BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 849|
|Office of Senate Floor Analyses | |
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|327-4478 | |
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THIRD READING
Bill No: AB 849
Author: Leno (D), et al
Amended: 6/28/05 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-2, 7/12/05
AYES: Dunn, Cedillo, Escutia, Figueroa, Kuehl
NOES: Morrow, Ackerman
SENATE APPROPRIATIONS COMMITTEE : 7-6, 8/25/05
AYES: Migden, Alarcon, Alquist, Escutia, Murray, Ortiz,
Romero
NOES: Aanestad, Ashburn, Battin, Dutton, Florez,
Poochigian
ASSEMBLY FLOOR : Not relevant
SUBJECT : Gender-neutral marriage
SOURCE : Equality California
DIGEST : This bill redefines marriage in California as a
union between two persons, making it gender-neutral and
thereby permitting same-sex marriages in the state. It
does not, however, require any clergy or religious official
to solemnize any marriage in violation of his/her right to
free exercise of religion as guaranteed by the United
States Constitution and the California Constitution. This
bill contains legislative findings and declarations that it
does not amend or modify Section 308.5 of the Family Code
CONTINUED
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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. This
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, this bill
declares the Legislature's intent to end marriage
discrimination in California without altering Section 308.5
of the Family Code.
NOTE: This bill is identical to AB 19 (Leno, 2005) which
failed passage on the Assembly Floor. The contents
of AB 19 were amended into AB 849 on June 28.
ANALYSIS : 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. [Section 300 of the Family Code] [All
other references are to the Family Code unless otherwise
indicated.]
This bill changes "a man and a woman" in the above statute
to "two persons."
This bill further states 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.
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. [Section 301]
This bill instead provides that two unmarried persons of
age 18 years or older who are not otherwise disqualified
are capable of consenting to and consummating marriage.
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
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parent, parents or guardian of each underage person or with
a court order granting permission to the underage person to
marry. [Section 302]
This bill deletes "unmarried male or female" and replaces
it with "unmarried person."
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. [Section 400]
This bill specifies 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/her right to free exercise of religion guaranteed by
the First Amendment of the United States Constitution or by
Section 4 of Article I of the California Constitution.
[Proposed Section 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 United States
Constitution and of the California Constitution.
Existing law provides that only a marriage between a man
and a woman is valid or recognized in California. [Section
308.5 (adopted by initiative, Proposition 22)]
This bill specifies the Legislature's intent that this bill
not amend or modify Section 308.5 to the extent Section
308.5 addresses only marriages from other jurisdictions.
This bill also specifies the Legislature's intent to
correct only the constitutional infirmities of Section 300
and not those of Section 308.5, even though both sections
were found unconstitutional by a state coordination trial
judge appointed by the Judicial Council of California.
This bill contains legislative findings relating to civil
marriage as recognized by the state, the institution of
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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.
This act is named the "Religious Freedom and Civil Marriage
Protection Act."
According to the Senate Judiciary Committee analysis:
"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 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
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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."
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 2005-06 2006-07
2007-08 Fund
Personal income tax -- $3,000
$3,000 General
revenue loss
In 2004, the Franchise Tax Board estimated a state personal
income tax (PIT) revenue loss of about $1 million for every
4,900 same-sex couples whose filing status would change.
These couples would have a change in state filing status to
married filing joint or married filing separate. The 2000
census identified 92,138 same-sex couples living in
California (as of May 1, 2005, there were 27,300 registered
domestic partnerships in California, the majority of which
are same-sex couples). In less than a month last year,
over 4,000 same-sex couples were married in San Francisco.
Assuming one-half of the existing registered domestic
partners marry within the first year, revenue loss for
fiscal year 2006-07, and each year thereafter, will be $3
million. The actual number of marriages could be
significantly greater. The 2000 census also found that 92
percent of cohabitating heterosexual couples were married.
If a similar pattern occurred with same sex couples, actual
losses probably would be significantly greater. In
addition, there would be a minor revenue increase from
marriage license fees and unquantifiable increased economic
activity surrounding more weddings in the state.
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Offsetting savings could occur from reduced eligibility for
Medi-Cal and SSI/SSP, but these savings will accrue only if
federal law changes or eligibility waivers were granted.
SUPPORT : (Verified 8/25/05)
Equality California (source)
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
American Humanist Association
American Jewish Congress
Americans for Democratic Action, Southern California
Chapter
Anti-Defamation League
Asian Americans for Civil Rights and Equality
Asian Law Caucus
Asian Pacific American Labor Alliance, AFL-CIO, Los Angeles
Chapter
Asian Pacific American Legal Center of Southern California
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 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
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California State Controller Steve Westly
California State Employees Association
California State Insurance Commissioner, John Garamendi
California State Treasurer Phil Angelides
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 Good Shepard Lutheran Church, San Jose
Christ the Shepard Lutheran Church, Altadena
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
Conejo Valley Unitarian Universalist Fellowship
Conference of Delegates of California Bar Associations
Congregation Kol Ami, West Hollywood
Congregation Sha'ar Zahav, San Francisco
Congregational Church of Belmont
Congregational Church of Campbell
Congregational Church, San Francisco
Congregational Community Church, Sunnyvale
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
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Equality Campaign, Inc.
Fairfax Community Church
Feminist Majority
Filipinos for Affirmative Action
First Amendment Project
First 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
International Union Local 1000
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
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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 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 (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
PFLAG |National Office
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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
Service Employees International Union Local 535
Service Employees International Union Local 790
Service Employees International Union Local 99
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
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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, Northern California/Nevada
Conference
United Church of Christ, Petaluma
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
OPPOSITION : (Verified 8/25/05)
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
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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 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
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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 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
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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
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
The Cornerstone
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
ARGUMENTS IN SUPPORT : The author states:
"The purpose of the 'Religious Freedom and Civil
Marriage Protection Act' is to end discrimination
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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 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."
ARGUMENTS IN OPPOSITION : Opponents of this bill contend
that it "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
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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.
The Traditional Values Coalition advances the following
arguments in opposition to this bill: "(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."
RJG:mel 8/26/05 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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