BILL ANALYSIS
AJR 67
Page 1
Date of Hearing: June 15, 2004
ASSEMBLY COMMITTEE ON JUDICIARY
Ellen M. Corbett, Chair
AJR 67 (Mountjoy) - As Introduced: March 4, 2004
SUBJECT : CIVIL RIGHTS: RESOLUTION URGING SUPPORT FOR FEDERAL
CONSTITUTIONAL AMENDMENT PROHIBITING GENDER-NEUTRAL MARRIAGE
KEY ISSUES :
1)SHOULD THE LEGISLATURE URGE CONGRESS TO SUPPORT PRESIDENT
BUSH'S CALL FOR A FEDERAL CONSTITUTIONAL AMENDMENT WHICH SEEKS
TO BAR SAME-GENDER COUPLES FROM MARRYING?
2)WOULD SUCH AN AMENDMENT EFFECTIVELY "ENSHRINE DISCRIMINATION"
IN OUR SACRED NATIONAL BLUE PRINT, AS OPPONENTS CLAIM, OR
WOULD IT, AS THE AUTHOR ARGUES, PROPERLY END "THE FLAUNTING OF
THOUSANDS OF YEARS OF PRECEDENT"?
3)WOULD THE FEDERAL ACTION CALLED FOR BY THIS RESOLUTION
ELIMINATE RIGHTS TRADITIONALLY RESERVED TO THE STATES, A FACT
THAT HAS LED SOME OF PRESIDENT BUSH'S STAUNCH CONGRESSIONAL
SUPPORTERS TO DISTANCE THEMSELVES FROM THIS MOVEMENT?
4)IS IT TRUE, AS NOTED IN THE RECENT DECISION BY THE
MASSACHUSETTS SUPREME COURT, THAT "SEPARATE IS SELDOM, IF
EVER, EQUAL"?
SYNOPSIS
This measure respectfully requests that Congress act on
President Bush's call for an amendment to the United States
Constitution seeking to prevent same-gender couples from having
the right to marry. The measure follows this Committee's
historic approval this past April of AB 1967 (Leno) which seeks
to end California's current marriage discrimination against
same-gender couples and their families. The analysis of that
bill concluded that it is not unlikely the California Supreme
Court will ultimately hold the state's current marriage
discrimination law to be unconstitutional, and the Committee's
subsequent passage of that bill reportedly marked the first time
in this country's history that a state legislative committee
approved protecting the right of same-gender couples to marry.
That legislation is not moving this year. However this
AJR 67
Page 2
resolution, along with a competing resolution, AJR 85 by
Assemblyman Leno which instead strongly opposes President Bush's
call for a constitutional amendment, continue to keep this
debate on the "front burner" of discussion. Indeed, these
resolutions embody one of this nation's most significant civil
rights debates in the new century, and this resolution seeks to
place California squarely on the side of those who argue
same-gender couples should forever be constitutionally barred
from having the same right to marry as other Americans.
In support of the resolution, the author states that "Local
officials and courts throughout the country are taking it on
themselves to ignore the law and/or thousands of years of
precedent and are issuing marriage licenses to same-sex couples.
Even here in California, the law, as created by over 60% of the
people, has been flaunted." In opposition, opponents state that
instead of continuing to discriminate against same-gender
couples, the time has come for California to honor its
commitment to equality for all Californians. They contend that
the state currently relegates same-sex couples and their
families to second-class status, and that this resolution sadly
seeks to insert this legacy of discrimination into the nation's
foundational document which heretofore has sought to discourage
discrimination and guarantee freedom to all Americans.
SUMMARY : Requests that Congress act on President Bush's call
for an amendment to the federal Constitution seeking to prevent
same-gender couples from having the right to marry.
Specifically, this measure makes the following findings:
1)President Bush has backed an amendment to the United States
Constitution banning same-sex marriages, saying, "After more
than two centuries of American jurisprudence and millennia of
human experience, a few judges and local authorities are
presuming to change the most fundamental institution of
civilization;"
2)The Massachusetts State Supreme Court ordered its Legislature
to pass a law allowing for same-sex marriages. That
Legislature adjourned without acting on the issue, effectively
allowing the court to write state law;
3)The Mayor of San Francisco has allowed over two thousand
same-sex marriages to take place in the city, including
marriages of out-of-state and out-of-country couples, despite
AJR 67
Page 3
the fact that these so-called marriages are, by state law, not
valid or recognized in the State of California;
4)Thirty-eight states, including California, and the federal
government have approved laws or amendments barring the
recognition of same-sex marriages;
5)California voters passed Proposition 22, which simply added
Section 308.5 to the Family Code, to read, "Only marriage
between a man and a woman is valid or recognized in
California." Proposition 22 passed with more than 60 percent
of the vote;
6)California law defines marriage in Section 300 of the Family
Code as a personal relation arising out of a civil contract
between a man and a woman;
7)There is widespread support in this country for protecting and
defending the sanctity of marriage.
EXISTING LAW :
1)Provides that "Marriage is a personal relation arising out of
a civil contract between a man and a woman, to which the
consent of the parties capable of making that contract is
necessary." (Family Code section 300. All further references
are to this code unless otherwise noted.)
2)Provides that "A marriage contracted outside this state that
would be valid by the laws of the jurisdiction in which the
marriage was contracted is valid in this state." (Section
308.)
3)Provides, immediately following section 308 that "Only
marriage between a man and a woman is valid or recognized in
California." (Section 308.5.)
4)Provides, in the state's Equal Protection Clause, in Article
I, Section 7, that:
(a) "A person may not be deprived of life, liberty, or
property without due process of law or denied equal
protection of the laws. . . " and
AJR 67
Page 4
(b) "A citizen or class of citizens may not be granted
privileges or immunities not granted on the same terms to all
citizens."
5)Provides, in the state Constitution's Declaration of Rights,
in Article I, Section 1, that "All people . . . have
inalienable rights. Among these are enjoying and defending
life and liberty, acquiring, possessing, and protecting
property, and pursuing and obtaining safety, happiness, and
privacy."
6)Provides, in the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution, that "[n]o State
shall . . . deny to any person within its jurisdiction the
equal protection of the laws."
7)Provides, in the Due Process Clause of the Fourteenth
Amendment to the United States Constitution, that "[n]o State
shall . . . deprive any person of . . liberty, or property
without due process of law."
FISCAL EFFECT : As currently in print this measure is keyed
non-fiscal.
COMMENTS : This measure urges Congress to act on President
Bush's call for a federal constitutional seeking to prevent
same-gender couples from having the right to marry. The measure
follows this Committee's landmark approval this past April of AB
1967 (Leno) which seeks to end California's current marriage
discrimination against same-gender couples and their families.
The Committee analysis of that bill concluded that it is likely
the California Supreme Court will ultimately hold the state's
current marriage discrimination law is unconstitutional, and the
Committee's subsequent passage of that bill reportedly marked
the first time in this country's history that a state
legislative committee approved protecting the right of
same-gender couples to marry. That legislation is not moving
this year. However this resolution, along with a competing
resolution, AJR 85 by Assemblyman Leno which opposes President
Bush's call for a constitutional amendment, continue to keep
this debate on the "front burner" of discussion. Indeed, these
resolutions embody one of this nation's most significant civil
rights debates in the new century, and this resolution seeks to
place California squarely on the side of those who argue
same-gender couples should forever be constitutionally barred
AJR 67
Page 5
from having the same right to marry as other Americans.
Amending The Constitution Is Very Rare And Has Traditionally
Been Done to Fight Discrimination, Not to Enshrine It : In
considering the merits of this proposal, the Committee may wish
to consider that in our Constitution's 214-year history, this
sacred document was first amended to include the Bill of Rights
in 1791. Since then, it has only been amended 17 times to
protect the rights, freedoms, and liberties of all Americans,
not to select certain ones for discrimination. It has been
amended to abolish slavery, to keep the government out of
people's lives, and to give women and young people the right to
vote. According to the resolution's opponents, the
constitutional amendment process should never be used to single
out a certain segment of the American population for
discrimination. They contend that "Amending the Constitution to
'define marriage as the union of a man and a woman' would
actually deny more than 1,500 federal and state-related marital
rights and responsibilities to millions of devoted American gay
and lesbian couples and their children."
A Federal Constitutional Amendment Would Eliminate Judicial
Protection in This Area : As this Committee knows well, many of
the major civil rights advances of the last century have
resulted from the judicial branch courageously acting to ensure
that all Americans are provided equal protection under our laws.
From Brown v. Board of Education in 1954 (the 50 year
anniversary of which this Legislature just celebrated) to Loving
v. Virginia in 1967, the nation's courts have provided a
critical constitutional check on governmental abuses of power
and violations of individual rights. Regardless of one's views
of the issue of marriage, it appears incontrovertible that the
federal constitutional amendment urged by this resolution seeks
to eliminate the constitutionally-vested power of our nation's
courts to protect individual rights.
The Committee's Earlier Legal Analysis of California's Current
Marriage Discrimination Law: In considering whether the state
should affirmatively urge passage of a federal constitutional
amendment barring same-gender couples from being able to marry,
the Committee may wish to consider the extensive legal analysis
of the issue of marriage discrimination when AB 1967 (Leno) was
considered, and approved, last April. As noted above, that
analysis concluded, among other things, that "an analysis of the
bases provided by states defending their prohibitions on
AJR 67
Page 6
same-sex marriages reveals, at least in the state high court
cases, that no state has yet been able to provide an adequate
justification for treating homosexual couples differently from
heterosexual couples in its definition of marriage - even under
the more constitutionally-lenient rational-basis test -- at
least from the perspective of those high courts that have
considered the issue."
The Landmark Massachusetts Decisions : It should also be noted
that this resolution follows a ruling last November by the
Massachusetts Supreme Judicial Court which affirmed the right of
same-sex couples to marry under that state's Equal Protection
Clause, even using the so-called "rational basis" test that
provides for less constitutional scrutiny by the courts. The
Massachusetts high court labeled the denial of marriage equality
on the basis of sexual orientation "arbitrary," and declared
that the Massachusetts Constitution "affirms the dignity and
equality of all individuals?and forbids the creation of
second-class citizens." The Court concluded that Massachusetts
"failed to identify any constitutionally adequate reason for
denying civil marriage to same-sex couples."
Hawaii, Vermont and the federal Defense of Marriage Act (DOMA) :
In the early 1990s, several same-sex couples in Hawaii sued
their state, arguing that the Equal Protection Clause of the
state - not the federal - constitution was violated by the state
law that excluded them from marrying. In 1993, the state
Supreme Court agreed with them that under Hawaii's constitution,
Hawaii could not exclude same-sex couples from marriage without
a compelling reason. That decision was the first in the nation
to rule that a constitutional guarantee of equal protection
applied to an asserted right to marry by same-sex couples. The
nation took notice of these events in Hawaii, and in 1996,
Congress passed the so-called federal Defense of Marriage Act
(DOMA), which among other things says that no state is required
under federal law to recognize same-sex marriages contracted in
other states. Then, in 1999, the Vermont Supreme Court ruled
that Vermont's Equal Benefits Clause prohibited the Vermont
Legislature from denying to same-sex couples the rights,
benefits and privileges granted to married heterosexual couples.
California's Proposition 22 : In light of the Hawaii and Vermont
decisions, and of the provisions of the DOMA, a group of
citizens led by former-State Senator Pete Knight qualified an
initiative for the California ballot in 1999 to prohibit
AJR 67
Page 7
California from recognizing any same-sex marriages contracted in
other states. The measure was presented to the voters in March
2000 after the Vermont Supreme Court announced its decision
requiring equality, but before the Vermont legislature had
decided between marriage and civil unions for same-sex couples.
The Proposition 22 ballot materials emphasized the prospect that
California might soon be required to recognize out-of-state
marriages, and 61% of voters approved the measure, with 39%
voting against.
When Proposition 22 was enacted, same-sex marriage was not legal
in any part of the country. That has now changed . As noted
above, last year the Massachusetts Supreme Judicial Court ruled
that the Massachusetts definition of marriage violated that
state's constitutional equal protection provisions. The
legislature proposed a Vermont-style comprehensive Civil Unions
bill, but the high court issued an advisory opinion that this
too would be an equal protection violation, and that only a
fully equal definition of marriage would satisfy the
constitution's command of equality. Last month however, on May
17, 2004, Massachusetts began marrying same-sex couples.
Canada and Other Countries : Three provincial appellate courts
in Canada have also ruled that Canada's constitution requires
that same-sex couples be permitted to marry. Accordingly,
same-sex couples have full marriage rights in Canada today, and
Canada permits same-sex residents of the United States to marry
in Canada. The Netherlands also permits same-sex couples to
marry, and the new Prime Minister of Spain recently announced
his plans for Spain to permit same-sex couples to marry.
San Francisco : It was in the context of the Massachusetts and
Canadian decisions that the newly elected Mayor of San Francisco
issued an order that the County Clerk start allowing same-sex
couples to obtain marriage licenses. Same-sex couples from 46
states and eight countries were among the 4,037 same-sex couples
married in San Francisco from February 12 through March 11,
2004. However, according to the Clerk's office, most of the
newlyweds were Californians. The Mayor's decision is now under
review by the California Supreme Court. In deciding to hear the
case, the high court also gave explicit permission for
challenges to the state's definition of marriage to proceed at
the trial court level.
Status of the Litigation : What started out as a flurry of
AJR 67
Page 8
marriage-related litigation when San Francisco first began
issuing marriage licenses is now proceeding in two primary
proceedings. First, the California Supreme Court is considering
the question whether San Francisco officials should have waited
for a court ruling that same-sex couples have a constitutional
right to marry rather than independently deciding to issue
marriage licenses to same-sex couples. The Supreme Court heard
oral arguments last month on May 25, 2004. Second, in direct
response to the Supreme Court's invitation for such lawsuits to
be filed, two lawsuits were brought against the State in San
Francisco Superior Court contending that California's statutory
exclusion of same-sex couples from marriage is unconstitutional.
Those two lawsuits have now been consolidated into a single
case, and it is unclear how long these cases will be in the
courts. All other marriage lawsuits in the state have been
stayed pending the Supreme Court's rulings in these cases.
President Bush's Call for A Federal Constitutional Amendment :
On February 24, 2004, President Bush made a national address
calling on Congress to promptly pass, and to send to the states
for ratification, an amendment to the federal Constitution
limiting marriage as a union that is only available to
opposite-gender couples. Among other things, President Bush
stated: "Marriage cannot be severed from its cultural,
religious and natural roots without weakening the good influence
of society. Government, by recognizing and protecting marriage,
serves the interests of all. Today I call upon the Congress to
promptly pass, and to send to the states for ratification, an
amendment to our Constitution defining and protecting marriage
as a union of man and woman as husband and wife. The amendment
should fully protect marriage, while leaving the state
legislatures free to make their own choices in defining legal
arrangements other than marriage."
Slow-Moving Federal Legislation: On May 21, 2003, Rep. Marilyn
Musgrave, R-Colo., and five co-sponsors introduced H.J.
Resolution 56, a resolution to amend the U.S. Constitution to
define marriage as between a man and a woman. A companion bill,
S.J. Resolution 26, was introduced in the Senate on Nov. 25,
2003, by Sen. Wayne Allard, R-Colo. More recently, Sen. Allard
introduced a new measure, S.J. Resolution 30, with slightly
altered language. While Sen. Allard contends that this new
language will not invalidate state-level civil unions or
domestic partnerships, many constitutional scholars believe
otherwise. None of this federal legislation has yet been voted
AJR 67
Page 9
on by either floor of Congress.
Missouri Is One of Several States Set to Vote on State
Constitutional Amendments : Missouri is reportedly about to
become one of the country's first ballot-box battles on gay
marriage since the contentious issue flared up following the
court-ordered allowance of same-sex marriages in Massachusetts
noted above. According to an article in the Kansas City Star,
Missouri is one of at least seven states this year where voters
will decide on proposed amendments to state constitutions
barring marriage by same-gender couples. (The Kansas City Star,
June 4, 2004, p. 1.) Thus the fact that various states are
currently in the process of considering their own approaches in
this area may be found by the Committee to mitigate against
supporting the removal of states' rights in this area through a
federal constitutional amendment, contrary to this resolution's
objective.
How the Federal Constitutional Amendment Process Works, and This
Proposed Amendment's Reportedly Small Likelihood of Success :
The U.S. Constitution requires a two-thirds majority in each
house of Congress to pass an amendment. Then it must be
ratified by three-fourths, or 38, of the 50 states. John
Feehery, spokesman for Republican House Speaker Dennis Hastert,
has stated that it would be difficult for Republican leaders to
get the 291 votes required to pass any such amendment. But he
has also implied that it might not matter. "Sometimes you win
for losing," he said, claiming the issue would draw a clear line
between Democrats and Republicans, as well as between the
presidential contenders. Hastert's spokesperson also said that
not only do many Democrats oppose a constitutional ban, but
there also is a "diversity of opinion" within the Republican
conference. ("Amendment might lack Congressional support," Ted
Barrett, CNN Washington Bureau, CNN.com, February 24, 2004.)
Even if some form of such an amendment is passed by a two-thirds
majority in both houses of Congress, however, proponents and
opponents alike agree it will take many years for the process to
complete. According to a national legal expert, the chances of
success in the Congress, let alone the 38 states needed, appear
smaller than first anticipated. As CBS news legal commentator
Andrew Cohen notes:
AJR 67
Page 10
First, Congress has to decide whether it wants to even
take up the issue. When President Bush first made his
pronouncement Tuesday, I expected conservative pols in
Washington to fall all over themselves pledging to
push through the fairly popular amendment as soon as
possible. But, judging from the initial reaction, not
all Republicans are eager or willing to amend the
Constitution for an issue that hasn't been fully
vetted by the courts, including the Supreme Court.
Also, some conservatives, and many Democrats, see a
states-rights problem with shoving a federal mandate
down the throats of local officials. In other words,
the congressional reaction to the notion of the
amendment was far more reserved than I suspect most
observers thought it would be. ("Gay Marriage
Amendment Fast Facts," Andrew Cohen, CBS.com, February
25, 2004.)
PENDING RELATED LEGISLATION:
AJR 85 (Leno): Would make California the first state in the
country to officially oppose currently pending federal
constitutional amendment proposals before Congress.
AJR 60 (Lieber): Respectfully requests that the President and
Congress adopt the Permanent Partners Immigration Act (PPIA) of
2003, which, among other things, would add the phrase "or
permanent partner" to sections of immigration law that provide
immigration rights to legally married couples, and seeks to
allow gay and lesbian citizens to sponsor their partners as
United States residents.
AB 1967 (Leno): Seeks to end California's current marriage
discrimination against same-gender couples and their families.
Passed this Committee on April 27, 2004, by a vote of 8-3, and
then was held in the Assembly Appropriations Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
AJR 67
Page 11
Golden State Association of Christian Schools
Responsible Citizens, Inc.
Opposition
American Federation of State, County, and Municipal Employees
California National Organization for Women
Mexican American Legal Defense and Educational Fund
Office of the Attorney General
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334