The Sodomite Suppression Act

Interestingly, it does not appear that California has a way to avoid proceeding with a ballot initiative that advocates the murder of homosexuals. The ballot measure was initiated by a lawyer from Huntington Beach named Matt McLaughlin:

For less than the cost of an Apple iPad, Matt McLaughlin started a statewide legal conversation.

An attorney from Huntington Beach, McLaughlin in late February spent $200 to propose a ballot measure that authorizes the killing of gays and lesbians by “bullets to the head,” or “any other convenient method.”

McLaughlin’s “Sodomite Suppression Act” now is testing the limits of free speech and raising the question: Why can’t the state’s initiative process screen out blatantly illegal ideas?

Simply by paying the $200 fee, McLaughlin has apparently compelled state Attorney General Kamala Harris to take formal action.

Yet the measure is likely to proceed to the signature-gathering stage. At the moment, its fate rests with state Attorney General Kamala Harris, who is charged with writing a title and summary for the proposal. Legal experts say she has little choice but to let the process continue and that McLaughlin is unlikely to face professional repercussions.

Naturally, Ms. Harris would rather not write up a title and summary of this initiative, but it appears that her hands are tied by the law and prior court rulings. And a lot of experts think giving her the discretion to blow off this submission as clearly illegal would be the more dangerous precedent.

Then there’s the issue of Mr. McLaughlin and his law license. It doesn’t appear that anything can be done about that either.

“It’s offensive to anybody with a rational mind, but I don’t know that it necessarily rises to the level of an ethics violation,” said Jonathan Arons, a legal ethics attorney in San Francisco.

David Cameron Carr of San Diego spent a dozen years at the State Bar disciplining lawyers and the last 14 defending them. He said while attorneys could be disciplined for acts of “moral turpitude,” that requirement relates to the ability to perform their work.

“This is not obviously the kind of act of moral turpitude that calls into question his fitness to practice law,” Carr said.

I guess we can quibble about what the word “obviously” means in this context, but it’s probably true that it’s not the kind of thing that normally costs someone their law license. I think an argument can be made that advocating murder and hate crimes calls into question his mental stability, but that doesn’t mean he has unhappy legal clients or is incapable of offering sound legal advice.

To get this initiative on the ballot, McLaughlin will need 365,880 signatures, which seems like an impossible number to me. So, while it’s highly offensive, it really only matters as an opportunity to revisit the ballot initiative process. Should the fees be higher than $200? What kind of discretion should there be about which initiatives should be allowed and who should have that discretion?

I’m no fan of ballot initiatives, but it does seem that there’s always someone who is intent on ruining things for the rest of us. Don’t you think?

[Cross-posted at Progress Pond]

Martin Longman

Martin Longman is the web editor for the Washington Monthly and the main blogger at Booman Tribune.