BILL ANALYSIS
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UNFINISHED BUSINESS
Bill No: SB 54
Author: Leno (D)
Amended: 7/15/09
Vote: 21
PRIOR SENATE VOTES NOT RELEVANT
ASSEMBLY FLOOR : 47-29, 09/03/09 - See last page for vote
SUBJECT : Out-of-state same-sex marriages
SOURCE : Equality California
DIGEST : This is a new bill. As it left the Senate, the
bill eliminated the exception in current law that allows
health plans and health insurers to use gender as a basis
for premium, price, or charge differentials, when based on
valid statistical and actuarial data. These provisions
were deleted in the Assembly.
This bill provides that, notwithstanding any other
provision of law: (1) a marriage between two persons of
the same sex contracted outside of California that is valid
by the laws of the jurisdiction in which it was contracted
and that was contracted before November 5, 2008 (before
passage of Proposition 8) is valid in California, and (2)
two persons of the same sex who contracted a marriage
outside of California on or after November 5, 2008 that is
valid by the laws of the jurisdiction in which it was
contracted shall have the same rights, protections, and
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benefits and subject to the same responsibilities,
obligations, and duties under law, whether they derive from
the California Constitution, the United States
Constitution, statutes, administrative regulations, court
rules, government policies, common law, or any other
provisions or sources of law, as are granted to and imposed
upon spouses with the sole exception of the designation of
"marriage."
ANALYSIS : Existing law provides that a marriage
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. Existing case law
provides that, while on and after November 5, 2008, only
marriage between a man and a woman is valid or recognized
in California, marriages of same-sex couples that were
performed prior to November 5, 2008, are valid.
This bill provides 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.
Existing case law also recognizes that while, effective
November 5, 2008, same-sex couples lack the right to enter
into a relationship designated "marriage," they possess the
right to the core set of basic substantive legal rights and
attributes traditionally associated with marriage,
including, the opportunity of an individual to establish 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.
This bill specifies 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
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the sole exception of the designation of "marriage."
Background
This bill addresses the presently uncertain question of how
California should treat same-sex marriages entered outside
of this state. After the passage of Proposition 8, the
California Supreme Court on May 15, 2009, in Strauss v.
Horton , upheld its passage, but went on to hold 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 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." (Strauss v. Horton (2009) 46 Cal.4th
364, 412.) The Court also upheld the validity of the
18,000 same-sex marriages validly entered in California
before passage of Proposition 8.
Under this bill, sponsored by Equality California, all
valid same-sex marriages entered outside of California
before passage of Proposition 8 will be legally recognized
as such in California; and couples in all such marriages
entered into after passage of Proposition 8 will have all
of the same rights, responsibilities and obligations as
married couples, with the sole exception of using the legal
designation of "marriage."
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 9/3/09)
Equality California (source)
American Association for Marriage and Family Therapy
American Civil Liberties Union
Anti-Defamation League
Betty T. Yee, Chairwoman, California State Board of
Equalization
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California Commission on the Status of Women
California Communities United Institute
California School Employees Association
Congregation Kol Ami, West Hollywood's Reform Synagogue
GSA Network
Housing Rights, Inc.
Humanist Association of the Greater Sacramento Area
National Association of Social Workers
National Center for Lesbian Rights
Out & Equal Workplace Advocates
Planned Parenthood
Progressive Jewish Alliance
San Francisco LGBT Community Center
Scouting for All
OPPOSITION : (Verified 9/3/09)
California Family Council
California Catholic Conference
ARGUMENTS IN SUPPORT : Equality California states in
support:
"Equality California (EQCA) is pleased to sponsor your SB
54, which would clarify the legal status of same-sex
couples that married outside of California before and after
the passage of Proposition 8?.
"On November 4, 2008 Proposition 8, the initiative
constitutional amendment that eliminated the right of
same-sex couples to marry in California, passed by a narrow
52 percent margin. Civil rights organizations promptly
filed suit with the California Supreme Court in the case of
Strauss v. Horton , asking that it overturn the initiative
as an invalid revision. The Court ruled on May 26, 2009 to
uphold Proposition 8 and at the same time preserve more
than 18,000 marriages that took place between June 16 and
November 4, 2008. Those marriages continue to be fully
valid and recognized by the state of California.
"The Court in Strauss v. Horton did not specifically
address the marriages of same-sex couples that married
out-of-state because no one in that situation was a party
in the case. However, based on the Court's reasoning in
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Strauss and In re Marriage Cases , as well as longstanding
family law principles, it is clear that those marriages
must continue to be recognized in California. The Court in
In re Marriage Cases struck down Family Code section 308.5,
which purported to prohibit in-state marriages of same-sex
couples and deny recognition to such marriages performed
out of state. The Court held that such marriages must be
recognized pursuant to Family Code Section 308, just as the
out-of-state marriages of different-sex couples are
recognized. Further, the Court held that different
treatment of out-of-state and in-state marriages would
violate the federal Privileges and Immunities Clause.
"Same-sex couples who married outside of California before
the passage of Proposition 8 reasonably relied on that
holding and the express mandate of recognition in Section
308. In addition, same-sex couples that were already
married in another jurisdiction were prohibited from
re-marrying in California, based on Family Code Section 301
(stating that an individual must be unmarried in order to
marry in California), and those who attempted to re-marry
were barred from doing so. SB 54 would clarify the Court's
decision so that couples that were married in a
jurisdiction other than California prior to November 5,
2008 clearly understand that they will continue to be
recognized as married in California.
"The bill would also clarify, following the 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.' SB 54 would implement that holding, making it
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 opposite-sex spouses, with the sole exception
of the designation of 'marriage.'
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"In conclusion, SB 54 would remove any confusion for
same-sex couples and their families regarding recognition
of out-of-state marriages that occurred before or after
Proposition 8 passed. Such clarification is essential in
the wake of Proposition 8 and the Supreme Court's ruling in
Strauss. EQCA thanks you for carrying this legislation and
looks forward to working with you and your staff toward its
passage."
ARGUMENTS IN OPPOSITION : The California Catholic
Conference states in opposition "?SB 54 which
inappropriately attempts to circumvent the state
constitution and the expressed will of California voters by
granting validity to same-sex marriages which occurred in
other jurisdictions prior to November 5, 2008.
"On May 26, 2009, the California Supreme Court upheld
Proposition 8 which reads: 'Only marriage between a man
and a woman is valid or recognized in California.'
Although they did grandfather in those same-sex marriages
that occurred in the state in the interim between June 18
and November 4, 2008, they declined to address the validity
of same-sex marriages contracted in other states prior to
the November 2008 vote?."
ASSEMBLY FLOOR :
AYES: Ammiano, Beall, Block, Blumenfield, Brownley,
Buchanan, Caballero, Charles Calderon, 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, Portantino, Ruskin, Salas, Saldana, Skinner,
Solorio, Swanson, Torlakson, Torres, Torrico, Yamada,
Bass
NOES: Adams, Anderson, Arambula, Bill Berryhill, Tom
Berryhill, Blakeslee, Conway, Cook, 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: Carter, Davis, DeVore, Vacancy
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RJG:nl 9/17/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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