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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