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
GMO:rm
SUBJECT
"Religious Freedom and Civil Marriage Protection Act"
DESCRIPTION
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.
BACKGROUND
(more)
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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
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 and should not be
discriminated against based upon their
relationships. I support current domestic
partnership 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
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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
ineffective.
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
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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
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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
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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.
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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.
COMMENT
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
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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
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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,
2007.)
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
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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
states.
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
recognition."
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:
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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
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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
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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
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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
Clause?"
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
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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
(1935).
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
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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
standards."
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
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http://pewresearch.org/pubs/526/marriage-parenthood .)
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
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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
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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
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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
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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;
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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
HISTORY
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)
**************
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