BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                   AJR 19|
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                                 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  
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          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  







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          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  







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          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  







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          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  







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          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,  







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          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

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