This measure would provide that the Legislature stands in moral and legal objection to the ballot measure proposing to enact the Sodomite Suppression Act, and to any other ballot measure that seeks to inflict harm on innocent persons or diminish current civil rights protections. This measure also would provide that the Legislature calls upon the residents of the State of California to reject bigotry and hate speech.

This measure would provide that the Legislature stands in moral and legal objection to the ballot measure proposing to enact the Sodomite Suppression Act, and to any other ballot measure that seeks to inflict harm on innocent persons or diminish current civil rights protections. This measure also would provide that the Legislature calls upon the residents of the State of California to reject bigotry and hate speech.

This measure would provide that the Legislature stands in moral and legal objection to the ballot measure proposing to enact the Sodomite Suppression Act, and to any other ballot measure that seeks to inflict harm on innocent persons or diminish current civil rights protections. This measure also would provide that the Legislature calls upon the residents of the State of California to reject bigotry and hate speech.

This measure would provide that the Legislature stands in moral and legal objection to the ballot measure proposing to enact the Sodomite Suppression Act, and to any other ballot measure that seeks to inflict harm on innocent persons or diminish current civil rights protections. This measure also would provide that the Legislature calls upon the residents of the State of California to reject bigotry and hate speech.

WHEREAS, The Legislature affirms the right of free speech, no matter how abhorrent; and

WHEREAS, The Legislature objects to and denounces the introduction of a ballot measure that calls for violence, harm, and intimidation to be caused to another person due to that persons sexual orientation or gender identity; and

WHEREAS, A proposed ballot measure, which would enact the Sodomite Suppression Act, was submitted to the Attorney General for title and summary on February 26, 2015; and

WHEREAS, The Sodomite Suppression Act would require a person to be put to death if he or she engages in specified conduct with another person of the same gender; would make it a crime to distribute, perform, or transmit sodomistic propaganda, as defined; and would prohibit a person from serving in any public office or in public employment, or from enjoying any public benefit, if he or she is a sodomite, espouses sodomistic propaganda, or belongs to any group that does; and

WHEREAS, Sexual orientation and gender identity, each a protected class, are characteristics intrinsic to an individual, and the proposed ballot measure seeks to inflict great bodily harm and to intimidate individuals based on these innate characteristics; and

WHEREAS, The Legislature finds it abhorrent and repulsive that a citizen of this state would seek to introduce a ballot initiative that calls for the execution and intimidation of another based on a personal characteristic, which is inherent and unchangeable; and

WHEREAS, The contents of the recently proposed ballot measure are totally, completely, and wholly antithetical to the principles of a civilized society for which this Legislature stands and upholds; and

WHEREAS, The proposed ballot measure is reminiscent of actions inflicted on innocent persons under various oppressive regimes throughout history; and

WHEREAS, The lesbian, gay, bisexual, and transgender (LGBT) community includes our colleagues, staff, daughters, sons, family, friends, neighbors, and the constituents that we have the privilege to serve; and

WHEREAS, In 1978, Ronald Reagan joined California voters in opposing the Briggs Initiative that would have banned gays and lesbians, and possibly anyone who supported gay rights, from working in Californias public schools; and

WHEREAS, The Legislature has an affirmative duty to prevent injustices by protecting innocent people; and

WHEREAS, Countless patriots have stood firm in the battle for civil rights, most notably Dr. Martin Luther King Jr., who famously wrote that [i]njustice anywhere is a threat to justice everywhere; and

WHEREAS, This proposed ballot measure goes beyond repealing civil rights of the LGBT community, including the right to marry and the right to adopt regardless of sexual orientation or gender identity, as it condones and legalizes murder, contrary to established California law; and

WHEREAS, The Legislature rejects any policy, including the policy of affording businesses the right to discriminate against the LGBT community and the policy supporting the repugnant practice of so-called reparative therapy, that seeks to punish individuals who are innocent of any wrongdoing and simply for innate characteristics; now, therefore, be it

Resolved by the Assembly of the State of California, the Senate thereof concurring, That the Legislature stands in moral and legal objection to the ballot measure proposing to enact the Sodomite Suppression Act, and to any other ballot measure that seeks to inflict harm on innocent persons or diminish current civil rights protections; and be it further

Resolved, That the Legislature calls upon the residents of the State of California to reject bigotry and hate speech; and be it further

Resolved, That the Chief Clerk of the Assembly transmit copies of this resolution to the author for appropriate distribution.

WHEREAS, The Legislature affirms the right of free speech, no matter how abhorrent; and

WHEREAS, The Legislature objects to and denounces the introduction of a ballot measure that calls for violence, harm, and intimidation to be caused to another person due to that persons sexual orientation or gender identity; and

WHEREAS, A proposed ballot measure, which would enact the Sodomite Suppression Act, was submitted to the Attorney General for title and summary on February 26, 2015; and

WHEREAS, The Sodomite Suppression Act would require a person to be put to death if he or she engages in specified conduct with another person of the same gender; would make it a crime to distribute, perform, or transmit sodomistic propaganda, as defined; and would prohibit a person from serving in any public office or in public employment, or from enjoying any public benefit, if he or she is a sodomite, espouses sodomistic propaganda, or belongs to any group that does; and

WHEREAS, Sexual orientation and gender identity, each a protected class, are characteristics intrinsic to an individual, and the proposed ballot measure seeks to inflict great bodily harm and to intimidate individuals based on these innate characteristics; and

WHEREAS, The Legislature finds it abhorrent and repulsive that a citizen of this state would seek to introduce a ballot initiative that calls for the execution and intimidation of another based on a personal characteristic, which is inherent and unchangeable; and

WHEREAS, The contents of the recently proposed ballot measure are totally, completely, and wholly antithetical to the principles of a civilized society for which this Legislature stands and upholds; and

WHEREAS, The proposed ballot measure is reminiscent of actions inflicted on innocent persons under various oppressive regimes throughout history; and

WHEREAS, The lesbian, gay, bisexual, and transgender (LGBT) community includes our colleagues, staff, daughters, sons, family, friends, neighbors, and the constituents that we have the privilege to serve; and

WHEREAS, In 1978, Ronald Reagan joined California voters in opposing the Briggs Initiative that would have banned gays and lesbians, and possibly anyone who supported gay rights, from working in Californias public schools; and

WHEREAS, The Legislature has an affirmative duty to prevent injustices by protecting innocent people; and

WHEREAS, Countless patriots have stood firm in the battle for civil rights, most notably Dr. Martin Luther King Jr., who famously wrote that [i]njustice anywhere is a threat to justice everywhere; and

WHEREAS, This proposed ballot measure goes beyond repealing civil rights of the LGBT community, including the right to marry and the right to adopt regardless of sexual orientation or gender identity, as it condones and legalizes murder, contrary to established California law; and

WHEREAS, The Legislature rejects any policy, including the policy of affording businesses the right to discriminate against the LGBT community and the policy supporting the repugnant practice of so-called reparative therapy, that seeks to punish individuals who are innocent of any wrongdoing and simply for innate characteristics; now, therefore, be it

Resolved by the Assembly of the State of California, the Senate thereof concurring, That the Legislature stands in moral and legal objection to the ballot measure proposing to enact the Sodomite Suppression Act, and to any other ballot measure that seeks to inflict harm on innocent persons or diminish current civil rights protections; and be it further

Resolved, That the Legislature calls upon the residents of the State of California to reject bigotry and hate speech; and be it further

Resolved, That the Chief Clerk of the Assembly transmit copies of this resolution to the author for appropriate distribution.

WHEREAS, The Legislature affirms the right of free speech, no matter how abhorrent; and

WHEREAS, The Legislature objects to and denounces the introduction of a ballot measure that calls for violence, harm, and intimidation to be caused to another person due to that persons sexual orientation or gender identity; and

WHEREAS, A proposed ballot measure, which would enact the Sodomite Suppression Act, was submitted to the Attorney General for title and summary on February 26, 2015; and

WHEREAS, The Sodomite Suppression Act would require a person to be put to death if he or she engages in specified conduct with another person of the same gender; would make it a crime to distribute, perform, or transmit sodomistic propaganda, as defined; and would prohibit a person from serving in any public office or in public employment, or from enjoying any public benefit, if he or she is a sodomite, espouses sodomistic propaganda, or belongs to any group that does; and

WHEREAS, Sexual orientation and gender identity, each a protected class, are characteristics intrinsic to an individual, and the proposed ballot measure seeks to inflict great bodily harm and to intimidate individuals based on these innate characteristics; and

WHEREAS, The Legislature finds it abhorrent and repulsive that a citizen of this state would seek to introduce a ballot initiative that calls for the execution and intimidation of another based on a personal characteristic, which is inherent and unchangeable; and

WHEREAS, The contents of the recently proposed ballot measure are totally, completely, and wholly antithetical to the principles of a civilized society for which this Legislature stands and upholds; and

WHEREAS, The proposed ballot measure is reminiscent of actions inflicted on innocent persons under various oppressive regimes throughout history; and

WHEREAS, The lesbian, gay, bisexual, and transgender (LGBT) community includes our colleagues, staff, daughters, sons, family, friends, neighbors, and the constituents that we have the privilege to serve; and

WHEREAS, In 1978, Ronald Reagan joined California voters in opposing the Briggs Initiative that would have banned gays and lesbians, and possibly anyone who supported gay rights, from working in Californias public schools; and

WHEREAS, The Legislature has an affirmative duty to prevent injustices by protecting innocent people; and

WHEREAS, Countless patriots have stood firm in the battle for civil rights, most notably Dr. Martin Luther King Jr., who famously wrote that [i]njustice anywhere is a threat to justice everywhere; and

WHEREAS, This proposed ballot measure goes beyond repealing civil rights of the LGBT community, including the right to marry and the right to adopt regardless of sexual orientation or gender identity, as it condones and legalizes murder, contrary to established California law; and

WHEREAS, The Legislature rejects any policy, including the policy of affording businesses the right to discriminate against the LGBT community and the policy supporting the repugnant practice of so-called reparative therapy, that seeks to punish individuals who are innocent of any wrongdoing and simply for innate characteristics; now, therefore, be it

Resolved by the Assembly of the State of California, the Senate thereof concurring, That the Legislature stands in moral and legal objection to the ballot measure proposing to enact the Sodomite Suppression Act, and to any other ballot measure that seeks to inflict harm on innocent persons or diminish current civil rights protections; and be it further

Resolved, That the Legislature calls upon the residents of the State of California to reject bigotry and hate speech; and be it further

Resolved, That the Chief Clerk of the Assembly transmit copies of this resolution to the author for appropriate distribution.

WHEREAS, The Legislature affirms the right of free speech, no matter how abhorrent; and

WHEREAS, The Legislature objects to and denounces the introduction of a ballot measure that calls for violence, harm, and intimidation to be caused to another person due to that persons sexual orientation or gender identity; and

WHEREAS, A proposed ballot measure, which would enact the Sodomite Suppression Act, was submitted to the Attorney General for title and summary on February 26, 2015; and

WHEREAS, The Sodomite Suppression Act would require a person to be put to death if he or she engages in specified conduct with another person of the same gender; would make it a crime to distribute, perform, or transmit sodomistic propaganda, as defined; and would prohibit a person from serving in any public office or in public employment, or from enjoying any public benefit, if he or she is a sodomite, espouses sodomistic propaganda, or belongs to any group that does; and

WHEREAS, Sexual orientation and gender identity, each a protected class, are characteristics intrinsic to an individual, and the proposed ballot measure seeks to inflict great bodily harm and to intimidate individuals based on these innate characteristics; and

WHEREAS, The Legislature finds it abhorrent and repulsive that a citizen of this state would seek to introduce a ballot initiative that calls for the execution and intimidation of another based on a personal characteristic, which is inherent and unchangeable; and

WHEREAS, The contents of the recently proposed ballot measure are totally, completely, and wholly antithetical to the principles of a civilized society for which this Legislature stands and upholds; and

WHEREAS, The proposed ballot measure is reminiscent of actions inflicted on innocent persons under various oppressive regimes throughout history; and

WHEREAS, The lesbian, gay, bisexual, and transgender (LGBT) community includes our colleagues, staff, daughters, sons, family, friends, neighbors, and the constituents that we have the privilege to serve; and

WHEREAS, In 1978, Ronald Reagan joined California voters in opposing the Briggs Initiative that would have banned gays and lesbians, and possibly anyone who supported gay rights, from working in Californias public schools; and

WHEREAS, The Legislature has an affirmative duty to prevent injustices by protecting innocent people; and

WHEREAS, Countless patriots have stood firm in the battle for civil rights, most notably Dr. Martin Luther King Jr., who famously wrote that [i]njustice anywhere is a threat to justice everywhere; and

WHEREAS, This proposed ballot measure goes beyond repealing civil rights of the LGBT community, including the right to marry and the right to adopt regardless of sexual orientation or gender identity, as it condones and legalizes murder, contrary to established California law; and

WHEREAS, The Legislature rejects any policy, including the policy of affording businesses the right to discriminate against the LGBT community and the policy supporting the repugnant practice of so-called reparative therapy, that seeks to punish individuals who are innocent of any wrongdoing and simply for innate characteristics; now, therefore, be it

Resolved by the Assembly of the State of California, the Senate thereof concurring, That the Legislature stands in moral and legal objection to the ballot measure proposing to enact the Sodomite Suppression Act, and to any other ballot measure that seeks to inflict harm on innocent persons or diminish current civil rights protections; and be it further

Resolved, That the Legislature calls upon the residents of the State of California to reject bigotry and hate speech; and be it further

Resolved, That the Chief Clerk of the Assembly transmit copies of this resolution to the author for appropriate distribution.

 THIRD READING  

Bill No: ACR 67

Author: Mullin (D), Bonta (D), Chiu (D), Thurmond (D), and Ting (D), et al.

Amended: 6/22/15 in Assembly

Vote: 21

SENATE JUDICIARY COMMITTEE: 7-0, 7/14/15

AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski

ASSEMBLY FLOOR: 77-0, 6/22/15 - See last page for vote

SUBJECT: Ballot measures

SOURCE: Author

DIGEST: This resolution provides that the Legislature stands in moral and legal objection to the ballot measure proposing to enact the Sodomite Suppression Act, and to any other ballot measure that seeks to inflict harm on innocent persons or diminish current civil rights protections. This resolution calls upon the residents of the State of California to reject bigotry and hate speech.

ANALYSIS:

Existing law:

1. Provides, under the U.S. Constitution, that Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

2. Provides, under the California Constitution, for the right of every person to freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. Existing law further provides that a law may not restrain or abridge liberty of speech or press.

3. Provides, under the U.S. Constitution, that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

4. Provides, under the California Constitution, that all people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

5. Provides, under the California Constitution, that the initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them. Existing law further provides that an initiative measure may be proposed by presenting to the Secretary of State a petition that sets forth the text of the proposed statute or amendment to the Constitution and is certified to have been signed by electors equal in number to give percent in the case of a statute, and 8% in the case of an amendment to the Constitution, of the votes for all candidates for Governor at the last gubernatorial election. Existing law requires that the Secretary of State then submit the measure at the next general election held at least 131 days after it qualifies or at any special statewide election held prior to that general election, and authorizes the Governor to call a special statewide election for the measure.

This resolution states that:

1. The Legislature affirms the right of free speech, no matter how abhorrent;

2. The Legislature objects to and denounces the introduction of a ballot measure that calls for violence, harm, and intimidation to be caused to another person due to that person’s sexual orientation or gender identity;

3. A proposed ballot measure, which would enact the Sodomite Suppression Act, was submitted to the Attorney General for title and summary on February 26, 2015;

4. The Sodomite Suppression Act would require a person to be put to death if he or she engages in specified conduct with another person of the same gender; would make it a crime to distribute, perform, or transmit “sodomistic propaganda,” as defined; and would prohibit a person from serving in any public office or in public employment, or from enjoying any public benefit, if he or she is a “sodomite,” “espouses sodomistic propaganda,” or “belongs to any group that does;”

5. Sexual orientation and gender identity, each a protected class, are characteristics intrinsic to an individual, and the proposed ballot measure seeks to inflict great bodily harm and to intimidate individuals based on these innate characteristics;

6. The Legislature finds it abhorrent and repulsive that a citizen of this state would seek to introduce a ballot initiative that calls for the execution and intimidation of another based on a personal characteristic, which is inherent and unchangeable;

7. The contents of the recently proposed ballot measure are totally, completely, and wholly antithetical to the principles of a civilized society for which this Legislature stands and upholds;

8. The proposed ballot measure is reminiscent of actions inflicted on innocent persons under various oppressive regimes throughout history;

9. The lesbian, gay, bisexual, and transgender (LGBT) community includes our colleagues, staff, daughters, sons, family, friends, neighbors, and the constituents that we have the privilege to serve;

10. In 1978, Ronald Reagan joined California voters in opposing the Briggs Initiative that would have banned gays and lesbians, and possibly anyone who supported gay rights, from working in California’s public schools;

11. The Legislature has an affirmative duty to prevent injustices by protecting innocent people;

12. Countless patriots have stood firm in the battle for civil rights, most notably Dr. Martin Luther King Jr., who famously wrote that “[i]njustice anywhere is a threat to justice everywhere;”

13. This proposed ballot measure goes beyond repealing civil rights of the LGBT community, including the right to marry and the right to adopt regardless of sexual orientation or gender identity, as it condones and legalizes murder, contrary to established California law; and

14. The Legislature rejects any policy, including the policy of affording businesses the right to discriminate against the LGBT community and the policy supporting the repugnant practice of so-called “reparative therapy,” that seeks to punish individuals who are innocent of any wrongdoing and simply for innate characteristics.

This resolution provides that the Legislature stands in moral and legal objection to the ballot measure proposing to enact the Sodomite Suppression Act, and to any other ballot measure that seeks to inflict harm on innocent persons or diminish current civil rights protections. This resolution calls upon the residents of the State of California to reject bigotry and hate speech.

Background

Notably, California prohibits, under numerous laws such as the Fair Employment and Housing Act or the Unruh Civil Rights Act, discrimination against a person on the basis of characteristics such as race, religion, color, national origin, disability, sex, gender, gender identity, gender expression, age, and sexual orientation. Other California laws, such as the Ralph Civil Rights Act, prohibit any act of violence, or intimidation by threat of violence, committed against a person or the person’s property because of such characteristics, and otherwise punishes as a “hate crime” under the Penal Code criminal acts committed, in whole or in part, because of specified characteristics (including sexual orientation) of a victim, whether they are actual or perceived. Similarly, the California Penal Code further prohibits any person, whether or not acting under color of law, from, by force or threat of force, willfully injuring, intimidating, interfering with, oppressing, or threatening any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of this state or of the United States in whole or in part because of one or more of the actual or perceived characteristics of the victim listed under law—once again, including sexual orientation. (See e.g. Gov. Code Secs. 11135, 12900 et seq.; Civ. Code Secs. 51, 51.7; Pen. Code Sec. 422.55, 422.6.) Additionally, both the federal and state constitutions protect the right of all people to enjoy life and liberty. (See e.g. U.S. Const., 14th Amend, Sec. 1; Cal. Const., art. I., Sec. 1.)

In February 2015, a lawyer from Southern California submitted a ballot initiative entitled the “Sodomite Suppression Act” to the Office of the Attorney General, to be placed on the next ballot, calling for the death of any person who engages in sodomy in this state. The Act sought to amend the Penal Code to provide, among other things:

• The abominable crime against nature known as buggery, called also sodomy, is a monstrous evil that Almighty God, giver of freedom and liberty, commands us to suppress on pain of our utter destruction even as he overthrew Sodom and Gomorrah.

• Seeing that it is better that offenders should die rather than that all of us should be killed by God’s just wrath against us for the folly of tolerating wickedness in our midst, the People of California wisely command, in the fear of God, 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.

• No person shall serve in any public office, nor serve in public employment, nor enjoy any public benefit, who is a sodomite or who espouses sodomistic propaganda or who belongs to any group that does.

• This law is effective immediately and shall not be rendered ineffective nor invalidated by any court, state or federal, until heard by a quorum of the Supreme Court of California consisting only of judges who are neither sodomites nor subject to disqualification hereunder. (Sodomite Suppression Act (Feb. 24, 2015) <https://oag.ca.gov/system/files/initiatives/pdfs/15-0008%20(Sodomy)_0.pdf [as of Jul. 5, 2015].)

Subsequently, the Attorney General sought and received authorization from the courts to block this initiative from being placed on the ballot. Most recently, the same attorney made another attempt called the “Sodomite Suppression Measure,” to place before the voters a constitutional amendment authorizing the killing of gays and lesbians. The Attorney General reportedly rejected this attempt as well. (See Cadelago and Walters, Kamala Harris Rejects Second Gay Murder Measure, Sacramento Bee (Jul. 1, 2015) <http://www.sacbee.com/news/politics-government/capitol-alert/article25998655.html [as of Jul. 5, 2015].)

This resolution seeks to respond by stating the Legislature’s moral and legal objection to the ballot measure proposing to enact the Sodomite Suppression Act, and to any other ballot measure that seeks to inflict harm on innocent persons or diminish current civil rights protections. This resolution also calls upon the residents of the State of California to reject bigotry and hate speech.

Comments

As stated by the author:

ACR 67 provides that the Legislature stands in moral and legal objection to a ballot measure proposing to enact the Sodomite Suppression Act, and to any other ballot measure that seeks to inflict harm on innocent persons or diminish current civil rights protections. ACR 67 would also provide that the Legislature calls upon the residents of the State of California to reject bigotry and hate speech.

As noted in the language of ACR 67: The Legislature finds it abhorrent and repulsive that a citizen of this state would seek to introduce a ballot initiative that calls for the execution and intimidation of another based on a personal characteristic, which is inherent and unchangeable. Furthermore, the contents of the recently proposed ballot measure are totally, completely, and wholly antithetical to the principles of a civilized society for which this Legislature stands and uphold.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 7/15/15)

Bay Area Municipal Elections Committee

Berkeley City Councilmember

East Bay Stonewall Democratic Club

Equality California

Our Family Coalition

San Mateo County Supervisor, District 1

Santa Clara County Supervisor, Fourth District

San Francisco Chamber of Commerce

Three individuals

OPPOSITION: (Verified 7/15/15)

One individual

ASSEMBLY FLOOR: 77-0, 6/22/15

AYES: Achadjian, Alejo, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Atkins

NO VOTE RECORDED: Travis Allen, Dahle, Wood

Prepared by: Ronak Daylami / JUD. / (916) 651-4113

7/15/15 16:35:26

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015-2016 Regular Session

Bill No: ACR 67 (Author:Mullin)

Version: June 22, 2015

Hearing Date: July 14, 2015

Fiscal: No

Urgency: No

Consultant: RD

SUBJECT

Ballot measures

DESCRIPTION

This measure would provide that the Legislature stands in moral and legal objection to the ballot measure proposing to enact the Sodomite Suppression Act, and to any other ballot measure that seeks to inflict harm on innocent persons or diminish current civil rights protections. This measure would call upon the residents of the State of California to reject bigotry and hate speech.

BACKGROUND

Notably, California prohibits, under numerous laws such as the Fair Employment and Housing Act or the Unruh Civil Rights Act, discrimination against a person on the basis of characteristics such as race, religion, color, national origin, disability, sex, gender, gender identity, gender expression, age, and sexual orientation. Other California laws, such as the Ralph Civil Rights Act, prohibit any act of violence, or intimidation by threat of violence, committed against a person or the person’s property because of such characteristics, and otherwise punishes as a “hate crime” under the Penal Code criminal acts committed, in whole or in part, because of specified characteristics (including sexual orientation) of a victim, whether they are actual or perceived. Similarly, the California Penal Code further prohibits any person, whether or not acting under color of law, from, by force or threat of force, willfully injuring, intimidating, interfering with, oppressing, or threatening any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of this state or of the United States in whole or in part because of one or more of the actual or perceived characteristics of the victim listed under law—once again, including sexual orientation. (See e.g. Gov. Code Secs. 11135, 12900 et seq.; Civ. Code Secs. 51, 51.7; Pen. Code Sec. 422.55, 422.6.) Additionally, both the federal and state constitutions protect the right of all people to enjoy life and liberty. (See e.g. U.S. Const., 14th Amend, Sec. 1; Cal. Const., art. I., Sec. 1.)

In February 2015, a lawyer from Southern California submitted a ballot initiative entitled the “Sodomite Suppression Act” to the Office of the Attorney General, to be placed on the next ballot, calling for the death of any person who engages in sodomy in this state. The Act sought to amend the Penal Code to provide, among other things:

• The abominable crime against nature known as buggery, called also sodomy, is a monstrous evil that Almighty God, giver of freedom and liberty, commands us to suppress on pain of our utter destruction even as he overthrew Sodom and Gomorrah.

• Seeing that it is better that offenders should die rather than that all of us should be killed by God’s just wrath against us for the folly of tolerating wickedness in our midst, the People of California wisely command, in the fear of God, 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.

• No person shall serve in any public office, nor serve in public employment, nor enjoy any public benefit, who is a sodomite or who espouses sodomistic propaganda or who belongs to any group that does.

• This law is effective immediately and shall not be rendered ineffective nor invalidated by any court, state or federal, until heard by a quorum of the Supreme Court of California consisting only of judges who are neither sodomites nor subject to disqualification hereunder. (Sodomite Suppression Act (Feb. 24, 2015) <https://oag.ca.gov/system/files/initiatives/pdfs/15-0008%20(Sodomy)_0.pdf> [as of Jul. 5, 2015].)

Subsequently, the Attorney General sought and received authorization from the courts to block this initiative from being placed on the ballot. (See Comment 3.) Most recently, the same attorney made another attempt called the “Sodomite Suppression Measure,” to place before the voters a constitutional amendment authorizing the killing of gays and lesbians. The Attorney General reportedly rejected this attempt as well. (See Cadelago and Walters, Kamala Harris Rejects Second Gay Murder Measure, Sacramento Bee (Jul. 1, 2015) <http://www.sacbee.com/news/politics-government/capitol-alert/article25998655.html> [as of Jul. 5, 2015].)

This resolution seeks to respond by stating the Legislature’s moral and legal objection to the ballot measure proposing to enact the Sodomite Suppression Act, and to any other ballot measure that seeks to inflict harm on innocent persons or diminish current civil rights protections. This measure would also call upon the residents of the State of California to reject bigotry and hate speech.

CHANGES TO EXISTING LAW

Existing federal law, the U.S. Constitution, provides that Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. (U.S. Const., 1st Amend., as applied to the states through the 14th Amendment’s Due Process Clause; see Gitlow v. New York (1925) 268 U.S. 652.)

Existing state law, the California Constitution, provides for the right of every person to freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. Existing law further provides that a law may not restrain or abridge liberty of speech or press. (Cal. Const., art. I, Sec. 2(a).)

Existing federal law, the U.S. Constitution, provides that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (U.S. Const., 14th Amend., Sec. 1.)

Existing state law, the California Constitution, provides that all people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy. (Cal. Const., art. I, Sec. 1.)

Existing state law, the California Constitution, provides that the initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them. Existing law further provides that an initiative measure may be proposed by presenting to the Secretary of State a petition that sets forth the text of the proposed statute or amendment to the Constitution and is certified to have been signed by electors equal in number to give percent in the case of a statute, and eight percent in the case of an amendment to the Constitution, of the votes for all candidates for Governor at the last gubernatorial election. Existing law requires that the Secretary of State then submit the measure at the next general election held at least 131 days after it qualifies or at any special statewide election held prior to that general election, and authorizes the Governor to call a special statewide election for the measure. (Cal. Const., art. II, Sec. 8(a)-(c).)

This measure would state that:

• the Legislature affirms the right of free speech, no matter how abhorrent;

• the Legislature objects to and denounces the introduction of a ballot measure that calls for violence, harm, and intimidation to be caused to another person due to that person’s sexual orientation or gender identity;

• a proposed ballot measure, which would enact the Sodomite Suppression Act, was submitted to the Attorney General for title and summary on February 26, 2015;

• the Sodomite Suppression Act would require a person to be put to death if he or she engages in specified conduct with another person of the same gender; would make it a crime to distribute, perform, or transmit “sodomistic propaganda,” as defined; and would prohibit a person from serving in any public office or in public employment, or from enjoying any public benefit, if he or she is a “sodomite,” “espouses sodomistic propaganda,” or “belongs to any group that does;”

• sexual orientation and gender identity, each a protected class, are characteristics intrinsic to an individual, and the proposed ballot measure seeks to inflict great bodily harm and to intimidate individuals based on these innate characteristics;

• the Legislature finds it abhorrent and repulsive that a citizen of this state would seek to introduce a ballot initiative that calls for the execution and intimidation of another based on a personal characteristic, which is inherent and unchangeable;

• the contents of the recently proposed ballot measure are totally, completely, and wholly antithetical to the principles of a civilized society for which this Legislature stands and upholds;

• the proposed ballot measure is reminiscent of actions inflicted on innocent persons under various oppressive regimes throughout history;

• the lesbian, gay, bisexual, and transgender (LGBT) community includes our colleagues, staff, daughters, sons, family, friends, neighbors, and the constituents that we have the privilege to serve;

• in 1978, Ronald Reagan joined California voters in opposing the Briggs Initiative that would have banned gays and lesbians, and possibly anyone who supported gay rights, from working in California’s public schools;

• the Legislature has an affirmative duty to prevent injustices by protecting innocent people;

• countless patriots have stood firm in the battle for civil rights, most notably Dr. Martin Luther King Jr., who famously wrote that “[i]njustice anywhere is a threat to justice everywhere;”

• this proposed ballot measure goes beyond repealing civil rights of the LGBT community, including the right to marry and the right to adopt regardless of sexual orientation or gender identity, as it condones and legalizes murder, contrary to established California law; and

• the Legislature rejects any policy, including the policy of affording businesses the right to discriminate against the LGBT community and the policy supporting the repugnant practice of so-called “reparative therapy,” that seeks to punish individuals who are innocent of any wrongdoing and simply for innate characteristics.

This measure would provide that the Legislature stands in moral and legal objection to the ballot measure proposing to enact the Sodomite Suppression Act, and to any other ballot measure that seeks to inflict harm on innocent persons or diminish current civil rights protections. This measure would call upon the residents of the State of California to reject bigotry and hate speech.

COMMENT

1. Stated need for the bill

According to the author this measure is needed to respond to a citizen-proposed initiative. The author writes:

ACR 67 provides that the Legislature stands in moral and legal objection to a ballot measure proposing to enact the Sodomite Suppression Act, and to any other ballot measure that seeks to inflict harm on innocent persons or diminish current civil rights protections. ACR 67 would also provide that the Legislature calls upon the residents of the State of California to reject bigotry and hate speech.

As noted in the language of ACR 67: The Legislature finds it abhorrent and repulsive that a citizen of this state would seek to introduce a ballot initiative that calls for the execution and intimidation of another based on a personal characteristic, which is inherent and unchangeable. Furthermore, the contents of the recently proposed ballot measure are totally, completely, and wholly antithetical to the principles of a civilized society for which this Legislature stands and uphold.

2. Bill does not prohibit citizens’ political speech, but states Legislature’s opposition to ballot initiatives that promote harm to innocent persons and violate civil rights

Political speech is said to lie at the core of the First Amendment and to receive the highest form of protection. While this is not to say that the right of speech is absolute and that government cannot place any sort of restrictions or regulations upon that speech, such as prohibiting electioneering within a certain number of feet of a polling place, or in the case of citizen ballot measures, requiring a certain number of petition signatures to place a ballot initiative on the ballot that applies uniformly and regardless of the content or viewpoint of the ballot initiative, questions as to the constitutionality of a governmental restriction arise where a body of government attempts block a ballot initiative based upon the content or viewpoint of a particular ballot initiative that otherwise meets the requisite signature and deadline requirements. The U.S. Supreme Court has held on numerous occasions that at the very core of the First Amendment is the principle that the government may not regulate speech based on its content, and that content-based restrictions are presumptively invalid. (See RAV v. City of St. Paul (1992) 505 U.S. 377, 382.) For example, a law regulating speech is content-neutral if it applies to all speech regardless of the message. A law making all picketing, except labor picketing, unconstitutional, would be content-based. A law prohibiting anti-war protests would be both content-based and a viewpoint regulation. So, too, would a law that prohibits any speech about war (subject matter regulation). In contrast, a law prohibiting the posting of all signs on public utility poles would be content- and viewpoint neutral.

That being said, as reflected in Comment 3, government cannot and should not be required to place certain citizen initiatives on the ballot where the measure would be patently unconstitutional. Again, not all speech, even political speech, is protected absolutely under the First Amendment. For example, as noted by the U.S. Supreme Court in Brandenburg v. Ohio (1969) 395 U.S. 444, 447, speech can lose its constitutional protections in rare circumstances where it: (1) involves the likelihood of imminent lawless action; and (2) is directed at inciting or producing that imminent lawless action. Of course, the constitutionality of a law or ballot measure can often be debated, and many of those debates have landed on the steps of the nation’s highest court. While it is arguably a question for the courts to determine which ballot initiatives would be in violation of either federal constitutional or statutory law, this initiative is in line with the California Attorney General recent effort to seek a court order to block what was considered to be an unquestionable violation of constitutional rights under both the federal and state constitutions. (See Comment 3 below, for more.)

Notably, this resolution states not only the Legislature’s moral and legal objection to the ballot measure proposing to enact the Sodomite Suppression Act, but also to “any other ballot measure that seeks to inflict harm on innocent persons or diminish current civil rights protections.” Ultimately, the measure does not call for governmental action to prohibit or restrain the political speech of this individual, but rather calls upon Californians to reject bigotry and hate speech which is entirely consistent with the First Amendment.

3. Recent court decision has granted the Attorney General’s request to block the underlying ballot measure

As noted in the Background, this resolution is in response to a citizen-based initiative to place a measure on the ballot that would provide: On March 25 of this year, the Attorney General, Kamala Harris, announced that she would seek to block the initiative, given her duty to uphold the California and United States Constitutions and to protect the rights of all Californians. As stated by the Attorney General’s at that time, the proposal “not only threatens public safety, it is patently unconstitutional, utterly reprehensible, and has no place in a civil society. Today, I am filing an action for declaratory relief with the Court seeking judicial authorization for relief from the duty to prepare and issue the title and summary for the ‘Sodomite Suppression Act.’ 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.” (Press Release Attorney General Kamala D. Harris Issues Statement on Proposed Ballot Initiative, Office of the Attorney General (Mar. 25, 2015) <https://oag.ca.gov/news/press-releases/attorney-general-kamala-d-harris-issues-statement-proposed-ballot-initiative> [as of Jul. 5. 2015].)

Less than two months later, on June 22, 2015, a California Superior Court judge granted the Attorney General’s request to block the proposed initiative, holding the Sodomite Suppression Act, “patently unconstitutional on its face” and thereby relieving the Attorney General of any obligation to issue a title and summary for the proposal as “[a]ny 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[.]”

The East Bay Stonewall Democratic Club writes in support that “[t]he proposed ‘Sodomite Suppression Act’ is reprehensible and appalling in that it blatantly allows and calls for the murder of lesbians and gays. This proposal seeks to legalize discrimination and vigilantism against members of our community and by direct result bar[ ] them from ‘Life, Liberty and the Pursuit of Happiness’ as clearly stated in the United States Declaration of Independence as an inalienable right. As a society, we cannot stand idly by and condone this or any other ballot measure that seeks to inflict harm on innocent persons or diminish their current civil rights protections.” Also in support of the bill, Equality California writes that “[i]t is imperative for the Legislature to take a formal stand against any ballot measure that, if passed, would allow and encourage individuals to inflict harm on another based solely on their inherent characteristics as human beings.”

Support: Bay Area Municipal Elections Committee; Berkeley City Council member; East Bay Stonewall Democratic Club; Equality California; Our Family Coalition; San Mateo County Supervisor, District 1; Santa Clara County Supervisor, Fourth District; San Francisco Chamber of Commerce; three individuals

Opposition: One individual

HISTORY

Source: Author

Related Pending Legislation: None Known

Prior Legislation: None Known

Prior Vote:

Assembly Floor (Ayes 77, Noes 0)

Assembly Judiciary Committee (Ayes 10, Noes 0)

**************

ASSEMBLY THIRD READING

ATR Bill Id:ACR 67

Author:(Mullin, et al.)

As Introduced Ver:May 11, 2015

Majority vote

SUMMARY: Objects to and denounces the proposed ballot initiative that seeks to inflict great bodily harm and to intimidate individuals of the California lesbian, gay, bi-sexual, and transgender (LGBT) community, based on their sexual orientation and gender identity. Specifically, this resolution:

1. States that the Legislature affirms the right of free speech, no matter how abhorrent, but also has an affirmative duty to prevent injustices by protecting innocent people.

2. States that the Legislature objects to and denounces the introduction of a ballot measure that calls for violence, harm, and intimidation; and finds it abhorrent and repulsive that a citizen of this state would seek to introduce a ballot initiative that calls for the execution and intimidation of another based on a personal characteristic, which is inherent and unchangeable.

3. Observes that a proposed ballot measure, which would enact the Sodomite Suppression Act (SSA), was submitted to the Attorney General for title and summary on February 26, 2015.

4. Notes that the SSA would require a person to be put to death if he or she engages in specified conduct with another person of the same gender; would make it a crime to distribute, perform, or transmit what the SSA calls "sodomistic propaganda," and would prohibit a person from serving in any public office or public employment, or from enjoying any public benefit, if he or she is a "sodomite, espouses sodomistic propaganda, or belongs to any group that does."

5. States that sexual orientation and gender identity, each a protected class, are characteristics intrinsic to an individual, and the proposed ballot measure seeks to inflict great bodily harm and intimidate individuals based on these innate characteristics.

6. States that the LGBT community includes our colleagues, staff, daughters, sons, families, friends, neighbors, and the constituents that we have the privilege to serve.

7. Resolves that the Legislature stands in moral and legal objection to the ballot measure proposing to enact the SSA, and to any other ballot measure that seeks to inflict harm on innocent persons or diminish current civil rights protections.

8. Further resolves that the Legislature calls upon the residents of the State of California to reject bigotry and hate speech.

EXISTING LAW:

1. Prohibits, under the United States Constitution, the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances.

2. Provides, under the California State Constitution, that "every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right," and that a "law may not restrain or abridge liberty of speech or press."

3. Provides, under the California State Constitution, that the "state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting."

4. Provides, under the California State Constitution, that "The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them," and allows an initiative measure to be proposed by presenting to the Secretary of State a petition that sets forth the text of the proposed statute or amendment to the Constitution, and having the Secretary of State certify that the initiative petition has been signed by electors equal in number to 5% in the case of a statute, of the votes for all candidates for Governor at the last gubernatorial election.

5. Provides, pursuant to the state’s Fair Employment and Housing Act, that it is an unlawful employment practice for an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation of any person, to refuse to hire or employ that person or to refuse to select that person for a training program leading to employment, or to bar or discharge that person from employment or from a training program leading to employment, or to discriminate against that person in compensation or in terms, conditions, or privileges of employment.

FISCAL EFFECT: None

COMMENTS: The initiative process grants power to the voters to propose statutes and amendments to the state Constitution and to adopt or reject them. An initiative measure is presented to the Secretary of State as a petition that includes the text of the proposed statute or amendment to the Constitution, after it has been issued a circulating title and summary by the Attorney General, and includes the signatures of qualified registered voters equal to 5% of the votes for all candidates for governor in the last gubernatorial election. The signatures are required to be qualified by an elections official prior to the initiative being placed on the ballot. In support of this resolution, the author states:

As noted in the language of ACR 67: The Legislature finds it abhorrent and repulsive that a citizen of this state would seek to introduce a ballot initiative that calls for the execution and intimidation of another based on a personal characteristic, which is inherent and unchangeable. Furthermore, the contents of the recently proposed ballot measure are totally, completely, and wholly antithetical to the principles of a civilized society for which this Legislature stands and uphold.

The Attorney General Has Sought Relief From the Duty to Provide a Title and Summary to the Proposed "Sodomite Suppression Act." On March 25, 2015, Attorney General Harris sought declaratory relief from the Sacramento County Superior Court by filing a request for authorization to not issue a title and ballot summary for the SSA. According to a press statement on the Attorney General office's Web site, the Attorney General believes that the proposed SSA "not only threatens public safety, it is patently unconstitutional, utterly reprehensible, and has no place in a civil society." The Attorney General has stated, "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." (http://oag.ca.gov/news/press-releases)

The Ballot Initiative Process is Generally Viewed as a Mechanism for the Expression of Political Speech. There are three basic categories of protected speech: core political, expressive and commercial. When considering the protection to afford to a category of speech, a court uses different levels of scrutiny, based on the type of speech at issue. Of these three categories, political speech is the most highly protected due to the fact that it is viewed as an expressive activity that forms the foundation of our democracy. Restrictions placed upon core political speech must pass a strict scrutiny analysis. Unless the purpose for the restriction placed on political speech is to achieve a compelling governmental interest, the restriction will be declared unconstitutional and struck down.

The Ballot Initiative Process is Highly Respected, but Not Infallible. In order for an initiative to qualify for the ballot, the proponent must submit the complete text of the proposed initiative measure, a $200 filing fee to the State of California, and an initiative certification to the Attorney General's office to receive a circulating title and summary of the chief purpose and points of the proposed measure. Thus, it is very easy to initiate the process of obtaining title and summary of an initiative (by submitting the language and paying $200). Federal and state courts have historically been hesitant to intervene in the voter initiative process, and generally do not intervene prior to the measure being put to a vote of the people because the process represents the will or voice of the voters. In cases where courts have intervened in the process, they generally require the presentation of compelling evidence to demonstrate that the initiative or measure being challenged is unconstitutional.

The First Amendment Protects Almost Every Type of Speech, Including Some Hate Speech. Most hateful speech, including speech that is mean, rude, repulsive, and offensive is nevertheless protected by the state and federal constitutions. There are very limited types of speech that are not protected by the Constitution, including but not limited to the following: 1) incitement (speech directed to inciting or producing imminent lawless action (See Brandenburg v. Ohio (1969) 395 U.S. 444); and 2) fighting words (speech that uses abusive words that would incite a reasonable person to react violently (See Chaplinsky v. New Hampshire (1942) 315 U.S. 568, 572). It is rare for a court to find that speech is unprotected because the right to free speech is protected by the United States Constitution.

The SSA would likely be considered political speech by a court because it is proposed as a ballot initiative, meaning that any restriction on the SSA – such as refusal to issue a title and summary, necessary for the SSA to be placed on the ballot – would be subject to strict scrutiny. However, the SSA calls for the murder and imprisonment of a protected class of persons, who are innocent of any crime or wrongdoing, purely based upon their sexual orientation and gender identity, which could mean that it is unprotected "incitement," or "fighting words." In Brandenburg v. Ohio, supra, 395 U.S. at p. 447, the court used a two-pronged test to evaluate speech acts: 1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action"; and 2) it is "likely to incite or produce such action." There is little argument that the SSA is reprehensible and calls for violent acts, including acts that would lead to great bodily harm and death. However, the language does not call for any of the requested actions to be done imminently. The language calls for all actions after the initiative has passed and has been incorporated into law, and therefore does not meet Brandenburg’s test for incitement. The fighting words doctrine as established in Chaplinsky v. New Hampshire, supra, 315 U.S. at p. 572 (footnote 4) the court defined fighting words as those words that "by their utterance inflict injury or tend to incite an immediate breach of the peace." It is arguable whether the SSA actually meets the test for fighting words. The language is clearly foul and degrading, but does it inflict injury? That would depend on how injury is defined. Does the language tend to incite an immediate breach of the peace? The language clearly angered and offended many people but by all reports there was no immediate breach of the peace, such as rioting or violent protests that commenced as of the SSA’s filing. Therefore, as abhorrent, violent, and hateful as the language of the initiative is, it does not appear to reach the level of unprotected speech, and if challenged, would likely constitute political speech that is given the highest level of protection by the United States Constitution.

In an apparent attempt to both ridicule the proponent of the SSA and express the outrageousness of the proposed initiative, Charlotte Laws, a Southern California real estate agent, recently filed an initiative called the Intolerant Jackass Act in response to the SSA. That countermeasure, in a somewhat tongue-in-cheek manner, calls for the "People of California to unite their voices in love of liberty and tolerance." The initiative would require anyone who proposes an initiative calling for the killing of gays and lesbians to attend three hours of monthly sensitivity training for a 12 month duration and donate $5,000 to a pro-LGBT group.

Analysis Prepared by: Khadijah Hargett / JUD. / (916) 319-2334 FN: 0000957

Date of Hearing: June 16, 2015

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:ACR 67 (

Author:Mullin) – As Introduced Ver:May 11, 2015

SUBJECT: BALLOT MEASURES

KEY ISSUE: SHOULD THE LEGISLATURE OBJECT TO AND DENOUNCE THE INTRODUCTION OF THE RECENTLY FILED BALLOT INITIATIVE PROPOSING TO ENACT THE “SODOMITE SUPPRESSION ACT” AND ANY OTHER BALLOT INITIATIVE THAT SEEKS TO INFLICT HARM ON INNOCENT PERSONS OR DIMINISH CURRENT CIVIL RIGHTS PROTECTIONS, AND CALL UPON THE RESIDENTS OF CALIFORNIA TO REJECT THE BIGOTRY AND HATE SPEECH IN SUCH MEASURES?

SYNOPSIS

This measure objects to and denounces the recently filed ballot initiative proposing to enact the “Sodomite Suppression Act” (SSA) that calls for the people of California to commit acts of violence, harm, and intimidation to persons who engage in specified sexual conduct with persons of the same gender. This measure declares that while the Legislature affirms the right of free speech no matter how abhorrent, the Legislature finds it repugnant and repulsive that a California citizen would seek to introduce a ballot initiative calling for the execution and intimidation of a person based on his or her personal characteristics, including but not limited to the person’s sexual preference, which are inherent and unchangeable. This measure resolves that the Legislature stands in moral and legal objection to the SSA and to all other ballot measures encouraging violence against, or diminishing current civil rights protections of, innocent persons. The California Attorney General has a duty to issue a title and summary to all properly filed ballot initiatives. After receiving the proposed text of this initiative, the Attorney General’s Office sought declaratory relief from the superior court to not issue a title and summary due to the fact that the initiative, in the words of the Attorney General, “not only threatens public safety, it is patently unconstitutional, utterly reprehensible, and has no place in a civil society.” The court has entered a default in the matter, but a default judgment has yet to be entered. As abhorrent, violent, and hateful as the language of the SSA is, it does not appear to reach the level of any category of unprotected speech, and if challenged, would likely be considered to be political speech so that any restrictions on it would be subject to the highest level of scrutiny by the courts. This resolution is supported by various civil and human rights organizations, business organizations and elected officials, who share common concerns regarding the introduction of an initiative that clearly advocates violence against innocent persons and challenges the civil rights of California’s LGBT community. There is no known opposition to the resolution.

SUMMARY: Objects to and denounces the proposed ballot initiative that seeks to inflict great bodily harm and to intimidate individuals of the California lesbian, gay, bi-sexual and transgender (LGBT) community, based on their sexual orientation and gender identity. Specifically, this resolution:

1. States that the Legislature affirms the right of free speech, no matter how abhorrent, but also has an affirmative duty to prevent injustices by protecting innocent people.

2. States that the Legislature objects to and denounces the introduction of a ballot measure that calls for violence, harm, and intimidation; and finds it abhorrent and repulsive that a citizen of this state would seek to introduce a ballot initiative that calls for the execution and intimidation of another based on a personal characteristic, which is inherent and unchangeable.

3. Observes that a proposed ballot measure, which would enact the SSA, was submitted to the Attorney General for title and summary on February 26, 2015.

4. Notes that the SSA would require a person to be put to death if he or she engages in specified conduct with another person of the same gender; would make it a crime to distribute, perform, or transmit what the SSA calls “sodomistic propaganda,” and would prohibit a person from serving in any public office or public employment, or from enjoying any public benefit, if he or she is a “sodomite, espouses sodomistic propaganda, or belongs to any group that does.”

5. States that sexual orientation and gender identity, each a protected class, are characteristics intrinsic to an individual, and the proposed ballot measure seeks to inflict great bodily harm and intimidate individuals based on these innate characteristics.

6. States that the LGBT community includes our colleagues, staff, daughters, sons, families, friends, neighbors, and the constituents that we have the privilege to serve.

7. Observes that in 1978, Ronald Reagan joined California voters in opposing the Briggs Initiative that would have banned gays and lesbians, and possibly anyone who supported gay rights, from working in California’s public schools.

8. States that this proposed ballot measure goes beyond repealing the civil rights of the LGBT community, including the right to marry and the right to adopt regardless of sexual orientation or gender identity, because it condones and legalizes murder, contrary to established California law.

9. Resolves that the Legislature stands in moral and legal objection to the ballot measure proposing to enact the SSA, and to any other ballot measure that seeks to inflict harm on innocent persons or diminish current civil rights protections.

10. Further resolves that the Legislature calls upon the residents of the State of California to reject bigotry and hate speech.

EXISTING LAW:

1. Prohibits, under the United States Constitution, the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances. (U.S. Const., Amend. 1.)

2. Provides, under the California State Constitution, that all people are by nature free and independent and have inalienable rights, including enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy. (Cal. Const., Article I, Section1.)

3. Provides, under the California State Constitution, that “every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right,” and that a “law may not restrain or abridge liberty of speech or press.” (Cal. Const., Article I, Section 2.)

4. Provides, under the California State Constitution, that a "person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin." (Cal. Const., Article I, Section 8.)

5. Provides, under the California State Constitution, that the "state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." (Cal. Const., Article I, Section 31.)

6. Provides, under the California State Constitution, that “The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them,” and allows an initiative measure to be proposed by presenting to the Secretary of State a petition that sets forth the text of the proposed statute or amendment to the Constitution, and having the Secretary of State certify that the initiative petition has been signed by electors equal in number to 5 percent in the case of a statute, of the votes for all candidates for Governor at the last gubernatorial election. (Cal. Const., Article II, Section 8.)

7. Provides, pursuant to the state’s Fair Employment and Housing Act, that it is an unlawful employment practice for an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation of any person, to refuse to hire or employ that person or to refuse to select that person for a training program leading to employment, or to bar or discharge that person from employment or from a training program leading to employment, or to discriminate against that person in compensation or in terms, conditions, or privileges of employment. (Government Code Section 12940(a).)

8. Provides, under the Unruh Civil Rights Act, that "[a]ll persons within the state are free and equal and, no matter what their sex, race, color, religion, ancestry, national origin, disability or medical condition are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." (Civil Code Section 51.)

9. Construes the protection of the Unruh Civil Rights Act broadly, holding that its protections also cover gay men and lesbians, families with children, persons under 18 years old, and individuals who associate with members of a protected class. (See Rolon v. Kulwitzky (1984) 153 Cal.App.3d 289.; Hubert v. Williams (1982) 133 Cal.App.3d Supp. 1; Marina Point, Ltd. v. Wolfson (1982) 30 Cal. 3d 721; O'Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790; Winchell v. English (1976) 2 Cal. App. 3d 125.)

10. Defines “hate crime” as a criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim: disability; gender; nationality; race or ethnicity; religion; sexual orientation; and association with a person or group with one or more of these actual or perceived characteristics. (Penal Code Section 422.55.)

11. Provides that no person shall, by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of this state, or by the Constitution or laws of the United States, in whole or in part because of one or more actual or perceived characteristics of the victim. (Penal Code Section 422.6(a).)

FISCAL EFFECT: As currently in print this measure is keyed non-fiscal.

COMMENTS: The initiative process grants power to the voters to propose statutes and amendments to the state Constitution and to adopt or reject them. An initiative measure is presented to the Secretary of State as a petition that includes the text of the proposed statute or amendment to the Constitution, after it has been issued a circulating title and summary by the Attorney General, and includes the signatures of qualified registered voters equal to 5 percent of the votes for all candidates for governor in the last gubernatorial election. The signatures are required to be qualified by an elections official prior to the initiative being placed on the ballot. (Cal. Const., Article II, Section 8.)

In support of this resolution, the author states:

As noted in the language of ACR 67: The Legislature finds it abhorrent and repulsive that a citizen of this state would seek to introduce a ballot initiative that calls for the execution and intimidation of another based on a personal characteristic, which is inherent and unchangeable. Furthermore, the contents of the recently proposed ballot measure are totally, completely, and wholly antithetical to the principles of a civilized society for which this Legislature stands and uphold.

The Sodomite Suppression Act. On February 26, 2015, California Attorney General Kamala Harris’s Office received a request from Matt McLaughlin of Huntington Beach, California to prepare the circulating title and ballot summary of a proposed initiative that he called the “Sodomite Suppression Act” (SSA). The request included the text of the proposed initiative, a required filing fee of two hundred dollars, and the initiative certification. The proposed initiative refers to homosexuality as an “abominable crime against nature” and a “monstrous evil." The proposed initiative declares, among other things, that the “People of California command that any person who willfully 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.” The proposed initiative seeks to impose fines, prison terms and permanent expulsion from the state for people who “distribute, perform, or transmit sodomistic propaganda to persons under the age of majority,” and defines sodomistic propaganda as “anything aimed at creating an interest in or an acceptance of human sexual relations other than between a man and a woman.” The proposed initiative seeks to exclude any person from serving in public office or public employment who is a “sodomite, espouses sodomistic propaganda or who belongs to any group that does.” The proposed initiative says that it would become effective immediately and cannot “be rendered ineffective or invalidated”, unless and “until heard by a quorum of the Supreme Court of California where no “sodomites” are presiding. The initiative requires approximately 365,880 qualified signatures to qualify for the 2016 statewide election that coincides with the U.S. Presidential election.

The Attorney General Has Sought Relief From the Duty to Provide a Title and Summary to the Proposed “Sodomite Suppression Act.” On March 25, 2015, Attorney General Harris sought declaratory relief from the Sacramento County Superior Court by filing a request for authorization to not issue a title and ballot summary for the SSA. According to a press statement on the Attorney General office’s website, the Attorney General believes that the proposed SSA “not only threatens public safety, it is patently unconstitutional, utterly reprehensible, and has no place in a civil society.” The Attorney General has stated, “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.” (http://oag.ca.gov/news/press-releases)

It seems unlikely that the court will grant to the Attorney General the relief she seeks. Existing law supports the likelihood that as long as this initiative gathers the adequate number of signatures needed to qualify for the ballot; it is eligible to be on the ballot. In Schmitz v. Younger (1978) 21 Cal.3d 90, former California Attorney General Evelle Younger refused to issue a title or summary of a proposed measure that addressed more than one subject in violation of Article II, section 8(d) of the California Constitution, which provides that "An initiative measure embracing more than one subject may not be submitted to the electors or have any effect." (Article II, Section 8, (d).) The proponent sued to compel the Attorney General to prepare the title and summary for the proposed measure. The California Supreme Court ruled that although the Attorney General may challenge the validity of a proposed measure before issuing the circulating title and summary, the Attorney General “may not delay or impede the initiative process while claims of the measure’s validity are determined. [The proponent] is entitled to have his proposal titled and summarized so that he may commence seeking signatures to qualify it for the ballot.” (Schmitz v. Younger, supra, at p. 93.) Other courts have reached similar conclusions regarding an attorney general’s duties in other cases (Warner v. Kenny (1946) 27 Cal.2d 627, 630-631 [holding that the duty of the Attorney General to prepare title and summary for a proposed initiative measure is a ministerial one and mandate will lie to compel him to act when the proposal is in proper form and complies with statutory and constitutional procedural requirements].)

According to the California Attorney General’s press office, a final outcome regarding the issuance of the title and summary is currently pending; however the Sacramento Superior Court has granted the Attorney General’s request for an extension to issue the circulating title and summary for this initiative until May 25, 2015. A default was also entered in the matter by the Sacramento Superior Court on May 20, 2015, but a default judgment has not been entered.

The Ballot Initiative Process is Generally Viewed as a Mechanism for the Expression of Political Speech. There are three basic categories of protected speech: core political, expressive and commercial. When considering the protection to afford to a category of speech, a court uses different levels of scrutiny, based on the type of speech at issue. Of these three categories, political speech is the most highly protected due to the fact that it is viewed as an expressive activity that forms the foundation of our democracy. Restrictions placed upon core political speech must pass a strict scrutiny analysis. Unless the purpose for the restriction placed on political speech is to achieve a compelling governmental interest, the restriction will be declared unconstitutional and struck down.

A ballot initiative is considered political speech and any restrictions or limitations on that speech, should use the least restrictive means possible to achieve the compelling state interest that necessitates those restrictions or limitations. A 1999 white paper prepared by Kenneth P. Miller, currently a Professor of Government at Claremont McKenna College, provides a good explanation of why the courts are so engaged in the initiative process, which is regarded by legal scholars, political scientists, and others as the “will of the People.” Professor Miller argues that:

[T]he court’s role in the initiative process is uniquely important and can be distinguished from its role in reviewing laws passed by legislatures. This is because (1) in the legislative process, judicial review is but the last of many redundant institutional checks and balances, whereas in the initiative process, it is the only effective institutional check (i.e., the relative importance of the judicial check is greater in the initiative process than in the legislative process); and (2) judicial review is invoked much more regularly for initiatives than for “ordinary legislation” (i.e., courts have assumed a presence in the initiative process that far exceeds their role in the legislative process).] In this way, the courts help to ensure that the voice of the people, through the initiative process, is not arbitrarily or unconstitutionally stifled or silenced by legislation or any other political agenda. (Miller, Kenneth P, “The Role of Courts in the Initiative Process: A Search for Standards.” September 1999.)

The Ballot Initiative Process is Highly Respected, but Not Infallible. In order for an initiative to qualify for the ballot, the proponent must submit the complete text of the proposed initiative measure, a $200 filing fee to the State of California, and an initiative certification to the Attorney General’s office to receive a circulating title and summary of the chief purpose and points of the proposed measure. (Cal. Const., Art. II, Sec. 8.) Thus, it is very easy to initiate the process of obtaining title and summary of an initiative (by submitting the language and paying $200). Federal and state courts have historically been hesitant to intervene in the voter initiative process, and generally do not intervene prior to the measure being put to a vote of the people because the process represents the will or voice of the voters. In cases where courts have intervened in the process, they generally require the presentation of compelling evidence to demonstrate that the initiative or measure being challenged is unconstitutional. A compelling example of a court’s respect for the voter initiative process, as well as its unwillingness to intervene, is Proposition 8, which overturned the California Supreme Court’s holding in the In Re Marriage Cases (2008) 43 Cal.4th 757. After Proposition 8 was approved by the voters of the state, the U.S. District Court for the Northern District of California intervened and overturned Proposition 8 based on its violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution. In the court’s ruling, Judge Walker states the following regarding the initiative process:

An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters' determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives. (Hollingsworth v. Perry (2013) 133 S. Ct 2652.)

The U.S. Supreme Court held in Hollingsworth v. Perry, supra, that the same-sex marriage proponents did not have standing to challenge the District Court’s ruling which overturned Proposition 8.

The First Amendment Protects Almost Every Type of Speech, Including Some Hate Speech. Most hateful speech, including speech that is mean, rude, repulsive, and offensive is nevertheless protected by the state and federal constitutions. There are very limited types of speech that are not protected by the Constitution, including but not limited to the following: 1) incitement (speech directed to inciting or producing imminent lawless action (See Brandenburg v. Ohio (1969) 395 U.S. 444); and 2) fighting words (speech that uses abusive words that would incite a reasonable person to react violently (See Chaplinsky v. New Hampshire (1942) 315 U.S. 568, 572). It is rare for a court to find that speech is unprotected because the right to free speech is protected by the U.S. Constitution.

The SSA would likely be considered political speech by a court because it is proposed as a ballot initiative, meaning that any restriction on the SSA–such as refusal to issue a title and summary, necessary for the SSA to be placed on the ballot--would be subject to strict scrutiny. However, the SSA calls for the murder and imprisonment of a protected class of persons, who are innocent of any crime or wrongdoing, purely based upon their sexual orientation and gender identity, which could mean that it is unprotected “incitement,” or “fighting words.” In Brandenburg v. Ohio, supra, 395 U.S. at p. 447, the court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action." There is little argument that the SSA is reprehensible and calls for violent acts, including acts that would lead to great bodily harm and death. However, the language does not call for any of the requested actions to be done imminently. The language calls for all actions after the initiative has passed and has been incorporated into law, and therefore does not meet Brandenburg’s test for incitement. The fighting words doctrine as established in Chaplinsky v. New Hampshire, supra, 315 U.S. at p. 572 (footnote 4) the court defined fighting words as those words that “by their utterance inflict injury or tend to incite an immediate breach of the peace.” It is arguable whether the SSA actually meets the test for fighting words. The language is clearly foul and degrading, but does it inflict injury? That would depend on how injury is defined. Does the language tend to incite an immediate breach of the peace? The language clearly angered and offended many people but by all reports there was no immediate breach of the peace, such as rioting or violent protests that commenced as of the SSA’s filing. Therefore, as abhorrent, violent, and hateful as the language of the initiative is, it does not appear to reach the level of unprotected speech, and if challenged, would likely constitute political speech that is given the highest level of protection by the U.S. Constitution.

The Legislature Does Not Stand Alone in its Objection to the SSA. As mentioned above, the state Attorney General vehemently objects to the proposed ballot initiative. News sources all over the country have printed articles regarding the outrageousness of the SSA. The publicized views on the proposed initiative have run the gamut, from those who assumed it was a joke or publicity stunt, to those who felt it was a genuine call to elicit action from those within the state who harbor hate for LGBT persons. Nine Assembly Members have introduced this resolution to present to the entire Legislature, denouncing and objecting to the introduction of ballot initiatives that call for violence, harm and intimidation of another person due to that person’s sexual orientation or gender identity. In addition, Assembly Members Evan Low and Richard Bloom have introduced legislation that would raise the filing fee for initiatives from $200 to $8,000 as a way to discourage future ballot initiatives that are non-serious in content and intent. Due to the violent and discriminatory language of the SSA, it is highly questionable whether the proponent will be able to obtain the required number of valid signatures necessary (approximately 365,880) to qualify the initiative for the November 2016 election ballot.

In an apparent attempt to both ridicule the proponent of the SSA and express the outrageousness of the proposed initiative, Charlotte Laws, a Southern California real estate agent, recently filed an initiative called the Intolerant Jackass Act in response to the SSA. That countermeasure, in a somewhat tongue-in-cheek manner, calls for the “People of California to unite their voices in love of liberty and tolerance.” The initiative would require anyone who proposes an initiative calling for the killing of gays and lesbians to attend three hours of monthly sensitivity training for a twelve month duration and donate $5,000 to a pro-LGBT group.

ARGUMENTS IN SUPPORT: Equality California writes in support of this resolution:

It is imperative for the Legislature to take a formal stand against any ballot measure that, if passed, would allow and encourage individuals to inflict harm on another based solely on their inherent characteristics as human beings. As a society, we cannot stand idly by and condone this or any other ballot measure that seeks to inflict harm on innocent persons or diminish their current civil rights protections.

REGISTERED SUPPORT / OPPOSITION:

Support

Bay Area Municipal Elections Committee

Berkeley City Councilmember, Darryl Moore

East Bay Stonewall Democratic Club

Equality California

Mental Health America of Northern California

National Center for Lesbian Rights

Our Family Coalition

San Francisco Chamber of Commerce

San Mateo County Supervisor Dave Pine

Santa Clara County Supervisor Ken Yeager

One Individual

Opposition

None on file

Analysis Prepared by: Khadijah Hargett / JUD. / (916) 319-2334