BILL ANALYSIS                                                                                                                                                                                                    

                           SENATE JUDICIARY COMMITTEE
                        Senator Ellen M. Corbett, Chair
                           2007-2008 Regular Session

          AB 43                                                  A
          Assemblymember Leno                                    B
          As Amended April 9, 2007
          Hearing Date:  July 10, 2007                           4
          Family Code                                            3

              "Religious Freedom and Civil Marriage Protection Act"

          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 a legislative finding and declaration  
          that it does not amend or modify  308.5 of the Family  
          Code, the statute 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   
          308.5 of the Family Code.



          AB 43 (Leno)
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          AB 43 represents the fifth time in a little over six years  
          that this Legislature has confronted the issue of same-sex,  
          or gender-neutral, marriage. AB 1338 (Koretz, 2001) would  
          have established civil unions in the state. It died in the  
          Assembly Judiciary Committee.  AB 1967 (Leno, 2004) was the  
          first to try to make the definition of "marriage"  
          gender-neutral, and the first legislation of its kind to  
          pass a policy committee of the Legislature, the Assembly  
          Judiciary Committee, chaired by then Assemblymember  
          Corbett.  That measure died in the Assembly Appropriations  
          Committee.  In 2005, the author tried again with AB 19, but  
          the bill failed passage on the Assembly Floor.  The author  
          then gutted and amended AB 849, which was already in the  
          Senate, with the same provisions making "marriage"  
          gender-neutral, declaring that the act did not intend to  
          amend or modify  308.5 of the Family Code that was enacted  
          by initiative (Proposition 22), and containing identical  
          legislative findings and declarations.   

          AB 849 was the first state legislation of its kind to pass  
          both houses of a legislature and get to a governor's desk.   
          On September 29, 2005, Governor Schwarzenegger vetoed AB  
          849.  His message states:

              I am returning Assembly 849 without my signature  
              because I do not believe the Legislature can  
              reverse an initiative approved by the people of  

              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 and should not be  
              discriminated against based upon their  
              relationships.  I support current domestic  
              partnership rights and as such will not support any  

              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  


          AB 43 (Leno)
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              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  

          AB 43 is an almost identical bill to AB 849.  In the  
          period between the veto of AB 849 and this committee's  
          hearing on AB 43, the First District Court of Appeal  
          heard and, in October 2006, overturned the trial  
          court's decision that ruled California's ban on  
          same-sex marriage unconstitutional. (  In re Marriage  
          Cases  (2006) Cal.App.4th 873.)  The California Supreme  
          Court granted review of the case, and on June 20, 2007,  
          issued an order asking the parties to file additional  
          briefs on four issues.

          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  


          AB 43 (Leno)
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          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. (A summary history of  
          this latest of civil rights movements, both at the federal  
          and state levels, may be found in the Senate Judiciary  
          Committee Analysis of AB 849 (Leno), dated July 12, 2005.)

          It is interesting to note that while courts and voters in  
          the United States continue to debate the issue of marriage  
          rights for same-sex couples, countries such as Spain and  
          South Africa have joined Belgium, the Netherlands, and  
          Canada in legalizing same-sex marriage, and the Supreme  
          Court of Israel has ruled that same-sex couples who marry  
          in foreign jurisdictions are entitled to register their  
          marriages in Israel.

          California has the most comprehensive and liberal domestic  
          partnership statutory scheme in the country.  The  
          California Domestic Partners Rights and Responsibilities  
          Act of 2003 (AB 205, Goldberg, Chapter 421, Statutes of  
          2003) recast all of the previous legislation relating to  
          domestic partnerships (some 24 bills in 11 years) 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.  
          (Family Code 
           299 et seq.) 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 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  299.2.). The Third District Court of Appeal,  
          in  Knight v. Superior Court  (2005) 128 Cal.App.4th 14, held  
          that the domestic partnership statutes that provide rights  
          and responsibilities to same-sex couples are not  
          inconsistent with Proposition 22, but also noted that there  
          is a difference in stature between a marriage and a  
          domestic partnership. (  supra  , at 30.) 

                             CHANGES TO EXISTING LAW


          AB 43 (Leno)
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          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 as authorized. (Family Code  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  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. 
            ( 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.
            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. 
            ( 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  


          AB 43 (Leno)
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            constitutional officers. ( 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 United  
            States Constitution or by Section 4 of article I of the  
            California Constitution. (Proposed  403.)
          4.    Existing law  provides that only a marriage between a  
            man and a woman is valid or recognized in California.   
            (Family Code  308.5, adopted by initiative, Proposition  
            22, on March 8, 2000.)

             This bill  would specify the Legislature's intent that  
            this act not alter  308.5, to the extent  308.5  
            addresses only marriages from other jurisdictions.  

          5.    This bill  contains legislative findings relating to  
            civil marriage as recognized by the state, the  
            institution of marriage, the Legislature's amendment of  
            the state's marriage law from a gender-neutral  
            description to the current language limiting marriage to  
            a man and a woman, the California Supreme Court's  
            decision in  Perez v. Sharp  (1948) 32 Cal. 2d 711, other  
            jurisdictions' treatment of same-sex couples, the high  
            courts' decisions on the issue, 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.

             The bill  contains further findings and declarations  
            regarding the domestic partnership statutes, explaining  
            that relegating same-sex couples to domestic partnership  
            status causes severe and lasting harms to them and their  
            children and families, stigmatizes them in violation of  
            the California Constitution, violates public policy by  
            promoting discrimination on the basis of sexual  
            orientation, and puts them and their families at risk of  
            illegal discrimination by state and local government  
            agencies and officials.



          AB 43 (Leno)
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             The bill  declares the intent of the Legislature to end  
            the pernicious practice of marriage discrimination in  
            California, a practice that violates the state  
            Constitution's guarantee of due process, privacy, and  
            equal protection of the law.  It further declares that  
            California's exclusion of same-sex couples from marriage  
            serves no legitimate purpose and the harms cannot be  
            remedied by any measure short of permitting same-sex  
            couples to marry in California.
          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 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.  First, domestic partnership does not create a  
            status equivalent to marriage under California state law  
            (citing  Knight  , supra)? .  Second, domestic partners may  


          AB 43 (Leno)
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            not claim the more than 1,000 federal rights, benefits  
            and obligations provided only to married couples, such as  
            the right to sponsor a partner for immigration to the  
            United States, the right to social security survivors  
            benefits, preferential federal tax treatment and many  
            other critical protections.  Third, ? [s]ame sex partners  
            ?risk losing essential rights when they leave the state,  
            such as the right to hospital visitation and the right to  
            make medical decisions for a partner in the event of an  
            emergency.  Fourth, legal 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 federal and state Constitutions protect religious  
            freedom.  Religious officials currently may refuse to  
            perform marriages that do not fulfill the requirements of  
            their religious faith. ...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.    How would a decision on the constitutionality of   
            308.5 affect AB 43?  

            This bill contains language stating that while it intends  
            to end the pernicious practice of marriage discrimination  
            in California, it in no way intends to alter  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.    

            Family Code  308.5 states:  "Only marriage between a man  
            and a woman is valid and recognized in California."  
            Whether  308.5 is constitutionally infirm was raised in  
            the "marriage cases." (  In re Marriage Cases,  supra.)  In  
            its decision, the appellate court stated, "[r]egardless  
            of whether this initiative should be interpreted to  
            pertain to all marriages or only those entered outside  
            California,?the citizens who voted for Proposition 22  


          AB 43 (Leno)
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            unquestionably expressed a desire to limit recognition of  
            same-sex partnerships as marriage in this state."   
            Meanwhile, the court said, the Legislature moved to enact  
            sweeping domestic partnership laws to provide  
            substantially the same rights as marriage to committed  
            same-sex couples.  "By maintaining the traditional  
            definition of marriage while simultaneously granting  
            legal recognition and expanded rights to same-sex  
            relationships, the Legislature has struck a careful  
            balance to satisfy the diverse needs and desires of  
            Californians." (  Id.  at 936.)

            The court concluded that the Legislature and the voters  
            have determined that "marriage" in California is "an  
            institution reserved for opposite-sex couples, and it  
            makes no difference whether we agree with their  
            reasoning." This decision is now on appeal before the  
            California Supreme Court.

            Opponents of AB 43 contend that the bill "disregards the  
            will of the people clearly stated in [Proposition 22],  
            and the California Constitution specifies that the  
            Legislature may not amend an initiative without voter  
            approval. ?Thus AB 43 would not only circumvent the  
            people's will, but is a violation of the California  
            Constitution." (Letter from Concerned Women for America,  
            dated July 3, 2007.)  They further argue that despite AB  
            43's intent language not to affect  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."  
             Further, they state that "[t]his tactic [of redefining  
            marriage to remove gender-specificity and stating it does  
            not amend  308.5] gives added weight to the attempts to  
            overturn Prop. 22 through the courts by allowing AB 43 to  
            become law and creating the scenario for conflicting  
            language in the Family Code relating to marriage."  
            (Traditional Values Coalition (TVC), letter dated July 3,  

            Proponents of AB 43 on the other hand argue that  
            Proposition 22 was designed to protect state sovereignty,  
            nothing more.  They argue that the ballot arguments in  


          AB 43 (Leno)
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            support of Prop. 22 made clear the proposition was  
            directed at preventing recognition of same-sex marriages  
            performed outside the state. (An examination of ballot  
            arguments in support of the initiative indicates voter  
            concern about recognizing marriages contracted out of  
            state.  The placing of the proposed statute at  308.5,  
            directly after  308, which deals with out-of-state  
            marriages, is consistent with the ballot arguments  
            proffered.) 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  

            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  
            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  

            Another court read the initiative measure more broadly,  
            stating that the plain language of Prop. 22 and  308.5  
            reaffirm the definition of marriage in  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.   
            The California Supreme Court refused to grant its review.

            In its June 20, 2007 order for additional briefing on the  
                                                      In re Marriage Cases  the Supreme Court asked that the  
            following issue be addressed:



          AB 43 (Leno)
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               Should Family Code section 308.5 - which provides  
               that "[o]nly marriage between a man and a woman is  
               valid or recognized in California" - be  
               interpreted to prohibit only the recognition in  
               California of same-sex marriages that are entered  
               into in another state or country or does the  
               provision also apply to and prohibit same-sex  
               marriages entered into within California?  Under  
               Full Faith and Credit Clause and the Privileges  
               and Immunities Clause of the federal Constitution  
               (U.S. Const., art. IV,  1,2, cl.1), could  
               California recognize same-sex marriages that are  
               entered into within California but deny such  
               recognition to same-sex marriages that are entered  
               into in another state?  Do these federal  
               constitutional provisions affect how Family Code  
               section 308.5 should be interpreted?

            The Governor had stated in his veto message that  
            should the court decide to address the issue of  
            whether  308.5 prohibits same-sex marriage and  
            conclude that the ban is unconstitutional, this bill  
            would not be necessary.  That statement is not  
            entirely accurate, because although such a decision  
            would strike  308.5 from the Family Code, the  
            statute defining marriage would remain the same  
            unless AB 43 is enacted.  So, if  308.5 is struck  
            down as unconstitutional, same-sex marriages from  
            other jurisdictions would be recognized in the state,  
            but there still would be no clear parallel treatment  
            for same-sex marriages performed in the state.

            If, on the other hand,  308.5 is ruled constitutional by  
            the Supreme Court but not as it applies to same-sex  
            marriage contracted within California, AB 43 would still  
            serve a purpose in removing the gender-specific  
            references in the marriage statutes and clearly allow  
            same-sex marriages in the state. 

          3.    AB 43 joins the Legislature to the constitutional  
            challenge to  300 and 308.5 now before the  
            California Supreme Court  

            AB 43 represents a serious legislative challenge to the  
            constitutionality of California's law defining marriage  


          AB 43 (Leno)
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            as "a personal relation arising out of a civil contract  
            between a man and a woman" (Family Code  300) and the  
            Proposition 22 enactment declaring that "only marriage  
            between a man and a woman is valid or recognized in  
            California" (Family Code  308.5).  The bill addresses a  
            question now before the California Supreme Court: whether  
            those two Family Code sections violate the equal  
            protection and privacy provisions of the California  
            Constitution.  Having accepted the  In re Marriage Cases   
            for review, the court has asked the parties and amici to  
            brief the following questions further:  

               What, if any, are the minimum,  
               constitutionally-guaranteed substantive attributes  
               or rights that are embodied within the fundamental  
               constitutional "right to marry" that is referred  
               to in cases such as Perez v. Sharp (1948) 32  
               Cal.2d 711, 713-714?   In other words, what set of  
               substantive rights and/or obligations, if any,  
               does a married couple possess that, because of  
               their constitutionally protected status under the  
               state Constitution, may not (in the absence of a  
               compelling interest) be eliminated or abrogated by  
               the Legislature, or by the people through the  
               initiative process, without amending the  
               California Constitution?

               Do the terms "marriage" or "marry" themselves have  
               constitutional significance under the California  
               Constitution?  Could the Legislature, consistent  
               with the California Constitution, change the name  
               of the legal relationship of "marriage" to some  
               other name, assuming the legislation preserved all  
               of the rights and obligations that are now  
               associated with marriage?

            The appeal in the  In re Marriage Cases  is of the decision  
            by Judge Richard Kramer, in the San Francisco  
            consolidated cases directly challenging the two Family  
            Code provisions.  Judge Kramer determined these two  
            provisions are unconstitutional in that they deprive a  
            discreet class of citizens equal protection guaranteed  
            under the California Constitution. The appellate court  
            reversed Judge Kramer's decision, stating that "[t]he  
            trial court's decision, although purporting to apply  


          AB 43 (Leno)
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            rational basis review, essentially redefined marriage to  
            encompass unions that have never before been considered  
            as such in this state?In the final analysis, the court is  
            not in the business of redefining marriage.  The  
            Legislature has control of the subject of marriage,  
            subject only to initiatives passed by the voters and  
            constitutional restrictions. (Citations omitted.) If  
            marriage is to be extended to same-sex couples, this  
            change must come from the people - either directly,  
            through a voter initiative, or through their elected  
            representatives in the Legislature. (supra, at 938.)

            It is interesting to note that Justice Parrilli's  
            concurring opinion in this case argues that a "common  
            understanding and meaning of the word 'marriage,' or the  
            term 'to marry,' is required before the word, and the  
            institution, can be discussed intelligently."  Justice  
            Parrilli went on to note that references to a civil  
            marriage have included religious connotations, such as a  
            "sacred" institution, the "spiritual meaning" and "the  
            reverence" accorded to married status, yet the state must  
            "remain separated from furthering any particular  
            religious ideation and tradition," and avow that the  
            institution of marriage is civil in nature.  "The often  
            unspoken, but underlying assumption about the current  
            definition of marriage is that it comes from a religious  
            tradition," she wrote. And she declared, we are "in the  
            midst of a definitional process that will affect how the  
            citizens of California go forward in the 21st century?if  
            being gay or lesbian is an immutable trait or  
            biologically determined, then we must conclude  
            classification based on that status which deprives such  
            persons of legitimate rights is suspect." (  In re Marriage  
            Cases  , supra at 941.)

            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 entered, once more,  
            the debate to determine whether 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  


          AB 43 (Leno)
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            be reassessed against the following analysis of the  
            Legislature's historic responsibility to define civil  
            relationships in the state. 

             a.   The recent history of Family Code  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 former  
               California Attorney General.

               Family Code  300, enacted in 1992, replaced former  
               Civil Code  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)  


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               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  

               While  Romer  did not specifically declare gays and  
               lesbians 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  
               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  


          AB 43 (Leno)
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               "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 proffered 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  

               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,  
               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 43.  

             c.    Is procreation the purpose of marriage, justifying  
               the ban on same-sex marriage?  
               Those who challenged the constitutionality of AB 205  
               (Goldberg, Ch. 421, Stats. 2003) 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." The trial court in the  
               "marriage cases" 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 trial  
               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  


          AB 43 (Leno)
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               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  

               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 43  
               (as they were when AB 849 and its parent, AB 19, were  
               heard by the Legislature): 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.   
               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.

               In further support of this view is the result of a  
               recent poll conducted by the Pew Research Center on  
               marriage and parenthood.  The Pew poll results show  
               that "Americans of all ages?acknowledge that there has  
               been a distinct weakening of the link between marriage  
               and parenthood."  Ranking the answers to the question  
               "[w]hat makes a marriage work?," the poll shows that  
               "faithfulness" is at number 1 (93%) and "sharing  
               household chores" is at number 3 (62%), while  
               "children" is at number 8 (41%), behind "good housing"  
               (51%) and "shared tastes and interests" (46%). (Pew  
               Research Center Publications, July 1, 2007.  Poll  
               results may be found at  


          AB 43 (Leno)
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               Another argument proffered 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."  
               (  Id.  at 439)
              d.    The Legislature's enactment of AB 205 (the Domestic  
               Partnership Act) does not vitiate the need to correct  
               the possible infirmity of  300
               AB 205 and all of the legislation preceding it  
               attempted to provide to domestic partners  
               substantially the same rights and obligations that  
               married couples have.  Yet, proponents state there are  
               some 1,100 federal laws, benefits, and other rights  
               that are not available to domestic partners but are  
               conferred on marital spouses.  One example is the  
               ability of married persons to change their names in  
               the Social Security Administration (SSA) records by  
               simply providing a marriage certificate, because  
               marriage is considered a legal event that could  
               trigger a name change.  This is not available to  
               registered domestic partners. 

               The author and supporters of AB 43 clearly believe  
               that as comprehensive and as marriage-like the rights  
               and obligations of domestic partners are under current  
               law, it is not enough to correct the harm being done  


          AB 43 (Leno)
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               to same-sex couples and their families.  According to  
               one of the legislative declarations in AB 43,  
               "California's discriminatory exclusions 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."

               Guessing why a court issues an order is almost always  
               a 50-50 proposition, but the Supreme Court's order of  
               June 20 on the "marriage cases" seems to implicitly  
               recognize the distinction by asking parties and amici  
               to provide a list of differences between rights or  
               benefits and legal obligations or duties under  
               California law affecting registered domestic partners  
               as compared to legally married spouses. (  In re  
               Marriage Cases  , S147999, Order dated June 20, 2007.)

          4.    AB 43 would not compel religious officials to  
          solemnize marriages

             AB 43 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 1 of the  
            California Constitution.

            Many religious-affiliated groups are in support of AB 43.  
             For example, California Church IMPACT ("representing 1.5  
            million members of mainstream, progressive Protestant and  
            Christian Orthodox communities of faith for whom equality  
            before the law is an essential moral component") states  
            that "[m]arriage with its contractual support from the  
            state stabilizes the protection of children, strengthens  
            family bonds, and most importantly assures that during  
            both life celebrations and life crises, the partners in  
            wedlock will be able to act on their presumptive rights  
            rather than risking legal barriers that prevent them from  
            carrying out their responsibilities to each other and  
            their other family members.  To bar same-gender marriage  
            is pointless.  It places loving people in the position of  
            being rootless within the larger community.  Marriage is  
            a personal relationship arising out of love and  


          AB 43 (Leno)
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            commitment.  It serves no purpose to forbid it.  As we  
            decry the dissolution of heterosexual marriages, we  
            simply add to the breakdown of society by forbidding  
            loving unions between people of the same sex."

          Support:  AIDS Legal Referral Panel; AIDS Project Los  
                 Angeles; Alum Rock United Methodist Church; American  
                 Academy of Pediatrics, California District IX;  
                 American Civil Liberties Union (ACLU); American  
                 College of Obstetricians and Gynecologists District  
                 IX; American Federation of State, County, and  
                 Municipal Employees (AFSCME), AFL-CIO; American  
                 Humanist Association; Anti-Defamation League; API  
                 Equality; Asian Americans for Civil Rights and  
                 Equality (AACRE); Asian Pacific American Legal  
                 Center of Southern California; Asian Pacific  
                 American Bar Association (APABA); Asian Pacific  
                 American Legal Center; Asian Law Caucus; Association  
                                          of Humanistic Rabbis; Bay Area Lawyers for  
                 Individual Freedom; Bay Area Municipal Elections  
                 Committee; Being Alive; Berkeley City Councilmember  
                 Darryl Morre; Beth Chayim Chadashim Congregation;  
                 Bethany United Methodist Church; Bienestar Human  
                 Services; Bill De Frank Community Center; Board of  
                 Equalization Vice Chair, Judy Chu; Body Wisdom  
                 Institute; Cal Aggie Christian Association;  
                 California Alliance for Retired Americans;  
                 California Coalition for Civil Rights; California  
                 Commission on the Status of Women; California Church  
                 IMPACT; California Democratic Party, LGBT Caucus;  
                 California Faith for Equality; California Federation  
                 of Teachers; California Nurses Association;  
                 California State Controller John Chiang; California  
                 State Treasurer Bill Lockyer; California Teachers  
                 Association; Chalice Christian Church, Disciples of  
                 Christ; Children of Lesbians and Gays Everywhere;  
                 Chinese for Affirmative Action; Christ the Good  
                 Shepard Lutheran Church, San Jose; Church of the  
                 Foothills; City & County of San Francisco; City of  
                 West Hollywood; Coalition for Humane Immigrant  
                 Rights of Los Angeles; Communication Workers of  
                 America, AFL-CIO, Local 9000; Community  
                 Congregational United Church of Christ; Community  
                 Lutheran Church; Conejo Valley Unitarian  


          AB 43 (Leno)
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                 Universalist Fellowship; Congregation Kol Ami, West  
                 Hollywood; Congregation Or Ami; Congregation Shir  
                 Chadash; EarthWorks Enterprises; The Ecumenical  
                 Catholic Church; Emerson Unitarian Universalist  
                 Church; Equal Rights Advocates; Fair Oaks United  
                 Methodist Church; Fairview Community Church; First  
                 Congregational Church of Alameda; First  
                 Congregational Church of Berkeley; First  
                 Congregational Church of Pasadena; First  
                 Presbyterian Church of Baldwin Park; First Unitarian  
                 Church of Oakland; First Unitarian Universalist  
                 Society of San Francisco; Friends Committee on  
                 Legislation of California; Gay & Lesbian Adolescent  
                 Social Services, Inc; Gay & Lesbian Alliance of the  
                 Central Coast; Gay & Lesbian Medical Association;  
                 Gay-Straight Alliance Network; Gray Panthers  
                 California; Gray Panthers National Office; Holy  
                 Nativity Episcopal Church; Holy Spirit Fellowship;  
                 Humanist Community of Silicon Valley; Human Rights  
                 Campaign; Human Rights/Fair Housing Commission of  
                 the City and County of Sacramento; Inland Counties  
                 Stonewall Democrats; Japanese American Citizens  
                 League (JACL) - Pacific Regional Office; Japanese  
                 American Citizens League of Watsonville/Santa Cruz;  
                 Jewish Community Relations Council; Lambda Letters  
                 Project; Legal Aid Society-Employment Law Center;  
                 Legal Services for Prisoners with Children; Los  
                 Angeles County Bar Association, Family Law Section;  
                 Los Angeles Gay & Lesbian Center; Marin County Clerk  
                 Michael Smith; Metropolitan Community Churches  
                 Region 6; Metropolitan Community Church, Los  
                 Angeles; Metropolitan Community Church, Sacramento;  
                 Metropolitan Community Church, San Diego;  
                 Metropolitan Community Church, San Jose; Mexican  
                 American Legal Defense and Education Fund (MALDEF);  
                 Mira Vista United Church of Christ, El Cerrito;  
                 Mission Peak Unitarian Univeralist Congregation;  
                 National Association for the Advancement of Colored  
                 People (NAACP), California State Conference; NARAL  
                 ProChoice California; National Association of Social  
                 Workers, California Chapter; National Gay and  
                 Lesbian Task Force; National Lesbian and Gay Law  
                 Association; National Organization for Women (NOW) -  
                 California; Nevada County Clerk Kathleen Smith; Our  
                 Family Coalition; Out & Equal; Palomar Unitarian  


          AB 43 (Leno)
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                 Universalist Fellowship; Pacific Unitarian Church;  
                 Parents, Families & Friends of Lesbians & Gays  
                 (PFLAG) National Office; PFLAG Anderson Valley;  
                 PFLAG Bakersfield; PFLAG Central Coast; PFLAG  
                 Danville/San Ramon Valley; PFLAG Fremont/East Bay;  
                 PFLAG Fresno; PFLAG Grass Valley/Nevada City; PFLAG  
                 Greater Placer County; PFLAG Idyllwild/San Jacinto  
                 Valley; PFLAG Laguna Hills/South Orange County;  
                 PFLAG Long Beach; PFLAG Los Angeles; PFLAG  
                 Marysville/Yuba City; PFLAG Merced; PFLAG  
                 Modesto/Stanislaus; PFLAG Monterey/Monterey County;  
                 PFLAG Oakhurst; PFLAG Oakland/East Bay; PFLAG Orange  
                 County; PFLAG Southern Pacific Region; PFLAG  
                 Oakland-East Bay; PFLAG Palm Springs/Desert  
                 Communities; PFLAG Palos Verdes/South Bay; PFLAG  
                 Pasadena; PFLAG Placerville/El Dorado County; PFLAG  
                 Redding/Shasta County; PFLAG Redlands; PFLAG  
                 Ridgecrest; PFLAG Riverside; PFLAG Rossmoor/Walnut  
                 Creek; PFLAG Sacramento; PFLAG San Diego County;  
                 PFLAG San Francisco; PFLAG Santa Rosa/North Bay;  
                 PFLAG San Joaquin/Stockton; PFLAG San  
                 Jose/Peninsula; PFLAG San Luis Obispo/Central Coast;  
                 PFLAG Santa Barbara; PFLAG Santa Clarita; PFLAG  
                 Santa Cruz/Santa Cruz County; PFLAG Sonora/Mother  
                 Lode; PFLAG Temecula; PFLAG Vacaville/North Solano  
                 County; PFLAG Ventura County; PFLAG Walnut  
                 Creek/Diablo Valley; PFLAG Westwood/Lake Almanor;    
                 Pine United Methodist Church; Pioneer Congregational  
                 United Church of Christ, Sacramento; Planned  
                 Parenthood Affiliates of California; Planned  
                 Parenthood Golden Gate; Pride at Work AFL-CIO,  
                 Southern California; Pride at Work, Sacramento  
                 Valley Chapter; Progressive Christians Uniting;  
                 Progressive Jewish Alliance; Protection & Advocacy  
                 Inc. (PAI); Public Advocates, Inc.; Reconciling  
                 Ministries Network, United Methodists;  SAC LEGAL;  
                 Saint John the Evangelist Episcopal Church; Saint  
                 Matthew's Church; San Diego City Councilmember Toni  
                 Atkins; San Francisco AIDS Foundation; San Mateo  
                 County Chief Elections Officer Warren Slocum; Santa  
                 Clara City Councilmember Jamie McLeod; Santa Clara  
                 County Board of Supervisors; Santa Cruz County Board  
                 of Supervisors; Secretary of State Debra Bowen;  
                 Service Employees International Union (SEIU);  
                 Seventh Avenue Presbyterian Church, San Francisco;  


          AB 43 (Leno)
          Page 23 of ?

                 Social Justice Committee of the Unitarian Society of  
                 Santa Barbara; Sophia Spirit; South Bay LGBT  
                 Community Organization of Torrance; Starr King;  
                 Stonewall Alliance Center; Stonewall Democratic Club  
                 of Greater Sacramento;  Tapestry, A Unitarian  
                 Universalist Congregation; Tenderloin Housing  
                 Clinic; The Center Orange County; Throop Memorial  
                 Church, Unitarian Universalist; Transgender Law  
                 Center; Trinity Montclair United Methodist Church;  
                 Unitarian Universalist Church, Berkeley; Unitarian  
                 Universalist Church, Fresno; Unitarian Universalist  
                 Church, Redwood City; Unitarian Universalist Church,  
                 Sacramento; Unitarian Universalist Church, Santa  
                 Monica; Unitarian Universalist Church, Santa Paula;  
                 Unitarian Universalist Church, Ventura; Unitarian  
                 Universalist Legislative Ministry California;   
                 United Church of Christ, Fullerton; United Church of  
                 Christ, Niles Congregational Church; United Church  
                 of Christ, Northern California/Nevada Conference;  
                 United Church of Christ, Simi Valley; United Church  
                 of Christ, Southern California Nevada Conference;  
                 United Farm Workers of America (UFW); United  
                 Teachers of Los Angeles; United University Church;  
                 Unity Fellowship of Christ Church; West Hollywood  
                 Presbyterian Church; Women's Foundation of  
                 California; Yolo County Clerk Freddie Oakley;  
                 numerous religious leaders, hundreds of individuals

          Opposition:  Capitol Resource Institute; Traditional Values  
                    Coalition; California Family Council; Concerned  
                    Women for America of California

          Source: Equality California (Sponsor)

          Related Pending Legislation: None Known

          Prior Legislation: See Background

          Prior Vote: Asm. Jud. (Ayes 7, Noes 3)
                    Asm. Appr.) (Ayes 12, Noes 5)
                    Asm. Flr. (Ayes 42, Noes 34)


          AB 43 (Leno)
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