BILL NUMBER: AB 43	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 9, 2007

INTRODUCED BY   Assembly Members Leno, Laird, and Lieber
   (Principal coauthors: Senators Kehoe, Kuehl, Migden, and Perata)
   (Coauthors: Assembly Members Alarcon,  Beall, Berg,
Brownley, Coto, De Leon,  DeSaulnier,  Eng, Evans, Feuer,
Hancock, Hayashi, Huffman, Jones,  Krekorian,  Levine, Ma,
 Mullin,   Mendoza,   Mullin, 
 Nunez,  Portantino, Ruskin, Saldana,  and Soto
  Soto,   and Swanson  )
   (Coauthors: Senators Alquist, Calderon, Cedillo, Lowenthal,
Oropeza, Romero, Steinberg, Torlakson, Wiggins, and Yee)

                        DECEMBER 4, 2006

   An act to amend Sections 300, 301, and 302 of, and to add Section
403 to, the Family Code, relating to marriage.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 43, as amended, Leno.  Gender-neutral marriage.
   Existing law provides that marriage is a personal relation arising
out of a civil contract between a man and a woman. Existing law
provides for the issuance of marriage licenses and imposes duties on
county clerks in that connection, as specified. Existing law, enacted
by initiative measure, further provides that only marriage between a
man and a woman is valid or recognized in this state.
   This bill would enact the Religious Freedom and Civil Marriage
Protection Act, which would instead provide that marriage is a
personal relation arising out of a civil contract between 2 persons.
The bill would make conforming changes with regard to the consent to,
and solemnization of, marriage, and would make related findings and
declarations.
   By adding to the duties of county employees, this bill would
impose a state-mandated local program.
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  This act shall be known and may be cited as the
Religious Freedom and Civil Marriage Protection Act.
  SEC. 2.  It is the intent of the Legislature that this act be
interpreted consistently with the guarantees of the First Amendment
to the United States Constitution and of Section 4 of Article I of
the California Constitution to free exercise of religion and
enjoyment of religion without discrimination or preference.
  SEC. 3.  The Legislature finds and declares as follows:
   (a) Civil marriage is a legal institution recognized by the state
in order to promote stable relationships and to protect individuals
who are in those relationships. The institution of marriage also
provides important protections for the families of those who are
married, including not only any children or other dependents they may
have, but also members of their extended families.
   (b) From 1850 to 1977, California's marriage statutes used
gender-neutral language, without reference to "man" or "woman," in
providing that marriage is a personal relation arising out of a civil
contract to which the consent of the parties capable of making the
contract is necessary.
   (c) In 1948, the California Supreme Court became the first state
court in the country to strike down a law prohibiting interracial
marriage. It was the only state supreme court to do so before the
United States Supreme Court invalidated all those laws in 1967. The
California Supreme Court held that "marriage is ... something more
than a civil contract subject to regulation by the state; it is a
fundamental right of free men ... Legislation infringing such rights
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" (Perez
v. Sharp (1948) 32 Cal.2d 711, 714-715). The California Supreme Court
explained that "the right to marry is the right to join in marriage
with the person of one's choice" (Id., at p. 715).
   (d) In 1977, the Legislature amended the state's marriage law to
replace the gender-neutral description of marriage with language
specifically limiting marriage to a "civil contract between a man and
a woman." The Legislature's express purpose for this amendment was
to prohibit same-sex couples from marrying. The gender-specific
description of marriage that the Legislature adopted in 1977
specifically discriminated in favor of heterosexual couples and
discriminated against, and continues to discriminate against,
same-sex couples. 
   (e) Other governments have recognized that fundamental fairness
requires that same-sex couples be permitted to marry on the same
terms as heterosexual couples. Massachusetts, Canada, Spain, Belgium,
the Netherlands, and South Africa permit same-sex couples to marry.
Israel recognizes the marriages of same-sex couples entered into in
foreign jurisdictions.  
   (e) Other jurisdictions have chosen to treat as valid or otherwise
recognize marriages between same-sex couples. California's
discriminatory marriage law therefore also harms California's
same-sex couples when they travel to other jurisdictions by
preventing them from having access to the rights, benefits, and
protections those jurisdictions provide only to married couples.

   (f) By excluding same-sex couples from marriage, California's
marriage law discriminates against members of same-sex couples based
on their sexual orientation and based on their gender. The exclusion
of same-sex couples from marriage is based in significant part on,
and perpetuates, gender stereotypes about the roles of men and women
in families and in society.
   (g) California's discriminatory exclusion of same-sex couples from
marriage harms same-sex couples and their families by denying those
couples and their families specific legal rights and responsibilities
under state law and by depriving members of those couples and their
families of a legal basis to challenge federal laws that deny access
to the many important federal benefits and obligations provided only
to spouses (Smelt v. County of Orange (9th Cir. 2006) 447 F.3d 673,
684-685). Those federal benefits include the right to file joint
federal income tax returns, the right to sponsor a partner for
immigration to the United States, the right to social security
survivor's benefits, the right to family and medical leave, and many
other substantial benefits and obligations.
   (h) Other jurisdictions have chosen to treat as valid or otherwise
recognize marriages between same-sex couples. California's
discriminatory marriage law therefore also harms California's
same-sex couples when they travel to other jurisdictions by
preventing them from having access to the rights, benefits, and
protections those jurisdictions provide only to married couples.
   (i) California's discriminatory exclusion of same-sex couples from
marriage further harms same-sex couples and their families by
denying them the unique public recognition and validation that
marriage confers.
   (j) The Legislature has an interest in encouraging stable
relationships regardless of the gender or sexual orientation of the
partners. The benefits that accrue to the general community when
couples undertake the mutual obligations of marriage accrue
regardless of the gender or sexual orientation of the partners.
Despite longstanding social and economic discrimination, many
lesbian, gay, and bisexual Californians have formed lasting,
committed, and caring relationships with persons of the same sex.
These couples share lives together and participate in their
communities together, and many raise children and care for other
dependent family members together. Permitting same-sex couples to
marry would further California's interests in promoting family
relationships and protecting family members during life crises.
Lesbian, gay, and bisexual Californians have the same interests in
marriage and in personal autonomy and privacy, including marrying the
person of one's choice, as heterosexual Californians.
   (k) Despite the intentions of California's domestic partnership
statutes to reduce discrimination on the bases of sex and sexual
orientation and to help California move closer to fulfilling the
promises of inalienable rights, liberty, and equality contained in
Sections 1 and 7 of Article I of the California Constitution,
relegating same-sex couples to the status of domestic partnership
while prohibiting them from marrying (1) causes severe and lasting
harms to same-sex couples, their children, and their extended
families; (2) stigmatizes same-sex couples, their children, their
extended families and all gay, lesbian, and bisexual Californians in
violation of the California Constitution; (3) violates California
public policy by enabling and promoting discrimination by private
actors and institutions on the basis of sexual orientation, contrary
to California's compelling interest in eradicating discrimination
based on sexual orientation; and (4) puts same-sex couples and their
families at risk of illegal discrimination by state and local
government agencies and officials.
   (l) It is the intent of the Legislature in enacting this act to
end the pernicious practice of marriage discrimination in California.
California's discriminatory exclusion of same-sex couples from
marriage violates the California Constitution's guarantees of due
process, privacy, equal protection of the law, and free expression by
arbitrarily denying equal marriage rights to lesbian, gay, and
bisexual Californians. California's exclusion of same-sex couples
from marriage serves no legitimate government interest and is
contrary to the public policies of California. The harms caused by
prohibiting same-sex couples from marrying in California cannot be
remedied, as required by the California Constitution, by any measure
short of permitting same-sex couples to marry in California.
   (m) This act is in no way intended 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.
  SEC. 4.  Section 300 of the Family Code is amended to read:
   300.  (a) Marriage is a personal relation arising out of a civil
contract between two persons, to which the consent of the parties
capable of making that contract is necessary. Consent alone does not
constitute marriage. Consent must be followed by the issuance of a
license and solemnization as authorized by this division, except as
provided by Section 425 and Part 4 (commencing with Section 500).
   (b) Where necessary to implement the rights and responsibilities
of spouses under the law, gender-specific terms shall be construed to
be gender-neutral, except with respect to Section 308.5.
   (c) For purposes of this part, the document issued by the county
clerk is a marriage license until it is registered with the county
recorder, at which time the license becomes a marriage certificate.
  SEC. 5.  Section 301 of the Family Code is amended to read:
   301.   Two unmarried persons of the age of 18 years or older, who
are not otherwise disqualified, are capable of consenting to and
consummating marriage.
  SEC. 6.  Section 302 of the Family Code is amended to read:
   302.  (a) An unmarried person under the age of 18 years is capable
of consenting to and consummating marriage upon obtaining a court
order granting permission to the underage person or persons to marry.

   (b) The court order and written consent of the parents of each
underage person, or of one of the parents or the guardian of each
underage person shall be filed with the clerk of the court, and a
certified copy of the order shall be presented to the county clerk at
the time the marriage license is issued.
  SEC. 7.  Section 403 is added to the Family Code, to read:
   403.  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 United States Constitution or by
Section 4 of Article I of the California Constitution.
  SEC. 8.  The Legislature finds and declares that this act does not
amend or modify Section 308.5 of the Family Code, as enacted by an
initiative measure, to the extent that Section 308.5 addresses only
marriages from other jurisdictions.
  SEC. 9.  If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.