BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | AJR 19| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AJR 19 Author: Brownley (D), et al Amended: 8/31/09 in Assembly Vote: 21 SENATE JUDICIARY COMMITTEE : 3-2, 6/15/10 AYES: Corbett, Hancock, Leno NOES: Harman, Walters ASSEMBLY FLOOR : 47-29, 8/31/09 - See last page for vote SUBJECT : Marriage SOURCE : California Faculty Association Equality California DIGEST : This resolution calls upon the Congress and the President of the United States to repeal the discriminatory Defense of Marriage Act. ANALYSIS : 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 CONTINUED AJR 19 Page 2 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. 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 AJR 19 Page 3 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. This resolution calls 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 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 AJR 19 Page 4 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 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 AJR 19 Page 5 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. Accordingly, the estimated 18,000 same-sex marriages that occurred in California between the Marriage Case decision and passage of Proposition 8 remain valid. FISCAL EFFECT : Fiscal Com.: No SUPPORT : (Verified 6/16/10) California faculty association (co-source) Equality California (co-source) California Nurses Association City f Berkeley National Association of Social Workers, California Chapter OPPOSITION : (Verified 6/16/10) California Catholic Conference Capitol Resource Family Impact ARGUMENTS IN SUPPORT : In support of this resoultion, the AJR 19 Page 6 authors' offices states, "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." 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." 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, AJR 19 Page 7 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." ASSEMBLY FLOOR : AYES: Ammiano, Arambula, Beall, Block, Blumenfield, Brownley, Buchanan, Charles Calderon, Carter, Chesbro, Coto, De La Torre, De Leon, Eng, Evans, Feuer, Fong, Fuentes, Furutani, Galgiani, Hall, Hayashi, Hernandez, Hill, Huber, Huffman, Jones, Krekorian, Lieu, Bonnie Lowenthal, Ma, Mendoza, Monning, Nava, John A. Perez, V. Manuel Perez, Ruskin, Salas, Saldana, Skinner, Solorio, Swanson, Torlakson, Torres, Torrico, Yamada, Bass NOES: Adams, Anderson, Bill Berryhill, Tom Berryhill, Blakeslee, Conway, Cook, DeVore, Duvall, Emmerson, Fletcher, Fuller, Gaines, Garrick, Gilmore, Hagman, Harkey, Jeffries, Knight, Logue, Miller, Nestande, Niello, Nielsen, Silva, Smyth, Audra Strickland, Tran, Villines NO VOTE RECORDED: Caballero, Davis, Portantino, Vacancy RJG:do 6/16/10 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END ****