Laws should be made — and repealed — in public

The U.S. Supreme Court on Thursday rejected an attempt by opponents of gay marriage in Washington state to keep secret the names of those signing a referendum petition. If the American tradition of open government has any meaning at all, the court could hardly have decided otherwise.

In 2009, the Washington Legislature passed and the governor signed a law granting same-sex domestic partners the rights and responsibilities of marriage. Opponents of the law mounted a referendum campaign to overturn it.

The voters rejected the effort and upheld the law. But during the campaign, supporters of the new marriage law requested the names of those voters who signed referendum petitions, which are public record under Washington law.

Referendum backers sued to prevent disclosure, arguing that the First Amendment gave people the right to remain anonymous when signing a referendum petition. The Supreme Court disagreed, 8-1.

It might seem reasonable to argue that revealing the names of petition signers is unfair, and might discourage them from expressing their opinion by signing.

But, as the court correctly noted, the initiative and referendum system in Washington — and Oregon — is a legislative process. It allows voters directly to enact or, in the case of a referendum, repeal a law.

Suppose the Oregon Legislature enacted a sales tax to balance the state budget, but the votes on the floor of the House and Senate were conducted in secret, and voters could not find out which legislators voted for it.

The public rightfully would be outraged. Government in this country is carried out in the open.

The initiative and referendum system is no different. A referendum petition is the first step in repealing a law; an initiative petition begins the process of enacting one.

In addition to arguing that disclosing petitioners' names is unconstitutional, supporters of the Washington referendum argued that the signers likely would be the target of harassment or intimidation. The Supreme Court did not rule on that claim, which is still pending in federal court in Washington state. The court majority did note that disclosure could be blocked in narrow instances, if sponsors of a measure could show "a reasonable probability" that signers would be subject to "threats, harassment or reprisals from either government officials or private parties," but left that decision up to the lower court.

Make no mistake: Harassment or intimidation of anyone for expressing political beliefs is reprehensible and has no place in a free society. Harassment and intimidation also are crimes, and those who commit either should be prosecuted.

But the high court was correct in ruling that those who engage in direct legislation by signing a referendum petition are not entitled under the Constitution to do so anonymously.

Justice Antonin Scalia said it very well in his concurring opinion:

"There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave."

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