BILL ANALYSIS                                                                                                                                                                                                    



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          SENATE THIRD READING
          SB 651 (Leno)
          As Amended  September 2, 2011
          Majority vote 

           SENATE VOTE  :24-15  
           
           JUDICIARY           6-3         APPROPRIATIONS      12-5        
           
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          |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 and provides a forum for same-sex 
          couples who married in California to terminate their marriages.  
          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.








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          4)Allows a proceeding for dissolution, nullity, or legal 
            separation of a marriage between persons of the same sex to be 
            filed in California even if neither spouse is a resident of, 
            or maintains a domicile in, the state at the time the 
            proceedings are filed, provided both of the following are 
            true:  a) the marriage was entered in California; and, b) 
            neither party resides in a jurisdiction that will dissolve the 
            marriage.  Creates a rebuttable presumption that a 
            jurisdiction that does not recognize the marriage will not 
            dissolve it.  Provides that the superior court in the county 
            where the marriage was entered is the proper court for the 
            proceeding.  Requires the dissolution to be adjudicated in 
            accordance with California law.

           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.  

          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 








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            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.  

          6)Provides that 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 have the same rights, protections, and benefits and 
            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."  Allows 
            courts in this state to dissolve those marriages.

          7)Provides that a judgment of dissolution of marriage may not be 
            entered unless one of the parties has been a resident of 
            California for six months and of the county in which the 
            proceeding is filed for three months preceding the filing of 
            the petition.

          FISCAL EFFECT  :  According to the Assembly Appropriations 
          Committee:

           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.

           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.








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           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, 
          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 








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          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 
            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 








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          domestic partnerships and marriage. 

          This bill also helps ensure that same-sex couples who married in 
          California after Marriage Cases and before passage of 
          Proposition 8, and who later moved out of the state have a forum 
          in which they can dissolve their marriage should they so choose. 
           No changes in the statutes relating to dissolution of marriages 
          were made when same-sex couples were allowed to marry in 
          California.  As a result, at least one spouse must be a 
          California resident in order to bring an action to end the 
          marriage.  However, if these couples move to jurisdictions that 
          do not recognize their marriage, such as Nevada, they will be 
          unable to dissolve their marriage there and, without residency 
          in California, will also be unable to dissolve their marriage 
          here.

          This bill allows California courts to dissolve these marriages 
          in the very limited instance where the couple married in 
          California, but neither spouse now resides in a jurisdiction 
          whose courts will dissolve the marriage.  This will ensure that 
          these couples, like any other couples, are provided a forum in 
          which to terminate their marriage, should they wish to do so.  
          In these cases, the bill provides that the superior court in the 
          county where the marriage was entered is the proper venue for 
          the proceeding and that the marriage be dissolved in accordance 
          with California law.


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


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