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 ****