BILL ANALYSIS
AB 205
Page 1
Date of Hearing: April 1, 2003
ASSEMBLY COMMITTEE ON JUDICIARY
Ellen M. Corbett, Chair
AB 205 (Goldberg) - As Amended: March 25, 2003
SUBJECT : DOMESTIC PARTNERS: ADDITIONAL RIGHTS AND
RESPONSIBILITIES
KEY ISSUE : SHOULD MOST OF THE RIGHTS AND RESPONSIBILITIES
AVAILABLE TO MARRIED COUPLES SOLELY UNDER STATE LAW BE EXTENDED
TO REGISTERED DOMESTIC PARTNERS?
SYNOPSIS
This bill seeks to confer additional legal rights and
responsibilities on registered domestic partners by extending
most of the rights and responsibilities available to married
couples solely under state law to registered domestic partners.
While the bill extends, most, but not all, of the rights and
duties available to married couples under state law to domestic
partners, it does not extend the many rights available to
married couples under federal law, the California Constitution,
or initiative statutes which are not and cannot be extended
under this bill. As a result, while the bill results in more
equity with respect to how domestic partners are treated under
the law, it does not provide full equality between the two
groups.
Specifically, the bill provides that domestic partners, former
domestic partners, and surviving domestic partners shall have
the same rights, protections, and benefits, and shall be subject
to the same responsibilities, obligations, and duties under law
as are granted to and imposed upon spouses, former spouses and
widows or widowers in a civil marriage. The measure also
provides that domestic partnerships may be terminated by either
commencing dissolution proceedings in superior court or filing a
Notice of Termination of Domestic Partnership with the Secretary
of State, provided that specified conditions are met.
Supporters argue that the measure provides more equity to
domestic partners and point out that registered domestic
partners are currently afforded approximately fifteen rights
under law, while married couples are provided hundreds of rights
and responsibilities. They also state that the bill provides
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crucial protections for children who deserve to have a fully
legalized relationship with both of their parents and deserve to
have parents who have a recognized legal relationship to each
other. Opponents, on the other hand, argue that the bill
creates gay marriage and California voters decided against gay
and lesbian marriages when they approved Proposition 22.
Therefore, they argue, equalizing domestic partnerships violates
the will of the people. They further point out that many rights
are already available to domestic partners through wills,
durable power of attorney forms and other private contractual
agreements, suggesting that these agreements are a suitable
substitute.
SUMMARY : Seeks to extend most of the rights and
responsibilities available to married couples solely available
under state law to registered domestic partners. Specifically,
this bill :
1)Provides that registered domestic partners shall have the same
rights, protections, and benefits, and shall be subject to the
same responsibilities, obligations, and duties under law as
are granted to and imposed upon spouses in a civil marriage.
(All further references to domestic partners refer to
registered domestic partners.)
2)Provides that former domestic partners shall have the same
rights, protections, and benefits, and shall be subject to the
same responsibilities, obligations, and duties under law as
are granted to and imposed upon former spouses in a civil
marriage.
3)Provides that a surviving domestic partner, following the
death of the other partner, shall have the same rights,
protections, and benefits, and shall be subject to the same
responsibilities, obligations, and duties under law as are
granted to and imposed upon a widow or a widower of a civil
marriage.
4)Provides that the rights and obligations of domestic partners
with respect to a child of either of them shall be the same as
those of married spouses and the rights and obligations of
former or surviving domestic partners with respect to a child
of either of them shall be the same as those of former or
surviving spouses in a civil marriage.
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5)Repeals existing law providing for termination of a domestic
partnership under specified circumstances and instead provides
that a domestic partnership may be terminated in one of two
ways: (1) Filing a Notice of Termination of Domestic
Partnership with the Secretary of State provided that certain
conditions are met (similar to those required in a summary
dissolution under Family Code section 2400), including, among
other things, that there are no children involved and the
domestic partnership is not more than five years in duration;
or (2) Commencing proceedings for dissolution, nullity, or
legal separation in superior court.
6)Requires the Secretary of State to notify currently registered
domestic partners of the bill's changes to law and makes
related and conforming changes to the definition of "domestic
partner" and the law relating to domestic partners.
EXISTING LAW :
1)Sets forth procedures for the establishment, registration and
termination of a domestic partnership and provides that the
only persons who may register as domestic partners are
same-sex couples over the age of 18 or opposite sex couples
where one of the partners is over the age of 62. (Family Code
section 297 et seq. )
2)Provides specified rights to registered domestic partners as
described below.
FISCAL EFFECT : The bill as currently in print is keyed fiscal.
COMMENTS : This bill seeks to extend most of the rights and
responsibilities available to married couples solely under state
law to domestic partners. In support, the author states:
This bill seeks to extend to registered domestic partners
most, but not all, of the protections provided under
California law to different-sex couples who marry and the
corresponding obligations imposed upon them. However,
even this step would not provide equal treatment to gay
and lesbian couples and their families. The bill would
not, and cannot, extend any of the one thousand federal
rights. It does not ensure recognition by other states
when a family travels. It does not even extend all of
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the protections offered to married couples under
California law, due to limits imposed in certain areas by
our constitution and laws passed by voter initiative.
This bill nonetheless would provide a critical, urgently
needed measure of equity to registered domestic partners.
These couples today enjoy less than twenty rights under
California law. Yet they experience the same range of
life challenges as married couples do. They pool their
financial resources to make ends meet. They raise their
children. They care for elderly relatives. They cope
with illness, incapacity and, eventually, death. Some of
them separate and disagree about their respective
obligations. There is no good reason to deny these
couples the legal rights and duties that have been
designed to help families care for each other and cope
with crises.
Granting the substantial rights and proportional
responsibilities provided for by this bill will further
the State's interest in promoting stable and lasting
family relationships. It will not, however, create
equality. Far from it. Until same-sex couples have
access to the full range of legal protections at both the
state and federal level, through the same institution
with all of the same ceremonies and respect as
different-sex couples, they will continue to experience
very substantial economic and practical hardships and
discrimination. Though it will not create equality, this
bill nonetheless will improve the lives of many thousands
California families in tangible, important ways.
Purpose of the Bill. This bill extends most of the rights and
responsibilities of marriage available under state law to
domestic partners. The author indicates that the purpose of the
bill is to ensure that domestic partners have the opportunity to
obtain the rights, protections, benefits, responsibilities,
obligations, and duties of a number of laws, such as laws
relating to:
Domestic relations, including, but not limited to,
rights and obligations of financial support during and
after the relationship, community property, and evidentiary
privileges;
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Child custody, visitation, and duties of financial
support of children;
Title and other incidents of the acquisition, ownership,
or transfer of real or personal property during life or at
death, as well as laws relating to access to student family
housing, senior citizen housing, and rent control
protections;
Obligations to make disclosures regarding spousal
relationships and to take other steps to prevent conflicts
of interest and self-dealing;
Government benefits, including, but not limited to,
workers' compensation, public assistance, transfer of
licenses upon death, and the ability to apply for absentee
ballots and other documents for a spouse;
Taxes, including, but not limited to, joint filing of
income tax returns, marital tax exemptions, estate tax
exemptions, and non-reassessment of real property upon a
spouse's death;
Health insurance coverage for family members, family
care and medical leave, bereavement leave, coverage of
family members under medical, dental, life, and disability
insurance, and spousal pension rights and death benefits;
Legal claims related to, or dependent upon, family
status, including, but not limited to, claims for loss of
consortium, and victim's compensation;
Anatomical gifts, consent to autopsy and disposition of
remains, and rights of burial in family cemeteries; and
Laws prohibiting marital status discrimination.
Bill Extends Many, But Not All, Rights and Responsibilities of
Marriage to Domestic Partners. It is important to note that not
all of the rights and responsibilities available to and imposed
upon married couples will be extended to domestic partners under
this bill. First, this bill deals only with the rights and
responsibilities available to married couples under state law,
not federal law. Thus, none of the important legal rights
conferred under federal law to married couples - 1,049 federal
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protections, benefits and responsibilities, according to the
U.S. General Accounting Office - would be extended to domestic
partners under this bill. Examples of federal protections,
benefits and responsibilities extended to married couples, but
not to domestic partners, are contained in the chart below.
Second, this measure does not give to domestic partners the
assurance that their partnerships will be legally recognized in
other states, a significant benefit conferred on married couples
under the doctrine of lex celebrationis, explained below.
Third, this bill does not impact those rights and
responsibilities available to married couples under the
California Constitution, initiative statutes, or those statutes
that have been established in other ways that cannot be changed
by the Legislature with a bill passed by a simple majority vote.
For example, this bill will not extend Proposition 13's benefit
to spouses concerning property tax reassessment to domestic
partners. So, upon the death of one partner, which results in a
transfer of the decedent's interest to the survivor,
reassessment would be triggered for domestic partners, but not
for spouses. Other examples are included in the chart below.
The following is an overview of many of the rights and duties
extended to married couples that AB 205 does not affect, and
therefore will not be granted to domestic partners under this
bill, as well as those rights and duties granted to married
couples that will be extended to domestic partners under the
bill (please note that space constraints prevent an exhaustive
list):
------------------------------------------------------------
|AB 205 Does Not Affect (therefore, these will not be |
|granted to domestic partners): |
|------------------------------------------------------------|
| Who may marry in California |
| Which out-of-state marriages are recognized in California |
| |
| Whether other states will recognize California domestic |
| partnerships |
|------------------------------------------------------------|
| 1,049 rights and duties provided under federal law such |
| as Social Security; Medicare; federal housing and food |
| stamp programs; federal taxes; Veterans' benefits; |
| federal civilian and military benefits; the federal |
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| Family and Medical Leave Act and other federal employment |
|benefit laws. |
------------------------------------------------------------
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------------------------------------------------------------
|AB 205 Does Not Affect (therefore, these will not be |
|granted to domestic partners): |
|------------------------------------------------------------|
| The state constitutional guarantees for protection of |
| separate property (see Cal. Const., Art. I, 21 and Cal. |
| Const., Appx. I, Art. XI, 14). |
|------------------------------------------------------------|
| Spousal exemptions from federal gift and estate tax or |
| federal income, gift or estate taxes |
| The exemption from property tax on the homes of survivors |
| of veterans who died on active duty (see Cal. Const., |
| Art. XIII, 4) |
| The partial exemption from property tax provided |
| survivors of certain veterans (see Cal. Const., Art. |
|XIII, 3(p)) |
| |
------------------------------------------------------------
------------------------------------------------------------
|AB 205 Extends These Rights/Duties to Domestic Partners: |
|------------------------------------------------------------|
| |
| Joint ownership of property acquired during the |
| partnership, with rights of survivorship |
| Equal management and control of property acquired during |
| the partnership |
| Joint obligation for debts incurred during the |
| partnership and attachment of jointly owned property by |
| creditors |
|------------------------------------------------------------|
| |
| Presumption of parenthood regarding child born during the |
| partnership or through alternate insemination |
| Judicial determination of custody and support of children |
| born during the partnership |
| Ability to authorize medical treatment of partner's |
| children |
|------------------------------------------------------------|
| |
| Right to control disposition of remains, authorize |
| autopsy, make anatomical gifts, and authorize exhumation |
| Identification of partner on death certificate |
| Protection of survivor's interest in joint property |
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| following partner's death |
| Ability to avoid probate of jointly owned property |
|------------------------------------------------------------|
| |
| Ability to file joint state income tax returns and to |
| obtain tax treatment that takes partnership into account |
| Exemption from transfer tax on deed or other writings |
| transferring, dividing or allocating joint property among |
| partners pursuant to termination of partnership |
|------------------------------------------------------------|
| |
| Evidentiary privilege regarding confidential |
| communications among partners |
| Privilege not to be forced to testify against |
|partner |
| |
------------------------------------------------------------
California's Domestic Partnership Law: Specific Rights Granted.
In 1999, California enacted AB 26 (Migden), Ch. 588, Stats. of
1999, California's first domestic partnership statute. This
statute, which forms the backbone of California's domestic
partnership law, was substantially broadened when AB 25
(Migden), Ch. 893, Stats. of 2001, was enacted. Under the
scheme created by AB 26, domestic partners were granted limited
rights in the areas of hospital visitation and health benefits
if one of the partners is a state employee.
Then, in 2001, AB 25 conferred over a dozen new legal rights,
privileges and standing on all domestic partners, including,
among other things, the right to recover damages for negligent
infliction of emotional distress; the right to assert a cause of
action for wrongful death; the right of a domestic partner to
adopt a child of his or her partner as a stepparent; the right
to make health care decisions for an incapacitated partner; and
the right to be appointed as administrator of a decedent's
estate, in the same manner and priority as a spouse. Last year,
California also enacted AB 2216 (Keeley), Ch. 447, Stats. of
2002, which established intestate succession rights of domestic
partners by expanding the legal rights of a domestic partner to
include the right to inherit property if one partner dies
without a will.
Use of Private Contractual Agreements to Provide Rights to
Domestic Partners. Opponents of this measure note that many
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rights are already available to domestic partners through wills,
durable power of attorney forms and other private contractual
agreements. These private agreements may be used, they point
out, by same-sex couples to govern the rights and obligations of
their relationships. Using property agreements and private
contracts does not, however, provide a same-sex couple with
unlimited rights. Such agreements are limited in effect. For
example, private contracts have no legal effect on benefits
granted by the state such as tax benefits and other obligations
including, parentage, custody and visitation arrangements, and
child support obligations.
Additionally, whether or not the law would intervene to protect
unmarried partners who enter into private contractual agreements
to govern the rights and obligations of their relationships is
dependent on whether an enforceable written or oral contract is
found to exist. In Marvin v. Marvin (1976) 18 Cal.3d 660, the
court held that agreements between non-marital partners would
fail only to the extent that they rest on an explicit
consideration of meretricious sexual services. In Whorton v.
Dillingham (1988) 202 Cal.App.3d 44, the court upheld a contract
between an unmarried couple relating to earnings and property
rights, noting that even if sexual services are part of the
relationship, the portion of the contract supported by
independent consideration will be enforced. In Jones v. Daly
(1981) 122 Cal.App.3d 500, however, the court found that the
performance of meretricious sexual services was an inseparable
part of the consideration for the agreement, leaving the court
no choice but to find the agreement unenforceable. As a result,
it appears that contracting is not an adequate substitute for
extending the rights and responsibilities of marriage available
under state law to domestic partners.
Congressional Action: The Defense of Marriage Act. In 1996,
Congress enacted H.R. 3396, the "Defense of Marriage Act
(DOMA)," which allows states to refuse to recognize same-sex
marriages should they ever become legal in another state.
Specifically, DOMA states that "no State, territory, or
possession of the United States, or Indian tribe, shall be
required to give effect to any public act, record, or judicial
proceeding of any other State, territory, possession, or tribe
respecting a relationship between persons of the same sex that
is treated as a marriage under the laws of such other State,
territory, possession, or tribe, or a right or claim arising
from such relationship." (Defense of Marriage Act, Pub. L. No.
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104-199, 110 Stat. 2419 (1996) (codified as amended at 1 U.S.C.
7, 28 U.S.C. 1738C)). DOMA goes on to define "marriage,"
for purposes of Federal law, as a legal union between one man
and one woman as husband and wife. With respect to Federal law
and programs, this definition of marriage is controlling.
Proposition 22: California's Defense of Marriage Act. In 2000,
California joined a number of other states in enacting a
"mini-DOMA" when voters passed Proposition 22, the California
Defense of Marriage Act. Proposition 22 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 did
nothing to change who may marry in California; existing law
already provided that applicants seeking a marriage license must
be a man and a woman. Instead, it restricted the kind of
marriage that may be recognized in California to a marriage
between a man and a woman. In fact, ballot arguments in favor
of Proposition 22 evidenced an intent to prevent recognition of
out-of-state same-sex marriages in California.
Under the general rule for determining the validity of a
marriage, known as lex celebrationis, a marriage is valid if it
is valid according to the law of the place where it was
celebrated. California law specifically provides "[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." (Family Code section 308.) Proposition 22
altered this policy with respect to marriages of same-sex
couples. Passage of the initiative means that if a same-sex
couple, legally married in another state, moves to California,
their valid marriage will not be recognized in California.
Proposition 22 and Extending Most of the Rights and
Responsibilities of Marriage Available Under State Law to
Domestic Partners. Opponents of the measure argue that the
passage of Proposition 22 precludes California from extending
the rights and responsibilities of marriage available under
state law to domestic partners. The Committee on Moral Concerns
argues that "California voters decided against gay and lesbian
marriages ? [and therefore] equalizing domestic partnerships
violates the will of the people." On this same point, the
Campaign for California Families states that the "people of
California have spoken loud and clear that they want marriage
protected. In March 2000, more than 61 percent of the voters
voted to protect marriage rights for only a man and a woman."
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The California Constitution limits the amendment of initiative
statutes by requiring voter approval for any amendments to or
repeal of an initiative statute unless the text of the
initiative provides otherwise. In this case, amendment or
repeal of Proposition 22 requires voter approval. Whether or
not the bill amends Proposition 22 and therefore requires voter
approval under the Constitution turns on whether the bill "adds
to or takes away from" Proposition 22. (See Franchise Tax Bd.
v. Cory (1978) 80 Cal.App.3d 772.)
On this point, the author states, "AB 205 does not pertain to or
affect marriage in any way, or affect which parties may marry
under California law, or what marriages will be treated as valid
in California. ? Even with the passage of AB 205, domestic
partnership will remain quite distinct from marriage in a number
of ways: It will continue to be entered into and, for many
people, exited in a different way than marriage; It may not be
recognized outside of California; The federal government will
not recognize domestic partners for the 1,049 federal rights and
benefits associated with marriage, such as social security,
Medicaid, and federal taxes; [and] it will not grant same-sex
couples the full social and symbolic equality of marriage."
Further, the proponents also add:
The California Constitution bars the Legislature from
amending or repealing any initiative law passed by the
voters. A proposed law will violate that provision only
if it will add or take away provisions put in place by
the initiative, or will alter the scope or effect of the
initiative. AB 205 runs no risk of offending this
constitutional command because Proposition 22 solely
concerns marriage, and no section of this bill would
repeal, amend, thwart or change in any way the laws
governing marriage and married couples. The bill does
use existing marriage law as the model for the new legal
rights and responsibilities to be imposed by separate
statutes upon registered domestic partners. The legal
effect of the bill would, however, be separate and
independent from the marriage laws. It would apply to a
different group of people, who would interact with
different governmental agencies using different
procedures in order to bring themselves within the
requirements of the domestic partnership law.
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Other States' Actions. In Vermont, the State Legislature
enacted legislation allowing same-sex couples to enter into
civil unions that carry many of the benefits and
responsibilities of traditional marriages. The Legislature
acted in response to the State Supreme Court's ruling in Baker
v. State (1999) 170 Vt. 194 holding that the state has an
obligation under the Vermont Constitution to extend to same-sex
couples the common benefit, protection and security that Vermont
marriage law provide opposite-sex couples.
According to the author's office, other states are considering
related measures including Colorado (House Bill 1141 provides
guidelines for eligible same-sex couples to receive the same
benefits and protections as heterosexual married couples under
Colorado laws) and Connecticut (House Bill 6389 extends the
rights and responsibilities of marriage to same-sex couples and
H.B. 6388 establishes a category of civil unions similar to
Vermont's landmark law). The author's office also indicates
that Hawaii, Massachusetts and Rhode Island have introduced
civil union bills as well.
ARGUMENTS IN SUPPORT : The sponsor of the measure, the
California Alliance for Pride and Equality, states that the bill
"will grant domestic partners important responsibilities that
will help them care for each other and their families, including
community property, financial support obligations, assumption of
parenting responsibilities, and mutual responsibility for debts.
The bill will provide crucial protections for children who
deserve to have a fully legalized relationship with both of
their parents, and deserve to have parents who have a recognized
legal relationship to each other."
ARGUMENTS IN OPPOSITION : The Committee on Moral Concerns
opposes AB 205, stating that the bill will "expand domestic
partnership laws to be equal with marriage, thus creating gay
marriages. ? Contrary to the bill's language, California has a
legitimate interest in not legalizing gay marriages or expanding
domestic partner laws. In all of human history, every major
society and major religion has considered homosexuality and
rejected it as unnatural, immoral, and dangerous. Today's
science has proved that the wisdom of the ages is correct."
The Campaign for California Families also opposes this measure,
writing that the bill will "essentially create homosexual
'marriage' in California by awarding virtually all the rights of
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marriage to 'domestic partners,' which are overwhelmingly
homosexual couples. ? This bill is homosexual 'marriage' and no
one should think otherwise."
REGISTERED SUPPORT / OPPOSITION :
Support
California Alliance for Pride and Equality (sponsor)
AIDS Legal Referral Panel
AIDS Project Los Angeles
Alianza Network Services (Tustin)
American Civil Liberties Union
American Federation of State, County, and Municipal Employees
Anti-Defamation League
Attorney General Bill Lockyer
California Commission on the Status of Women
California National Organization for Women
California Nurses Association
California School Employees Association
California State Employees Association
California STD Controllers Association
Central American Resource Center
City and County of San Francisco
Claremont United Church of Christ, Congregational
Coalition LA
Congregational Church of Belmont
Congregation Kol Ami (West Hollywood)
Consumer Attorneys of California
Dominican Sisters of San Rafael
Equal Rights Advocates
Family Builders by Adoption
First Congregational Church, UCC (Pasadena)
First Congregational Church of Long Beach
First Congregational United Church of Christ (San Bernardino)
First Presbyterian Church (Baldwin Park)
First Presbyterian Church (Palo Alto)
Gay & Lesbian Community Services Center of Orange County
Gray Panthers
Holy Redeemer Lutheran Church (San Jose)
Human Rights Campaign
Human Rights/Fair Housing Commission (Sacramento)
Le Mesa Community Church (Santa Barbara)
Irvine United Congregational Church
Lambda Legal Defense and Education Fund, Inc.
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Legal Aid Society - Employment Law Center
Legal Services for Children, Inc.
Little Brown Church of Sunol
Metropolitan Community Church Los Angeles
Metropolitan Community Church in the Valley (North Hollywood)
Metropolitan Community Church of the Coachella Valley
Mexican American Legal Defense and Educational Fund (MALDEF)
Mira Vista United Church of Christ (El Cerrito)
National Association of Social Workers
National Conference for Community and Justice (Santa Barbara)
National Conference for Lesbian Rights
National Gay and Lesbian Task Force
National Latina/o Lesbian, Gay, Bisexual & Transgender
Organization
National Organization for Women (San Fernando Valley - Northeast
LA Chapter)
Niles Congregational Church
Northminster Presbyterian Church of El Cerrito
Older Women's League of California
Pacific Pride Foundation
Pioneer Congregational Church (Sacramento)
PFLAG-San Francisco
San Diego Democratic Club
Santa Barbara County Democratic Central Committee
St. Paul Lutheran Church (Oakland)
Secretary of State Kevin Shelley
Stonewall Democratic Club of Greater Sacramento
Stonewall Democratic Club of West Hollywood
The Lambda Letters Project
The Center of San Diego County
Transgender Law Center
Trinity Lutheran Church (Alameda)
University Lutheran Chapel (Berkeley)
West Hollywood Presbyterian Church
Wesley United Methodist Church (Fresno)
900 Individuals
Opposition
Brotherhood of St. Andrew
Campaign for California Families
Capitol Resource Institute
CleansingStream Ministries
Committee on Moral Concerns
Concerned Women for America
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First Baptist Church of West Sacramento
Ironwood Christian Academy
Montebello Church of the Nazarene
Open Doors Ministries International, Inc.
Rancho Christian Center
Traditional Values Coalition
Numerous Individuals
Analysis Prepared by : Saskia Kim / JUD. / (916) 319-2334