BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AJR 19
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          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  








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            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  








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            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,  








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            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.  ?








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               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  








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          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  








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          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  








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          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.








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          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  








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               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








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          Analysis Prepared by  :  Drew Liebert / JUD. / (916) 319-2334