BILL ANALYSIS Ó SB 651 Page 1 SENATE THIRD READING SB 651 (Leno) As Amended June 22, 2011 Majority vote SENATE VOTE :24-15 JUDICIARY 6-3 APPROPRIATIONS 12-5 ----------------------------------------------------------------- |Ayes:|Feuer, Atkins, Dickinson, |Ayes:|Fuentes, Blumenfield, | | |Huber, Monning, | |Bradford, Charles | | |Wieckowski | |Calderon, Campos, Davis, | | | | |Gatto, Hall, Hill, Lara, | | | | |Mitchell, Solorio | | | | | | |-----+--------------------------+-----+--------------------------| |Nays:|Wagner, Beth Gaines, |Nays:|Harkey, Donnelly, | | |Jones | |Nielsen, Norby, Wagner | | | | | | ----------------------------------------------------------------- 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 court order, as provided. 3)Directs the Secretary of State (SOS) 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 SOS 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 SOS to charge a reasonable fee to offset the costs directly associated with maintaining the required confidentiality. EXISTING LAW : SB 651 Page 2 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. 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 SOS. 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. 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 the court to make an order consenting to the issuance of a marriage license. 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. FISCAL EFFECT : According to the Assembly Appropriations Commitee: 1)Administrative costs . The SOS will incur one-time costs of around $100,000 for reprogramming related to establishing a confidential Declaration of Domestic Partnership. Any other costs to the SOS for implementing the bill's provisions will be minor and absorbable. SB 651 Page 3 2)Revenue impact . SB 1827 (Migden) Chapter 802 Statutes of 2006 allowed registered domestic partners to file joint income taxes in order to receive the same financial protection afforded to married couples. According to the Franchise Tax Board, the average income tax benefit for married filing jointly versus those filing as single or head of household could range from $200 to $1,500 per year depending on each individual's income levels. For every 1% increase in registered domestic partnerships, as a result of this bill, who receive this tax benefit, the resulting income tax revenue loss is $110,000 to $825,000 annually. Additionally, the exclusion from gross income for specified medical expenses and health insurance benefits for these additional domestic partnerships could result in additional potentially significant lost tax revenue. 3)Health benefits . The California Public Employees Retirement System (CalPERS) has indicated that any employee adding a spouse or domestic partner to his or her health plan increases health benefit costs by $5,500 annually, plus unknown increases for retiree and survivor's health benefits as afforded by the state. Thus these costs will increase to the extent that additional domestic partnerships formed under the provisions of this bill involve state employees. 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. 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. 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, SB 651 Page 4 43 Cal.4th at 782 (footnote omitted).) The Court wrote 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.) On November 4, 2008, Proposition 8, which amended the California Constitution to state that that marriage can only be between one man and one woman, narrowly passed on a vote of 52-48%. 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. 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." (Strauss v. Horton (2009) 46 Cal.4th 364, 412.) 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 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 SB 651 Page 5 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. Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334 FN: 0002181