BILL ANALYSIS SENATE JUDICIARY COMMITTEE Senator Joseph L. Dunn, Chair 2005-2006 Regular Session AB 849 A Assembly Member Leno B As Amended June 28, 2005 Hearing Date: July 12, 2005 8 Family Code 4 GMO 9 SUBJECT Marriage DESCRIPTION This bill would redefine "marriage" in California as a union between two persons, making it gender-neutral and thereby permitting same-sex marriages in the state. It would not, however, require any clergy or religious official to solemnize any marriage in violation of his or her right to free exercise of religion as guaranteed by the United States Constitution and the California Constitution. The bill contains legislative findings and declarations that it does not amend or modify Section 308.5 of the Family Code that declares only a marriage between a man and a woman is valid or recognized in California. Section 308.5 was enacted by the initiative Proposition 22 in 2000. The bill contains other findings and declarations regarding the history of statutes and decisional law that define marriage relative to gender neutrality or that address the constitutional infirmity of statutes that limit the ability to marry to heterosexual couples. Finally, the bill declares the Legislature's intent to end marriage discrimination in California without altering Section 308.5 of the Family Code. BACKGROUND (more) AB 849 (Leno) Page 2 Since the Hawaii Supreme Court's decision in Baehr v. Lewin , (1993) 852 P. 2d 44, finding that Hawaii law banning same-sex marriage violated the equal protection clause of the Hawaii Constitution, same-sex marriage has been debated across the United States in various fora and on different platforms. Beginning with AB 1982 (Knight, 1996), and followed by AB 3227 (Knight, 1996) and SB 911 (Knight, 1997), the Legislature has dealt with a procession of measures designed to embed in California statutory law a public policy that makes a marriage, though valid in another state, invalid in this state if it is not a marriage between a man and a woman. In addition, the measures would add a corollary to that public policy, that a same-sex union or relationship treated as a marriage by another jurisdiction is contrary to the public policy of this state and shall be void ab initio. These bills (AB 1982, AB 3227, and SB 911) were never enacted, but they did engender vigorous debate on the constitutionality of a state statute that may violate the full faith and credit clause of the United States Constitution. The author of those measures eventually spearheaded an initiative, Proposition 22, that did enact Family Code 308.5 to provide that only a marriage between a man and a woman is valid and recognized in California. Defense of Marriage Acts and legislative history of AB 205, the California Domestic Partner Rights and Responsibilities Act of 2003 In 1996, Congress passed and President Clinton signed the In Defense of Marriage Act. The Act, for purposes of federal benefits, defines marriage as "a union between a man and a woman," and then allows states to refuse to recognize same-sex marriages performed in other states. "As any good federalist should recognize, this law leaves states the appropriate amount of wiggle room to decide their own definitions of marriage or other similar social compacts, free of federal meddling, " stated former Congressman Barr, R-GA in August 2003. In 1999, AB 26 (Migden), Chapter 588, Statutes of 1999, enacted the Domestic Partnership Act, established the statewide domestic partnership registry, provided registered domestic partners hospital visitation rights, AB 849 (Leno) Page 3 and granted health benefits to domestic partners of state employees. In March 2000, the initiative Proposition 22, named the California Defense of Marriage Act, was adopted by the state. The initiative enacted Family Code Section 308.5, which provides, "[o]nly marriage between a man and a woman is valid or recognized in California." Undaunted by both the federal In Defense of Marriage Act and Proposition 22, equal rights advocates, since passage of AB 26, have been marching California towards parity in rights and benefits between domestic partners and married couples under state law. Following on the heels of AB 26, in the following year SB 2011 (Escutia, Chapter 1004, Statutes of 2000) qualified registered domestic partners for housing in specially designed accessible housing for senior citizens. Two years later, AB 25 (Migden, Chapter 893, Statutes of 2001) granted 12 new rights and benefits to registered domestic partners, including the right to sue for wrongful death, to use employee sick leave to care for an ill partner or partner's child, to make medical decisions on behalf of an incapacitated partner, to receive unemployment benefits if forced to relocate because of a partner's job, and to adopt a partner's child as a stepparent. SB 1049 (Speier, Chapter 146, Statutes of 2001) permitted San Mateo County to offer death benefits to surviving domestic partners of county employees. AB 2216 (Keeley, Ch. 447, Statutes of 2002) conferred intestacy rights to registered domestic partners. Finally, the California Domestic Partner Rights and Responsibilities Act of 2003 (AB 205, Goldberg, Chapter 421, Statutes of 2003) recast all of the previous legislation relating to domestic partnerships and extended to registered domestic partners substantially all rights, benefits, and obligations of married persons under state law, with the exception of rights, benefits, and obligations accorded only to married persons by federal law, the California Constitution, or initiative statutes. AB 205 specifically recognized a legal union of the same sex that was validly formed in another jurisdiction as substantially equivalent to a registered domestic AB 849 (Leno) Page 4 partnership in the state, whether or not the legal union is called a domestic partnership, and thus accord those legal unions the same status, rights and obligations (Family Code Section 299.2). In enacting AB 205, the Legislature was advised by Legislative Counsel in an opinion dated March 24, 2003, that the bill would not constitute an amendment of Proposition 22, and therefore the bill would not require the approval of the voters. A recent appellate decision, Knight v. Superior Court (Schwarzenegger et al.) (2005) 128 CA 4th 14, reached the same conclusion. In the last week of June 2005, the Supreme Court declined to grant a hearing of Knight. A similar appellate decision was rendered in Armijo v. Miles (2005) 127 Cal.App.4th 1405. 2004: The debate heightens -- San Francisco issues marriage licenses, Congress weighs in, constitutional amendments pass in November In 2004, several events once again brought to the forefront the issues of same-sex marriages, civil unions, and domestic partnerships. On February 24, 2004, President Bush endorsed the idea of an amendment to the U.S. Constitution to ban same-sex marriages in the country. This endorsement followed a flurry of events surrounding same-sex marriages, including the issuance of marriage licenses to same-sex couples in San Francisco the week before; the Massachusetts high court decision stating that only marriage - not civil unions - would provide same-sex couples equal protection under that state's constitution; the decision of the Canadian Supreme Court invalidating a prohibition against same-sex marriages; and the introduction of two bills in the U.S. Congress (in 2003) to amend the U.S. Constitution to define marriage as only between a man and a woman. Two other congressional measures were introduced in March and July of 2004, both declaring that marriage in the United States shall consist only of a union between a man and a woman. [S.J. Res. 30 and H.R. 4892.] These congressional measures are opposed by many members of both the Democratic and Republican parties and died in their respective houses. Last year, this Legislature enacted AJR 85 (Leno, Res. Ch. 172, 2004), a resolution to be delivered to the President of the United States indicating this state's opposition to AB 849 (Leno) Page 5 "any federal enactment designed to prohibit or restrict the provision of rights and obligations under the law for same-sex couples and their families." In November, 2004, constitutional amendments banning same-sex marriages (and civil unions in some but not others) were passed in several states. Current events: AB 19, SCA 1 and ACA 3 and the courts and others High courts of two states have held that same-sex couples are entitled to the privileges of civil marriage. [ Goodridge v. Department of Public Health , 440 Mass. 309, 798 N.E.2d 941 (2003); Baker v. State , 170 Vt. 194, 744 A. 2d 864 (1999).] In California, Superior Court Judge Kramer in San Francisco ruled that Family Code Sections 300 and 308.5 (enacted by Proposition 22), effectively banning same-sex marriages in the state, violate the equal protection clause of the California Constitution. The court's decision, issued March 14, 2005, applied to cases filed in San Francisco after the state Supreme Court halted the city's issuance of marriage licenses to same-sex couples. [ Coordination Proceeding, Special Title (Rule 1550(c), Marriage Cases , Judicial Council Coordination Proceeding No. 4365.] On April 4, 2005, the Third District of the Court of Appeal ruled in Knight v. Superior Court (Schwarzenegger) , supra, that the Legislature's enactment of the California Domestic Partners Rights and Responsibilities Act (AB 205) did not constitute an amendment of the defense of marriage initiative (Proposition 22, Family Code Sec. 308.5) and thus, the Legislature's action without separate voter approval did not violate article II, section 10, subdivision (c) of the California Constitution. Knight and another case on the same issue, Armijo v. Miles , supra, are discussed further in Comment 2. The Supreme Court declined to grant a hearing on Knight in late June 2005. AB 19 (Leno, 2005) is identical to AB 849. It would redefine "marriage" in California as a union between two persons, making it gender-neutral and thereby permitting same-sex marriages in the state. AB 19 failed passage after two roll call votes were taken on the Assembly Floor. AB 849 (Leno) Page 6 Its contents were then amended into AB 849. Similar measures failed passage in recent legislative sessions [AB 1338 (Koretz, 2001, died in the Assembly Judiciary Committee) and AB 1967 (Leno, 2004, died in the Assembly Appropriations Committee)]. SCA 1 (Morrow) and ACA 3 (Haynes) are identical measures that intend to place before the voters a constitutional amendment not only to ban same-sex marriages, whether contracted in California or elsewhere, but also to prohibit the state from granting or bestowing the rights and obligations of marriage on unions other than a valid marriage between a man and a woman. SCA 1 failed passage in this committee. ACA 3 failed passage in the Assembly Judiciary Committee. CHANGES TO EXISTING LAW 1. Existing law provides that marriage is a personal relation arising out of a civil contract between a man and a woman, to which each of the parties capable of consenting may consent, followed by issuance of a license and solemnization. [Family Code Sec. 300.] [All other references are to the Family Code unless otherwise indicated.] This bill would change "a man and a woman" in the above statute to "two persons." This bill would further state that where necessary to implement the rights and responsibilities of spouses under the law, gender-specific terms are to be construed as gender-neutral, except with respect to Sec. 308.5. 2. Existing law provides that an unmarried male of age 18 years or older and an unmarried female of age 18 years or older, who are not otherwise disqualified, are capable of consenting to and consummating a marriage. [Sec. 301.] This bill would instead provide that two unmarried persons of age 18 years or older who are not otherwise disqualified are capable of consenting to and consummating marriage. AB 849 (Leno) Page 7 Existing law provides that an unmarried male or female under the age of 18 years is capable of consenting to and consummating marriage with the written consent of the parent, parents or guardian of each underage person or with a court order granting permission to the underage person to marry. [Sec. 302.] This bill would delete "unmarried male or female" and replace it with "unmarried person." 3. Existing law authorizes specified persons to solemnize a marriage, including a priest, minister or rabbi of any religious denomination and a county-licensed official of a nonprofit religious institution whose articles of incorporation are registered with the Secretary of State, as well as judges, commissioners, legislators, and other constitutional officers. [Sec. 400.] This bill would specify that no priest, minister or rabbi of any religious denomination and no official of any nonprofit religious institution authorized to solemnize marriages shall be required to solemnize any marriage in violation of his or her right to free exercise of religion guaranteed by the First Amendment of the U.S. Constitution or by Section 4 of Article I of the California Constitution. [Proposed Sec. 403.] To this end the bill contains a statement of legislative intent that the act be interpreted consistently with the guarantees of the First Amendment of the U.S. Constitution and of the California Constitution. 4. Existing law provides that only a marriage between a man and a woman is valid or recognized in California. [Family Code Sec. 308.5 (adopted by initiative, Proposition 22).] This bill would specify the Legislature's intent that AB 849 (this act) not amend or modify Sec. 308.5 to the extent Sec. 308.5 addresses only marriages from other jurisdictions. This bill also would specify the Legislature's intent to correct only the constitutional infirmities of Sec. 300 and not those of Sec. 308.5, even though both sections were found unconstitutional by a state coordination trial judge appointed by the Judicial AB 849 (Leno) Page 8 Council. 5. This bill contains legislative findings relating to civil marriage as recognized by the state, the institution of marriage, the California Supreme Court's decision in Perez v. Sharp (1948) 32 Cal. 2d 711, the high courts' decisions in the states of Hawaii, Vermont, and Massachusetts that denial of legal rights and obligations of marriage to same-sex couples is constitutionally suspect or impermissible, and declarations that California's discriminatory exclusion of same-sex couples from marriage harms same-sex couples and their families and that the Legislature has an interest in encouraging stable relationships regardless of the gender or sexual orientation of the partners. 6. This act would be named the "Religious Freedom and Civil Marriage Protection Act." COMMENT 1. Stated need for the bill The author states: The purpose of the "Religious Freedom and Civil Marriage Protection Act" is to end discrimination against same-sex couples in the issuance of marriage licenses in California. California law currently defines marriage as "a personal relation arising out of a civil contract between a man and a woman." It is the author's position that this definition violates the guarantees of privacy, due process, and equal protection of the law in the California Constitution. The bill could remedy this violation by amending Family Code Section 300 to read: "Marriage is a personal relation arising out of a civil contract between two persons." The Family Code would thus contain no bar to the issuance of marriage licenses to same sex couples under California law. For 127 years, from 1850 to 1977, California marriage law was gender-neutral, containing no AB 849 (Leno) Page 9 reference to "man" or "woman." The Religious Freedom and Civil Marriage Protection Act simply would restore the pre-1977 language to the Family Code in order to provide equal marriage rights to same-sex couples. Although California's domestic partner laws provide many of the benefits, obligations, and protections to same-sex couples that are afforded to married heterosexual partners, domestic partnerships are not equal to marriage?.[L]egal distinctions between heterosexual and same-sex couples relegate lesbian, gay, and bisexual Californians to second-class status and constitute an impermissible use of government power to stigmatize same-sex couples and their families with a brand of inferiority. ?The Act thus explicitly affirms the freedom of clergy members to refuse to perform marriages for same-sex partners, while also providing equal respect to those religions that bless and treat the committed life partnerships of same-sex couples as valid marriages to be honored and enforced in the same manner as other marriages. 2. Would AB 849 affect Family Code Section 308.5, which was enacted by Proposition 22? This bill contains intent language stating that while it intends to end the pernicious practice of marriage discrimination in California, it in no way intends to alter Section 308.5 of the Family Code, which prohibits California from treating as valid or otherwise recognizing marriages of same-sex couples solemnized outside of California. The bill further states that the "constitutional infirmities" of Family Code Section 308.5, which was enacted through the initiative process, cannot be corrected by the Legislature, leaving the determination of its validity to the California Supreme Court. Family Code Section 308.5 states: "Only marriage between a man and a woman is valid and recognized in California." Whether or not Section 308.5 is constitutionally infirm is now under consideration by the Court in the Judicial AB 849 (Leno) Page 10 Council Coordination Proceedings No. 4365 (consolidating the San Francisco cases) (herinafter Coordination Proceedings) . Opponents of AB 849 contend that the bill "disregards the will of the people clearly stated in [Proposition 22]?Without submitting the matter to the voters, the Legislature cannot change this absolute refusal to recognize marriages between persons of the same sex?Thus, AB 849 would not only circumvent the people's will, but is a violation of the California Constitution." [Letter from Concerned Women for America, dated July 1, 2005.] They further argue that despite AB 849's intent language not to affect Section 308.5, the changes that would be made to other sections of the Family Code "strips the gender-specific language of current law" and "is clearly designed to pose a contradiction in law that would be subject to legal challenge in the hopes of undermining the language enacted through Proposition 22." This tactic [of gutting AB 849 and inserting the AB 19 language into that bill] gives added weight to Judge Kramer's rationale for striking down Sections 300 and 308.5 in the Coordination Proceedings , says the Traditional Values Coalition (TVC) in its letter dated July 1, 2005. Proponents of AB 849 on the other hand argue that Proposition 22 was designed to protect state sovereignty, nothing more. The ballot arguments in support of Prop. 22 made clear the proposition was directed at preventing recognition of same-sex marriages performed outside the state. Under this narrow reading, the Legislature may, without a vote of the people, properly permit same-sex partners to marry within California, even if it may not recognize same-sex marriages contracted in other states. This narrow reading of Prop. 22 was supported by the Second District of the Court of Appeal, in Armijo v. Miles (2005) 127 Cal.App.4th 1405. The court there stated, "Proposition 22 was crafted with a prophylactic purpose in mind. It was designed to prevent same-sex couples who could marry validly in other countries or who in the future could marry validly in other states from coming to California and claiming, in reliance on Family AB 849 (Leno) Page 11 Code section 308, that their marriages must be recognized as valid marriages. With the passage of Proposition 22, then, only opposite-sex marriages validly contracted outside this state will be recognized as valid in California. Same-sex marriages will be given no recognition." Another court read the initiative measure more broadly, stating that the plain language of Prop. 22 and Section 308.5 reaffirms the definition of marriage in Section 300. "This limitation ensures that California will not legitimize or recognize same-sex marriages from other jurisdictions, as it otherwise would be required to do pursuant to section 308, and that California will not permit same-sex partners to validly marry within the state." [ Knight v. Superior Court , supra.] Knight validated the Domestic Partnership Act as being not in conflict with Prop. 22. Its appeal has been refused by the California Supreme Court. AB 849 contains limiting language that states it would not amend or modify Sec. 308.5 to the extent that Sec. 308.5 addresses only marriages from other jurisdictions. In effect, if Sec. 308.5 is interpreted by the Supreme Court to apply to same-sex marriages contracted in California , AB 849, if enacted, will indeed need to be voted on by the people to become effective. If Sec. 308.5 is struck down as unconstitutional, the amendments to the Family Code made by AB 849 would be effective as to same-sex couples who married in other jurisdictions. 3. AB 849 joins the Legislature to the constitutional challenge to Sections 300 and 308.5 now in the courts Both AB 849 and AB 19 (Leno, 2005), which failed passage in the Assembly, represent a serious legislative challenge to the constitutionality of California's law defining marriage as "a personal relation arising out of a civil contract between a man and a woman" (Family Code Section 300) and the Proposition 22 enactment declaring that "only marriage between a man and a woman is valid or recognized in California" (Family Code Section 308.5). The bills address a question now moving its way through the courts: whether those two Family Code sections violate the equal protection and privacy provisions of AB 849 (Leno) Page 12 the California Constitution. The case, Judicial Council Coordination Proceeding No. 4365 (consolidating the San Francisco cases) is being appealed. The Governor and the state, represented by the Attorney General, have requested the Supreme Court to take the appeal of the trial court's decision directly. There is no decision from the Supreme Court as yet. Judge Richard Kramer, in the San Francisco consolidated cases directly challenging the two Family Code provisions, determined these two provisions are unconstitutional in that they deprive a discreet class of citizens equal protection guaranteed under the California Constitution. By now proposing to change Section 300 of the Family Code (though not 308.5, because it was enacted by Proposition 22), the Legislature has been joined to determine that the current language of Section 300, defining marriage in terms of a civil contract between a consenting man and a consenting woman violates the California Constitution and must be changed to allow same-sex couples to marry in the state. Thus, the rationale behind Family Code Section 300 should be reassessed against the following analysis of the Legislature's historic responsibility to define civil relationships in the state. a. The history of Family Code Section 300 shows apparent animus against a minority (gay men and lesbians), which is suspect under the U.S. Constitution and the California Constitution The responsibility for defining the parameters of civil marriage and other societal relationships has been left to the legislatures of the states. Even under the federal In Defense of Marriage Act, the states were left to legislate what would and would not be recognized as a valid marriage. The definition of civil marriage "is a matter about which the people of the State of California have now or may have in the future differing viewpoints," according to the California Attorney General. AB 849 (Leno) Page 13 Family Code Section 300, enacted in 1992, replaced former Civil Code Section 4100, which prior to 1977 defined marriage as "a personal relation arising out of a civil contract, to which the consent of the parties capable of making it is necessary." There was no reference to this relation being limited to one between a man and a woman until 1977, when a perceived ambiguity in the law regarding who may consent to marriage was resolved in what is now Section 301. That amendment spilled over into a reworking of Section 4100 (now Section 300), manifesting the clear intent of the Legislature and then-Governor Jerry Brown to exclude gay men and lesbians from the right to marry their partners under California law. A similar treatment of gay men and lesbians under a Colorado referendum amendment to that state's constitution (precluding all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their homosexual, lesbian or bisexual orientation, conduct, practices, or relationships) was held constitutionally suspect in Romer v. Evans (1996) 517 U.S. 620. In a 6-3 decision (Justices Scalia, Rehnquist and Thomas dissenting), the U.S. Supreme Court upheld the Colorado Supreme Court, holding that the amendment "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. [The] amendment?violates the Equal Protection Clause?" While Romer did not specifically declare homosexuals as a suspect class, its holding remains the law of the land. b. Perez v. Sharp bans arbitrary classifications of groups or races in determining who may marry; infringement on the right to marry must be based upon more than prejudice The California Supreme Court's decision in Perez v. Sharp (1948) 32 Cal. 2d 711 was the first in the nation to address a statute prohibiting persons from marrying outside of their race. The decision preceded AB 849 (Leno) Page 14 the U.S. Supreme Court's decision in Loving v. Virginia 388 U.S. 1 (1967) on the same question by almost 20 years. In Perez , the Supreme Court held that the state's law banning interracial marriage was unconstitutional. The California statute then 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 Court held that "liberty" within the meaning of the due process clause included the "right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, to establish a home, and bring up children?." It also held that any infringement of that right (to marry) "must be based on 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," and that any legislation prohibiting marriage between specific individuals would have to be specific to the individuals and cannot be based on "arbitrary classifications of groups or races" as a substitute. "The right to marry is the right of individuals, not of racial groups." [Id. at 716.] In his concurring opinion rejecting all the justifications proferred to support the constitutionality of the state law then, Justice Carter stated: 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. The rule is that the constitutionality of a statute is not determined once and for all by a decision upholding it. A change of conditions may invalidate a statute which was reasonable and valid when enacted. (Nashville, C. & St. L. Ry. Co. v. Walters, 294 U.S. 405 (1935). Thus, the answer to the question of whether there is a rational basis or a compelling state interest to constitutionally justify a ban on same-sex marriage, AB 849 (Leno) Page 15 or the recognition of same-sex marriage, is one that may change over time. Accordingly, the Legislature is revisiting the validity of those justifications through its consideration of AB 849. c. Is procreation the purpose of marriage, justifying the ban on same-sex marriage? Those who challenged the constitutionality of AB 205 and who wave the imprimatur of Proposition 22 argue that California courts "have long recognized that the purpose of marriage is procreation and that limiting the institution to members of the opposite sex rationally would further that purpose." [ Coordination Proceeding, Marriage Cases , supra.] The court in that coordination proceeding examined the various cases in which procreation as a primary purpose of marriage was advanced as the rationale for justifying the current ban on same-sex marriage in the state. The court found that in all cases, the promise of children was merely a passing contention in an action to nullify the consent to marriage based on fraudulent inducements. The cases also, according to the court, confirm the obvious natural and social reality that one does not have to be married in order to procreate, nor does one have to procreate in order to be married. Thus, the court found no legitimate state interest to justify the preclusion of same-sex marriage in the state, and concluded that "even if the encouragement of procreation were to be seen to be a rational basis for our marriage laws and even if it appeared that such interest is compelling, this rationale still fails to satisfy constitutional equal protection standards." The primary rationale that Hawaii, Vermont, and Massachusetts have offered in unsuccessful defense of their laws prohibiting same-sex marriage are similar to the main argument offered in opposition to AB 849 (and its parent, AB 19): that only heterosexuals can procreate and thus rear children in an optimum familial environment. Opponents of same-sex marriage insist that marriage has always been defined as a relationship between a man and a woman, the purpose of which is procreation and the raising of children. AB 849 (Leno) Page 16 However, as pointed out by the court in Perez , tradition alone, no matter how longstanding, cannot justify excluding a class of couples from marriage. Such a reading of the law would lead to the absurd conclusion that those heterosexual couples that do not or cannot procreate should be barred from marriage and its benefits. Another argument proferred by opponents centers around child rearing and the "optimal setting" that opposite-sex couples provide their families. The promotion of stable marriages (thus stable homes or families) is of course sound public policy. Logically, such policies would and should benefit same-sex couples raising children as well as opposite-sex couples. Opponents however contend that only heterosexual parents can provide the "optimal setting" for child rearing. This contention flies in the face of this state's policies, evidenced by legislation, that permit adoptions by same-sex couples and court rulings, such as Sharon S. v. Superior Court (Annette F.) (2003) 31 Cal. 4th 417, that validate second-parent adoptions by domestic partners. In rejecting the argument that affirming such adoptions would "offend the state's strong public interest in promoting marriage," the court stated that its decision "encourages and strengthens family bonds." d. Does the Legislature's enactment of AB 205 (the Domestic Partnership Act) vitiate the need to correct the infirmity of Section 300? Judge Kramer's search for the rational legitimate state purpose for limiting marriage in this state first looked at the history of California's definition of marriage, and concluded that it clearly shows an explicit intent to discriminate against lesbians and gay men and to exclude same-sex couples from marriage. However, the court said, "?California's traditional limit of marriage to a union between a man and a woman is not a sufficient rational basis?same-sex marriage cannot be prohibited solely because California has always done so before." The court, citing the Legislature's enactment of domestic partnership laws, AB 849 (Leno) Page 17 next examined whether there is a legitimate governmental purpose for denying same-sex couples the last step in the equation [of treating same-sex couples in the same manner as opposite-sex couples, which the domestic partnership act attempts to do], which is marriage itself. Again, the court turned the quest for a rational basis in the Legislature's action unto itself and said that the existence of marriage-like rights (conferred by AB 205) without marriage actually cuts against the existence of a rational government interest for denying marriage to same-sex couples. "The idea that marriage-like rights without marriage is adequate smacks of a concept long rejected by the courts: separate but equal," citing Brown v. Board of Education of Topeka, et al. (1952) 347 U.S. 483. The court concluded that Brown is equally applicable to the state's current structure granting substantial marriage rights but no marriage, thus indicating further the lack of a rational basis for denying marriage to same-sex couples. 4. AB 849 would not compel religious officials to solemnize marriages The opponents of this measure see California as a major impediment in their march across the country to push for constitutional amendments that would ban same-sex marriages, civil unions and other similar partnerships (Hawaii has "reciprocal beneficiaries" for example.) They fear that passage of a same-sex marriage statute would force them to recognize these unions against their will. This fear, according to proponents of AB 849, is irrational, unfounded, and false. The guarantees provided by the First Amendment's Establishment and Free Exercise clauses protect their right to not recognize, in the context of their religious beliefs, same-sex marriages. The Supreme Court's doctrine of religious autonomy that is rooted in both clauses provides them further protection. "Our nation's founders adopted the First Amendment precisely because they foresaw the dangers of allowing government to have control over religious AB 849 (Leno) Page 18 doctrine and decision?If that freedom is to be preserved, we must respect the rights of those in the faith community to apply these religious teachings and values to the issue of same-sex relationships. It is surely not the business of [the Legislature], much less the constitution, to assert control over the doctrine and practice of our faith communities." [Letter from Chinese for Affirmative Action/Center for Asian American Advocacy dated May 3, 2005, in opposition to a proposed constitutional amendment banning same-sex marriage.] AB 849 would expressly provide that no priest, minister, or rabbi of any religious denomination, and no official of any nonprofit religious institution authorized to solemnize marriages, shall be required to solemnize any marriage in violation of his or her right to free exercise of religion guaranteed by the First Amendment to the U.S. Constitution or by Section 4 of Article I of the California Constitution. 5. Other courts have struck down laws that ban same-sex marriage or provide constitutional grounds for striking them down Three state supreme courts have sided with same-sex couples who challenged the constitutionality of their respective state laws that define marriage to exclude same sex partners. Of those, the Massachusetts cases are most notable. In the Goodridge v. Dept. of Public Health (2004) 440 Mass. 1201, the Massachusetts Supreme Judicial Court ruled that laws prohibiting same-sex marriage violate the Massachusetts Constitution. The court there said, "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?Limiting the protections, benefits, and obligations of civil marriages to opposite-sex couples violates the basic premises of individual liberty and equality under law protected by the Massachusetts AB 849 (Leno) Page 19 Constitution." The court issued an advisory opinion to the Massachusetts Legislature that stayed the Goodridge ruling and gave the Legislature the chance to enact a statute that did not discriminate against same-sex couples, but the Legislature declined to do so. The court ruling in Goodridge is therefore the law in Massachusetts. In Lawrence v. Texas , 123 S.Ct. 2472 (2003), the U.S. Supreme Court struck down a state homosexual sodomy law on the ground that the "liberty" protected by the Fourteenth Amendment includes private, consensual adult sexual relations. 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, supra, that Romer would lead to the result that the Court ultimately reached in Lawrence . 6. Arguments in support of AB 849 This bill is supported and opposed by a large number of organizations. The differences in their opinions are stark. In support, for example, is the American Federation of State, County, and Municipal Employees, AFL CIO, that wrote: The Religious Freedom and Civil Marriage Protection Act is an important step forward for gay, lesbian, and bisexual Californians as they struggle to emerge from second-class citizenship status into full acceptance in an open and caring society. California has been at the forefront of enacting morally just and forward-looking social policies that set the trend for the nation. Unfortunately, many of these new policies have been put in place by court rulings rather than the Legislature taking a stand for the rights of individuals to openly express a commitment to the person they love in an officially recognized capacity. A State-regulated institution such as marriage need not include a religious principle to be valid. Indeed, freeing the institution of marriage from the closed-mindedness of any single proscribed religious AB 849 (Leno) Page 20 doctrine strengthens its validity and vitality. This legislation is [an] important step toward equality for all Californians. Others, such as the California Association of Human Relations Commissions, urge the passage of AB 849 and relegate the discriminatory laws of the past to history: "?[a]cts of hate and discrimination are fostered by laws which give official status to discriminatory laws, such as one that denies a person the right to marry because of their race, sexual orientation, or any other protected characteristic. All other Californians deserve access to this critical civil institution that provides a myriad of rights and responsibilities not currently afforded to domestic partners, including social security benefits, family and medical leave, joint income tax filing, and thousands of federal benefits, without regard to their gender or sexual orientation?.All persons should have the right to pursue happiness through the civil institution of marriage." Some supporters are religious-affiliated groups, such as the California Church IMPACT, while others are nationally known supporters of equal rights, such as the California National Organization for Women and the California Women's Agenda, which includes national and state women leaders in its membership. Still others are individuals who have written on their own to express their support for this bill. 7. Arguments in opposition to AB 849 The opposition to AB 849 is united in its contention that the people of the state of California spoke loud and clear when it enacted Proposition 22 in 2000, and therefore urges the Legislature to reject AB 849 as the Assembly did AB 19. At the same time, some arguments are directed at the historical and traditional understanding of marriage, such as the one lodged by the California Catholic Conference of Bishops: The author overlooks the fact that if he is successful in rendering our society's historical definition of marriage null and void it will make all other arguments against coupling likewise null and void. AB 849 (Leno) Page 21 When the definition of marriage is loosed from its common sense gender moorings, it loses all meaning. All arguments against the other "committed" agreements such as polygamy and polyandry [and] will be legally unacceptable for the same reason posited here - that of equal protection?States are, and should be free to set the parameters for marriage. In California, the historical definition has been clearly raffirmed by the voters in Proposition 22. The people stated that they agree that marriage is to be exclusively between one woman and one man. Please res this history and their strongly expressed opinion." The Traditional Values Coalition advances the following arguments in opposition to AB 849: (1) AB 849 is AB 19 resurrected, and should be rejected by the Senate just as the Assembly rejected AB 19 on three different votes; (2) AB 849 would pose a contradiction in law that would undermine Family Code Section 308.5; (3) AB 849 violates the Voting, Initiative and Referendum, and Recall provisions of the California Constitution; (4) Homosexuals want to destroy marriage as an institution - not benefit from it; (5) The intent of marriage is to maintain monogamous relationships between one man and one woman; however, the actions of the homosexual lifestyle are contrary to this goal; (6) Granting homosexual marriage would affect all areas of public policy thereby posing great burdens to society; and (7) AB 849's affects [sic] would dramatically alter current school frameworks and curriculum. 7. Same-sex marriage statutes and constitutional amendments in other states A survey conducted by the Traditional Values Coalition reports that the following states have constitutional amendments banning same-sex marriages and civil unions: Alaska, Hawaii, Louisiana, Missouri, Nebraska, and Nevada. The survey also reports that in November 2004, and in April, 2005, the following states passed constitutional amendments banning same-sex marriage: Arkansas, Georgia, Kansas, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oklahoma, Oregon, and Utah. Civil unions are not banned (but also not yet expressly permitted) in the following states: AB 849 (Leno) Page 22 Mississippi, Oregon, and Montana. Vermont permits civil unions. Court challenges to the constitutional amendment passed by the voters are pending in the following states: Alaska, Georgia, Louisiana, Nebraska, and Oregon. Only Massachusetts has legalized same-sex marriages through its supreme court ruling in 2004. Combined, 18 states have banned same-sex marriages via a constitutional amendment (five are being challenged currently), three states arguably may permit civil unions, one state permits civil unions (Vermont) and one state allows same-sex marriage (Massachusetts). The TVC declares that in 13 more states, constitutional amendments have been submitted for the general elections in 2005 or 2006. In April, 2005, Connecticut became the second state to permit civil unions. Of note is that at the end of June, the Legislatures of both Spain and Belgium adopted laws allowing same-sex marriage in their respective countries. The Canadian Parliament's lower house has passed an act to allow same-sex marriage, and its higher house heard the bill this week. It is expected to pass. Support: AIDS Legal Referral Panel; AIDS Project Los Angeles'; Alameda County Human Relations Commission; American Academy of Pediatrics, California District; American Civil Liberties Union; American Federation of State, County, and Municipal Employees; American Friends Service Community, Pacific Mountain Region; Americans for Democratic Action, Southern California Chapter; American Humanist Association; American Jewish Congress; Anti-Defamation League; Asian Pacific American Labor Alliance, AFL-CIO, Los Angeles Chapter; Asian Pacific American Legal Center of Southern California; Asian Americans for Civil Rights and Equality; Asian Law Caucus; Atascadero Democratic Club; Bay Area Lawyers for Individual Freedom; Bay Area Municipal Elections Committee; Being Alive Los Angeles; Beth Chayim Chadashim Congregation; Bienestar Human Services; California Abortion and Reproductive Rights Action League; California Association of Human Relations Organizations; California Coalition for Civil Rights; California AB 849 (Leno) Page 23 Council of Churches and California IMPACT; California Democratic Party; California Faculty Association; California Federation of Teachers; California Immigrant Welfare Collaborative; California National Organization for Women; California Safe Schools Coalition; California School Employees Association; California State Board of Equalization Chair, John Chiang; California State Controller Steve Westly; California State Employees Association; California State Treasurer Phil Angelides; California State Insurance Commissioner, John Garamendi; California Teachers Association; California Women's Agenda; Californians for Justice; Center for Third World Organizing; Center on Juvenile and Criminal Justice; Centro Legal De La Raza; Charles Houston Bar Association; Child Care Law Center; Children of Lesbians and Gays Everywhere; Chinese for Affirmative Action; Christ the Shepard Lutheran Church, Altadena; Christ the Good Shepard Lutheran Church, San Jose; City and County of San Francisco; City of Los Angeles Human Relations Commission; City of West Hollywood; Coalition for Economic Equity; Coalition of Black Trade Unionists, Northern California Chapter; Coalition of Labor Union Women; College Community Congregational United Church of Christ, Fresno; Communication Workers of America, AFL-CIO, District 9; Communication Workers of America, AFL-CIO, Local 9000; Communities for a Better Environment; Community of St. Elizabeth of Hungary and Francis de Sales, Interdenominational; Community United Against Violence; Conference of Delegates of California Bar Associations; Congregational Church of Belmont; Congregational Church of Campbell; Congregational Church, San Francisco; Congregational Community Church, Sunnyvale; Congregation Kol Ami, West Hollywood; Conejo Valley Unitarian Universalist Fellowship; Congregation Sha'ar Zahav, San Francisco; Disability Rights Education & Defense Fund; Educational Fund to Stop Gun Violence; Eleanor Roosevelt Democratic Club, Orange County; Elections Committee of the County of Orange; Equal Rights Advocates; Equality Campaign, Inc.; Fairfax Community Church; Feminist Majority; Filipinos for Affirmative Action; First Amendment Project; First AB 849 (Leno) Page 24 Congregational Church, Auburn, Santa Cruz; First Congregational United Churches of Christ, San Francisco, Oakland, Alameda and Long Beach; Fremont Congregational United Church of Christ; Fresno Stonewall Democrats; Gay & Lesbian Adolescent Social Services, Inc.; Gay & Lesbian Alliance of the Central Coast; Gay & Lesbian Medical Association; Glide Foundation / Glide Memorial United Methodist Church; Glory Tabernacle Christian Center, Long Beach; GLSEN Orange County Chapter; Golden Gate Lutheran Church, San Francisco; Grace Community Church; Gray Panthers; Holy Redeemer Lutheran Church, San Jose; Housing Rights Inc.; Human Rights Campaign; Human Rights/Fair Housing Commission of the City and County of Sacramento; Immigration Equality; Instituto Laboral De La Raza; Intergroup Clearing House; Irvine United Congregational Church; Island United Church, Foster City; Japanese American Citizens League; Jewish Labor Committee; Justice Matters Institute; La Familia Counseling Service; La Raza Centro Legal; Lambda Legal; Lambda Letters Project; Lawrence Ellis and Associates; Lawyers Committee for Civil Rights of the San Francisco Bay Area; Legal Aid Society - Employment Law Center; Legal Services for Prisoners with Children; Lesbian and Gay Lawyers Association of Los Angeles; LGBT Caucus, California Democratic Party; LGBT Greens, Los Angeles; Live Oak Unitarian Universalist Congregation Log Cabin Republicans; Los Angeles City Attorney; Los Angeles County Bar Association, Family Law Section; Los Angeles Gay & Lesbian Center; Los Angeles Lesbian/Gay/Bisexual/Transgender Greens; Love Sees No Borders; Lutheran Church of Our Redeemer, Sacramento; Meiklejohn Civil Liberties Institute; Metropolitan Community Church, Los Angeles; Metropolitan Community Church, San Diego; Metropolitan Community Church, San Francisco; Metropolitan Community Church, West Hollywood; Mexican American Legal Defense and Education Fund; Mira Vista United Church of Christ, El Cerrito; Multicultural Education Training and Advocacy, Inc.; NARAL Pro-Choice California Foundation; National Association for the Advancement of Colored People, California State Conference; National Association of Social Workers, California Chapter; National Black AB 849 (Leno) Page 25 Justice Coalition; National Center for Lesbian Rights; National Center for Youth Law; National Conference for Community and Justice; National Gay and Lesbian Task Force; National Lawyers Guild, San Francisco Bay Area Chapter; National Lesbian and Gay Law Association; New Hope Metropolitan Community Church, Santa Rosa; New Spirit Community Church, Berkeley; Northminster Presbyterian Church, El Cerrito; Older Women's League of California; Online Policy Group; Our Family Coalition; Out and Equal Workplace Advocates; People for the American Way; PFLAG |National Office; PFLAG (Parents, Families and Friends of Lesbians and Gays | Bakersfield; PFLAG | Central Coast Chapter, & Long Beach, Los Angeles, Marysville, Southern Pacific Region, Oakland-East Bay, Palm Springs/Desert, Palos Verdes/South Bay, Sacramento, San Diego County, San Francisco, Southern Pacific Region, Temecula Valley, Ventura County; Pioneer Congregational United Church of Christ, Sacramento; Planned Parenthood Affiliates of California; Planned Parenthood Golden Gate; Plymouth United Church of Christ, Oakland; Pride at Work AFL-CIO, National Office; Pride at Work AFL-CIO, Southern California and Washington, D.C.; Progressive Christians Uniting; Progressive Jewish Alliance; Protection & Advocacy, Inc.; Public Advocates; Rainbow Community Center of Contra Costa County; Rock The Vote; SAC Legal; Saint George's Episcopal Church, Laguna Hills; Saint John's Presbyterian Church; Saint Mark's United Methodist Church, Sacramento; Saint Paul Lutheran Church, Oakland; Saint Paulus Lutheran Church, San Francisco; San Diego Democratic Club; San Diego LGBT Center; San Francisco AIDS Foundation; San Francisco Labor Council, AFL-CIO; San Francisco LGBT Community Center; San Francisco NOW; San Francisco Zen Center; San Leandro Community Church; San Luis Obispo County Democratic Central Committee; San Mateo County Board of Supervisors; Santa Clara County Bar Association; Santa Cruz County Clerk Gail Pellerin; Scouting for All; Sebastopol City Council; Service Employees International Union Local 99; Service Employees International Union Local 535; Service Employees International Union Local 790; Service Employees; International Union Local 1000; AB 849 (Leno) Page 26 Seventh Avenue Presbyterian Church, San Francisco; Shepard of the Hills Lutheran Church, Berkeley; Silicon Valley Atheists; Socially Active Youth of California; Sonoma County Board of Supervisors; South Hayward Parrish; Southern California Lambda Medical Association; Stonewall Democratic Club of Greater Sacramento; Suisun Fairfield UCC; Tenderloin Housing Clinic; The Center Orange County; The Workmen's Circle; Thirty-Third Assembly District, California Democratic Party; Town of Fairfax, California; Transgender Law Center; Unitarian Universalist Legislative Ministry California; UNITE HERE, Western States Regional Joint Board; United Church of Christ, Petaluma; United Church of Christ, Northern California/Nevada Conference; United Church of Christ, Southern California Conference; United Congregational Christian Church, Lodi; United Japanese Christian Church; United Lesbians of African Heritage; United Staff Workers; United Teachers Los Angeles; United University Church, Los Angeles; University Lutheran Church, Palo Alto; Valley Ministries, Stockton; Ventura County Rainbow Alliance; West Hollywood Presbyterian Church; Women's International League for Peace and Freedom; Yolo County Supervisor Mariko Yamada; Youth Force Coalition; Zuna Institute; numerous individuals Opposition: A. Rodak Painting and Decorating; Anderson Appraisal Service, Inc.; Apostolic Church of Jesus Christ; Arcade Church of Sacramento; Arden Church of the Nazarene; Area Favorites; Automotive Management Placement; Bayside Church; Beth Shalom Messianic Jewish Congregation; Booth Chiropractic, Inc.; California Catholic Conference; California Family Alliance; Calvary Chapel East Anaheim; Calvary Chapel of El Cajon; Calvary Chapel of Guadalupe; Calvary Chapel of Santa Maria; Campaign for California Families; Campaign for Children and Families; Capital Christian Center; Capitol Resource Institute; Cerritos Republican Club; Champion Life Church; Cherry Valley Grace Brethren Church; Chinese Christian Alliance, Chinese New Life Zion Church; Christian Church Zion; Christian Coalition of San Diego County; Church "House of Prayer"; Church of AB 849 (Leno) Page 27 Christians of Seventh Day; Church of the First-Born Son; Community Bible Church; Community Faith Christian Center; Concerned Women for America; Cornerstone Church; Covenant Life Christian Church, Orange; Cover Graphics, Inc.; Crenshaw Die and Manufacturing; Crossroads Bible Church; Cross Vision Ministries; Davis Christian Assembly; Downs Energy; Dyson & Associates; Design Drafting Services; East Clairemont Southern Baptist Church; El Retiro San Inigo; Estrada Professional Services; Evangelical Baptist Ukrainian Church; Evangelical Bible Book Store; Evangelical Free Church of Fremont; Evangelical Free Church of Hamilton City and Mt. Shasta; Evangelical Reformed Church; Family Church, Rancho Santa Margarita; First Baptist Church, Elk Grove; First Baptist Church of Redwood Valley; First Baptist Church of Taft; First Slavic Evangelical Baptist Church of Sacramento; First Ukrainian Baptist Church of Santa Barbara; First Ukrainian Church of Christians of Evangelical Faith; Good Shepherd Family Bible Church; Grace Fellowship, Dixon; Granada Heights Friends Church, La Mirada; Grove Community Church; Hope Chapel; Idyllwild Bible Church; Immanuel Evangelical Church; Impact Community Church; Independent Baptist Church; Inyokern Baptist Church; JC Graphics; JC Resource Center; J.P.H. Professional Sciences, Inc.; Joseph Dean Knapp Insurance and Financial Services; Kristi Freeman, D.V.M., Inc.; Knights of Columbus; L & L Trucking Company, LLC; Light of the Gospel Missionary Church; Lighthouse Coastal Community Church; Lighthouse Regional Church; Living Waters Christian Fellowship; Living Word Calvary Chapel; Melchizedek Church; Mid Valley Learning Center; Mike Hourigan Construction; Morgan Hill Presbyterian Church; My Lord's Salvation Ministries, Inc.; New Hope Baptist Church; New Hope Gospel Ministries; New Life Presbyterian Church; New Song Calvary Chapel; Norwalk First Church of the Nazarene; Oasis Christian Fellowship; Ojai Valley Baptist Church; Orchard Community Church; Our Lady of Guadalupe, Calexico; PACE Technologies; Pacto de AB 849 (Leno) Page 28 Amor Foursquare Church; Pam's Pool & Leisure; Peace Lutheran Church; Peninsula Christian Fellowship; Pioneer Baptist Church; Praise Chapel Christian Fellowship of Baldwin Park; Praise Chapel of Concord; Remnant Christian Center; Christian Fellowship of Concord; Quail Lakes Baptist Church; Revival Slavic Christian Center; River Oak Grace Community Church; Russian Baptist Church; Russian Cultural Center of Sacramento; Russian Speaking Forum; Sacramento Mission Church FWB; Saddleback Church; Saddleback Covenant Church; Sanctuary Full Gospel Fellowship; Second Slavic Baptist Church; Sequoia Heights Baptist Church; Shadow Mountain Community Church; Shield of Faith Fellowship of Churches International, Inc.; Shropshire H.V.A.C. Repair & Service; Skyline Wesleyan Church; Slavic Baptist Church; Slavic Baptist Church "Bethel"; Slavic Community Center of Sacramento; The Cornerstone; Slavic Evangelical Churches; Slavic Missionary Church, Inc.; Slavic International Pastors Association; South Valley Christian Church; South Valley Community Church; St. John's Mission of the Charismatic Episcopal Church; St. Mark Lutheran Church; Start to Finish Roofing; Sunset Chinese Baptist Church; Tazza da Caffe/BL Foods; Traditional Values Coalition; Ukrainian Church of The Evangelical Christian Baptists; Valley Christian Center; Western Garden Nursery; Western Ukrainian Evangelical Baptist Convention, Inc.; Woodland United Fellowship; Word to Russia; numerous individuals HISTORY Source: Equality California Related Pending Legislation: AB 19 (Leno) failed passage on the Assembly Floor. SCA 1 (Morrow) See Background. Failed passage in this committee. ACA 3 (Haynes) See Background. AB 849 (Leno) Page 29 Failed passage in Assembly Judiciary Committee. Prior Legislation:AB 1892 (Knight, 1996) Died on the Senate Inactive file. AB 3227 (Knight, 1996) Died on the Assembly Inactive file. SB 911 (Knight, 1997) Failed passage in this Committee. AB 1059 (Migden, 1998) Vetoed. AB 26 (Migden, Ch. 588, Stats. 1999) See Background. SB 2011 (Escutia, Ch. 1004, Stats, 2000) See Background. AB 25 (Migden, Ch. 893, Stats. 2001) See Background. AB 1080 (Kehoe, 2001) dealt with state contracts with employers that provide benefits to domestic partners equal to those provided to spouses of employees. Died in the Assembly. SB 1049 (Speier, Ch. 146, Stats. 2001). See Background. SB 1575 (Sher, Ch. 412, Stats. 2002) dealt with probate rules and domestic partners. SB 1661 (Kuehl, Ch. 901, Stats. 2002) granted six weeks of paid family leave to an employee to care for a sick spouse or domestic partner. AB 2777 (Nation, Ch. 373, Stats. 2002) added more counties to those that may offer death benefits. AB 2216 (Keeley, Ch. 447, Stats. 2002) granted intestacy rights to domestic partners. AB 2862 (Migden, 2002) would have extended retiree rights similar to those granted to spouses. Vetoed on budgetary grounds. AB 205 (Goldberg, Ch. 421, Stats. 2003). AB 849 (Leno) Page 30 See Background. (This list is not exhaustive.) Prior Vote: Not relevant. This bill is a gut and amend. **************