Pink triangle proposition won’t become law in California, but it’s the thought that counts

History repeats itself. Above are shown victims of fascist Nazi Germany’s persecution of accused gay men, tens of thousands of whom were required to wear an inverted pink triangle marking them as non-heterosexual. A theofascist California lawyer has submitted to the state’s attorney general’s office a ballot proposition to “put to death by bullets to the head or by any other convenient method” “any person who willingly touches another person of the same gender for purposes of sexual gratification.”

An Orange County, California, lawyer has paid the $200 filing fee to start the process for his “Sodomite Suppression Act,” which would, at its most merciful, prevent any non-heterosexual from being a public school teacher, a police officer, an elected public official or any other public employee, and which would, at worst, “put [non-heterosexuals] to death by bullets to the head or by any other convenient method.”

My reading of the fairly short “act” gives me the impression that the sentiment is not entirely unlike the Catholick Church’s or the Mormon cult’s: Merely having same-sex attraction is bad, but actually acting upon it is the worst, because the fuller phrasing of the “act” is: “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.”

In a shout-out to Vladimir Putin, the “act” also mandates that:

No person shall distribute, perform, or transmit sodomistic propaganda directly or indirectly by any means to any person under the age of majority. Sodomistic propaganda is defined as anything aimed at creating an interest in or an acceptance of human sexual relations other than between a man and a woman. Every offender shall be fined $1 million per occurrence, and/or imprisoned up to 10 years, and/or expelled from the boundaries of the state of California for up to life.

Although this modest proposal first emerged weeks ago, this past week it has hit the media as “news.”

The legal consensus is that California Attorney General Kamala Harris, whose office is the first stop for any ballot initiative in the state, does not have the legal authority to shut down the “Sodomite Suppression Act,” even though it patently violates the U.S. Constitution and the California Constitution. The legal consensus also is that the office of the California secretary of state, the second and final stop for a state ballot initiative, does not have the legal authority to stop the “Sodomite Suppression Act.”

Of course, the right-wing lawyer who has proposed the “act,” a Matt McLaughlin, has cleared the easiest, lowest bar in the California ballot initiative process: he paid his $200 to the state’s attorney general’s office to obtain his ballot title and ballot summary, which he first must obtain from the attorney general’s office before he may begin to collect the 365,880 valid signatures of registered voters in order to qualify his ballot initiative for its placement on the November 2016 statewide ballot.

Collecting that many signatures would require some resources; McLaughlin would have to print his own petitions in a strict format dictated by state law and would have to get the bodies to go out and gather all of those signatures, be they paid or be they volunteers or some mixture of both.

Vox.com posits that the “[California state] Supreme Court is likely to step in and stop the [ballot] measure, particularly if the proposal gets enough signatures to qualify for the ballot,” but doesn’t cite its source of this assertion.

Oddly, though, neither Vox.com nor Slate.com, in their explainers on the “Sodomite Suppression Act,” notes that even though the majority of California’s voters might adopt a ballot initiative (for which only a simple majority is required), a federal court always can rule that the ballot initiative violates the U.S. Constitution (and, to my knowledge, the state’s Supreme Court can rule that a ballot initiative violates the state’s Constitution).

There is precedent for this: The hateful, anti-immigrant California Proposition 187, passed by the state’s voters by a disturbing 59 percent to 41 percent in November 1994, was struck down as unconstitutional by a federal judge in 1997 (indeed, most of the law never even went into effect, because the same federal judge had imposed a permanent injunction on most portions of the law in December 1994).

And in November 2008, California’s voters narrowly passed (52 percent to 48 percent) the hateful, anti-non-heterosexual Proposition 8, which then was struck down as unconstitutional by a federal judge in 2010. (The federal judge’s ruling was challenged legally but ultimately was left intact by the U.S. Supreme Court in June 2013, and same-sex marriages in California have been legal since then.)

The California Supreme Court declined to prevent the unconstitutional Proposition H8 from appearing on the ballot, so it would be interesting to see what the court would do if it were asked to prevent the “Sodomite Suppression Act” from appearing on the ballot. Indeed, while Prop H8 “only” sought to outlaw same-sex marriages, the “Sodomite Suppression Act” calls for the Nazi-style wholesale slaughter of non-heterosexuals who ever have acted upon their same-sex attraction.

But, Wikipedia notes, citing a 2006 California Supreme Court case, “As a general rule, it is improper for courts to adjudicate pre-election challenges to a measure’s substantive validity.” In other words, the state Supreme Court apparently believes that voters get to weigh in on a ballot measure first, and the constitutionality of the measure, if it is passed, is to be hashed out in the courts only after the measure’s passage.

Thank Goddess for the federal court system and its ability (indeed, its duty) to weigh in on whether laws passed by the states’ legislatures or by the states’ voters violate the U.S. Constitution, as history has shown that even the states’ highest courts are fairly toothless, by choice or by design (to my knowledge, the states’ highest courts have jurisdiction only over their states’ constitutions, and state judges don’t have the legal authority to determine whether a state law violates the U.S. Constitution*).

True, it took years for the odious and unconstitutional California Prop H8 finally to be undone by the federal court system (that said, while today same-sex marriage is legal in California and in 35 other states, the U.S. Supreme Court has yet to rule on the constitutionality of same-sex marriage once and for all), but, even if the “Sodomite Suppression Act” were to make it to the November 2016 California ballot (unlikely, given the amount of money that is required to get anything on the statewide ballot in the nation’s most populous state) and pass (which is highly unlikely in this blue state), a federal court (if not also the California Supreme Court) immediately would halt its implementation, of course. Not a single bullet would be fired into the head of an accused non-heterosexual (not by the state government of California, anyway).

But, you know, it’s certainly the thought that counts, isn’t it?

Apparently wingnutty lawyer Matt McLaughlin is unlikely to be disbarred by the state for his ballot proposition. While proposing a law that blatantly violates the U.S. Constitution by proposing the wholesale murder of an entire class of human beings amply demonstrates McLaughlin’s blatant moral turpitude (if not also his blatant incompetence) as a lawyer, whose duty is to uphold the state and federal constitutions, not propose to violate them, McLaughlin should, in my book, be disbarred, but apparently he will be able to hide behind his First-Amendment “right” to propose, Nazi-style, that a whole class of people be executed.

Still, if you believe, like I do, that McLaughlin should be disbarred, you can sign, as I have, an online petition calling for his disbarment by clicking here.

Even if McLaughlin were just pulling an attention-grabbing stunt, his “Sodomite Suppression Act,” whether he means it seriously or not — to be safe, I assume that he is quite serious** — is hate speech, and lawyers who practice hate speech (which does not warrant First-Amendment protection, since it so obviously so easily can result in violence, even death, or other injury against its intended targets) should be disbarred.

I might thank McLaughlin, however, for demonstrating quite publicly that his Nazi-like mentality, although a minority mentality, still exists. And shudderingly, I surmise that while many if not most homophobes wouldn’t go so far as to execute an accused non-heterosexual individual with their own hands, the worst of the homophobes, if such execution were routine even here in the United States of America, wouldn’t much care and would do little to nothing to stop it.

*Alabama state Supreme Court Chief “Justice” Roy Moore, for instance, has claimed, quite incorrectly, that he has the legal authority and ability to override and ignore a federal judge’s ruling on the federal constitutionality of same-sex marriage in the state. Moore was removed from the post of Alabama Supreme Court chief “justice” in 2003 for having ignored another federal judge’s ruling on another federal constitution issue, but he was not disbarred, as he should have been, and thus he legally was allowed to run for the post again, which, insanely, is filled by popular election in the backasswards state of Alabama.

**Not much is known of McLaughlin, but the San Francisco Chronicle notes that “McLaughlin, a lawyer since 1998, tried to qualify an initiative in 2004 that would have added the King James Bible as a literature textbook in California public schools. He was quoted at the time as saying he was promoting classroom use of the Bible for its ‘rich use of the English language’ and was not trying to indoctrinate students.”

So McLaughlin apparently has a history of toxic, theofascist fundamentalism and apparently wishes for a theocratic state, much like the members of ISIS, whose mentality is the same but whose bible is different.

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