BILL ANALYSIS Ó
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Date of Hearing: June 16, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
ACR 67
(Mullin) - As Introduced 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
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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.
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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,
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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.)
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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
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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
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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
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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
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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
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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."
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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
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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.
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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
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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
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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
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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
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