BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 849
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          CONCURRENCE IN SENATE AMENDMENTS
          AB 849 (Leno)
          As Amended June 28, 2005
          Majority vote 
           
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          |ASSEMBLY:  |     |(May 5, 2005)   |SENATE: |21-15|(September 1,  |
          |           |     |                |        |     |2005)          |
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               (vote not relevant)

          Original Committee Reference:    W.,P.&W.  

           SUMMARY  :  Seeks to end the state's denial of marriage licenses  
          to same-sex couples in California.  Specifically,  this bill  : 

          1)Eliminates the current "different-gender" requirement in the  
            state's definition of marriage.

          2)Clarifies that gender-specific terms in the state's family  
            laws shall be construed to be gender-neutral, except in  
            regards to Family Code Section 308.5, concerning recognition  
            of marriages contracted in other jurisdictions (Proposition 22  
            of 2000).

          3)Adds Section 403 to the Family Code to declare that no  
            religious official shall be required to perform or solemnize  
            any marriage in violation of his or her religious conviction.

          4)Includes findings that Family Code Sections 300 and 308.5 have  
            been declared unconstitutional in coordinated state-court  
            proceedings and that the bill does not amend Family Code  
            Section 308.5 to the extent that Section 308.5 addresses only  
            marriages from other jurisdictions.

          5)Acknowledges the authority of the California Supreme Court to  
            make a final judicial determination regarding Section 308.5's  
            meaning, and validity or invalidity. 
           
          The Senate amendments  delete the Assembly version of this bill  
          and insert the provisions summarized above.
           
          EXISTING LAW  :   

          1)Provides that "Marriage is a personal relation arising out of  








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            a civil contract between a man and a woman, to which the  
            consent of the parties capable of making that contract is  
            necessary."  (Family Code Section 300.  All further references  
            are to this code unless otherwise noted.)

          2)Provides that "A marriage contracted outside this state that  
            would be valid by the laws of the jurisdiction in which the  
            marriage was contracted is valid in this state."  (Family Code  
            Section 308.)

          3)Provides, immediately following Section 308 that "Only  
            marriage between a man and a woman is valid or recognized in  
            California."  (Family Code Section 308.5.)

          4)Provides, in the state's Equal Protection Clause, in Article  
            I, Section 7, that:

            (a)  "A person may not be deprived of life, liberty, or  
            property without due process of law or  denied equal  
            protection of the laws. . . " and (b)  "A citizen or class of  
            citizens may not be granted privileges or immunities not  
            granted on the same terms to all citizens."

           
          AS PASSED BY THE ASSEMBLY  , this bill dealt with fish and game.
           
          FISCAL EFFECT  :  According to the Senate Appropriations analysis,  
          the Franchise Tax Board (FTB) in 2004 estimated a state personal  
          income tax 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  
          would be $3 million.  The actual number of marriages could be  
          significantly greater.  The 2000 census also found that 92% 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 increases from marriage license fees and  








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          unquantifiable increased economic activity surrounding more  
          weddings in the state.
           
          Offsetting savings could occur from reduced eligibility for  
          Medi-Cal and SSI/SSP, but these savings would accrue only if  
          federal law changes or eligibility waivers were granted.

           COMMENTS  :  This legislation seeks to halt the state's practice  
          of denying same-sex couples the right to marry by defining  
          marriage as between "two persons" instead of solely between a  
          man and a woman.  The bill thus raises important questions of  
          law and public policy that are now being discussed across the  
          nation and around the world, reflecting one of this nation's  
          most significant civil rights issues for the 21st century. 

          The issue of legal recognition of same-sex couples in  
          California dates back two decades.  Before the 1980s, same-sex  
          couples had no legal recognition in California - or virtually  
          anywhere else.  As families, same-sex couples were essentially  
          invisible to the law.  In 1984, however, the City of Berkeley  
          extended employee benefits to the same-sex partners of  
          municipal employees, and in 1985 West Hollywood became the  
          first governmental entity to offer legal recognition to  
          same-sex couples among the general public by establishing a  
          legal status called "domestic partnership."  By 2000, 18  
          California local governments had established domestic  
          partnership registries.


          California took notice of this emerging movement.  In 1999, the  
          Legislature enacted AB 26 (Migden) to create the state's first  
          domestic partnership statute.  This statute, which forms the  
          backbone of California's domestic partnership law, provided for  
          domestic partnerships to be registered with the Secretary of  
          State, for public employers to offer health benefits to domestic  
          partners, and for domestic partners to have hospital visitation  
          rights.  The most comprehensive set of rights and  
          responsibilities for registered domestic partners was enacted in  
          2003 by AB 205 (Goldberg).  That bill became fully operative  
          this past January 1, 2005, and it has been upheld by the courts  
          against challengers' arguments that granting legal protections  
          to same-sex couples is inconsistent with Proposition 22.  Even  
          so, the domestic partner laws do not provide many rights  
          possessed under our marriage laws.  For example, they preclude  
          joint filing of income taxes, fail to treat earned income as  








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          community property for state income tax purposes, and deny  
          access to certain long-term care benefits.  In addition,  
          domestic partners are denied the protections available under  
          more than 1,100 federal statutes relating to marriage.  The  
          federal benefits afforded to opposite-sex, married couples  
          include such basic benefits as social security, Medicare,  
          federal housing assistance, food stamps, veterans' benefits,  
          military benefits, tax benefits and federal employment benefits.  
           

          In 1996 Congress passed, and President Clinton signed, the  
          federal Defense of Marriage Act (DOMA), which among other things  
          says that no state is required under federal law to give effect  
          to same-sex marriages contracted in other states.  In light of  
          the federal DOMA, other states have also enacted measures  
          prohibiting recognition of marriages entered into by same-sex  
          couples in other jurisdictions.  Some states have gone so far as  
          to enact into their constitutions provisions that purport to  
          prohibit recognition of relationships between same-sex couples  
          other than marriage, such as domestic partnerships or civil  
          unions.

          In 2000, a group of citizens led by the late state senator Pete  
          Knight placed Proposition 22 on the March 2000 ballot to  
          prohibit California from recognizing any same-sex marriages  
          contracted in other states or countries.  The measure passed  
          with 61% of the vote and became codified as Family Code Section  
          308.5.  However, a superior court judge has recently entered a  
          judgment declaring Proposition 22 invalid under the state  
          Constitution.

          The Massachusetts Supreme Judicial Court in November 2003 and  
          February 2004 ruled the Massachusetts definition of marriage  
          violated that state's constitutional equal protection  
          provisions.  In response to this advisory opinion, the state  
          legalized same-sex marriage and began issuing marriage licenses  
          to same-sex couples on May 17, 2004.  
           
           In February 2004, the City and County of San Francisco began  
          issuing marriage licenses to same-sex couples.  On August 12,  
          2004, the California Supreme Court unanimously ruled that San  
          Francisco officials exceeded their authority in issuing the  
          licenses because it is the role of the courts, not local  
          officials, to determine the constitutionality of the state's  
          marriage laws.  By a 5-2 vote, the court also invalidated the  








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          4,037 marriages that had taken place in San Francisco.  The  
          court did not rule on the constitutionality of the state's  
          statutory prohibition of marriage by same-sex couples.  Rather,  
          an order filed by the Court in March 2004 expressly invited the  
          filing of a lawsuit in superior court to address this very  
          issue.  

          Then, just this past March 14, 2005, the San Francisco Superior  
          Court concluded that same-sex couples are denied equal  
          protection by marriage laws that prohibit them from marrying.   
          The trial court held that California's exclusion of same-sex  
          couples from marriage constitutes discrimination on the basis of  
          gender and interferes with the fundamental right to marry the  
          person of one's choosing.

          A major legal question presented by this legislation is whether  
          it conflicts with Proposition 22.  The answer to this question  
          depends upon how broadly the proposition is read.  Under a more  
          narrow reading, Proposition 22 applies only to marriages  
          contracted out of state-that is, it simply prevents California  
          from recognizing marriages between same-sex couples entered into  
          outside California. Under a more broad reading, Proposition 22  
          prohibits marriages between same-sex couples whether performed  
          inside or outside of the state.  Regardless of Proposition 22's  
          reach, Family Code Sections 300 and 308.5 raise critical  
          constitutional questions.  Indeed, the superior court in San  
          Francisco in the coordinated marriage cases has recently  
          declared both  statutes unconstitutional.  Three points were  
          important to the court's constitutional analysis.  First, the  
          history of California's definition of marriage clearly shows an  
          explicit intent to discriminate against lesbians and gay men and  
          to exclude same-sex couples from marriage.  Second, there are  
          two landmark rulings from the California Supreme Court that bear  
          directly on the question of the constitutionality of a  
          definition that excludes same-sex couples, and suggest that  
          California's current statute banning same-sex marriage may  
          likely be struck down if the issue is heard by the State Supreme  
          Court.  And third, there is an undeniably strong trend in  
          rulings from other state supreme courts, and from the U.S.  
          Supreme Court itself, suggesting that the statute likely could  
          not, and ultimately will not, withstand constitutional scrutiny.

          The California Constitution contains two independent equal  
          protection provisions.  For nearly three decades, the California  
          courts have held that the equal protection clause protects gay  








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          and lesbian persons.  In the landmark decision of  Gay Law  
          Students v. Pacific Telephone and Telegraph  (1977), the  
          California Supreme Court expressly held that subdivision (a) of  
          Article I, section 7 guarantees lesbians and gay men, as a  
          class, equal protection.  

          In 1948, California's Supreme Court was the first in the nation  
          to hold that a law prohibiting persons from marrying outside  
          their race violated the constitution.   Perez v. Lippold  (1948)  
          preceded the U.S. Supreme Court's decision in  Loving v. Virginia   
          (1967) on the same question by nearly 20 years.  Given the  
          fundamental nature of the right to marry, the Court held that  
          any infringement of that right "must be based upon more than  
          prejudice and must be free from oppressive discrimination to  
          comply with the constitutional requirements of due process and  
          equal protection of the laws."  More, importantly the Court held  
          that while the state has authority to prohibit marriage between  
          specific individuals when there is a legitimate state concern,  
          such legislation would have to be specific to the individuals in  
          question, and could not use "arbitrary classifications of groups  
          or races" as a substitute.  (Emphasis added.)  

          Three state supreme courts have addressed the question of  
          whether a state law that defines marriage so as to exclude same  
          sex partners violates their respective state constitutions.   
          Importantly, in each case, the court has ruled in favor of the  
          same-sex couples.  

          Finally, two cases from the U.S. Supreme Court decided by 6-3  
          majorities, have recently addressed issues relevant to the  
          pending bill.  In  Romer v. Evans  (1996) the Court overturned  
          Colorado's Amendment 2, which would have amended the Colorado  
          Constitution to exclude lesbians and gay men from obtaining  
          legal protection.  More recently, in  Lawrence v. Texas  (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.  So far, no state high court has found  
          adequate justification under state law for treating homosexual  
          couples differently than heterosexual couples in defining  
          marriage, even under a constitutionally lenient "rational basis"  
          test.  This appears to be where California's courts ultimately  
          may arrive, as the trial court opinion in the coordinated  








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          marriage cases demonstrates.  

           
          Analysis Prepared by  :    Drew Liebert / JUD. / (916) 319-2334     
                             FN: 0012418