BILL ANALYSIS AJR 19 Page 1 Date of Hearing: August 18, 2009 ASSEMBLY COMMITTEE ON JUDICIARY Mike Feuer, Chair AJR 19 (Brownley and Feuer) - As Introduced: May 18, 2009 SUBJECT : MARRIAGE: REPEAL OF FEDERAL DEFENSE OF MARRIAGE ACT (DOMA) KEY ISSUE : SHOULD THE CALIFORNIA LEGISLATURE CALL UPON THE CONGRESS AND PRESIDENT TO REPEAL THE DEFENSE OF MARRIAGE ACT, WHICH PREVENTS SAME-SEX SPOUSES FROM ACCESSING THE MORE THAN 1,000 FEDERAL RIGHTS AND BENEFITS THAT ARE AFFORDED TO OPPOSITE-SEX SPOUSES? FISCAL EFFECT : As currently in print this resolution is keyed non-fiscal. SYNOPSIS This resolution calls upon the Congress and the President of the United States to repeal the federal Defense of Marriage Act (DOMA). The DOMA provides that the United States government will not recognize or give effect to marriages between persons of the same sex for purposes of federal law. The authors state in support of the resolution that the DOMA discriminatorily prevents same-sex couples from enjoying many of the critical rights and benefits federal law provides to all other couples, including the right to sponsor a spouse for immigration benefits, the right to access Social Security survivors benefits, the right to receive health insurance from a federal employee spouse, the right to file federal income taxes jointly, and hundreds of other crucial protections. The measure is sponsored by Equality California, and it is opposed by Capitol Resource Family Impact and the California Catholic Conference. SUMMARY : Urges Congress and the President of the United States to repeal the Defense of Marriage Act (DOMA). Specifically, this resolution makes the following findings: 1)Thousands of same-sex couples in California were legally married following the California Supreme Court's May 2008 decision in In re Marriage Cases, prior to the passage of the discriminatory Proposition 8, which purported to prospectively AJR 19 Page 2 eliminate the right of same-sex couples to marry in this state; 2)The Defense of Marriage Act is a federal law passed on September 21, 1996, and codified at Section 7 of Title 1 and Section 1738C of Title 28 of the United States Code; 3)The Defense of Marriage Act provides that the United States government will not recognize or give effect to marriages between persons of the same sex for purposes of federal law; 4)The Defense of Marriage Act excludes same-sex couples who are legally married in California from accessing the more than 1,000 federal rights and benefits that are afforded to opposite-sex spouses; 5)Among the critical rights and benefits that federal law provides to protect couples and families are the right to sponsor a spouse for immigration benefits, the right to access Social Security survivors benefits, the right to receive health insurance from a federal employee spouse, the right to file federal income taxes jointly, and hundreds of other crucial protections; 6)Among other discriminatory harms, because of the Defense of Marriage Act, workers in California must pay federal income taxes on the value of health benefits provided by an employer to the same-sex spouse of an employee, while health benefits provided to different-sex spouses are not taxed, and this discrimination results in serious financial detriment to many same-sex couples and their families in California; 7)The Defense of Marriage Act provides that no state is required AJR 19 Page 3 to give effect to any public act, record, or judicial proceeding of any other state respecting a relationship between persons of the same sex that is treated as a marriage under the laws of the other state or a right or claim arising from that relationship; 8)The Defense of Marriage Act, therefore, authorizes other states to discriminate against same-sex couples who are legally married in California by refusing to recognize or protect their relationships when they travel outside of California; and 9)The Defense of Marriage Act causes significant harm and unfairly discriminates against committed same-sex couples and their families EXISTING LAW : 1)Provides that, pursuant to Proposition 8 which narrowly passed on November 4, 2008, only a marriage between a man and a woman is valid or recognized in California. (California Constitution, Article I, Section 7.5.) 2)Provides, pursuant to the California Supreme Court's landmark decision, in In re Marriage Cases ((2008) 43 Cal.4th 757) and upheld by the Supreme Court's very recent decision in Strauss v. Horton ((2009) 46 Cal.4th 364), that any law discriminating on the basis of sexual orientation is constitutionally suspect. (In re Marriage Cases, 43 Cal.4th at 840-41.) 3)Upheld the validity of the same-sex marriages entered into in California from the effective date of the Marriage Cases decision until passage of Proposition 8. (Strauss v. Horton (2009) 46 Cal.4th 364.) 4)Provides that a marriage contracted outside of California that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in California. (Family Code Section 308.) 5)Provides registered domestic partners with the same rights, AJR 19 Page 4 protections, and benefits, and subjects them to the same responsibilities, obligations, and duties under law, as are granted to and imposed upon spouses. (Family Code Section 297.5) 6)Provides, in the California Constitution's Equal Protection Clause, in Article I, Section 7, that: a) "A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws. . ."; and b) "A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens." 7)Provides, in the California Constitution's Declaration of Rights, in Article I, Section 1, that "All people . . . have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." 8)Provides, in the Defense of Marriage Act (DOMA) that was signed by President Clinton on Sept. 21, 1996, that the United States government will not recognize or give effect to marriages between persons of the same sex for purposes of federal law. (Pub.L. 104-199, 110 Stat. 2419, codified at 1 USC 7 and 28 USC 1738C.) COMMENTS : This resolution, sponsored by Equality California, requests that the President and Congress repeal the federal Defense of Marriage Act (DOMA). In support of the measure, the authors state: Approximately 18,000 same-sex couples in California were legally married following the California Supreme Court's May 2008 decision in the In re Marriage Cases prior to the passage of Proposition 8, the ballot measure that prospectively eliminated the right of same-sex couples to marry in this state. On May 28, 2009, the California Supreme Court upheld Proposition 8. At the same time, the court unanimously ruled that the more than 18,000 marriages of same-sex couples that took place between June 16 and November 4, 2008 continue to be fully valid and recognized by the State of California. ? AJR 19 Page 5 The Defense of Marriage Act (DOMA), which took effect on September 21, 1996, provides that the United States government will not recognize or give effect to marriages between persons of the same sex for purposes of federal law. DOMA also provides that no state is required to give effect to any public act, record, or judicial proceedings of any other state respecting a relationship between persons of the same sex that is treated as a marriage under the laws of the other state or a right or claim arising from that relationship. DOMA excludes same-sex couples who are legally married in California and other states from accessing the more than 1,000 federal rights and benefits that are afforded to opposite-sex spouses. Among the critical rights and benefits that federal law provides to protect couples and families are the right to sponsor a spouse for immigration benefits, the right to access Social Security survivor benefits, the right to receive health insurance from a federal employee spouse, the right to file federal income taxes jointly, and hundreds of other crucial protections. AJR 19 would allow the California Legislature to call on Congress and the President to repeal DOMA, ending legal discrimination and exclusion from critical federal protections that impact thousands same-sex couples in California. Recent General Background on the Marriage Equality Issue The Federal Defense of Marriage Act : In 1996 Congress passed, and President Clinton signed, the federal Defense of Marriage Act (DOMA), which includes the provision that no state is required under federal law to give effect to a same-sex marriage contracted in another state. Other States' Laws Enacted in Light of the Federal DOMA : In light of the federal DOMA, many states have enacted measures prohibiting recognition of marriages entered into by same-sex couples in other jurisdictions. Some states have gone so far as to enact into their constitutions provisions that purport to prohibit recognition of relationships between same-sex couples other than marriage, such as domestic partnerships or civil AJR 19 Page 6 unions. Coordinated Marriage Cases: California Supreme Court's Landmark Decision : On May 15, 2008, the California Supreme Court, in a 4-3 decision, struck down as unconstitutional the California statutes limiting marriage to a man and a woman. The majority opinion concluded that "the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples." (Marriage Cases, 43 Cal.4th at 782 (footnote omitted).) The Court found that "[a]lthough our state Constitution does not contain any explicit reference to a 'right to marry,' past California cases establish beyond question that the right to marry is a fundamental right whose protection is guaranteed to all persons by the California Constitution." (Id. at 809.) The core substantive rights embodied in the right to marry "include, most fundamentally, the opportunity of an individual to establish - with the person with whom the individual has chosen to share his or her life - an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage." (Id. at 781.) The Court noted that "in contrast to earlier times, our state now recognizes that an individual's capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual's sexual orientation, and, more generally, that an individual's sexual orientation - like a person's race or gender - does not constitute a legitimate basis upon which to deny or withhold legal rights." (Id. at 782.) Accordingly, the Court concluded that "in light of the fundamental nature of the substantive rights embodied in the right to marry - and their central importance to an individual's opportunity to live a happy, meaningful, and satisfying life as a full member of society - the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation." (Id. at 820, emphasis added.) Although the opinion acknowledges that the recent comprehensive domestic partnership legislation enacted in California affords AJR 19 Page 7 same-sex couples most of the substantive elements embodied in the constitutional right to marry, the opinion further concludes that by assigning a different name for the family relationship of same-sex couples, while preserving the historic and honored designation of "marriage" only for opposite-sex couples, the California statutes threatened to deny the family relationship of same-sex couples dignity and respect equal to that accorded the family relationship of opposite-sex couples. The Court also addressed whether the statutory assignment of different labels for the official family relationship of opposite-sex couples and same-sex couples raises constitutional concerns under the California Constitution's Equal Protection Clause. The Court concluded that the "strict scrutiny" standard was applicable in this case (1) because the statutes discriminate on the basis of sexual orientation, a characteristic the majority determined to be - like gender, race, and religion - a constitutionally suspect basis upon which to impose differential treatment, and (2) because the different statutory treatment impinges upon same-sex couples' fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by opposite-sex couples. To survive strict scrutiny, a law must be necessary to serve a compelling government interest. The majority found that the California statutes failed both parts of this test. The majority determined that the state interest underlying the marriage statutes' differential treatment of opposite-sex and same-sex couples - the interest in retaining the traditional and well-established definition of marriage - cannot properly be viewed as a compelling state interest for purposes of the Equal Protection Clause, or as necessary to serve such an interest, and, thus, the statutes were unconstitutional. Proposition 8 : On October 5, 2007, the proponents of Proposition 8, apparently contemplating that the California Supreme Court might (as it did indeed do) find the state's discriminatory marriage provisions unconstitutional, began the legal process of proposing an initiative amendment to add to the California Constitution the provision that in California marriage could only be between one man and one woman. Then, as AJR 19 Page 8 noted above, on May 15, 2008, the Court issued its decision in the Marriage Cases, holding that statutes limiting marriage to a union between a man and a woman unconstitutional. The Proposition 22 Legal Defense & Education Fund and others requested a stay of the effective date of the Marriage Cases decision until after the vote on Proposition 8. The Court denied the request, and on June 16, 2008 the Marriage Cases decision took effect. Approximately 18,000 same-sex couples married in California after the effective date of the Marriage Cases decision. On November 4, 2008, Proposition 8 narrowly passed on a vote of 52-48 percent. Constitutionality of Proposition 8: Supreme Court Decision : Immediately after the passage of Proposition 8, its opponents filed a petition directly with the California Supreme Court seeking to invalidate the measure on the grounds that it was not permissibly enacted. On May 26, 2009, the Supreme Court in Strauss v. Horton upheld Proposition 8 in a 6-1 decision, but held, unanimously, that the same-sex marriages performed in California before the passage of Proposition 8 remain valid. However while upholding Proposition 8, the Court reiterated its key holding in Marriage Cases, namely that in all respects, other than the word marriage, "same-sex couples retain the same substantive protections embodied in the state constitutional rights of privacy and due process as those accorded to opposite-sex couples and the same broad protections under the state equal protection clause that are set forth in the majority opinion in the Marriage Cases, including the general principle that sexual orientation constitutes a suspect classification and that statutes according differential treatment on the basis of sexual orientation are constitutionally permissible only if they satisfy the strict scrutiny standard of review." (Id. at 412.) New Federal Court Action Challenging Proposition 8 : On May 22, 2009, opponents of Proposition 8 filed an action in federal court in the Northern District of California challenging Proposition 8 as violating both the due process clause and equal protection clause of the 14th Amendment to the federal constitution and seeking injunctive relief enjoining application of the proposition. (Perry v. Schwarzenegger, 09-CV-2292.) On July 2, 2009, U.S. District Court Judge Vaughn Walker denied plaintiffs' request for a preliminary injunction to enjoin Proposition 8, but set the matter to proceed expeditiously to a trial on the merits. The next hearing in the case is scheduled for tomorrow, August 19, 2009. AJR 19 Page 9 Same-Sex Recognition by Other Jurisdictions : Currently, six states permit same-sex couples to marry. These states are Connecticut, Iowa, Maine, Massachusetts, New Hampshire and Vermont. Seven foreign countries - Belgium, Canada, the Netherlands, Norway, South Africa, Spain, and Sweden - also allow same-sex couples to marry. In addition, while not allowing same-sex couples to marry, New York and the District of Columbia recognize marriages between same-sex couples entered in other jurisdictions. ARGUMENTS IN SUPPORT : In support of the resolution, the California Nurses Association states: In 2004, the U.S. Government Accountability Office updated its list of the myriad ways the federal government now discriminates against same-sex couples. Included in that list are the nation's failures to recognize the right to sponsor a spouse for immigration benefits, the right to access Social Security survivor benefits, the right to receive health insurance from a federal employee spouse, the right to jointly file federal income taxes, and hundreds of other protections denied same-sex couples on the basis of who they love. As a result, even though same-sex marriages are now recognized by the laws of seven states from California to Maine and are on the brink of recognition in New Hampshire, New York and New Jersey, the federal government still does not consider married same-sex couples to be family. Thus, they cannot enjoy the vibrant and vital protections federal law confers on families. Because of this inequity, tens of thousands of lesbian and gay couples are forced to live as second-class citizens without access to equal treatment under federal law. Furthermore, the National Association of Social Workers (California Chapter) states: On May 28, 2009, the California Supreme Court reaffirmed the validity of over 18,000 same-sex marriages performed in California between June 16 and November 5, 2008, prior to the passage of Proposition 8, which amended the state constitution to eliminate marriage for same-sex couples. California now has a significant stake in ensuring that these married couples are treated with total dignity and AJR 19 Page 10 fairness under all the laws of this nation. At least seven other countries have already removed discrimination from their marriage laws granting equal access and equal rights: Belgium, Canada, the Netherlands, Norway, South Africa, Spain, and Sweden. As we do in so many areas of human rights, the United States should be leading on this basic issue of equality, and it is time for California to officially go on record supporting the repeal of DOMA. ARGUMENTS IN OPPOSITION : In opposition to the resolution, the California Catholic Conference states: The resolution is overtly biased in its language and predicated on assumptions about marriage that have been rejected in every public vote of the people in every state that has held a referendum on a redefinition of marriage? Marriage has always been understood to be a relationship between a woman and a. man? It is a "public good," not a "private right..." There are many far more pressing issues for the common good of our state that should be occupying the time and talent of this legislature. In opposition to the resolution, Capitol Resource Family Impact states that "Like California, federal law recognizes only traditional, heterosexual marriage. Last November millions of Californians, for the second time, voted to protect the traditional definition of marriage being between one man and one woman. Yet the California Legislature has repeatedly attempted to thwart the people's decision. AJR 19 does not express the beliefs of the majority of Californians." REGISTERED SUPPORT / OPPOSITION : Support Equality California (sponsor) California Nurses Association National Association of Social Workers, California Chapter City of Berkeley Opposition California Catholic Conference Capitol Resource Family AJR 19 Page 11 Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334