California Attorney General Kamala Harris does not need to advance a widely reviled ballot initiative authorizing the murder of homosexuals, a Sacramento Superior Court has ruled.
The Sodomite Suppression Act has been condemned across the political spectrum. It has prompted both legislation seeking to raise the initiative filing fee and a debate about whether the attorney general can halt clearly unconstitutional ideas contained in citizen initiatives.
Saying she did not want to be “in the position of giving any legitimacy” to the initiative, Harris asked to be relieved of her official duty of preparing the measure’s title and summary, a necessary step before proponents can collect signatures. Judge Raymond M. Cadei granted that request in a Monday decision that became public on Tuesday, effectively halting the initiative’s progress.
The proposed initiative “is patently unconstitutional on its face,” Cadei wrote, and forcing Harris to clear it for circulation “would be inappropriate, waste public resources, generate unnecessary divisions among the public, and tend to mislead the electorate.”
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The initiative’s proponent, Huntington Beach attorney Matt McLaughlin, did not defend the measure in court and has not commented on his motivation amid intense media coverage.
In a statement, Harris lauded the judgment.
“This proposed act is the product of bigotry, seeks to promote violence, is patently unconstitutional and has no place in a civil society,” Harris said in a statement. “I applaud the court’s decision to block its title and summary. My office will continue to fight for the rights of all Californians to live free from hatred and intolerance.”
The California Legislative Lesbian, Gay, Bisexual and Transgender Caucus, whose members had signed a letter to the State Bar seeking an investigation into McLaughlin, also praised the decision.
“This measure was unconstitutional, and was itself speech inciting violence, and therefore unprotected by the First Amendment,” Assemblywoman Susan Talamantes Eggman, D-Stockton, the caucus chair, said in a statement. “We applaud the initiative taken by Attorney General Harris and the wisdom of Judge Raymond Cadei, together sparing California any further effort in fighting it.”
But some people reacted with concern, wondering whether the decision went too far in seeking to block a reprehensible idea.
Even as the proposed initiative drew near-universal condemnations, some groups have objected to policymakers overreacting in ways they say could draw more attention to the measure’s proponent or harm the initiative process. Groups like Consumer Watchdog have warned that raising the filing fee would discourage citizen engagement and empower interest groups.
In response to Monday’s decision, the executive director of Consumer Watchdog agreed that “there is obviously no gray area” in the fact that murder is illegal. But she worried about a precedent of attorneys general going to the courts to block other ballot initiatives with a similar argument.
“I do worry that it opens the door for another attorney general to decide another issue they don’t like is unconstitutional, be it campaign contributions and the First Amendment or what happened in Proposition 8,” which outlawed same-sex marriage, Carmen Balber said. “It’s a disturbing slippery slope.”
Far better, Balber said, would be if Harris had issued the title and summary and then courts had invalidated the proposition after a private citizen launched a legal challenge.
“The attorney general is supposed to do her job,” Balber said, “and someone else can sue to stop it.”
But letting the initiative proceed would have been misleading or aggravating for voters and wasted public resources, argued California Voter Foundation President Kim Alexander.
“Asking voters to vote on something that is not legal in the first place is a waste of everybody’s time,” Alexander said. “Voters are very protective of the initiative process and don’t, I think it’s fair to say, want to see it abused. This episode, to everyone, was a clear case of abuse.”
Similarly, others who backed Harris’ decision argued the initiative was so egregious that it compelled the attorney general to act.
“If you’re going to submit a petition like this, I think the AG is right to throw it back to the courts,” said Carol Dahmen, a Sacramento-based media consultant who led an unsuccessful effort to have the measure’s author disbarred. “This one was so outrageous in its scope, it demanded that the AG take the actions that she did.”