COYLE: It could, in this sense. Twenty-four states, I believe, now have petition referendum in their election laws. And, if the court finds that the First Amendment’s toughest protection is here, then they’re going to have to take a look at their public records law and whether this information can still be made available.

RAY SUAREZ: Well, a ruling came down today. And a big feature of jurisprudence in the last two decades has been public displays of religious speech on public land.

This case involved a cross, a veterans memorial in the Mojave Desert. Did the justices rule in a way that’s going to make big law in this question?

MARCIA COYLE: It’s actually a narrow ruling. The court found that the lower court here, which said that Congress had enacted an end run around that court’s decision that the cross violated the First Amendment’s establishment clause, because it was a religious symbol on public land, that Congress did the end run by passing a law that transferred the land to the VFW, in exchange for other private land within the Mojave Desert preserve.

The majority here, which was the conservative side of the court, said, take another look, because circumstances change, and government accommodation of religious symbols doesn’t in all cases involve endorsement of religion.

RAY SUAREZ: So, if you wanted a rule, can you put a religious symbol on a — in a park or not, this wasn’t your case?

MARCIA COYLE: Exactly. Reading between the lines, I think everyone has a strong feeling that this particular cross is going to stay in the Mojave Desert.

RAY SUAREZ: Marcia Coyle, good to see you.

MARCIA COYLE: My pleasure.