Harris and Court Acted Correctly In Throwing Out Sodomite Suppression Act

No one should overreact in defense of the initiative process to the court decision allowing the Attorney General to throw out an initiative that is reprehensible and clearly unconstitutional, but we must be sure that the decision is not a step in expanding the power of any official to determine if an initiative is or is not constitutional.

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The Sodomite Suppression Act is abominable and it is understandable that Attorney General Kamala Harris wants no part of it. But the initiative process finds itself more and more entangled with politicians’ decisions to perform official acts if the official thinks a proposed or successfully passed measure is unconstitutional. Since the initiative is a tool for the people to bypass politicians this situation is concerning.

Superior Court Judge Raymond M. Cadei relieved the AG of issuing a title and summary on the anti-gay initiative because the proposed initiative was “patently unconstitutional” and defendant, Matthew McLaughlin, defaulted. The Judge wrote, among other concerns, that preparing the title and summary for the measure would be a waste of time and resources. But, the Judge also noted that the initiative could “generate unnecessary divisions among the public.”

That is a curious phrase if allowed to stand alone in some future court challenge because in the rough and tumble world of politics divisions among the public over policy questions are par for the course.

The Sodomite Suppression Act is certainly an extraordinary state of affairs. Perhaps, because this situation is so egregious, this will be the only example that an attorney general will turn to the courts and ask that she or he be excused from performing a duty related to a controversial initiative.

Or just maybe a future attorney general would push the envelope on declaring a proposal unconstitutional. Then the people’s initiative process would be in jeopardy. Let’s hope no precedent has been set in that direction with this action.

It was only a couple of years ago that the attorney general and governor refused to defend an initiative passed by the voters, claiming the measure unconstitutional. In the instance of Proposition 8, which I did not support, I felt at least the proponents should be allowed to defend a measure passed by the voters. If the court determined a measure is unconstitutional then so be it.

As I have said before, courts determining the constitutionality of an initiative always have been the failsafe against initiatives that threaten constitutional rights and protections. We have seen that occur a number of times in California.

The danger lies in letting one or two elected officials declare a measure is unconstitutional and act accordingly. Determining what is constitutional is not always an obvious call. Remember, in many cases five United States Supreme Court justices tell the other four what is or it not constitutional.

In this particular circumstance, however, as long as we have not moved the line on elected officials interfering with the initiative process, the AG and the judge acted wisely.

Originally published by Fox and Hounds Daily


  1. could “generate unnecessary divisions among the public.”

    Isn’t that what Political Conflicts do?
    Does the Judiciary now assert that they are in place to protect us from ourselves, and that any “political question” that my stir up the passions of the people, are beyond the pale?
    Somehow, I doubt whether that was the intention of Mr. Madison in writing Article-III, or of the Congress in establishing “inferior courts”.
    But, perhaps Mr. Madison was thinking about the quality of the people who would be sitting on those “inferior” benches.

  2. Michael McDermott says

    Hmmm – I sense potential conflict with the law, if applied evenly – as opposed to now, which is just against Men in a one party State where Misandry is the Tenure Track.

    CA Attorney General Bill ‘wild bull’ Lockyer long ago announced the Official State Policy of Mandatory Male Prison Rape back on June 4,2001 (and it remains in place and used, although never discussed), with no objection from ABA or other orifices of ‘justice’ in CA or Federally.

    I asked Lockyer about this policy after a speech he gave, and he confirmed that the Policy applied to Men and Only Men. Thus by targeting Men Only for such Government Rape Pogroms this helped enhance his standing as a Demicrat Insider with the ‘big happy’ power structure.

    After decades of musical chairs at the top, Lockyer retired, but his rise to greater power in their Tolerance Machine through staunch support for State Sponsored Male Prison Rape – was a big factor in his longevity at the top of the ‘Uncle Tim’ trade in in the people’s republic of kalkifornia, inc.
    SEE ”
    Hi, My Name Isn’t Justice, Honey, and Shame on Lockyer

    by Tom G. Palmer – senior fellow at the Cato Institute in Washington http://www.cato.org/pubs/papers/palmer-06-06-01.html

    Here’s what California Atty. Gen. Bill Lockyer said at a press conference about Enron Corp. Chairman Kenneth Lay:

    “I would love to personally escort Lay to an 8-by-10 cell that he could share with a tattooed dude who says, ‘Hi, my name is Spike, honey.”‘

    Here’s why Lockyer should be removed from his office of public trust: First, because as the chief law enforcement officer of the largest state in the nation, he not only has admitted that rape is a regular feature of the state’s prison system, but also that he considers rape a part of the punishment he can inflict on others.

    Second, because he has publicly stated that he would like to personally arrange the rape of a Texas businessman who has not even been charged with any illegal behavior.

    Lockyer’s remarks reveal him to be an authoritarian thug, someone wholly unsuited to holding an office of public trust.

    But his remarks do have one positive merit: They tell us what criminal penalties really entail.

    Contrary to some depictions of prisons as country clubs, they are violent and terrible places. More and more politicians propose criminal sanctions for more and more alleged misdeeds, and as a result ever more kinds of behavior are sanctioned by criminal penalties, perhaps now even selling electricity. Those found guilty of such crimes are put into cages, where they are deprived of their liberty and dignity and, as Lockyer so clearly acknowledged, raped and brutalized. What’s worse, Lockyer has indicated that he believes that rape is an appropriate part of the system of punishments he administers.

    Should it matter that Lay is a businessman? Imagine the outcry if the head of Enron were female. What would Lockyer’s fellow Democrats have said to that?

    Should it matter that Lay is chairman of an electricity generator? Does the nature of his business justify threats to escort him to his own rape? Lockyer told the Los Angeles Times that he had singled out Enron’s chairman because the Houston-based company is the world’s largest energy trader.

    So apparently singling out a man for a heinous threat is OK because he’s the chairman of the world’s largest energy trading company. That’s according to the man who, as a state senator, sponsored California’s 1984 hate-crimes law. Evidently the crusader against intimidation on the basis of race, religion and sexual orientation feels no hesitation at all about intimidating someone and threatening him with the brutal use of physical force simply because he heads the world’s largest energy trading company.

    Lockyer and Gov. Gray Davis seem to think that the best way to keep the lights on is to threaten electricity producers with brute force, rather than to offer to pay competitive rates in competitive markets. Are energy producers to blame for California’s energy problems? No. Bad policies, including rigid controls on retail prices of electricity, are the cause of the problem, not the people who generate energy. Scapegoating producers and threatening them with violence is an old ploy of authoritarians. Californians should not stand for it.

    An Enron spokesman said that Lockyer’s chilling stated desire to arrange the rape of Lay does not merit a response.

    The spokesman is wrong. Lockyer’s remarks merit public disgrace and removal from office.

    After all, rape is not a form of legal justice in America– is it?

    This article originally appeared in The Los Angeles Times, June 6, 2001.

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