California can’t kill its "Kill the Gays" ballot measure.

California’s “Kill the Gays” Proposal Can’t Be Stopped 

California’s “Kill the Gays” Proposal Can’t Be Stopped 

Outward
Expanding the LGBTQ Conversation
March 20 2015 12:20 PM

California’s “Kill the Gays” Proposal Can’t Be Stopped 

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California's attorney generallacks the authority to nix absurd and sadistic proposals

Photo byVepar5/Shutterstock.com

In February, California attorney Matt McLaughlin paid $200 to propose a ballot measure called the Sodomite Suppression Act. McLaughlin’s measure describes gay sex as “a monstrous evil that Almighty God … commands us to suppress on pain of utter destruction.” Given these high stakes, McLaughlin suggests all gay people “be put to death by bullets to the head or by any other convenient method.”

Considering the total outrageousness of the proposal, almost everybody assumed it would be quickly quashed. It seems, however, that quietly suffocating McLaughlin’s measure won’t be so easy. In fact, the proposal is almost certain to make it to the signature-gathering stage—despite the total illegality of its central goal.

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The problem here is so foreseeable that it’s hard to believe California hasn’t fixed it before. Under state law, any citizen who properly submits an initiative (and pays the $200 fee) is entitled to gather signatures for their pet proposal. The attorney general is tasked with penning an official title and summary for the measure. She does not, however, have any discretionary authority to nix even the most absurd and sadistic of proposals. This rule, initially promulgated by the California Supreme Court, was designed to prevent partisan attorneys general from scrapping proposals for political reasons. But by refusing to give the attorney general any discretion over what measures pass the first hurdle, the court inadvertently protected crackpot proposals like McLaughlin’s.

California legislators are currently debating other methods of screening out insane and/or murderous ballot initiatives, such as significantly raising the filing fee. They can at least rest easy knowing that McLaughlin’s proposal almost certainly won’t attract the 365,880 signatures it needs to make it to the ballot. Even if the measure fails to meet that threshold, however, McLaughlin can try again next cycle. The California State Bar only disciplines attorneys for acts of “moral turpitude”—usually in relation to their work and clients, not their protected free speech activities. In the end, then, McLaughlin will probably keep his law license and face no official sanction.

As bizarre as McLaughlin’s stunt may be, it shouldn’t draw attention away from the slew of anti-gay measures, which, while less horrifying, stand a much better chance of passing and harming gay Americans. Florida, Georgia, and Oklahoma are currently rushing to pass bills that would actively demean and degrade gay people and their families. They may not be as fun to talk about as the Sodomite Suppression Act. But they could ultimately do far more damage to the dignity of gay people in America.

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.