BILL ANALYSIS
AB 849
Page 1
GOVERNOR'S VETO
AB 849 (Leno)
As Amended June 28, 2005
2/3 vote
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|ASSEMBLY: | |(May 5, 2005) |SENATE: |21-15|(September 1, |
| | | | | |2005) |
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(vote not relevant)
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|ASSEMBLY: |41-35|(September 6, | | | |
| | |2005) | | | |
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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
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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
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
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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
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.
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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
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
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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
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
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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
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
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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
marriage cases demonstrates.
GOVERNOR'S VETO MESSAGE :
I am returning Assembly Bill 849 without my signature
because I do not believe the Legislature can reverse
an initiative approved by the people of California.
I am proud California is a leader in recognizing and
respecting domestic partnerships and the equal rights
of domestic partners. I believe that lesbian and gay
couples are entitled to full protection under the law
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and should not be discriminated against based upon
their relationships. I support current domestic
partnership rights and will continue to vigorously
defend and enforce these rights and as such will not
support any rollback.
California Family Code Section 308.5 was enacted by
an initiative statute passed by the voters as
Proposition 22 in 2000. Article II, section 10 of
the California Constitution prohibits the Legislature
from amending this initiative statute without a vote
of the people. This bill does not provide for such a
vote.
The ultimate issue regarding the constitutionality of
section 308.5 and its prohibition against same-sex
marriage is currently before the Court of Appeal in
San Francisco and will likely be decided by the
Supreme Court.
This bill simply adds confusion to a constitutional
issue. If the ban of same-sex marriage is
unconstitutional, this bill is not necessary. If the
ban is constitutional, this bill is ineffective.
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334)
FN: 0013502