BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AJR 19 (Brownley and Feuer)
As Amended August 31, 2009
Hearing Date: June 15, 2010
Fiscal: No
Urgency: No
KB:jd
SUBJECT
Marriage
DESCRIPTION
This measure, sponsored by Equality California, would call upon
the Congress and the President of the United States to repeal
the discriminatory Defense of Marriage Act.
BACKGROUND
In 1996 Congress passed, and President Clinton signed, the
federal Defense of Marriage Act (DOMA), which among other things
says that no state is required under federal law to give effect
to marriages of same-sex couples contracted in other states. In
light of the federal DOMA, some states, including California
(Proposition 22), enacted statutory measures prohibiting
recognition of marriages entered into by same-sex couples in
other jurisdictions.
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, which sets forth the decision of the court, was
authored by Chief Justice Ronald George, and was signed by
Justices Joyce Kennard, Kathryn Werdegar, and Carlos Moreno.
(In re Marriage Cases (2008) 43 Cal.4th 757.)
The legal issue identified by the majority opinion for
resolution was whether California's Constitution "prohibits the
state from establishing a statutory scheme in which both
opposite-sex and same-sex couples are granted the right to enter
(more)
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into an officially recognized family relationship that affords
all of the significant legal rights and obligations
traditionally associated under state law with the institution of
marriage, but under which the union of an opposite-sex couple is
officially designated a 'marriage' whereas the union of a
same-sex couple is officially designated a 'domestic
partnership.'" (43 Cal.4th at 779-80.) In other words, did the
failure of the state to designate the official relationship of
same-sex couples as "marriage" violate the State Constitution?
After determining the nature and scope of the constitutional
"right to marry," the Court 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."
Following the Court's landmark decision, approximately 18,000
same-sex couples wed in California. However, opponents of
same-sex marriage began circulating petitions to amend the
statutory text of invalid Family Code Section 308.5 into the
Constitution even before the Supreme Court issued its ruling,
and enough signatures were gathered to qualify the petition as
Proposition 8. Civil rights groups filed suit with the
California Supreme Court in the case of Bennett v. Brown,
arguing that Proposition 8 should not move forward for a popular
vote without going to the Legislature because the proposition
constituted a revision, or a structural change, to the
Constitution. However, the Court declined to hear the case at
the time.
On November 4, 2008, Proposition 8 passed by a narrow 52 percent
margin. Civil rights organizations again filed suit with the
California Supreme Court, asking that it overturn the initiative
as an invalid revision. On May 26, 2009, the Supreme Court in
Strauss v. Horton (2008) 46 Cal.4th 364, 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. The Court reiterated the widely
recognized legal principle that statutory enactments apply
prospectively only, absent clear intent to the contrary. The
Court went on to discuss whether a retroactive application of
the proposition would deprive any individual of vested rights
with due process:
Here, same-sex couples who married after the decision in the
Marriage Cases, supra, 43 Cal.4th 757, was rendered, and
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before Proposition 8 was adopted, acquired vested property
rights as lawfully married spouses with respect to a wide
range of subjects, including, among many others, employment
benefits, interests in real property, and inheritances. These
couples' reliance upon this court's final decision in the
Marriage Cases was entirely legitimate. A retroactive
application of the initiative would disrupt thousands of
actions taken in reliance on the Marriage Cases by these
same-sex couples, their employers, their creditors, and many
others, throwing property rights into disarray, destroying the
legal interests and expectations of thousands of couples and
their families, and potentially undermining the ability of
citizens to plan their lives according to the law as it has
been determined by this state's highest court. By contrast, a
retroactive application of Proposition 8 is not essential to
serve the state's current interest (as reflected in the
adoption of Prop. 8) in preserving the traditional definition
of marriage by restricting marriage to opposite-sex couples;
that interest is honored by applying the measure prospectively
and by having the traditional definition of marriage enshrined
in the state Constitution where it can be altered only by a
majority of California voters. (Id. at 473-74.)
Accordingly, the estimated 18,000 same-sex marriages that
occurred in California between the Marriage Cases decision and
passage of Proposition 8 remain valid.
CHANGES TO EXISTING LAW
This resolution declares that 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 eliminate the right of same-sex couples to marry
in this state.
This resolution states that 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.
This resolution states that 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.
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This resolution declares that 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.
This resolution declares that 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.
This resolution finds that, 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.
This resolution states that the Defense of Marriage Act provides
that no state is required 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.
This resolution finds that the Defense of Marriage Act
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 that the Defense of Marriage Act causes
significant harm and unfairly discriminates against committed
same-sex couples and their families.
This resolution would call upon the Congress and the President
of the United States to repeal the discriminatory Defense of
Marriage Act.
COMMENT
1. Stated need for the bill
In support of the measure, the authors state:
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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 [of] same-sex couples in California.
2. Findings and declarations outline impact of DOMA on
Same-sex married couples
As noted in the resolution, on the federal level, same-sex
married couples, as well as domestic partners, are denied the
protections available under more than 1,100 federal statutes
relating to marriage. The federal benefits afforded to
opposite-sex, married couples include such basic benefits as
social security, Medicare, federal housing assistance, food
stamps, veterans' benefits, military benefits, tax benefits and
federal employment benefits. Also, same-sex married couples and
domestic partners risk losing essential legal protections - such
as hospital visitation rights and authority to make medical
decisions for their partners in an emergency - when they travel
outside California to jurisdictions that do not recognize
same-sex marriage or California's domestic partnership registry.
Further, same-sex couples who are lawfully married must still
pay federal income taxes on the value of health benefits
provided by an employer to the same-sex spouse of the employee,
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which creates a significant financial burden for many same-sex
couples and their families. In contrast, health benefits
provided to opposite-sex spouses are not taxed.
3. Pending Federal Legislation
Congressman Jerrold Nadler has introduced legislation (H.R.
3567) which would enact the Respect for Marriage Act of 2009 and
amend DOMA to repeal provisions allowing states to give no
effect to same-sex marriages conducted in other states or
territories. H.R. 3567 would further provide that, for purposes
of any federal law in which marital status is a factor, an
individual shall be considered married if that individual's
marriage is valid in the state where the marriage was entered
into. H.R. 3567 is currently pending in the House of
Representatives Subcommittee on the Constitution, Civil Rights,
and Civil Liberties.
4. 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.
Also 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."
Support : California Nurses Association; City of Berkeley;
National Association of Social Workers, California Chapter
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Opposition : California Catholic Conference; Capitol Resource
Family Impact
HISTORY
Source : California Faculty Association; Equality California
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Assembly Judiciary Committee (Ayes 7, Noes 3)
Assembly Floor (Ayes 47, Noes 29)
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