It’s been exactly one month since the office of Kamala Harris, the California attorney general, received the $200 filing fee and proposed text for a citizen initiative—the so-called Sodomite Suppression Act—that says "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." The measure probably would have died a natural—and quieter—death had Harris, who is running for the U.S. Senate in 2016, not inserted herself in the controversy.
On Wednesday, she issued a statement decrying the proposal, and vowed to seek a court order to avoid her legal obligation to issue a “title and summary” for it, as doing so would essentially force the executive branch to take the proposal seriously (by requesting an estimate of its fiscal impact, for instance, and issuing a general statement about its viability). That’s a lot of machinery for such an outlandish move, and now that the national press is all over Harris’s opposition, the story won’t go away. And she will likely lose in court.
The Sodomite Suppression Act seeks to amend the penal code to criminalize homosexuality with the death penalty, which indicates that its author, mysterious attorney Matthew McLaughlin, didn’t do his research: A federal judge ruled California's death penalty unconstitutional in 2014. The initiative also proposes sanctions on the distribution of “sodomistic propaganda” and prohibitions on LGBT folks to hold public office. It is clearly illegal, flying in the face of every major Supreme Court decision favoring gays and lesbians—including Romer v. Evans, which struck a Colorado amendment that stripped protections from LGBT persons,and Lawrence v. Texas, which invalidated sodomy laws across the United States. Under these precedents alone, this thing doesn’t stand a chance.
More fundamentally, of course, the measure is an affront to humanity. In Harris’ own words, it’s “utterly reprehensible” and there’s “no place in a civil society” for anything like it, let alone for a public entity to lend its imprimatur and resources to its advancement.
But welcome to California, the land of Proposition 8, which sought to define marriage as between a man and a woman, only to be declared unconstitutional by a federal court. California also gave us Proposition 49, a failed ballot question that sought to overrule the Supreme Court’s pronouncement in Citizens United v. Federal Election Commission, which designated corporate campaign contributions as speech. All valiant and arguably well-meaning efforts, but in all, object lessons in the pitfalls of direct democracy—alive and well in the state since 1911. As The Economist once put it, California’s “citizen legislature has caused chaos.”
It's only fitting, then, that a countermeasure, the Intolerant Jackass Act, has been filed with the attorney general's office. Its purpose is to deter the “abominable crime” of “gay bashing,” by penalizing attempts at bringing ballot measures calling for the killing of all gay folks. The punishment is benign: Three hours of sensitivity training a month for a whole year, plus a $5,000 donation to pro-LGBT organizations.
Now it’s Harris’s turn to respond. Because democracy.
This piece has been updated for clarity.