BILL ANALYSIS                                                                                                                                                                                                    



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          Date of Hearing:   June 28, 2011

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                      SB 651 (Leno) - As Amended:  June 22, 2011

           SENATE VOTE  :   24-15
           
          SUBJECT  :   Domestic Partnerships

           KEY ISSUE  :  IN ORDER TO REDUCE THE INEQUITIES BETWEEN DOMESTIC 
          PARTNERSHIP AND MARRIAGE, SHOULD SOME OF THE DIFFERENCES IN 
          THEIR ESTABLISHMENT, INCLUDING THE REQUIREMENT THAT DOMESTIC 
          PARTNERS SHARE A COMMON RESIDENCE - WHICH IS NOT REQUIRED IN 
          ORDER TO BE MARRIED - BE ELIMINATED? 

           FISCAL EFFECT  :   As currently in print this bill is keyed 
          fiscal.

                                      SYNOPSIS
          
          The California Supreme Court has found that, other than the word 
          marriage, same-sex couples in domestic partnerships have the 
          same substantive privacy and due process protections as those 
          accorded to opposite-sex married couples and the same broad 
          protections under the state's Equal Protection clause.  Despite 
          this, there are still many differences between marriage and 
          domestic partnership, some, of which are attributable to 
          differences in state law.  This bill, sponsored by Equality 
          California, seeks to reduce the differences in state law between 
          domestic partnership and marriage, including the requirements 
          that domestic partners have a common residence and that they 
          are, without exception, over 18. This bill is supported by, 
          among others, the Association of Certified Family Law 
          Specialists and the National Center for Lesbian Rights.  It is 
          opposed by the California Right to Life Committee.

           SUMMARY  :  Eliminates some of the differences between marriage 
          and domestic partnership.  Specifically,  this bill  :

          1)Eliminates the requirement that domestic partners share a 
            common residence requirement.

          2)Permits a person under 18 years of age to enter a domestic 
            partnership with the consent of a parent or guardian and a 








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            court order, as provided.

          3)Directs the Secretary of State to establish a process by which 
            two persons, who satisfy the requirements to be domestic 
            partners, and who have been living together as domestic 
            partners, may enter into a confidential Declaration of 
            Domestic Partnership.  Requires the Secretary of State to 
            maintain the confidential declaration as a permanent record 
            that is not open to public inspection, except upon court order 
            issued upon a showing of good cause. Authorizes the Secretary 
            of State to charge a reasonable fee to offset the costs 
            directly associated with maintaining the required 
            confidentiality.



           EXISTING LAW  : 

          1)Provides that in order to establish a domestic partnership, 
            all of the following requirements must be met:  (a) Both 
            persons have a common residence; (b) neither person is married 
            to someone else or is a member of another domestic 
            partnership; (c) neither person is related by blood in a way 
            that would prevent them from being married to each other; (d) 
            both persons are at least 18 years of age; (e) either of the 
            following applies: (i) both persons are members of the same 
            sex; or (ii) if members of the opposite sex, one or both 
            persons are over the age of 62; and (f) both persons are 
            capable of consenting to the domestic partnership.  (Family 
            Code Section 297.  Unless stated otherwise, all further 
            statutory references are to that code.)

          2)Provides that individuals, meeting the requirements in #1, 
            above, who desire to become domestic partners, must complete 
            and file a Declaration of Domestic Partnership with the 
            Secretary of State.  (Section 298.5.)

          3)Provides that marriage is a personal relationship arising out 
            of a civil contract between a man and a woman, to which both 
            parties must consent.  (Section 300.)

          4)Allows minors who consent to a marriage to marry, provided 
            they obtain a court order granting permission to marry.  
            Requires both the court order and written consent of a parent 
            or guardian.  If no parent is capable of consenting, allows 








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            the court to make an order consenting to the issuance of a 
            marriage license.  (Sections 302-03.)

          5)Allows an unmarried couple, who has been living together as 
            husband and wife, to enter into a confidential marriage.  
            Requires the confidential marriage to be solemnized, but does 
            not require it to be witnessed.  Provides that confidential 
            marriage certificates are not open to public inspection 
            without a court order.  (Section 500 et seq.)  

           COMMENTS  :  The California Supreme Court has found that, other 
          than the word marriage, same-sex couples in domestic 
          partnerships have the same substantive privacy and due process 
          protections as those accorded to opposite-sex married couples, 
          as well as the same broad protections under the state's equal 
          protection clause.  (See Strauss v. Horton (2009) 46 Cal.4th 
          364, discussed below.)  Despite this, there are still many 
          differences between marriage and domestic partnership, some, of 
          which are attributable to differences in state law.  This bill, 
          sponsored by Equality California, seeks to reduce the legal 
          differences between domestic partnership and marriage that are 
          the result of those differences in state law.  

          In support of the bill, the author writes:
          
            This bill would eliminate an existing difference between 
            domestic partners and married spouses by eliminating the 
            requirement that domestic partners have a common residence.

            Existing case law recognizes that while same-sex couples lack 
            the right to enter into a relationship designated as 
            "marriage," they possess the right to the core set of basic 
            substantive legal rights and attributes 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.

           California's Initial Recognition of Same-Sex Couples  :  The issue 
          of legal recognition of same-sex couples in California dates 
          back about 25 years.  Before the 1980's, same-sex couples had no 
          legal recognition in California, or virtually anywhere else - as 
          families, they were essentially invisible to the law.  Beginning 
          in the mid-1980's, local jurisdictions began to recognize 








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          same-sex couples by establishing a legal status called "domestic 
          partnership," which gave same-sex couples not only limited 
          protections for themselves and their children, but also, for the 
          first time, government recognition as family units.  By 2000, 18 
          California local governments had established domestic 
          partnership registries.


           Registered Domestic Partnerships:   California took notice of 
          this emerging movement to recognize the rights of same-sex 
          couples.  The most comprehensive set of rights and 
          responsibilities for registered domestic partners was enacted in 
          2003 by AB 205 (Goldberg), Chap. 421.  That bill became fully 
          operative on January 1, 2005, and it has been upheld by the 
          courts against challenges.  (See, e.g., Knight v. Superior Court 
          (2005) 128 Cal.App.4th 14, 30.)

          However, although domestic partnership laws extended many 
          protections to same-sex couples, their protections differ from 
          those extended to married couples.  First, under the existing 
          laws, domestic partners have been denied access to certain 
          long-term care benefits that are available to married couples.  
          (However, after the Supreme Court decisions in Marriage Cases 
          and Strauss, discussed in more detail below, it is unlikely that 
          any differences in rights or responsibilities provided under 
          California law are constitutionally permissible.)  In addition, 
          the prerequisites for entering a domestic partnership differ 
          from the prerequisites for marriage.  Marriage and domestic 
          partnership also have different formation procedures.  For 
          example, unlike marriage, domestic partnership has no 
          solemnization requirement, a difference that suggests a 
          distinction in stature.  Finally, domestic partners are denied 
          the protections available under more than 1,100 federal statutes 
          relating to marriage.

           Coordinated Marriage Cases:  Supreme Court Decision  :  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 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."  (Marriage Cases, 43 Cal.4th at 782 
          (footnote omitted).)  









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          The Court found that "a]lthough our state Constitution does not 
          contain any explicit reference to a 'right to marry,' past 
          California cases establish beyond question that the right to 
          marry is a fundamental right whose protection is guaranteed to 
          all persons by the California Constitution."  (Id. at 809.)  The 
          core substantive rights embodied in the right to marry "include, 
          most fundamentally, the opportunity of an individual to 
          establish - with the person with whom the individual has chosen 
          to share his or her life - 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."  (Id. at 781.)  The Court 
          noted that "in contrast to earlier times, our state now 
          recognizes that an individual's capacity to establish a loving 
          and long-term committed relationship with another person and 
          responsibly to care for and raise children does not depend upon 
          the individual's sexual orientation, and, more generally, that 
          an individual's sexual orientation - like a person's race or 
          gender - does not constitute a legitimate basis upon which to 
          deny or withhold legal rights."  (Id. at 782.)  Accordingly, the 
          Court concluded that "in light of the fundamental nature of the 
          substantive rights embodied in the right to marry - and their 
          central importance to an individual's opportunity to live a 
          happy, meaningful, and satisfying life as a full member of 
          society - the California Constitution properly must be 
          interpreted to guarantee this basic civil right to all 
          individuals and couples, without regard to their sexual 
          orientation."  (Id. at 820, emphasis added.)  



          Although the opinion acknowledged that the recent comprehensive 
          domestic partnership legislation enacted in California affords 
          same-sex couples most of the substantive elements embodied in 
          the constitutional right to marry, the opinion further concluded 
          that by assigning a different name for the family relationship 
          of same-sex couples, while preserving the historic and honored 
          designation of "marriage" only for opposite-sex couples, the 
          California statutes threatened to deny the family relationship 
          of same-sex couples dignity and respect equal to that accorded 
          the family relationship of opposite-sex couples. 


          The Court also addressed whether the statutory assignment of 
          different labels for the official family relationship of 








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          opposite-sex couples and same-sex couples raises constitutional 
          concerns under the California Constitution's Equal Protection 
          Clause.  The Court concluded that the "strict scrutiny" standard 
          was applicable in this case (1) because the statutes 
          discriminate on the basis of sexual orientation, a 
          characteristic the majority determined to be - like gender, 
          race, and religion - a constitutionally suspect basis upon which 
          to impose differential treatment, and (2) because the different 
          statutory treatment impinges upon same-sex couples' fundamental 
          interest in having their family relationship accorded the same 
          respect and dignity enjoyed by opposite-sex couples. 



          To survive strict scrutiny, a law must be necessary to serve a 
          compelling government interest.  The majority found that the 
          California statutes failed both parts of this test.  The 
          majority determined that the state interest underlying the 
          marriage statutes' differential treatment of opposite-sex and 
          same-sex couples - the interest in retaining the traditional and 
          well-established definition of marriage - cannot properly be 
          viewed as a compelling state interest for purposes of the Equal 
          Protection Clause, or as necessary to serve such an interest, 
          and, thus, the statutes were unconstitutional.  


           Proposition 8  :  On October 5, 2007, the proponents of 
          Proposition 8, apparently contemplating that the California 
          Supreme Court might (as it did indeed do) find the state's 
          discriminatory marriage provisions unconstitutional, began the 
          legal process of proposing an initiative amendment to add to the 
          California Constitution the provision that in California 
          marriage could only be between one man and one woman.  Then, as 
          noted above, on May 15, 2008, the Court issued its decision in 
          the Marriage Cases, holding that statutes limiting marriage to a 
          union between a man and a woman unconstitutional.  The 
          Proposition 22 Legal Defense & Education Fund and others 
          requested a stay of the effective date of the Marriage Cases 
          decision until after the vote on Proposition 8.  The Court 
          denied the request, and on June 16, 2008 the Marriage Cases 
          decision took effect.  Approximately 18,000 same-sex couples 
          married in California after the effective date of the Marriage 
          Cases decision.

          On November 4, 2008, Proposition 8 narrowly passed on a vote of 








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          52-48 percent.

           Constitutionality of Proposition 8:  Supreme Court Decision  :  
          Immediately after the passage of Proposition 8, its opponents 
          filed a petition directly with the California Supreme Court 
          seeking to invalidate the measure on the grounds that it was not 
          permissibly enacted.  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.

          Rights of Same-Sex Couples:  While upholding 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 Seeks to Reduce the Differences Between Marriage and 
          Domestic Partnership, as required by the Supreme Court in 
          Marriage Cases and Strauss v. Horton :  As recognized by the 
          California Supreme Court in Marriages Cases and Strauss v. 
          Horton, same-sex couples retain the same substantive protections 
          of privacy, due process and equal protection as opposite-sex 
          couples.  Moreover, since sexual orientation constitutes a 
          suspect classification, statutes providing differential 
          treatment on the basis of sexual orientation, must satisfy a 
          strict scrutiny review.  Thus, even assuming Proposition 8 were 
          to be found to be constitutional under the federal constitution 
          (see the discussion of Perry v. Schwarzenegger, above), many of 
          the differences that exist today between domestic partnerships 
          and marriage are likely to be found unconstitutional under a 
          strict scrutiny review under the state constitution.

          Despite this, there remain significant differences between 
          domestic partnerships and marriage.  This bill, seeks to reduce 
          those differences and make domestic partnership and marriage, at 
          least under California law, more similar.  As a result, this 








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          bill makes the following changes:

          1.Under existing law, in order to register as a domestic 
            partnership, two people must have a common residence.  There 
            is no such requirement to be married.  This bill eliminates 
            the common residence requirement for domestic partners.

          2.Current law requires that domestic partners be at least 18 
            years old.  However, minors are allowed to marry with court 
            approval and with the consent of their parent or guardian, or 
            if no parent or guardian is capable of consent, with court 
            approval alone.  This bill allows minors to enter a domestic 
            partnership on those same terms.

          3.Current law allows an unmarried couple, who has been living 
            together as husband and wife, to get married confidentially.  
            Confidential marriage certificates are not open to public 
            inspection without a court order.  This bill creates a 
            confidential declaration of domestic partnership to allow a 
            couple, who has not registered as domestic partners, but has 
            otherwise been living together as domestic partners, to 
            officially register as domestic partners, with all the ensuing 
            rights and responsibilities, but to do so confidentially.  

          With these changes, this bill reduces the inequities between 
          domestic partnerships and marriage. 

           ARGUMENTS IN SUPPORT  :  Writes the National Center for Lesbian 
          Rights:  "Domestic partnerships fall short of marriage and are 
          inherently unequal.  This bill, however, brings domestic 
          partnership closer to providing the legal rights and privileges 
          afforded opposite-sex and already married same-sex couples in 
          California."  

           ARGUMENTS IN OPPOSITION  :  The California Right to Life 
          Committee, Inc. opposes the bill "as bad policy and one that 
          promotes the homosexual agenda to normalize this lifestyle and 
          change the traditional concept of marriage as a contract between 
          one man and one woman."

           REGISTERED SUPPORT / OPPOSITION  :   

           Support  

          Equality California (sponsor)








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          Association of Certified Family Law Specialists
          City of Los Angeles
          National Center for Lesbian Rights
          Sacramento Gay & Lesbian Center
          State Board of Equalization Member Betty Yee

           Opposition 

           California Right to Life Committee, Inc.


           Analysis Prepared by  :  Leora Gershenzon / JUD. / (916) 319-2334