BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 54
Senator Leno
As Amended July 15, 2009
Hearing Date: September 8, 2009
Family Code
KB:jd
PURSUANT TO SENATE RULE 29.10
SUBJECT
Same-Sex Marriage: Out-of-State Marriages
DESCRIPTION
This bill, sponsored by Equality California, would provide that
all valid same-sex marriages entered into outside of California
before passage of Proposition 8 are valid as such in California.
This bill would also provide that same-sex couples in all valid
marriages entered into after the passage of Proposition 8 will
have all of the same rights, responsibilities, and obligations
as married couples, with the sole exception being the
designation of "marriage."
BACKGROUND
During the last decade, the California Legislature has
confronted the issue of same-sex or gender-neutral marriage on
numerous and significant occasions. Beginning with AB 1982
(Knight, 1996), and followed by AB 3227 (Knight, 1996) and SB
911 (Knight, 1997), the Legislature has dealt with a number of
measures designed to embed in California statutory law a public
policy that makes a marriage invalid in this state if it is not
between a man and a woman, regardless of whether the marriage is
recognized and valid in other states.
Although these measures were never enacted, a group of citizens
led by the late State Senator William J. ("Pete") Knight placed
an initiative on the March 2000 California ballot to prohibit
California from recognizing any marriages between same-sex
couples contracted in other states or countries. Proposition 22
(more)
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proposed adding the following language to the Family Code:
"Only marriage between a man and a woman is valid or recognized
in California." The measure was presented to the voters shortly
after the Vermont Supreme Court announced its decision requiring
equal benefits, but before the Vermont Legislature had decided
between marriage and civil unions, for same-sex couples. The
Proposition 22 ballot materials emphasized the prospect that
California might soon be required to recognize the out-of-state
marriages of same-sex couples. The measure passed with 61
percent of the vote and became codified as Section 308.5 of the
Family Code.
In February 2004, the City and County of San Francisco began
issuing marriage licenses to same-sex couples. From February 12
through March 11, 2004, 4,037 same-sex couples from 46 states
and eight countries married in San Francisco. However, on March
11, 2004, the California Supreme Court ordered San Francisco to
stop issuing marriage licenses to same-sex couples while the
court considered the legality of San Francisco's actions. On
August 12, 2004, the California Supreme Court unanimously ruled
that San Francisco officials exceeded their authority in issuing
the licenses because it is the role of the courts, not local
officials, to determine the constitutionality of the state's
marriage laws. (Lockyer v. City and County of San Francisco
(2004) 33 Cal.4th 1055.) By a 5-2 vote, the court also
invalidated the 4,037 marriages that had taken place in San
Francisco. The court did not rule on the constitutionality of
the state's statutory prohibition of marriage by same-sex
couples. Rather, an order filed by the Court in March 2004
expressly invited the filing of a lawsuit to address this very
issue.
The coordinated marriage cases began in 2004 when the state's
Judicial Council ordered that six cases challenging California's
statutory exclusion of same-sex couples from marriage be
coordinated and heard together in San Francisco Superior Court.
On March 14, 2005, the San Francisco Superior Court issued a
landmark ruling in the coordinated marriage cases, concluding
that same-sex couples are indeed denied equal protection by laws
that prohibit them from marrying. The trial court held that
California's exclusion of same-sex couples from marriage
constitutes discrimination on the basis of gender and interferes
with the fundamental right to marry the person of one's
choosing. Under the trial court's reasoning, California's
statutory exclusion of same-sex couples from marriage should
thus be subject to the strictest level of constitutional
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scrutiny, known as "strict scrutiny." But according to the
trial court, the marriage exclusion could not survive even the
lowest level of constitutional scrutiny - that is, review to
determine whether the law has even a "rational basis." The
trial court explained that California could not demonstrate any
rational basis for denying same-sex couples the right to marry.
The trial court emphasized that so-called "separate but equal"
systems have long been rejected by the courts as
unconstitutional.
The California Court of Appeal for the First Appellate District
thereafter reversed the San Francisco Superior Court on October
5, 2006, upholding the state's statutory ban on marriages
between persons of the same sex. (In re Marriage Cases (2006)
143 Cal.App.4th 873.) In a 2-1 opinion, Justice McGuiness,
writing for the majority, concluded that "California's
historical definition of marriage does not deprive individuals
of a vested fundamental right or discriminate against a suspect
class," and that therefore the law only needed to pass a
"rational basis" test. (Id. at 890.)
While the marriage cases were progressing through the courts, AB
1967 (Leno, 2004), the first in a series of bills to attempt to
make the definition of "marriage" gender-neutral, was introduced
in the Legislature. AB 1967 was the first legislation of its
kind to pass a policy committee of the Legislature, the Assembly
Judiciary Committee. AB 1967 subsequently died in the Assembly
Appropriations Committee. The measure was introduced again the
following year as AB 19 (Leno, 2005), but failed passage on the
Assembly Floor. Finally, in 2005, the California Legislature
made history by passing the first bill (AB 849 (Leno, 2005)) in
the United States that would allow same-sex couples to obtain
civil marriage licenses.
In his veto message to AB 849, Governor Arnold Schwarzenegger
reiterated his belief that gay and lesbian couples should be
afforded the same rights as married heterosexual couples and
that he would "continue to vigorously defend" the rights
afforded under the state's domestic partnership laws. However,
the Governor cited Proposition 22 and the state constitutional
provision (Article 1, Section 10) that prohibits a state
legislature from reversing any initiative approved by the voters
of California. The Governor suggested that the only way the law
could be changed is if the courts voided the ban as
unconstitutional, or if the people reversed Proposition 22
through another initiative or a referendum. The Governor's veto
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message noted that the question of Proposition 22's
constitutionality was pending before the state's courts and
that: "If the ban of same-sex marriage is unconstitutional, this
bill is not necessary. If the ban is constitutional, this bill
is ineffective."
In 2007, Assembly Member Leno reintroduced the bill as AB 43.
AB 43 passed the Legislature, but was once again vetoed with a
similar message from the Governor.
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 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." (Id. at 820.)
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,
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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. The California Constitution may be
changed in two distinct ways. The constitution may be amended
by the voters of California through the initiative process. A
revision to the Constitution, by contrast, cannot be initiated
by the voters, but requires a two-thirds vote of the Legislature
to propose a measure to the electorate, who may then approve the
revision by majority vote.
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. In Strauss, the Supreme Court first
determined that Proposition 8 did not repeal the constitutional
rights of individuals to choose their life partners and enter
into "a committed, officially recognized, and protected family
relationship that enjoys all the constitutionally based
incidents of marriage" recognized by the Court in Marriage
Cases. (Strauss, 46 Cal.4th at 388.) Instead, the Court found,
Proposition 8 "carves out a narrow and limited exception to
these state constitutional rights, reserving the official
designation of the term 'marriage' for the union of opposite-sex
couples as a matter of state constitutional law, but leaving
undisturbed all of the other extremely significant substantive
aspects of a same-sex couple's state constitutional right to
establish an officially recognized and protected family
relationship and the guarantee of equal protection of the laws."
(Id.)
The Court next determined that Proposition 8 amounted to neither
a quantitative revision, given the proposition's 14 words, nor a
qualitative revision because it did not make a "far-reaching
change in the fundamental governmental structure or the
foundational power of its branches as set forth in the
Constitution. Under this standard, which has been applied
repeatedly and uniformly in the precedents that govern this
court's jurisprudence, it is evident that because Proposition 8
works no change of that nature in the California Constitution,
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it does not constitute a constitutional revision." (Id. at
444.) The Court also rejected claims that Proposition 8 was
unconstitutional because it violated the separation of powers
doctrine and, as the Attorney General had contended, that it
abrogated inalienable rights without a compelling state
interest.
The Court also ruled unanimously that Proposition 8 applied
prospectively only. 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 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. However, the Court
specifically did not address the validity of marriages entered
into outside of California before passage of Proposition 8. In
a footnote, the court wrote: "We have no occasion in this case
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to determine whether same-sex couples who were lawfully married
in another jurisdiction prior to the adoption of Proposition 8,
but whose marriages were not formally recognized in California
prior to that date, are entitled to have their marriages
recognized in California at this time. None of the petitioners
before us in these cases falls within this category, and in the
absence of briefing by a party or parties whose rights would be
affected by such a determination, we conclude it would be
inappropriate to address that issue in these proceedings." (Id.
at 474, fn 48.) Whether pre-Proposition 8 out-of-state same-sex
marriages should be recognized in California was specifically
left as an open question by the Court in Strauss.
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. A trial date has since been set for
January 11, 2010.
CHANGES TO EXISTING LAW
Existing law 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.
(Fam. Code Sec. 308.)
Existing law provides registered domestic partners with the same
rights, protections, and benefits, and subjects them to the same
responsibilities, obligations, and duties under law, as are
granted to and imposed upon spouses. (Fam. Code Sec. 297.5.)
Existing constitutional law provides, pursuant to Proposition 8,
that only a marriage between a man and a woman is valid or
recognized in California. (California Constitution, art. I,
Sec. 7.5.)
Existing constitutional law provides that "[a] person may not be
deprived of life, liberty, or property without due process of
law or denied equal protection of the laws" (California
Constitution, art. I, Sec. 7.)
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Existing constitutional law provides that "[a]citizen or class
of citizens may not be granted privileges or immunities not
granted on the same terms to all citizens." (California
Constitution, art. I, Sec. 7.)
Existing case law provides that sexual orientation is a suspect
classification for purposes of the California Constitution's
equal protection clause. Existing case law further provides
that statutes that treat persons differently because of their
sexual orientation should be subjected to strict scrutiny under
this constitutional provision. (In re Marriage Cases, 43
Cal.4th at 840-41.)
Existing case law upholds 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.)
This bill would provide that, notwithstanding any other
provision of law, a marriage between two persons of the same sex
contracted outside this state that would be valid by the laws of
the jurisdiction in which the marriage was contracted is valid
in this state if the marriage was contracted prior to November
5, 2008.
This bill would specify that, notwithstanding any other
provision of law, two persons of the same sex who contracted a
marriage on or after November 5, 2008, that would be valid by
the laws of the jurisdiction in which the marriage was
contracted, shall have the same rights, protections, and
benefits, and shall be subject to the same responsibilities,
obligations, and duties under law, as specified, as are granted
to and imposed upon spouses, with the sole exception of the
designation of "marriage."
COMMENT
1. Stated need for the bill
The author states:
The Court in Strauss v. Horton did not specifically address
the marriages of same-sex couples who married out-of-state
because no one in that situation was a party in the case;
however, based on the Court's reasoning in Strauss and In re
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Marriage Cases, as well as longstanding family law principles,
it is clear that those marriages must continue to be
recognized in California . . .
The bill would also clarify, following the Supreme Court's
holding in Strauss v. Horton, the legal status of same-sex
couples who married outside of California after the enactment
of Proposition 8 on November 5, 2008. In Strauss the Court
made clear that its primary holding from Marriage Cases is
still valid: the California Constitution requires that
same-sex couples must be granted full equality under the law,
including all the substantive rights and responsibilities of
marriage, other than the word "marriage." Therefore, same-sex
couples who legally marry in other jurisdictions are entitled
to precisely equal treatment under California law as
opposite-sex couples who marry in other jurisdictions, except
for the name "marriage." SB 54 would implement that holding,
making clear that same-sex couples who marry in other
jurisdictions will have the same rights, protections, and
benefits, and will be subject to the same responsibilities,
obligations, and duties under law as are granted to and
imposed upon spouses with the sole exception of the
designation of "marriage."
2. This bill would address legal issues left unresolved by
the Strauss decision
a) Legal status of pre-Proposition 8 out-of-state same-sex
marriages
After the Marriage Cases decision and before passage of
Proposition 8, same-sex couples were permitted to marry in
California. California also recognized same-sex marriages
that were validly entered into outside of the state. As
previously discussed, the pre-Proposition 8 marriages
conducted within the state continue to be recognized in
California post-Strauss. The legal status of out-of-state
marriages conducted pre-Proposition 8, however, remains
unclear.
The Privileges and Immunities Clause of the U.S. Constitution
requires that citizens of each state are entitled to all the
privileges and immunities of citizens of other states. (U.S.
Const., amendment XIV, sec. 1. ) As a general rule, the
privileges and immunities clause bars discrimination against
citizens of other states when "there is no substantial reason
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for the discrimination beyond the mere fact that they are
citizens of other States." (Hicklin v. Orbeck (1978) 437 U.S.
518, 525 (quotations and citations omitted).) Accordingly,
the first constitutional issue raised by Strauss is whether
California can recognize same-sex marriages that occurred in
this state, but not recognize same-sex marriages validly
entered in other states before Proposition 8 passed.
In its Marriage Cases decision, the Supreme Court found that
there would be serious constitutional problems under the
federal privileges and immunities clause if Proposition 22
were interpreted "as creating a distinct rule for out-of-state
marriages as contrasted with in-state marriages." (Marriage
Cases, 43 Cal.4th at 800.) The Court further found that
"[i]mposing such discriminatory treatment against out-of-state
marriages of same-sex couples, as contrasted with marriages of
same-sex couples performed within the state, would be
difficult to square with governing federal constitutional
precedents." (Id.)
Although the Supreme Court in Strauss specifically did not
rule on how valid, out-of-state same-sex marriages should be
treated post-Proposition 8, it seems highly likely that the
Court would, employing a similar analysis as in Marriage
Cases, determine that in-state and out-of-state marriages
should be treated the same. This is especially true
considering that there does not appear to be any substantial
reason for treating out-of-state marriages differently, and
doing so would thus arguably violate the privileges and
immunities clause of the United States Constitution.
b) Retroactive application of Proposition 8 to out-of state
marriages would be contrary to Strauss
As the Supreme Court determined in Strauss, retroactive
application of Proposition 8 would have substantial negative
consequences. The Court wrote that same-sex couples who had
married in California had "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 [in
state] 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
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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." (Strauss, 46
Cal.4th at 473-74.)
Proponents of this bill have offered numerous examples of how
uncertain legal status affects same-sex couples who married
outside of the state before Proposition 8 was enacted. For
example, proponents point to a same-sex couple who lived in
California and married in Massachusetts during the time period
between the Marriage Cases decision and the passage of
Proposition 8. The couple chose to marry in Massachusetts
because both of their families reside there. They have since
had a child in California (both spouses are listed on the
child's birth certificate), and one member of the couple
receives health insurance as a spouse through the other
spouse's employer. If marriages such as this one are not
recognized, it would essentially amount to a retroactive
application of Proposition 8, which is contrary to the Court's
holding in Strauss.
c) Same-sex couples who legally married out-of-state
could not have married in California prior to Proposition 8
Under Family Code Section 308, a marriage entered outside of
California that is valid under the laws of the jurisdiction in
which it was performed is valid in California. Same-sex
couples who were legally married in another jurisdiction prior
to the Marriage Cases decision would have had their marriages
recognized in California before Proposition 8 was enacted.
Pursuant to Family Code Section 301, a prospective spouse must
be unmarried. Same-sex couples who were legally married
out-of-state would thus not have been able to marry in
California before Proposition 8, even if they had so desired,
because they were already married.
Proponents have cited examples of same-sex couples who had
married outside of California prior to the Marriage Cases
decision and who have since moved to California. There is
nothing these couples could have done, short of divorcing in
their home jurisdiction, to have been able to re-marry in
California. Notably, these couples cannot even register as
domestic partners in the state, since the domestic partnership
registry is limited to unmarried individuals (Fam. Code Sec.
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297). If California does not recognize their marriages in
some fashion, they will, in effect, be in legal limbo.
d) Legal status of out-of-state same-sex marriages
post-Proposition 8
Since the passage of Proposition 8, same-sex couples may no
longer marry in California, and California may no longer
recognize such marriages performed outside the state.
However, although the Strauss decision upheld 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.)
This bill would provide that same-sex couples who legally
marry outside of the state have the same rights, protections,
and benefits, and shall be subject to the same
responsibilities, obligations, and duties under law as
opposite-sex couples, with the sole exception being the
designation of "marriage." This policy is consistent with
both the Marriage Cases and Strauss decisions which made clear
that "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" (Strauss,
46 Cal.4th at 412) and that Proposition 8 did not repeal the
constitutional rights of individuals to choose their life
partners and enter into "a committed, officially recognized,
and protected family relationship that enjoys all the
constitutionally based incidents of marriage" recognized by
the Court in Marriage Cases. (Id. at 388.) This is also
consistent with how domestic partnership will likely be
treated by the courts henceforth in light of the Marriage
Cases and Strauss decisions.
3. Opposition
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In opposition the California Family Council and California
Catholic Conference write that this bill attempts to circumvent
the people of California and the Constitution, as amended by
Proposition 8. The opponents contend that the people have
spoken twice - through Proposition 22 and most recently through
Proposition 8 - and made it clear that only marriage between a
man and a woman should be valid or recognized in this state.
Support : California Communities United Institute; California
Society for Clinical Social Work; Commission on the Status of
Women; National Association of Social Workers, California
Chapter; Planned Parenthood Affiliates of California
Opposition : California Catholic Conference; California Family
Council; Concerned Women for America; Pacific Justice Institute
HISTORY
Source : Equality California
Related Pending Legislation : AJR 19 (Brownley) would call upon
the Congress and the President of the United States to repeal
the Defense of Marriage Act. This measure is pending on the
Assembly Floor.
Prior Legislation :
AB 607 (Nestande, Chapter 339, Statutes of 1977) amended Section
4100 of the Civil Code to add the terms "man" and "woman" to the
definition of marriage. Prior to this amendment, the definition
of marriage under California law had been gender-neutral,
containing no reference to "man" or "woman" for 127 years.
AB 167 (Burton, 1991) would have permitted same-sex couples to
marry. This bill was held in the Senate Judiciary Committee
without a vote.
AB 1982 (Knight, 1995) would have established the
non-recognition of same-sex couples' marriages from other
jurisdictions. This bill failed in the Senate.
AB 3227 (Knight, 1996) would have established the
non-recognition of same-sex couples' marriages from other
jurisdictions. This bill died in the Assembly.
SB 911 (Knight, 1997) would have established the non-recognition
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of same-sex couples' marriages from other jurisdictions. This
bill failed in the Senate Judiciary Committee.
AB 1967 (Leno, 2004) would have provided that marriage is a
personal relation arising out of a civil contact between two
persons. This bill died in the Assembly Appropriations
Committee.
AB 19 (Leno, 2005) would have provided that marriage is a
personal relation arising out of a civil contact between two
persons. This bill died on the Assembly Floor.
AB 849 (Leno, 2005) would have provided that marriage is a
personal relation arising out of a civil contract between two
persons. This bill was vetoed by Governor Arnold
Schwarzenegger.
AB 43 (Leno, 2007) would have provided that marriage is a
personal relation arising out of a civil contract between two
persons. This bill was vetoed by Governor Arnold
Schwarzenegger.
Prior Vote :
Assembly Judiciary Committee (Ayes 7, Noes 3)
Assembly Floor (Ayes 47, Noes 29)
Other previous votes are not relevant because this bill was
substantively amended to deal with different subject matter.
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