California’s ‘Kill The Gays’ Initiative Blocked, But Can We Prevent Future Abuses?

A ballot initiative that aimed to legalize the execution of LGBT people in California has been blocked by a judge on grounds that it is blatantly unconstitutional, but this has thrown up a series of questions over California’s ballot initiative process.

The proposed initiative, which was charmingly titled “The Sodomite Suppression Act,” was filed by Orange County attorney Matt McLaughlin and demanded that “any person who willingly touches another person of the same gender for purposes of sexual gratification be put to death by bullets to the head or by any other convenient method,” among other stipulations like precluding gay people from public office and (probably) banning LGBT Pride parades within California.

The ballot initiative stood little chance of making it onto the 2016 roster given it would need over 365,000 signatures to qualify, but it put Attorney General Kamala Harris in a difficult position because technically she must issue a title and circulate the petition as part of her obligation to honor the lawmaking power of the people of California. However, Harris decided that this proposal was so blatantly unconstitutional to begin with that she would not even allow it to die at the petition stage and announced that she would seek a court ruling saying she did not have to honor the initiative.

Said Harris in a statement:

As Attorney General of California, it is my sworn duty to uphold the California and United States Constitutions and to protect the rights of all Californians. This proposal not only threatens public safety, it is patently unconstitutional, utterly reprehensible, and has no place in a civil society. … If the Court does not grant this relief, my office will be forced to issue a title and summary for a proposal that seeks to legalize discrimination and vigilantism.

Fortunately, California Superior Court Judge Raymond Cadei issued a ruling on Monday siding with AG Harris, saying:

The proposed initiative [...] is patently unconstitutional on its face. Any preparation and official issuance of a circulating title and summary for the Act by the Attorney General would be inappropriate, waste public resources, generate unnecessary divisions among the public, and tend to mislead the electorate.

Technically McLaughlin could appeal but that seems unlikely–and, given the strength of this order, would seem like a costly waste of time. There has been some grumbling as to whether Harris technically had standing to go to the courts and whether the courts should have interfered, however civil rights groups seem to be in agreement that this isn’t a precedent setting case of any sort and because the ballot initiative was so antagonistic and so blatantly unlawful this was not an infringement of citizens’ legislative powers.

The case has prompted a series of interesting questions surrounding California’s initiative process though, and how to prevent people from filing frivolous and, indeed, blatantly unconstitutional proposals.

Under current law any citizen of California can pay a $200 fee and, provided they manage to complete all the submission requirements, can then begin to gather petition signatures to put a measure on the ballot. While around 23 other states give citizens the ability to create ballot initiatives to effect state law to varying degrees, unlike most of the others California has very little oversight on its process meaning that it is easily open to abuse.

Two Democratic lawmakers have proposed raising the fee from anywhere between $800 to $2000. This proposal has been met by some criticism however. While it certainly might stop people from filing frivolous proposals, it could essentially price out low income citizens, disadvantaging them and perhaps even dissuading them from starting the process at all.

As Slate points out, there is another option and one that is already active in places like Washington D.C. and that is pre-certification. This allows the Attorney General to review the proposed initiative to see if it falls in line with constitutional principles. If the AG were to deem it unconstitutional they could then block the initiative from going ahead. There is of course the danger that an unscrupulous AG could block measures based on their own political agenda, however that could be checked by the courts if an initiative author felt their ballot proposal had been unfairly discarded.

Whether ultimately California will adopt that strategy remains to be seen, but this case suggests that something does need to be done while still balancing the right of citizens to propose laws.

Photo credit: Thinkstock

81 comments

Siyus Copetallus
Siyus Copetallus2 years ago

Thank you for sharing.

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Oliver Webb
Only Me2 years ago

Yikes! Medieval mentality survives - albeit (hopefully) in only a tiny minority. It is scary that someone could even think that way.

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Jennifer H.
Jennifer H3 years ago

Is the attorney the one who wrote it or just filed on behalf? If the attorney wrote and filed I would hope his clientel would drop him (and quickly). There is something definitely not right with anyone who would even think this way.

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ali a.
ali a3 years ago

it should be done for sake of freedom.

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Caitlin Schmedlin
Caitlin S3 years ago

Apparently someone loves their Draconian style laws...

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Jonathan Harper
Jonathan Harper3 years ago

Noted

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Barry S.
Barry S3 years ago

Hmmmm I seem to remember a law somewhere preventing frivolous lawsuits. This is so insanely frivolous that the person proposing it should be required to pay the state monetary damages for even having to consider it.

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Chad Anderson
Chad A3 years ago

What kind of maniac would propose such an initiativ ein the first place?

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Ricky Thamman
Ricky T3 years ago

WTF?

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