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)



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          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,  
                                                                       




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          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  
                                                                       




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          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  
                                                                       




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          "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.  
                                                                       




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           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.
           
                                                                       




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            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  
                                                                       




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            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  
                                                                       




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               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  
                                                                       




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            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  
                                                                       




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            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  
                                                                       




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            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.
               
                                                                       




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               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  
                                                                       




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               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  
                                                                       




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                    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.   
                                                                       




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                                  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).   
                                                                       




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                              See Background.

                         (This list is not exhaustive.)


          Prior Vote:  Not relevant.  This bill is a gut and amend.
          
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