BILL NUMBER: AB 1967 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 17, 2004
AMENDED IN ASSEMBLY APRIL 28, 2004
INTRODUCED BY Assembly Members Leno, Goldberg, Kehoe, Laird, and
Lieber
(Principal coauthor: Senator Kuehl)
(Coauthors: Assembly Members Chan, Dymally, Firebaugh, Hancock,
Koretz, Levine, Longville, Montanez, Nation, Oropeza, Simitian,
Steinberg, Wesson, Wiggins, and Yee)
(Coauthors: Senators Escutia and Speier)
FEBRUARY 12, 2004
An act to amend Sections 300, 301, and 302 of the Family Code,
relating to marriage.
LEGISLATIVE COUNSEL'S DIGEST
AB 1967, as amended, Leno. Gender-neutral marriage.
Existing law provides that marriage is a personal relation arising
out of a civil contract between a man and a woman. Existing law
provides for the issuance of marriage licenses, as specified.
Existing law further provides that only marriage between a man and a
woman is valid or recognized in this state.
This bill would enact the "California Marriage License
Nondiscrimination Act," which would instead provide that marriage is
a personal relation arising out of a civil contract between 2
persons. The bill would make conforming changes with regard to
consent, and would make related findings and declarations.
By adding to the duties of county employees, this bill would
impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement, including the creation of a State Mandates Claims Fund
to pay the costs of mandates that do not exceed $1,000,000 statewide
and other procedures for claims whose statewide costs exceed
$1,000,000.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act shall be known and may be cited as the
"California Marriage License Nondiscrimination Act."
SEC. 2. The Legislature finds and declares as follows:
(a) Civil marriage is a legal institution recognized by the state
in order to promote stable relationships and to protect individuals
who are in those relationships. The institution of marriage also
provides important protections for the families of those who are
married, including not only any children or other dependents they may
have, but also members of their extended families.
(b) From 1850 to 1977, the legal definition of marriage in
California was gender-neutral, containing no reference to "man" or
"woman."
(c) In 1948, the California Supreme Court became the first state
court in the country to strike down a law prohibiting interracial
marriage. It was the only state supreme court to do so before the
United States Supreme Court invalidated all such laws in 1967. The
California Supreme Court held: "Marriage held
that "marriage is . . . something more than a civil contract
subject to regulation by the state; it is a fundamental right of
free men. . . Legislation infringing such rights must be based upon
more than prejudice and must be free from oppressive discrimination
to comply with the constitutional requirements of due process and
equal protection of the laws." Perez v. Sharp (1948) 32 Cal.2d 711,
714-15.
(d) In 1977, the Legislature amended the state's marriage law to
specify that, as a matter of state law, the gender-neutral definition
of marriage could permit same-sex couples to marry and have access
to equal rights and therefore would be changed. The gender-specific
definition of marriage that the Legislature adopted specifically
discriminated in favor of opposite-sex couples and, consequently,
discriminated and continues to discriminate against same-sex couples.
(e) The highest courts in three states have held that denying the
legal rights and obligations of marriage to same-sex couples is
constitutionally suspect or impermissible under their respective
state constitutions. These states are Hawaii, Vermont, and
Massachusetts. The highest courts in three Canadian provinces have
similarly ruled that marriage laws that discriminate in favor of
opposite-sex couples to the exclusion of same-sex couples violate the
rights of same-sex couples and cannot stand.
(f) California's discriminatory marriage law violates the
California Constitution's guarantee of due process, privacy, and
equal protection of the law by arbitrarily denying equal marriage
rights to lesbian, gay, and bisexual Californians.
(g) California's discriminatory marriage law harms same-sex
couples and their families by denying those couples and their
families specific legal rights and responsibilities under state law
and by depriving members of those couples and their families of a
legal basis to challenge federal laws that deny access to the many
important federal benefits and obligations provided only to spouses.
Those federal benefits include the right to file joint federal
income tax returns, the right to sponsor a partner for immigration to
the United States, the right to social security survivor's benefits,
the right to family and medical leave, and many other substantial
benefits and obligations.
(h) Other jurisdictions have chosen to treat as valid or otherwise
recognize marriages between same-sex couples. California's
discriminatory marriage law therefore also harms California's
same-sex couples when they travel to other jurisdictions by
preventing them from having access to the rights, benefits, and
protections those jurisdictions provide only to married couples.
(i) California's discriminatory marriage law further harms
same-sex couples and their families by denying them the unique social
recognition and affirmation that marriage confers on heterosexual
couples.
(j) The Legislature has an interest in encouraging stable
relationships regardless of the gender or sexual orientation of the
partners. The benefits that accrue to the general community when
couples undertake the mutual obligations of marriage accrue
regardless of the gender or sexual orientation of the partners.
(k) It is the intent of the Legislature in enacting this act to
end the pernicious practice of marriage discrimination in California.
This act is in no way intended to alter Section 308.5 of the Family
Code, which prohibits California from treating as valid or otherwise
recognizing marriages of same-sex marriages solemnized outside of
California. This act is in no way intended to require religious
bodies or officials to perform or recognize marriages that do not
fulfill the requirements of their religious faith.
SEC. 3. Section 300 of the Family Code is amended to read:
300. (a) Marriage is a personal relation arising out of a civil
contract between two persons, to which the consent of the parties
capable of making that contract is necessary. Consent alone does not
constitute marriage. Consent must be followed by the issuance of a
license and solemnization as authorized by this division, except as
provided by Section 425 and Part 4 (commencing with Section 500).
(b) Where necessary to implement the rights and responsibilities
of spouses under the law, gender-specific terms shall be construed to
be gender-neutral, except with respect to Section 308.5.
SEC. 4. Section 301 of the Family Code is amended to read:
301. Two unmarried persons of the age of 18 years or older, who
are not otherwise disqualified, are capable of consenting to and
consummating marriage.
SEC. 5. Section 302 of the Family Code is amended to read:
302. An unmarried person under the age of 18 years is capable of
consenting to and consummating marriage if each of the following
documents is filed with the county clerk issuing the marriage
license:
(a) The written consent of the parents of each underage person, or
of one of the parents or the guardian of each underage person.
(b) A court order granting permission to the underage person to
marry, obtained on the showing the court requires.
SEC. 6. The Legislature finds and declares that this act does not
amend or modify Section 308.5 of the Family Code, which addresses
marriages from other jurisdictions, as enacted by an initiative
measure.
SEC. 7. Notwithstanding Section 17610 of the Government Code, if
the Commission on State Mandates determines that this act contains
costs mandated by the state, reimbursement to local agencies and
school districts for those costs shall be made pursuant to Part 7
(commencing with Section 17500) of Division 4 of Title 2 of the
Government Code. If the statewide cost of the claim for
reimbursement does not exceed one million dollars ($1,000,000),
reimbursement shall be made from the State Mandates Claims Fund.