BILL ANALYSIS                                                                                                                                                                                                    


          |SENATE RULES COMMITTEE            |                    AB 43|
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                                 THIRD READING

          Bill No:  AB 43
          Author:   Leno (D), et al
          Amended:  4/9/07 in Assembly
          Vote:     21

           SENATE JUDICIARY COMMITTEE  :  3-2, 7/10/07
          AYES:  Corbett, Kuehl, Steinberg
          NOES:  Harman, Ackerman
          SENATE APPROPRIATIONS COMMITTEE  :  9-8, 8/30/07
          AYES:  Torlakson, Cedillo, Corbett, Kuehl, Oropeza,  
            Ridley-Thomas, Simitian, Steinberg, Yee
          NOES:  Cox, Aanestad, Ashburn, Battin, Dutton, Florez,  
            Runner, Wyland
          ASSEMBLY FLOOR :  42-34, 6/5/07 - See last page for vote

           SUBJECT  :    Gender-neutral marriage

           SOURCE  :     Equality California

           DIGEST  :    This bill redefines marriage in California as a  
          union between two persons, making it gender-neutral, and  
          thereby permitting same-sex marriages in the state.  It  
          does not, however, require any clergy or religious official  
          to solemnize any marriage in violation of his/her right to  
          free exercise of religion as guaranteed by the United  
          States Constitution and the California Constitution.  This  
          bill contains a legislative finding and declaration that it  
          does not amend or modify Section 308.5 of the Family Code,  


                                                                 AB 43

          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.  
           This 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, this bill declares the Legislature's intent to end  
          marriage discrimination in California without altering  
          Section 308.5 of the Family Code.

           ANALYSIS  :    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.  [Section 300 of the  
          Family Code (FAM)]

          This bill changes "a man and a woman" in the above statute  
          to "two persons."

          This bill further states 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 FAM Section 308.5.

          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. 
          [FAM Section 301]

          This bill, instead, provides 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  
          [FAM Section 302]


                                                                 AB 43

          This bill deletes "unmarried male or female" and replaces  
          it with "unmarried person."

          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  
          constitutional officers.  [FAM Section 400]

          This bill specifies 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/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 FAM Section 403]

          This bill enacts the Religious Freedom and Civil Marriage  
          Protection Act.

          Existing law provides that only a marriage between a man  
          and a woman is valid or recognized in California.  [FAM  
          Section 308.5, adopted by initiative, Proposition 22, on  
          March 8, 2000]

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

          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  


                                                                 AB 43

          in encouraging stable relationships regardless of the  
          gender or sexual orientation of the partners.

          This 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.

          This 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.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  Yes

          According to the Senate Appropriations Committee:

                          Fiscal Impact (in thousands)

             Major Provisions                2007-08     2008-09     
             2009-10               Fund  

            Benefits            unknown, likely multimillion  
                                annual costs                   

            Tax revenue loss              unknown, likely  
            multimillion dollar           General
                                loss annually


                                                                 AB 43

          Census 2000 data identified 92,138 same-sex couples living  
          in California, and as of March, the Secretary of State's  
          office had 43,790 domestic partner declarations filed.  It  
          is unknown how many of these couples are same sex.

          Current law, SB 1827 (Migden), Chapter 802, Statutes of  
          2006, requires registered domestic partners to file  
          personal income tax returns as either married filing joint  
          or married filing separate.  In determining costs for that  
          legislation, the Franchise Tax Board estimated that for  
          every 4,900 same-sex couples whose filing status changed as  
          a result of the bill, there would be a tax revenue loss of  
          $1 million. 

          There would be a similar tax revenue loss for same-sex  
          couples who are not already registered domestic partners  
          who choose to marry under AB 43 - for every 4,900 of these  
          couples, the state would see losses of $1 million. 

          Projected costs for state government to provide medical,  
          dental and vision benefits to its employees' dependents  
          pursuant to this bill are unknown but would be significant.  
           The Public Employees' Retirement System estimates that for  
          every 1,000 additional subscribers, the state would see  
          increased General Fund benefits provision costs of $4.3  
          million, and local governments would see similar increased  
          benefits costs.  Estimated increased costs for increased  
          retirement benefits were not significant as subscribers can  
          currently name any person as their beneficiaries. 

           SUPPORT  :   (Verified  8/30/07)

          Equality California (source)
          AIDS Legal Referral Panel
          AIDS Project Los Angeles
          Alum Rock United Methodist Church
          American Academy of Pediatrics, California District IX
          American Civil Liberties Union
          American College of Obstetricians and Gynecologists  
          District IX
          American Federation of State, County, and Municipal  
          Employees, AFL-CIO
          American Humanist Association


                                                                 AB 43

          Anti-Defamation League
          API Equality
          Asian Americans for Civil Rights and Equality 
          Asian Pacific American Legal Center of Southern California
          Asian Pacific American Bar Association 
          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 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 and 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 Universalist Fellowship
          Congregation Kol Ami, West Hollywood
          Congregation Or Ami
          Congregation Shir Chadash
          EarthWorks Enterprises


                                                                 AB 43

          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 and Lesbian Adolescent Social Services, Inc
          Gay and Lesbian Alliance of the Central Coast
          Gay and 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 - 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 and 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
          Mira Vista United Church of Christ, El Cerrito
          Mission Peak Unitarian Universalist Congregation
          National Association for the Advancement of Colored People,  
            California State Conference


                                                                 AB 43

          NARAL Pro-Choice California
          National Association of Social Workers, California Chapter
          National Gay and Lesbian Task Force
          National Lesbian and Gay Law Association
          National Organization for Women - California
          Nevada County Clerk Kathleen Smith
          Our Family Coalition
          Out and Equal
          Palomar Unitarian Universalist Fellowship
          Pacific Unitarian Church
          Parents, Families and Friends of Lesbians and Gays (PFLAG)  
            National Office
          PFLAG:  Anderson Valley, Bakersfield, Central Coast,  
            Danville/San Ramon Valley, Fremont/East Bay, Fresno,  
            Grass Valley/Nevada City, Greater Placer County,  
            Idyllwild/San Jacinto Valley, Laguna Hills/South Orange  
            County, Long Beach, Los Angeles, Marysville/Yuba City,  
            Merced, Modesto/Stanislaus, Monterey/Monterey County,  
            Oakhurst, Oakland/East Bay, Orange County, Southern  
            Pacific Region, Oakland-East Bay, Palm Springs/Desert  
            Communities, Palos Verdes/South Bay, Pasadena,  
            Placerville/El Dorado County, Redding/Shasta County,  
            Redlands, Ridgecrest, Riverside, Rossmoor/Walnut Creek,  
            Sacramento, San Diego County, San Francisco, Santa  
            Rosa/North Bay, San Joaquin/Stockton, San Jose/Peninsula,  
            San Luis Obispo/Central Coast, Santa Barbara, Santa  
            Clarita, Santa Cruz/Santa Cruz County, Sonora/Mother  
            Lode, Temecula, Vacaville/North Solano County, Ventura  
            County, Walnut Creek/Diablo Valley, 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 and Advocacy, Inc.
          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


                                                                 AB 43

          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
          Seventh Avenue Presbyterian Church, San Francisco
          Social Justice Committee of the Unitarian Society of Santa  
          Sophia Spirit
          South Bay LGBT Community Organization of Torrance
          Starr King
          State Controller John Chiang
          State Treasurer Bill Lockyer
          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  
          United Church of Christ, Simi Valley
          United Church of Christ, Southern California Nevada  
          United Farm Workers of America 
          United Teachers of Los Angeles
          United University Church
          Unity Fellowship of Christ Church
          West Hollywood Presbyterian Church
          Women's Foundation of California


                                                                 AB 43

          Yolo County Clerk Freddie Oakley

          OPPOSITION  :    (Verified  8/30/07)

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

           ARGUMENTS IN SUPPORT  :    Proponents argue that Proposition  
          22 was designed to protect state sovereignty, nothing more.  
           They argue that the ballot arguments in support of  
          Proposition 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 Section 308.5, directly after  
          Section 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.  

           ARGUMENTS IN OPPOSITION  :    Opponents contend that this  
          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."  [Concerned Women for America letter, dated  
          July 3, 2007]  They further argue that despite this bill's  
          intent language not to affect FAM Section  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  


                                                                 AB 43

          language in the Family Code relating to marriage."   
          [Traditional Values Coalition letter, dated July 3, 2007]  

           ASSEMBLY FLOOR : 
          AYES:  Bass, Beall, Berg, Brownley, Caballero, Charles  
            Calderon, Coto, De La Torre, De Leon, DeSaulnier,  
            Dymally, Eng, Evans, Feuer, Fuentes, Hancock, Hayashi,  
            Hernandez, Huffman, Jones, Karnette, Krekorian, Laird,  
            Leno, Levine, Lieber, Lieu, Ma, Mendoza, Mullin, Nava,  
            Portantino, Price, Richardson, Ruskin, Salas, Saldana,  
            Solorio, Swanson, Torrico, Wolk, Nunez
          NOES:  Adams, Aghazarian, Anderson, Benoit, Berryhill,  
            Blakeslee, Carter, Cook, DeVore, Duvall, Emmerson,  
            Fuller, Gaines, Garcia, Garrick, Horton, Houston, Huff,  
            Jeffries, Keene, La Malfa, Maze, Nakanishi, Niello,  
            Parra, Plescia, Sharon Runner, Silva, Smyth, Spitzer,  
            Strickland, Tran, Villines, Walters
          NO VOTE RECORDED:  Arambula, Davis, Galgiani, Soto

          RJG:mw  8/30/07   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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