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) AB 43 (Leno) Page 2 of ? 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 AB 43 (Leno) Page 3 of ? 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 AB 43 (Leno) Page 4 of ? 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) Page 5 of ? 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) Page 6 of ? 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) Page 7 of ? 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 AB 43 (Leno) Page 8 of ? 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) Page 9 of ? 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 AB 43 (Leno) Page 10 of ? 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: AB 43 (Leno) Page 11 of ? 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) Page 12 of ? 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) Page 13 of ? 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) Page 14 of ? 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) AB 43 (Leno) Page 15 of ? 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 AB 43 (Leno) Page 16 of ? "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 AB 43 (Leno) Page 17 of ? 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 AB 43 (Leno) Page 18 of ? 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 AB 43 (Leno) Page 19 of ? 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) Page 20 of ? 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) Page 21 of ? 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) Page 22 of ? 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 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) ************** AB 43 (Leno) Page 24 of ?