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. (more) SB 1140 (Leno) Page 2 of ? 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 SB 1140 (Leno) Page 3 of ? 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, SB 1140 (Leno) Page 4 of ? 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 SB 1140 (Leno) Page 5 of ? 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. SB 1140 (Leno) Page 6 of ? 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. **************