You almost expect states like Indiana, Oklahoma and Alabama to rage against the progress made in the fight for LGBT equality, but California? The anti-LGBT-rights movement reached a new extreme last week when a ballot measure was proposed, titled the Sodomite Suppression Act, which authorizes the public to shoot “practicing” gays and lesbians in the head. Yes, in the very state of California, we are dealing with a proposed law making being gay punishable by death.
The proposed ballot measure was introduced by an attorney from Huntington Beach, Matt McLaughlin, who paid $200 to file the measure. It refers to “sodomy” as “a monstrous evil” and specifies that anyone who touches another person of the same gender for sexual gratification be put to death by “bullets to the head” or “any other convenient method.” McLaughlin’s proposed ballot measure also requires that anyone who transmits “sodomistic propaganda” to a minor be fined $1 million per offense, imprisoned up to 10 years or expelled from the state. Should the measure be cleared for circulation, McLaughlin would have 180 days to collect the 365,880 signatures needed to put the measure on the ballot.
There are three ways in which Californians and jurisprudential scholars are looking to address this situation: allowing the attorney general to terminate initiative proposals that are on their face unconstitutional; raising the initiative filing fee to avoid frivolous filings; and disbarring McLaughlin.
The first method would have Attorney General Kamala Harris not only requesting that the Superior Court in Sacramento relieve her of her ministerial duties to prepare a title and summary for the measure, before it advances to the signature-gathering stage, but also to have future unilateral power to do so without asking leave of the court. Harris’ argument is that blocking the measure from being distributed for public comment or for signatures that would qualify the measure — due to its illegality — would save state resources.
However, the California Supreme Court already ruled on the attorney general’s breadth of power in cases like this in the late 1970s, when it refused to give such power to the office. Although having to go to court takes time and resources, I caution against giving unilateral power to the attorney general to block an initiative on the grounds of illegality. What if Chief Justice Ray Moore of Alabama were the attorney general of California? What if in a particular instance the person in Harris’ position believes, despite the law as it stands, that two people of the same gender having sex is unconstitutional and worthy of assassination? Just seven years ago, enough Californians thought it was unconstitutional for gay people to get married and passed Proposition 8, while simultaneously there was outcry within the LGBT community as to the ballot measure’s unconstitutionality. We created checks and balances in our democratic system for a reason and, while Harris is attempting to uphold the Constitution in this situation, we could easily find ourselves at the behest of someone like Moore and rendered unable to retract the unilateral power once bestowed upon the office.
The second method of revising this initiative filing process is procedural. Democrats have introduced a bill to raise the filing fee to $8,000 — which is approximately the same cost borne by the state of California to prepare the title and summary that Harris is seeking relief from doing. Recently an attempt to raise the initiative filing fee to $2,000 was denied so, if successful, this would be the first increase in more than 70 years. While $8,000 is high in my opinion, and could block grassroots organizations from putting forth creative ideas, I’m not opposed because statewide initiative proponents generally need more than $1 million to collect enough signatures to qualify a measure for the ballot. Not to mention, one would expect that it would cost exceedingly more than normal to qualify a measure as outrageously unconstitutional as the SSA.
Another reaction to the SSA has been to have the California State Bar disbar McLaughlin. An online petition at Change.org calling for such an action — a move that would prevent him from practicing law in the state — is well on its way to its goal of 150,000 signatures.
As much as this hurts me to write, the bottom line is that the SSA and its content are protected speech under the First Amendment. At first glance, some argued it is unconstitutional on its face because McLaughlin is engaged in hate speech and is quite literally advocating for violence. But that is not the threshold test of whether or not hate speech is protected. The advocacy of violence is protected speech unless it is intended and reasonably likely to incite imminent unlawful conduct. That’s why the American Nazi Party is allowed to march through the streets and the Ku Klux Klan is permitted to hold rallies espousing its cause.
In this instance, the speech in question will ultimately have to be circulated to obtain signatures to place it on the ballot and then, if successful, be voted upon. As such, there will clearly be ample time to respond to incendiary content and therefore, while wholeheartedly offensive, it cannot be said to likely incite imminent unlawful conduct or danger to the LGBT community.
Whether any of the above tactics work in defeating the proposed ballot measure is irrelevant because it will never see the light of day. The concern is that it was proposed in the first place. The visual I get when thinking about the fight for LGBT equality is embodied in the favorite all-American boardwalk game, Whac-A-Mole. The minute we conquer one issue, another one pops up looking completely different at the far end of the board. We’re at the very beginning of seeing where the Religious Freedom Restoration Act takes us, Alabama is disregarding Supreme Court precedent, Oklahoma is trying to ban marriage for everyone across the board, Idaho is attempting to declare itself a Christian State, and now California is considering the death penalty for gay people.
We are at a very precarious point in our fight for equality and, with Supreme Court precedent like Hobby Lobby to deal with, it will be an uphill battle. But one thing I know for sure it’s that the LGBT community will not back down; we will achieve the full equality guaranteed to us in the Constitution — by whacking one mole at a time.