California Attorney General Kamala Harris said Wednesday she will ask a state court for permission to reject a proposed ballot initiative stipulating that anyone who engages in gay sex be killed by "bullets to the head or by any other convenient method."
Harris issued a statement saying she was making the unusual request to stop the so-called Sodomite Suppression Act filed by a Southern California lawyer late last month. The initiative seeks to amend the California penal code to make gay or lesbian sex a capital offense and the distribution of gay "propaganda" a crime punishable by a $1 million fine or banishment from the state.
"As Attorney General of California, it is my sworn duty to uphold the California and United States Constitutions and to protect the rights of all Californians. This proposal not only threatens public safety, it is patently unconstitutional, utterly reprehensible, and has no place in a civil society," Harris said.
The attorney general's office issues official titles and ballot summaries for proposed ballot initiatives before their sponsors are allowed to circulate signature petitions to qualify their measures for the ballot. Under California's initiative process, state officials do not have authority to refuse to administer initiatives they find objectionable, the California Supreme Court repeatedly has ruled.
Harris, who earlier in her tenure refused to defend a voter-approved ban on same-sex marriages when it was challenged in court, said that unless a judge rules otherwise, she will have no choice but to move the measure through the normal channels.
Matthew McLaughlin, the Orange County lawyer who paid $200 to submit the initiative, did not respond to a telephone call seeking comment.
University of California, Davis law Professor Floyd Feeney, an expert on California's initiative process, agreed with Harris that she alone cannot impede the proposed law since the state Supreme Court ruled in a 1978 case that the attorney general's role in preparing ballot titles and summaries is a ministerial duty that affords no room for discretion. That case dealt with an initiative that sought to outlaw teacher strikes, prohibit teachers unions from contributing to political campaigns, and to prevent public money from being spent on busing for school desegregation.
Yet despite the numerous legal problems with McLaughlin's proposal, Feeney said he was not convinced a court would agree to step in now to halt it given its poor chances of qualifying for the ballot, never mind winning voter approval.
"The courts, rightly or wrongly, treat the initiative as sort of the citizen right, and they are reluctant to get involved in trying to get rid of it, at least in advance, by using the law to keep something from being presented to the electorate," he said.