BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 43| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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, CONTINUED AB 43 Page 2 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 marry. [FAM Section 302] AB 43 Page 3 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 Page 4 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 dollarGeneral/ annual costs Local/ Special Tax revenue loss unknown, likely multimillion dollar General loss annually AB 43 Page 5 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 Page 6 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 Page 7 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 Page 8 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 Page 9 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 Barbara 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 Conference United Church of Christ, Simi Valley United Church of Christ, Southern California Nevada Conference 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 Page 10 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 Page 11 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 **** END ****