California has always done democracy a bit differently than most other states. Every other year, voters in the Golden State cast ballots not just for people to represent them, but for many of the actual laws that govern them. It's not quite the ancient Athenian model of citizens gathering on a hill to make decisions, but it's a version of direct democracy deeply-embedded in California's political culture. Over the years, voters have answered for themselves weighty questions of taxation, same-sex marriage, election laws, and the legalization of marijuana, among many others.
Yet that system is now facing something of a threat from an attorney named Matthew McLaughlin, who wants to use the ballot initiative to authorize the mass murder of gays and lesbians. He has formally proposed the Sodomite Suppression Act, which refers to homosexuality as "a monstrous evil" and an "abominable crime against nature." It would ban communicating messages of tolerance to minors; bar gays and lesbians, or anyone who voices acceptance, from holding government jobs or public office; and authorize mass murder:
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.
The fear isn't that McLaughlin's proposal would ever pass—he is highly unlikely to secure anywhere close to the 365,880 signatures needed merely to get the referendum on next year's ballot, much less to secure a majority at the polls. And the courts would immediately throw out the law, as they have with a number of less extreme measures that Californians have approved. But the mere possibility that McLaughlin could get formal clearance from state officials to begin collecting signatures for a genocidal proposition is raising questions about California's permissive ballot initiative system.
Now that McLaughlin has paid his $200 fee and submitted his proposal, state Attorney General Kamala Harris must provide an official title and summary, so that he can begin the arduous—and surely foolhardy—process of persuading his fellow citizens to sign their names to it. This is generally a formality, and legal experts have said in recent weeks that Harris has no other choice but to process McLaughlin's proposal. The state has provided titles for plenty of other long-shot, kooky, and even offensive ballot measures over the years, according to a database maintained at the University of California-Irvine. A venture capitalist spent millions of dollars to gain support for a proposal to split California into six different states, but it failed to qualify for the 2016 ballot. Another would-be ballot initiative would have banned divorce. In 2013, evangelical pastor Allen Estes tried collecting signatures for a constitutional amendment that would expand protections for "speech based on biblical authority." (According to the awkwardly-worded text, anyone quoting from the Bible would be free—or freer than they are now—to say anything about such topics as "anti-Semitism, astrology, bestiality, bigamy... transgender, trans-sexuality, yoga, or sin.")
No other proposals, however, have been as vile as McLaughlin's. "I would submit this is probably the ugliest one I remember," Kurt Oneto, an attorney specializing in California ballot initiatives, told the Los Angeles Times. The situation puts Harris in a tricky position, since she is a top Democratic contender for Senate in 2016 and is under pressure from gay rights group who want McLaughlin's proposal rejected. (They also want him disbarred as an attorney.) She may have no room to maneuver under the law, but she wants no part of formalizing the anti-gay ballot measure. In a move described by The New York Times as "highly unusual," she announced on Wednesday that she was asking the state Superior Court to relieve of the responsibility to create a title and summary for the initiative.
"This proposal not only threatens public safety, it is patently unconstitutional, utterly reprehensible, and has no place in a civil society."
Harris added that if the court refuses to rule in her favor, "my office will be forced to issue a title and summary for a proposal that seeks to legalize discrimination and vigilantism.” Gay rights supporters, meanwhile, have said they'll make public the names of anyone who signs McLaughlin's petition. And two state assemblymen in California, Evan Low and Richard Bloom, are pushing legislation in response to the proposal that would steeply raise the filing fee for ballot initiatives, from its current $200 up to $8,000. "Mr. McLaughlin’s immoral proposal is the just the latest—and most egregious—example of the need to further reform the initiative process," Low said in a statement.
It's debatable whether all of this handwringing is an overreaction. Nobody believes this incendiary idea is going anywhere, and McLaughlin isn't even making his case in public—newspaper reporters apparently haven't been able to track him down for comment in recent days. Yet while the referendum won't ever reach the voters, it could produce a wholly different outcome: making California's century-old system of direct democracy a little less permissive.