BILL ANALYSIS                                                                                                                                                                                                    Ó






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2011-2012 Regular Session



          SB 1140 (Leno)
          As Amended April 23, 2012
          Hearing Date: May 1, 2012
          Fiscal: No
          Urgency: No
          NR
                    

                                       SUBJECT
                                           
                                      Marriage

                                      DESCRIPTION  

          This bill would provide that marriage is a personal relation 
          arising out of a civil, and not religious, contract.  This bill 
          would specify that no priest, minister, rabbi, or authorized 
          person of any religious denomination would be required to 
          solemnize a marriage that is contrary to the tenets of his or 
          her faith.  This bill would additionally state that any refusal 
          to solemnize a marriage under this provision would not affect 
          the tax exempt status of any entity.  

                                      BACKGROUND  

          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.  (In re 
          Marriage Cases (2008) 43 Cal.4th 757.)  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.  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.  

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          On May 26, 2009, the Supreme Court in Strauss v. Horton (2009) 
          46 Cal.4th 364, 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.)

          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.  On February 7, 2012, the United States Court of 
          Appeal for the Ninth Circuit reviewed and affirmed the judgment 
          of the district court.  The court held that the People of 
          California, via Proposition 8, violated the Equal Protection 
          Clause of the federal constitution by using their power to 
          target a minority group and withdraw a right that the group 
          already possessed, without a legitimate reason for doing so. 
          (Perry v. Brown, 52 Cal.4th 1116.)  

          One of the much publicized arguments in support of Proposition 8 
          was that same-sex marriage poses a threat to religious freedom 
          because churches will lose their tax exempt status if they 
          refused to solemnize such marriages.  (See Laurie Goodstein, "A 
          Line in the Sand for Same-Sex Marriage Foes," New York Times, 
          Oct. 27, 2008.) Legislative attempts, similar to this bill, have 
          tried to address this concern.  Most recently, SB 906 (Leno, 
          2009), which would have defined the term civil marriage as a 
          personal relation arising out of a civil contract between a man 
          and a woman, and contained identical religious exemption 
          language, was vetoed by the Governor.  AB 43 (Leno, 2007), AB 19 
          (Leno, 2005) and AB 849 (Leno, 2005) would have enacted the 
          Religious Freedom and Civil Marriage Protection Act, which would 
                                                                      



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          have provided that a marriage is a personal relation arising out 
          of a civil contract between two persons, and included similar 
          religious exemption language as this bill. AB 19 did not pass 
          the Assembly, and AB 849 and AB 43 were vetoed by the Governor. 

          This bill seeks to resolve this debate by clarifying the 
          distinction between civil and religious marriage and providing 
          that members of the clergy are not required to solemnize 
          marriages contrary to the tenets of their faith.

                                CHANGES TO EXISTING LAW

          Existing law  enumerates persons who are authorized to solemnize 
          a marriage, including to, but not limited to, any priest, 
          minister, rabbi, or authorized person of any religious 
          denomination.  (Fam. Code Sec. 400.)

           Existing law  provides that Congress shall make no law respecting 
          an establishment of religion, or prohibiting the free exercise 
          thereof.  (U.S. Constitution, Amendment 1.)

           Existing law  provides that free exercise and enjoyment of 
          religion without discrimination or preference are guaranteed.  
          (Cal. Const., art. I, Section 4.)

           This bill  would provide that marriage is a personal relation 
          arising out of a civil, and not a religious, contract.
            
           This bill  would specify that no priest, minister, rabbi, or 
          authorized person of any religious denomination would be 
          required to solemnize a marriage that is contrary to the tenets 
          of his or her faith.  

           This bill  would additionally state that any refusal to solemnize 
          a marriage under the above provision shall not affect the tax 
          exempt status of any entity.  

                                        COMMENT
           
              1.   Stated need for the bill
           
          In support of this bill, the author writes: 

             In the national debate surrounding marriage equality, 
             opponents argue that clergy will be forced to solemnize 
             marriages of same-sex couples or face legal consequences, 
                                                                      



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             even when their faith does not permit or support such 
             marriages.  While proponents of marriage equality disagree 
             with the validity of this concern, citing a law of evidence 
             that clergy in states of countries with marriage equality 
             have ever experienced any such consequences, they acknowledge 
             that each state (except Iowa) which has enacted a marriage 
             equality law has also enacted an explicit religious 
             exemption. As long as there is confusion over this issue, it 
             is a valid and necessary area for the legislature to act in 
             order to clarify constitutional rights. 

              2.   This bill would carve out a religion exemption 
               consistent with the First Amendment
           
          Freedom of religion is a principle well grounded in both our 
          federal and state Constitutions.  (U.S. Constitution, Amendment 
          1; Cal. Const., art. I, Section 4.) 
          It is a right that has repeatedly been emphasized in the public 
          discourse surrounding marriage equality across the nation, 
          particularly by those who fear that same-sex marriage will 
          inevitably lead to the erosion of religious freedom.  However, 
          the First Amendment has always prohibited the government from 
          regulating religious ceremonies and who could participate in 
          them.  The government cannot, for example, compel churches to 
          marry previously divorced couples, couples from different 
          faiths, or those who have not been baptized according to the 
          church's practices.  Similarly, the Constitution prohibits 
          government from coercing clergy and churches to perform same-sex 
          marriages.  As expressly stated by the California Supreme Court 
          in In re Marriages, affording same-sex couples the opportunity 
          to marry will not "impinge upon the religious freedom of any 
          religious organization, official, or any other person; no 
          religion will be required to change its religious policies or 
          practices with regard to same-sex couples, and no religious 
          officiant will be required to solemnize a marriage in 
          contravention of his or her religious beliefs."  (Id. at 855.)  
          In sum, the right to marry and the right to religious freedom 
          are not mutually exclusive.  

          In instances where the application of a general secular law 
          infringes upon an individual's religious freedom, the proper way 
          of resolving the conflict is to create a narrow religious 
          exemption from the law's requirements.  (See Employment Division 
          v. Smith (1990) 485 U.S. 660, 670 n.13, stating that those 
          seeking religious exemptions from laws should look to the 
          democratic process for protection, not the courts; see also 
                                                                      



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          Corporation of Presiding Bishop of the Church of Jesus Christ of 
          Latter-Day Saints v. Amos (1987) 483 U.S. 327, finding that an 
          exemption for religious organizations from Title VII's 
          prohibition against discrimination in employment based on 
          religion was constitutional.)  Accordingly, this bill seeks to 
          codify a religious exemption which specifically states that  a 
          priest, minister, rabbi, or authorized person of any religious 
          denomination would not be required to solemnize marriages 
          contrary to the central tenets of his or her faith.  Further, 
          this bill would also specify that a refusal to solemnize a 
          marriage under this religious exemption shall not affect the tax 
          exempt status of any entity.  As outlined above, these 
          provisions are consistent with the protections afforded by both 
          the federal and state constitutions. 

          However, religious freedom as protected by the First Amendment 
          does not provide absolute protection for all religiously 
          motivated conduct.  (See Cantwell v. Connecticut, (1940) 310 
          U.S. 296, 303-304, stating that under the First Amendment the 
          freedom to believe is absolute in nature, but the freedom to act 
          is not.)  An absolute constitutional protection for religiously 
          motivated conduct could prevent the government from protecting 
          other equally important civil rights.  In fact, if such a 
          blanket protection existed, one could arguably discriminate 
          against others based on their different religious beliefs under 
          the guise of religious freedom.  Thus, while religious 
          exemptions are appropriate and sometimes necessary to ensure 
          that First Amendment rights are not encroached upon, the 
          legislature must be careful to ensure that the costs of these 
          exemptions do not outweigh the public benefit.  This bill seeks 
          to address the specific concern that members of clergy would be 
          forced to solemnize marriages that are contrary to the central 
          tenets of their faith.  As previously stated such governmental 
          regulation of religious ceremonies is unprecedented and 
          prohibited by the federal and state constitutions.  As such, 
          this narrow religious exemption is arguably appropriate.   
           
             3.   Similar religious exemptions have been adopted in other 
               states

           Several other states, such as Vermont, New Hampshire, New York, 
          Connecticut, and the District of Columbia where same-sex couples 
          have been granted the right to marry have also enacted similar 
          religious exemptions from their civil marriage laws.  (See 18 
          V.S.A. Sec. 5144; New Hampshire RSA 457:37; NY CLS Dom Rel Sec. 
          10-a et seq.; Conn. Gen. Stat. Sec. 46b-22b; 31 Stat. 1391 D.C. 
                                                                      



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          Official Code Secs. 46-401 passim.)  Notably, unlike these 
          states, same-sex marriage is currently not recognized in 
          California which may create questions as to the need for this 
          bill.  However, because the issue of religious freedom was and 
          continues to be prevalent in the broader debate over marriage 
          equality, the Legislature has an arguable interest in clarifying 
          this specific matter now.  In this manner, the Legislature can 
          resolve any ambiguity surrounding the issue of religious freedom 
          and clarify that it will not be adversely affected should 
          same-sex marriage become legal in California in the future.



           Support  :  American Federation of State, County and Municipal 
          Employees, AFL-CIO (AFSCME) 

           Opposition  :  California Right to Life

                                        HISTORY
           
           Source  :  Equality California; California Council of Churches 
          IMPACT

           Related Pending Legislation  :  None Known

           Prior Legislation  :  See Background.
                                          
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