BILL ANALYSIS
AB 1967
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Date of Hearing: April 20, 2004
ASSEMBLY COMMITTEE ON JUDICIARY
Ellen M. Corbett, Chair
AB 1967 (Leno) - As Introduced: February 12, 2004
As Proposed to Be Amended
SUBJECT : CIVIL RIGHTS: MARRIAGE
KEY ISSUES:
1)ARE THERE ANY REASONS WHY CIVIL MARRIAGES RECOGNIZED BY OUR
GOVERNMENT, AS OPPOSED TO BY RELIGIOUS INSTITUTIONS, SHOULD BE
LIMITED TO OPPOSITE-SEX COUPLES?
2)WOULD ENACTMENT OF THIS LEGISLATION VIOLATE THE TERMS OR
INTENT OF CALIFORNIA'S PROPOSITION 22 OF 2000?
3)DOES THE STATE'S CONSTITUTION APPEAR TO PERMIT OR PROHIBIT
CALIFORNIA'S EXCLUSION OF SAME-SEX COUPLES FROM MARRIAGE? IS
IT TRUE, AS NOTED IN THE LANDMARK DECISION OF BY THE
MASSACHUSETTS SUPREME COURT, THAT "SEPARATE IS SELDOM, IF
EVER, EQUAL"?
4)WHAT CONSEQUENCES ARE LIKELY IF THE STATE WERE TO RECOGNIZE
MARRIAGES BETWEEN SAME-SEX PARTNERS? WHAT CONSEQUENCES ARE
LIKELY IF THE STATE WERE TO CONTINUE NOT TO RECOGNIZE THEM?
SYNOPSIS
This bill seeks to amend California's family law by defining
marriage as between "two persons" instead of solely between a
man and a woman, and it does so without amending the language of
Proposition 22. As such, the bill raises important questions of
law and public policy that are now being discussed across the
nation, and in countries around the world. Though many argue
with deep and sincere conviction about whether this legislation
is appropriate, few disagree about its significance. It
reflects one of this nation's most significant civil rights
issues for the 21st century, and is part of California's, and
this nation's, legal and social struggle in defining the
contours of the civil rights and protections afforded gay and
lesbian couples and their families.
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In support of the bill, the author states "The time has come for
California to honor its commitment to equality for all
Californians." According to the bill's supporters, this
legislation provides necessary protections for gay and lesbian
couples who wish to take on the responsibility of marriage and
ensure that all children receive the protections offered to them
as children raised by married couples. Supporters argue that
the state currently relegates same-sex couples and their
families to second-class status and thereby affirmatively
inflicts harm upon them by insisting on two separate
institutions-domestic partnership for gay and lesbian couples
and marriage for heterosexual couples. Opponents of the bill
argue their belief that the legislation is both unwise and, if
enacted by the Legislature instead of the people,
unconstitutional. According to the Committee on Moral Concerns,
for example, enactment of the bill would "bring homosexual
'marriage' into California, violating the will and vote of the
people... [It] is an extremist bill which ... would completely
destroy the uniqueness of marriage for a man and a woman and
turn the sacred institution of marriage upside down."
SUMMARY : Seeks to end the state's denial of marriage licenses
to gay and lesbian couples. Specifically, this bill :
1)Eliminates the current "different-gender" requirement in the
state's definition of marriage.
2)Clarifies that gender-specific terms in the state's family
laws shall be construed to be gender-neutral, except in
regards to Section 308.5, concerning recognition of marriages
contracted in other jurisdictions (Proposition 22 of 2000),
which retains its effect.
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.)
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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
(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 bill is keyed
fiscal.
COMMENTS : This legislation seeks to halt the state's practice
of denying same sex couples the right to marry. In support of
the bill, the bill's sponsor, Equality California, writes:
All Californians deserve access to this civil
institution that provides a myriad of rights and
responsibilities not afforded to domestic partners,
including social security benefits, family and medical
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leave, joint income tax filing, and thousands of
Federal benefits, without regard to their gender or
sexual orientation... Our organization has one
goal-equal rights for the lesbian, gay, bisexual, and
transgender Californians. California has the
opportunity to set an example for the nation by
recognizing, as the Massachusetts Supreme Court said,
that there is no rational basis for discrimination by
the state against same-sex couples.
The bill 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." <1>
California's Recognition of Same-Sex Couples : While much of the
present debate focuses on recent developments in San Francisco,
the question of legal recognition of same-sex couples in
California dates back nearly two full decades. (See, e.g., "The
Tie That Binds: Recognizing Privacy and the Family Commitments
of Same-Sex Couples," David Link, 23 Loyola of Los Angeles Law
Review 1055 (1990).) As of the early 1980s, the relationships
of same-sex couples had virtually no legal recognition
whatsoever in California. Family members, third parties,
businesses, creditors and government at all levels treated each
of the partners as an individual with no recognition granted to
the other partner. In 1985, the City of West Hollywood became
---------------------------
<1> Consistent with relevant case law addressing
discrimination based on sex and sexual orientation, this
analysis will use the terms "gender" and "sex" interchangeably.
In addition, although the marriage laws do not refer to sexual
orientation, this analysis will use the phrases "same-sex
couples" and "gay and lesbian couples" interchangeably. As the
Legislature's findings in A.B. 205 (2003) reflect, laws that
classify couples based on gender composition classify both on
the basis of sex and on the basis of sexual orientation.
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the first city to establish a domestic partnership registry
under which same-sex couples could obtain not only limited
protections for themselves and their children, but also, for the
first time, government recognition as family units. In a
landmark study done in the mid-1980s, the Los Angeles City Task
Force on Family Diversity examined the problems faced by
same-sex couples in a legal environment without such
recognition. The Task Force recommended, in its 1988 Final
Report, that the city join the then-fledgling movement among
some local jurisdictions and businesses to allow same-sex
couples to form domestic partnerships that the city could
recognize for purposes of municipal law. Three years later, the
Human Relations Commission of the City of Long Beach conducted
its own study, and came to the same conclusion. By the year
2000, fourteen California local governments had established
domestic partnership registries, including the state's largest
local government, the County of Los Angeles. (California's
establishment of a statewide domestic partnership registry in
1999 and the subsequent extension of many protections to
domestic partners are discussed below under "Prior Related
Legislation.")
National Backdrop - Hawaii , Vermont and the National Defense of
Marriage Act : 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 state legislature subsequently passed a
law creating a new status of "Reciprocal Beneficiaries," under
which certain limited benefits were made available to same-sex
couples and other relationships. With that law in place, the
voters then passed a constitutional amendment giving the
legislature authority to define "marriage" in whatever way it
saw fit, and the legislature then recodified its existing
definition of marriage as between a man and a woman, while
continuing to grant "reciprocal beneficiaries" a limited set of
parallel benefits.
The Federal DOMA and Vermont : The nation took notice of these
events in Hawaii, and in 1996, Congress passed, and President
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Clinton signed, 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.
The court left it to the state legislature to decide what legal
mechanism to use to guarantee equality, and the legislature
passed a comprehensive Civil Unions law that remains the only
civil unions law in the country.
California's Proposition 22 : In light of the Hawaii and Vermont
decisions, and of the provisions of DOMA, a group of citizens
led by State Senator Pete Knight qualified an initiative for the
California ballot in 1999 to prohibit 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 (see
below). 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 will soon apparently change .
In November 2003 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. In less than one month, on
May 17, 2004, it is expected that Massachusetts will begin
marrying same-sex couples. Thus, when same-sex couples who
marry in Massachusetts travel to California, whether on vacation
or business, it appears that Proposition 22 may prohibit
California not only from treating those marriages as valid, but
also from recognizing those marriages for any purpose at all.
In addition, although California will recognize Vermont civil
unions as domestic partnerships beginning in January 2005,
Massachusetts marriages between same-sex couples will not be
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recognized under the domestic partnership laws.
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. Many
Californian same-sex couples have married in Canada, but
Proposition 22 prohibits California from recognizing those
marriages. Proposition 22 also appears to prohibit California
from recognizing for any purpose the marriages of same-sex
couples who are residents of other countries if such couples
visit California.
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 should 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
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 is
expected to schedule oral arguments for June. 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. The State has not yet responded to the complaints, and
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there is no way to predict at this point 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 the
cases it is now hearing.
The Key Legal Issues :
1. The first legal question: Does this bill violate
Proposition 22?
The first major legal question presented by this legislation is
whether it conflicts with Prop. 22. The Constitution guarantees
the right of the people to pass initiatives and decide whether
to grant the Legislature in any particular initiative measure
the ability to amend what they have done. Prop. 22 was silent
on this power to amend, and under longstanding rules of
constitutional interpretation, this means that the Legislature
cannot amend Prop. 22 without having its vote ratified by a
subsequent vote of the people.
The words of Prop. 22 are clear that California treats as valid
or otherwise recognizes only those marriages that are between a
man and a woman. It is equally clear from the legislative
history of that initiative that the voters were concerned about
recognizing marriages contracted in other states. Thus, the
placement of the initiative in section 308.5, directly after
section 308, which sets out the rules for recognizing
out-of-state marriages, was a deliberate decision by the author
of that measure; the text of the Proposition itself provided for
its codification as section 308.5.
4) The "out-of-state marriage" reading of Proposition 22
Those who contend that Prop. 22 does not prevent the state from
enacting the proposed bill point out that the text of
Proposition 22 uses language long used by courts in California
and elsewhere to describe two different ways that a state may
regard an out-of-state marriage as entitling a claimant to
inheritance rights or other incidents of marriage. The state
may choose to treat the out-of-state marriage as a "valid"
marriage for all purposes, or the state may choose to
"recognize" the marriage for certain limited purposes (such as
inheritance rights) even if the marriage will not be treated as
valid for other purposes. Proposition 22 used precisely this
language-"valid or recognized in California"-and thus, according
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to the bill's supporters, the actual text of Proposition 22
appears limited to how California will treat out-of-state
same-sex marriages. The bill's supporters also point to a host
of instances when proponents for Proposition 22 stated in the
ballot arguments in support that the measure was intended to
focus solely on marriages from other states. For example, it
was stated in the proponents' arguments:
"When people ask, "Why is this necessary?" I say that even
though California law already says only a man and a woman
may marry, it also recognizes marriages from other states.
However, judges in some of those states want to define
marriage differently than we do. If they succeed,
California may have to recognize new kinds of marriages,
even though most people believe marriage should be between
a man and a woman."
"Opponents say Proposition 22 is unnecessary. THE TRUTH
IS, UNLESS WE PASS PROPOSITION 22, LEGAL LOOPHOLES COULD
FORCE CALIFORNIA TO RECOGNIZE "SAME-SEX MARRIAGES"
PERFORMED IN OTHER STATES."
It is also clear in both the arguments by supporters and
opponents of Prop. 22 that the initiative was perceived to be
necessary in light of the Vermont and Hawaii supreme court
decisions, and the related national debate concerning the need
for a federal DOMA. Thus the bill's supporters argue that
Proposition 22 was a measure designed to protect state
sovereignty, not to prevent California's same-sex families from
marrying.
Given this context and the actual arguments made in the ballot
materials, proponents of the bill argue that it does not
conflict with Prop. 22, in that it leaves the text of Prop. 22,
now codified in Family Code section 308.5, intact and fully
applicable to out-of-state marriages. In fact, the current bill
expressly excludes section 308.5 from its ambit. Thus, under
this "out-of-state marriage" reading of Prop. 22, if this bill
is passed, California law may properly permit partners of the
same sex to marry within California, but will not recognize same
sex marriages contracted in other states under the terms of
Prop. 22, absent a new vote of the people. Under this approach,
proponents argue there could indeed be valid reasons for making
such a distinction between in-state and out-of-state marriages.
For example, California has a long history of interpreting its
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own laws more expansively than other states, or the federal
government might interpret similar rules. Similarly, California
could conclude that it is willing to participate in the ongoing
"trial" of same-sex marriages entered within its borders, while
leaving other states to deal with the issue in their own way.
The California Attorney General has adopted this narrow reading
of Prop. 22 in litigation in the Sacramento Superior Court
concerning the validity of AB 205. In the words of the Attorney
General, ". . . the only justification articulated by the
advocates of Proposition 22 was to prohibit California from
recognizing same-sex marriages that are legal in other states."
The Attorney General took the same position on Proposition 22's
effect in litigation prior to Proposition 22's placement on the
ballot, in a case in which the Sacramento Superior Court upheld
the Attorney General's title for Proposition 22-"Limit on
Marriages"-over a previously proposed title-"Definition of
Marriage."
4) The "complete ban" reading of Prop. 22
However, it must also be noted that it is very possible to read
Prop. 22 more broadly than simply addressing the issue of
out-of-state marriages, but rather as a definitive statement by
the voters that no same-sex marriages would be recognized in
California, whether entered into inside or outside the state.
Under this broader reading of the measure, Prop. 22 did not
amend Family Code section 300 because it did not need to.
Proponents of this view argue that Prop. 22 did not seek to
amend section 300's definition of marriage because that section
already clearly placed a ban on same-sex marriage contracted
within the state. Therefore, it is also possible that it could
be found that this legislative proposal to permit same-sex
marriage within California does violate Prop. 22 -- if Prop. 22
is read by a court as being part of a comprehensive scheme,
along with section 300, which provides a total ban in this state
on recognition of any same-sex marriage contracted anywhere.
The state's Legislative Counsel appears to have previously
reached this conclusion in an earlier analysis of last year's AB
205, although this was arguably dicta since the question of
in-state marriages did not need to be reached given that AB 205
concerned the distinct institution of domestic partnership.
A determination of whether Prop. 22 should be read narrowly or
broadly will ultimately be up to the courts. However, if Prop.
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22 were intended as a complete ban on recognition of same-sex
marriage, it would directly raise the question of whether the
constitutional guarantees of equality are being denied to
same-sex couples - exactly the question now pending in San
Francisco Superior Court - and the courts would be required to
construe Proposition 22 to avoid constitutional problems. The
constitutional question is discussed below.
In any event, Prop. 22's reach does not appear determinative of
whether the Legislature should act on this bill for two
reasons. First, it is indisputable that Family Code section 300
statutorily bars same-sex couples from marriage, and the
Legislature could choose to amend section 300 to the full extent
of the Legislature's authority to do so, leaving it to the
courts to determine whether any conflict with Proposition 22
exists. Second, even if the proposed bill could take effect
only pursuant to a vote of the people, the Legislature could
pursue such a voter-amendment option.
2. The larger legal question: Is a total ban of same-sex
marriage constitutional?
Regardless of Prop. 22's reach, Family Code section 300 puts
into full play the question whether California's exclusion of
same-sex couples from marriage is unconstitutional, a question
actively being litigated in San Francisco Superior Court. Three
points appear important to the constitutional analysis. First,
the history of California's definition of marriage clearly shows
an explicit intent to discriminate against lesbians and gay men,
and to exclude same-sex couples from marriage. Second, there
are two landmark rulings from the California Supreme Court that
bear directly on the question of the statute's
constitutionality, and suggest that California's current statute
banning same-sex marriage may likely be struck down if the issue
is heard by the State Supreme Court. And third, there is an
undeniably strong trend in rulings from other state supreme
courts, and from the U.S. Supreme Court itself, suggesting that
the statute likely could not withstand, and ultimately someday
will be held by a court not to withstand, constitutional
scrutiny.
A. History of Family Code Section 300
Prior to 1977, former Civil Code section 4100 read as it would
in the current bill: "Marriage is a personal relation arising
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out of a civil contract between two persons. . . " In 1977,
however, this gender neutral provision was changed to the
current gender specific language, in response, ironically, to
the then-pending federal Equal Rights Amendment (ERA). ERA
opponents at that time expressed concerns that if women were
given full equality with men under the federal constitution,
states would have to give gay men and lesbians equal marriage
rights, and California's then-gender neutral language appeared
to permit that result. Therefore, the legislature passed, and
then-Governor Jerry Brown signed a bill that added the current
gender-specific terms to the definition. Important for any
future court constitutional analysis is this: the Legislature's
enactment in 1977 of existing Family Code section 300's
gender-specific language barring same-sex marriage appears to
demonstrate not only a clear recognition by the Legislature in
1977 that full gender equality would encompass the right to
marry someone of either gender, but also a clear intent by
policy-makers to exclude lesbians and gay men from the right to
marry their chosen partners under California law. Such apparent
animus against a minority, and specifically against gay men and
lesbians, has been held constitutionally suspect under the
federal constitution. ( Romer v. Evans , 517 U.S. 620 (1996).)
B. State Constitutional Authority for Evaluating the Equal
Protection Question
(i) California's two independent constitutional provisions
guaranteeing equality
Though many are not aware of it, there are actually two
independent equal protection provisions in California's
Constitution that might be found to be grounds for invalidating
the state's "opposite sex" marriage rule. Article I, Section 7
(a), of the state constitution provides that "[a] person may
not be deprived of life, liberty, or property without due
process of law or denied equal protection of the laws. . ."
This is nearly identical to the general equal protection
provision found in Hawaii's and Massachusetts' constitutions.
Unlike even those states, California has had a decision on the
books for almost a quarter of a century seemingly guaranteeing
that gay and lesbian persons are included within the state
constitution's guarantee of equal protection. In the landmark
California Supreme Court decision of Gay Law Students v. Pacific
Telephone and Telegraph , 24 Cal.3d 458 (1977), the Supreme Court
expressly held that subdivision (a) of Article I, section 7
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applies to lesbians and gay men. That provision, the Court
stated, guarantees them, as a class, equal protection. While
the issue in that case was whether the constitutional guarantee
protected lesbians and gay men from employment discrimination,
the broad principle of "equal protection of the laws" would
likely be held to extend beyond that limited context.
Article I, section 7, subdivision (b): Article I, section 7 has
a second, distinct and equally significant provision that
appears to provide an independent, and even more specific,
protection for all of California's citizens: "A citizen or class
of citizens may not be granted privileges or immunities not
granted on the same terms to all citizens." That provision is
similar to the Common Benefits Clause of the Vermont
constitution, which served as the basis for that state's ruling
requiring that same-sex couples be given access to the same
legal protections and other benefits offered to heterosexual
couples through marriage. Under California's current marriage
laws, heterosexual couples and their families are clearly a
large "class of citizens" who are granted a plethora of rights,
privileges and immunities that are unambiguously denied to
another constitutionally-recognized class of citizens, gay and
lesbian couples and their families.
(ii). California's seminal case on equal protection and the
importance of marriage: Perez v. Lippold
In 1948, California's Supreme Court was the first in the nation
to hold that a law prohibiting persons from marrying outside
their race violated the constitution. Perez v. Lippold , 32
Cal.2d 711 (1948) preceded the U.S. Supreme Court's decision in
Loving v. Virginia , 388 U.S. 1 (1967) on the same question by
nearly 20 years. Perez examined the California statute that
provided, "no license may be issued authorizing the marriage of
a white person with a Negro, mulatto, Mongolian or member of the
Malay race." The Perez opinion appears directly relevant to,
and perhaps controlling of, any future court decision regarding
the constitutionality of the state's current definition of
marriage.
The majority opinion relied on the broad wording of the due
process clause, and noted the importance, in California, of
personal liberty as a constitutional principle. The court
specifically said that liberty included the "right of the
individual to contract, to engage in any of the common
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occupations of life, to acquire useful knowledge, to marry,
establish a home, and bring up children. . . " (Emphasis added.)
The Court then went on to specify that, in light of the
fundamental nature of the right to marry, "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."
To answer allegations that the statute did not discriminate
against any racial group, since it applied alike to all races,
the Court emphasized repeatedly that "the right to marry is the
right of individuals, not of racial groups," and that it was
individuals whose right to marry was infringed by the statute.
Importantly the Court held that while the state has authority to
prohibit marriage between specific individuals when there is a
legitimate state concern, such legislation would have to be
specific to the individuals in question, and could not use
"arbitrary classifications of groups or races" as a substitute.
(Emphasis added.) For example, to the extent the state wanted
to prevent the spread of disease through marriage (one of the
arguments made in the case was that non-white citizens were more
prone to disease than whites), it could require individuals to
be tested for health reasons, but it could not use race or other
arbitrary categories as a shorthand for disease. In a
concurring opinion, Justice Carter addressed the argument that
the laws at issue had been on the books in some form since the
founding of the state. "It is my position," he wrote, "that the
statutes now before us never were constitutional. When first
enacted, they violated the supreme law of the land. . . "
Moreover, he continued, "Even if I concede, which I do not, that
the statutes here involved were at any time reasonable, they are
no longer reasonable and therefore no longer valid today. . . .
A change in conditions may invalidate a statute which was
reasonable and valid when enacted."
Three justices signed a strong dissent authored by Justice Shenk
in Perez . This dissent is worth considering because it so
closely tracks many arguments used by the opponents of the
current measure. The dissent first points out that
anti-miscegenation laws "have been in effect in this country
since before our national independence and in this state since
our first legislative session. They have never been declared
unconstitutional by any court in the land, although frequently
they have been under attack." The dissent then briefly
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dismisses the petitioner's claim that the statute violated her
religious freedom, since nothing in the petitioner's religion
required her to marry someone of another race.
It is then the dissent focuses on the state's traditional power
over matrimony.
"The institution of matrimony is the foundation of
society, and the community at large has an interest in
the maintenance of its integrity and purity."
"The right to regulate marriage, the age at which
persons may enter into that relation, the manner in which
the rites may be celebrated, and the persons between whom
it may be contracted, has been assumed and exercised by
every civilized and Christian nation."
"Twenty-nine states in addition to California have
similar laws. . . . Six of these states have regarded the
matter to be of such importance that they have by
constitutional enactments prohibited their legislatures
from passing any law legalizing marriage between white
persons and Negroes or mulattoes. Several states refuse
to recognize such marriages even if performed where
valid."
The dissent then examines what was then the current biological
and social science, as well as theological studies, about the
injurious effect of race-mixing on the population.
While much in the dissent (and a great deal of the arguments
answered in the majority opinion) is highly offensive to our
present-day understandings about race, and is not included here,
the more relevant point for purposes of the current bill is that
this closely-divided opinion made by our Supreme Court over half
a century ago, which was bitterly contested at the time, has not
only stood the test of the ages, but stands today as a model of
a judiciary that is able to look beyond the prejudices of the
day to the core constitutional question of equality, and the
fundamental liberties guaranteed to individuals under our
constitution. The Perez decision has been relied upon by every
state supreme court which has addressed the issue of marriage by
same-sex couples, and its implications for any future court
decisions on the equal protection issue raised by this
legislation appear clear.
C. Other constitutional authority
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To date, as noted, three other state supreme courts have
addressed the question of whether a state law, like
California's, that defines marriage in terms which exclude
partners of the same sex violates the state constitution. In
each case, the court has ruled in favor of the same-sex couples.
The most recent and most relevant decisions are those of the
Massachusetts Supreme Judicial Court.
(i). Goodridge v. Dept. of Public Health: The Massachuetts
Cases
(a.) Goodridge I: Most recently, the Supreme Judicial Court of
Massachusetts ruled in 2003 that the Massachusetts Constitution
is violated by laws which exclude same-sex couples from
marriage. The court began its analysis by noting that civil
marriage in Massachusetts is a "wholly secular institution,"
distinct from religious recognition of marriages. It "anchors
an ordered society by encouraging stable relationships over
transient ones," and "bestows enormous private and social
advantages on those who choose to marry. Civil marriage is at
once a deeply personal commitment to another human being and a
highly public celebration of the ideals of mutuality,
companionship, intimacy, fidelity, and family." After surveying
an abundance of state benefits that flow to a married couple,
their children, and the community in which they live, the court
then cites the Vermont Supreme Court's decision in Baker v.
State for the proposition that, without the right to marry,
individuals are excluded from the "full range of human
experience," and are expressly denied the equal protection of
the laws. The court then states its final holding, in
unambiguous language:
The marriage ban works a deep and scarring hardship on
a very real segment of the community for no rational
reason. The absence of any reasonable relationship
between, on the one hand, an absolute disqualification
of same-sex couples who wish to enter into civil
marriage and, on the other, protection of public
health, safety, or general welfare, suggests that the
marriage restriction is rooted in persistent
prejudices against persons who are (or who are
believed to be) homosexual. 'The Constitution cannot
control such prejudices but neither can it tolerate
them. Private biases may be outside the reach of the
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law, but the law cannot, directly or indirectly, give
them effect.' Limiting the protections, benefits, and
obligations of civil marriage to opposite-sex couples
violates the basic premises of individual liberty and
equality under law protected by the Massachusetts
Constitution." (Emphasis added and citation omitted.)
(b.) Goodridge II - "separate is seldom, if ever, equal":
Three months later, in February 2004, the Supreme Judicial Court
responded to a query from the state legislature, which was
grappling with how to implement the court's edict in Goodridge
I. The court then issued an advisory opinion to answer the
question of whether a Vermont-style civil unions bill, giving
lesbians and gay men all of the rights, privileges and
immunities of marriage under a name other than marriage would
comply with Goodridge I. The court answered in the negative,
stating that: "The history of our nation has demonstrated that
separate is seldom, if ever, equal." The court could see no
basis at all for granting same-sex couples virtually every
aspect of marriage, while withholding only the name. The
quarantining of same-sex spouses from opposite-sex spouses was
more than just semantic: the court found that a government
withholding of the name of marriage to same-sex couples "is a
considered choice of language that reflects a demonstrable
assigning of same-sex, largely homosexual, couples to
second-class status." (Emphasis added.) This could not be
consistent with the rule of equality set out so explicitly in
the state constitution. It would have the effect of
"maintaining and fostering a stigma of exclusion that the
Constitution prohibits." Therefore, in Massachusetts, only
equal marriage rights will satisfy the constitutional
requirements.
(iii). Recent U.S. Supreme Court cases: Finally, two cases
from the U.S. Supreme court decided by 6-3 majorities, have
recently addressed concerns that appear quite relevant to the
pending bill. In Romer v. Evans , 517 U.S. 620 (1996), the court
overturned Colorado's Amendment 2, which would have amended the
Colorado Constitution to exclude lesbians and gay men from
obtaining legal protection. The court specifically noted that
animus against a political minority is an improper motive under
the U.S. Constitution's Fourteenth Amendment. The Colorado
amendment was "a broad and undifferentiated disability on a
single named group," and was thus invalid. The court concluded
its opinion with the following: "We must conclude that Amendment
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2 classifies homosexuals not to further a proper legislative end
but to make them unequal to everyone else. This Colorado cannot
do. A State cannot so deem a class of persons a stranger to its
laws."
More recently, the court held last year in Lawrence v. Texas ,
123 S.Ct. 2472 (2003) that the U.S. Constitution's protection of
a liberty interest in private, consensual adult sexual relations
applies to gay men and lesbians and that their relationships are
entitled to dignity and respect. The Court did not need to
decide whether gay men and lesbians have a constitutional right
to marry, and the Court expressly left that question open. In
dissent, Justice Scalia argued that the majority's opinion would
logically lead to recognition of marriage rights, as well, just
as he had argued in dissent in Romer that Romer would lead to
the result the Court ultimately reached in Lawrence.
D. Rationales offered for opposite-sex only marriage laws so
far unaccepted by high courts
The rationales that Hawaii, Vermont, and Massachusetts have
offered in unsuccessful defense (at least so far) of their laws
excluding same-sex couples from the protections of marriage are
similar and may be examined as a group. Many of these arguments
are currently offered in opposition to the current bill, as seen
below in the summary of arguments against this bill.
Traditional Definition Of Marriage: First is the notion that
marriage has always been defined as a relationship between a man
and a woman. There is appeal to this argument. While it is true
that marriage has been defined in several other ways, the
traditional understanding of marriage has been that its
participants will be a husband and a wife. However the argument
that marriage simply is an arrangement between one man and one
woman, and has always been that way, is similar to the argument
rejected in Perez v. Lippold . Under the rule in that case,
tradition alone, no matter how longstanding, cannot justify
excluding a class of couples from marriage.
Procreation: In all three state supreme court cases, the states
argued that marriage's primary purpose is procreation. But the
courts have consistently noted that procreation is not a
requirement in any state's marriage laws. Nor is there a
requirement under state marriage laws for any intent to
procreate in marriage. A state that wanted to support marriage
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based on this rationale would appear logically to have to
exclude all non-procreative couples, including non-procreative
heterosexual couples, from marriage. On the other hand, it also
must be acknowledged that this is a very powerful concern to
many members of society, and there do not appear to be any
definitive studies available to determine the social as opposed
to legal issues of this question.
Raising Children: Related to the argument only heterosexual
couples can procreate (which is no longer technologically true)
is the argument only traditional marriage can effectively lead
to a stable home for child rearing. This is, in the Vermont
case, framed as "furthering the link between procreation and
child-rearing." There appears to be little debate that the
legal stability of marriage helps further this sound public
policy. The provision of benefits to the married spouses
encourages the fulfillment of their mutual commitment, and thus
helps to further a valid state goal of maintaining stable
families that will benefit the couple's children. But the
courts have been consistent in pointing out that this would
benefit same-sex couples raising children as much as it benefits
opposite-sex couples. And, significantly, this policy does not
come into play for couples who have no children or whose
children are grown.
On the other hand, it must be noted that this is also an issue
of tremendous concern to many in society that is not easily
resolved or dismissed, and will ultimately play an important
role amongst policy-makers and the courts in grappling with this
challenging question.
Optimal Setting: A related rationale (raised, so far, only in
the Massachusetts case) is that two heterosexual parents are the
"optimal" setting for child rearing. However, in light of the
state's concession that homosexual couples could be "excellent"
parents (a fact borne out by scientific study and research noted
by the court) this reasoning, too, was incapable of supporting a
definition of marriage that excludes homosexuals. If the
quality of the parents is the issue, the state would have to use
something other than the sexual orientation of the parents as a
marker for quality. Thus, in the Vermont case, the state
posited that the marriage definition could be supported by a
desire to have children raised in homes with both a male and a
female role model. That rationale, however, would justify only
a regime that limited marriage to those with children and that
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prohibited single parents or same-sex couples from raising or
adopting children. Vermont law, like California law,
specifically allows same-sex couples to adopt, and the rationale
was insufficient to withstand judicial scrutiny. In addition,
the California Supreme Court may have foreclosed such a line of
argument in upholding second-parent adoptions by domestic
partners. In Sharon S. v. Superior Court (Annette F.) (2003) 31
Cal. 4th 417, 438-39, California's high court rejected the
argument that affirming second parent adoptions "would offend
the State's strong public interest in promoting marriage" and
stated instead: "[O]ur decision encourages and strengthens
family bonds."
Again, however, this concern is mentioned frequently by
opponents of this legislation and they accurately note there are
not any definitive studies that appear yet to answer this
question one way or the other.
Thus, an analysis of the bases provided by states defending
their prohibitions on 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,
And in California, it seems possible if not likely that the
exclusion of same-sex couples may be subjected to an even more
demanding level of scrutiny by the courts, given that
California's courts have applied the strictest level of
constitutional scrutiny to laws that discriminate based on
gender. Nevertheless, this is not to say that if and when this
state's highest court is confronted with this question that the
court might find that some or all of the above concerns
adequately support the propriety of California's current
"opposite sex" requirement for marriage under Family Code
section 300.
ARGUMENTS IN SUPPORT : Many groups and individuals wrote in
support of this measure. Reflecting their support are the
following letters.
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The American Civil Liberties Union asserts that "While the
enactment of recent domestic partnership legislation provides
tangible benefits for couples, it also sets up a separate and
unequal system for gay and lesbian people. Moreover, domestic
partnerships do nothing to assist bi-national couples, tax
discrimination, federal employees and a multitude of scenarios
faced by same-sex couples that extend beyond the borders of our
state."
The Mexican American Legal Defense and Educational Fund (MALDEF)
underscores the unique and enormously beneficial impact the
status of marriage has for an individual, whether in a same-sex
or opposite sex relationship: "Marriage has been called 'the
most important relation in life,'" and the benefits of marriage
are many, reaching far beyond legal benefits to include
physical, mental, and economic benefits. Married individuals
live longer, have better emotional and physical health, and save
more. Same-sex couples should be able to share benefits like
these too."
The Unitarian Universalist Legislative Ministry of California
addresses the concern opponents raise about children and in
support of this bill, write "Some feel awkward explaining to
their children the concept of two men or two women marrying. Our
own congregations are examples of predominantly straight
communities, which have grown to become fully accepting of gay
and lesbian couples and their families. For over 25 years, our
clergy have been officiating at same gender weddings. We have
found that the children in our congregations, raised by
accepting parents in inclusive communities, take the love and
commitment between two people at face value. They have no
trouble with the gay and lesbian couples and their children who
are part of our congregations."
ARGUMENTS IN OPPOSITION: Many groups and individuals wrote in
opposition to this measure. Reflecting their concerns are the
following letters.
The Committee on Moral Concerns , original sponsors of
Proposition 22, oppose the bill because, they believe, it
violates the will and vote of the people and the California
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constitution. The Committee on Moral Concerns believes passage
of AB1967 would "completely destroy the uniqueness of marriage
for a man and a woman and turn the sacred institution of
marriage upside down."
The Traditional Values Coalition maintains that "homosexuals
want to destroy marriage as an institution-not benefit from it."
In addition, the Coalition writes: "The full granting of all
rights of marriage to same-sex couples will prove to be a burden
to society in many areas as taxpayer dollars will follow.
Federally funded programs, employee health plans, Medi-Cal
benefits, and school curriculum would have to be altered at
taxpayer expense reflecting the newly sanctioned 'marriages' and
new definition of 'family.'"
The Campaign for California Families believes marriage is a
sacred institution with unique attributes to be realized and
shared only by the union of a man and woman. The Campaign
further asserts AB 1967 is unconstitutional because it violates
the will of the people as expressed in Proposition 22.
The Capitol Resource Institute posits its concerns for children
and an overall slippery slope of moral degradation within our
society in general by writing: "Adults should not put their
sexual desires ahead of the needs of children. Studies show us
that children need a mom and a dad. Society should not gamble
with the lives of children by permitting gay marriage. History
has never before seen this kind of social experiment. . . .
When we don't define marriage as between one man and one woman,
marriage loses all significance. It can become anything anybody
wants it to be."
Responsible Citizens, Inc. believes the homosexual union to be
an "unnatural and dangerous" one, contrary to the union between
a man and a woman, "the basis for all civilization." RCI writes
that if AB 1967 passes, "the underlying principles of everything
that built the greatest nation in history will vanish. By
abandoning our culture's basic principles of morality, the bill
will leave no moral rationale to prevent multiple marriages,
communal families, or exploitation of the physically weak or the
politically powerless. Furthermore, there will be no moral
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ground remaining from which to humanely control the new
bio-frontiers of human cloning, a genetically altered work or
military force, or any other future aspect of humanity." RCI
also asserts that gay marriage is not a civil right because gay
marriage is about homosexuality and consequently, about a
specific sexual action unworthy of protection. RCI states:
"There is no more a civil right to public recognition and
benefits for abnormal sexual practices than there is a civil
right and public recognition and benefits for snoring, smoking,
or picking one's nose."
Author's Amendments -- Summary of legislative findings : The
author has amended the bill to include legislative findings. In
brief, these findings state the fundamental importance of the
institution of marriage, both to children and to the partners,
and note that it is not the Legislature's intent to either
affect the provisions of section 308.5 of the Family Code,
relating to recognition of marriages contracted in other states,
or to alter the ability of religions to perform or recognize
marriages that fall within their own faith tradition.
PRIOR RELATED LEGISLATION : In analyzing the merits of this
proposal, a brief review of recent legislative efforts to
recognize expanding rights for same-sex couples is instructive.
In 1999, this Committee held hearings on a proposal to provide
for civil unions (AB 1338, Koretz), and the Legislature
subsequently enacted AB 26 (Migden), Ch. 588, Stats. of 1999, to
create the state's first domestic partnership statute. This
statute, which forms the backbone of California's domestic
partnership law, provided for domestic partnerships to be
registered with the Secretary of State, for public employers to
offer health benefits to domestic partners, and to recognize the
right of domestic partners to visit their partners in the
hospital.
In 2001 and 2002, the Legislature again broadened the rights of
domestic partners in AB 25 (Migden), Ch. 893, Stats. of 2001,
and AB 2216 (Keeley), Ch. 447, Stats. of 2002. Then last year,
AB 205 (Goldberg) was enacted to provide a more comprehensive
set of rights and responsibilities to registered domestic
partners. That bill goes into effect on January 1, 2005. A.B.
205's legislative findings acknowledge that it was designed to
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reduce discrimination based on sex and on sexual orientation.
While the bill still excludes some significant rights that
married couples are entitled to (for example, the right to file
a joint state tax return), it brings registered domestic
partners closer to equality with their legally married
counterparts. The bill, however, lacks the all-inclusive nature
of Vermont's Civil Unions, and continues its treatment of
domestic partnerships as a purely contractual relationship which
the state recognizes, rather than providing the ceremonial
participation of the state that characterizes both Civil Unions
and marriages.
REGISTERED SUPPORT / OPPOSITION :
Support
Equality California (Sponsor)
American Civil Liberties Union
American Federation of State, County, and Municipal Employees
Asian American Legal Center of Southern California
Asian Americans for Civil Rights and Equality
California Council of Churches and California IMPACT
California National Organization for Women
California Safe Schools Coalition
California State Employees Association
California Teachers Association
Charles M. Holmes Campus of the Center
City of West Hollywood
Congregation Kol Ami
Eleanor Roosevelt Democratic Club, Orange County
Family Law Section of the Los Angeles County Bar Association
Freedom to Marry Coalition of California
Gay & Lesbian Alumni of Notre Dame
Golden Gate Lutheran Church
Immigration Equality
Lambda Legal
Legal Aid Society-Employment Law Center
Marriage Equality California
Metropolitan Community Church, Los Angeles
Mexican American Legal Defense Fund
National Center for Lesbian Rights
Our Family Coalition
Parents, Families and Friends of Lesbians and Gays, Pasadena &
San Francisco
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Pride at Work, Southern California
San Francisco AIDS Foundation
San Francisco Labor Council
San Francisco LGBT Community Center
Silver Lake Neighborhood Council
Stonewall Democratic Club of Greater Sacramento
Tenderloin Housing Clinic
Transgender Law Center
Unitarian Universalist Legislative Ministry California
United Church of Christ, Northern California Nevada Conference
University Lutheran Chapel
West Hollywood Presbyterian Church
Many Individuals
Opposition
Calvary Christian Academy
Campaign for California Families
Capitol Resource Institute
Committee on Moral Concerns
Faith Baptist Tabernacle
Our Lady of the Assumption Church
Pacific Union Conference of Seventh-day Adventists
Responsible Citizens, Inc.
Southpointe Christian School
Traditional Values Coalition
Women Volunteers in Politics
Many Individuals
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334