BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
ACR 67 (Mullin)
Version: June 22, 2015
Hearing Date: July 14, 2015
Fiscal: No
Urgency: No
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
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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)
[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
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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)
[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
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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
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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.
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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
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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
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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)
[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
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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)
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