BILL ANALYSIS �
SB 1140
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Date of Hearing: June 19, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 1140 (Leno) - As Amended: June 13, 2012
SENATE VOTE : 23-11
SUBJECT : Marriage: RELIGIOUS EXEMPTION
KEY ISSUE : SHOULD THE LAW BE CLARIFIED TO ENSURE THAT RELIGIOUS
OFFICIALS ARE NOT REQUIRED TO SOLEMNIZE ANY CIVIL MARRIAGE THAT
IS CONTRARY TO THE TENANTS OF THEIR FAITH?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill, sponsored by Equality California and California
Council of Churches IMPACT, clarifies that marriage in
California is a personal relation arising out of a civil and not
religious contract. This bill also specifies that no priest,
minister, rabbi, or authorized person of any religious
denomination is required to solemnize a marriage that is
contrary to the tenets of his or her faith and that any such
refusal to solemnize a marriage will not affect the tax exempt
status of any entity. This bill is supported by, among others,
the American Federation of State, County and Municipal
Employees, AFL-CIO and the Anti-Defamation League, because it
protects religious freedom by reaffirming existing separation of
church and state protections ensuring that clergy can make
faith-based decisions about which marriages to solemnize,
without concern about loss of tax exempt status. It is opposed
by California Catholic Conference and Catholics for the Common
Good, who argue that, while they appreciate the clarification on
the tax exempt status of religious organizations, they believe
the bill will ultimately create confusion about the nature of
marriage in California while still falling short in protecting
religious liberty and is an assault on Proposition 8. This bill
is similar to SB 906 (Leno), which passed the Legislature, but
was vetoed by then-Governor Schwarzenegger because of a
provision that has been revised in the current bill.
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SUMMARY : Provides that specified religious individuals
authorized to perform civil marriages are not required to
solemnize a marriage that is contrary to the tenets of their
faith. Specifically, this bill :
1)Provides that marriage is a personal relation arising out of a
civil, and not a religious, contract.
2)Specifies that no priest, minister, rabbi, or authorized
person of any religious denomination is required to solemnize
a marriage that is contrary to the tenets of his or her faith.
3)States that any refusal to solemnize a marriage under the
provision in #2) above, whether by an individual or a
religious denomination, will not affect the tax exempt status
of any entity.
EXISTING LAW :
1)Provides that marriage is a personal relation arising out of a
civil contract between a man and a woman, to which the consent
of the parties capable of making that contract is necessary.
(Family Code Section 300. Unless otherwise stated, all
further statutory references are to that code.)
2)Enumerates those authorized to solemnize a marriage,
including, but not limited to, any priest, minister, rabbi, or
authorized person of any religious denomination. (Section
400.)
3)Provides that Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof. (U.S. Constitution, Amendment 1.)
4)Provides that free exercise and enjoyment of religion without
discrimination or preference are guaranteed. (Cal.
Constitution, Art. I, Section 4.)
COMMENTS : On May 15, 2008, the California Supreme Court, in a
4-3 decision, struck down as unconstitutional a California law
limiting marriage to a man and a woman. (In re Marriage Cases
(2008) 43 Cal.4th 757.) Following the Court's landmark
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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 the
now-invalid Family Code section 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.
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 right 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.)
In 2009, opponents of Proposition 8 filed an action in federal
court in California challenging Proposition 8 as violating both
the Due Process and Equal Protection Clauses of the 14th
Amendment to the federal constitution and the district court
agreed. On February 7, 2012, the Ninth Circuit affirmed the
judgment of the district court. The court held that Proposition
8 violated the Equal Protection Clause of the federal
constitution by targeting a minority group and withdrawing a
right that the group already possessed - the right to marry -
without a legitimate reason for doing so. (Perry v. Brown
(2012) 671 F.3d 1052.) Earlier this month, the full Ninth
Circuit refused to hear the case en banc, setting the stage for
U.S. Supreme Court action.
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One of the much publicized arguments by proponents of
Proposition 8 has been that same-sex marriage poses a danger to
religious freedom because churches will lose their tax exempt
status if they refuse to solemnize such marriages. (See Laurie
Goodstein, "A Line in the Sand for Same-Sex Marriage Foes," New
York Times (Oct. 27, 2008).) While supporters of same-sex
marriage denounced that as nothing more than a scare tactic,
this bill seeks to resolve the issue completely by providing
that members of the clergy are not required to solemnize
marriages contrary to the tenets of their faith.
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,
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 or 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.
This Bill Carves Out a Religion Exemption Consistent with the
First Amendment : Freedom of religion is a principle
well-grounded in both the federal and state constitutions. 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 may 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 the 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
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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 854-55.) Thus, 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 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 clarify the
distinction between civil and religious marriage and codify a
religious exemption which specifically states that no member of
the clergy is required to solemnize marriages contrary to the
central tenets of his or her faith. Further, this bill
specifies that a refusal to solemnize a marriage under this
religious exemption will not affect the tax-exempt status of any
entity. 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, 303-04, 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 might 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 appears quite appropriate.
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Similar Religious Exemptions Have Been Adopted in Other States :
Several other states, including Vermont, New Hampshire, New
York, Connecticut, and the District of Columbia, all states
where same-sex couples are able 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. 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 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 again in the
future.
Prior Legislation : SB 906 (Leno, 2010), 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, passed the Legislature,
but was vetoed by Governor Schwarzenegger:
I strongly support the rights of same-sex couples to be
married. In addition, I support the portions of this
measure that will preserve the rights of priests,
ministers, rabbis, and other authorized persons from other
religious denominations from having to perform marriage
ceremonies if performing such ceremonies would violate the
person's religious beliefs. Unfortunately, I cannot sign
this bill due to the extraneous amendments that will change
the term "marriage" to "civil marriage" within the
California Family Code. Proponents of this bill argue that
delineating between civil and religious marriage in statute
will make the codes less confusing. However, the Family
Code itself does not make a distinction between religious
marriage and civil marriage. Consequently, inserting the
term "civil" before the word "marriage" without explanation
does not make things any less confusing. By creating a
distinct type of marriage within the code, I believe this
measure undermines the goal of marriage equality.
Consequently, I am unable to sign this bill.
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Three prior bills - AB 43 (Leno, 2007), AB 849 (Leno, 2005) and
AB 19 (Leno, 2005) - that would have permitted same-sex couples
to wed in California contained similar religious exemption
language. AB 43 and AB 849 were vetoed. AB 19 did not pass out
of the Legislature.
ARGUMENTS IN SUPPORT : Supporters write that that the bill
protects religious freedom by reaffirming existing separation of
church and state protections ensuring that clergy can make
faith-based decisions about which marriages to solemnize,
without concern about loss of tax exempt status.
ARGUMENTS IN OPPOSITION : Opponents argue that, while they
appreciate the clarification on the tax exempt status of
religious organizations, they believe the bill will ultimately
create confusion about the nature of marriage in California
while still falling short in protecting religious liberty.
Opponents are concerned that the bill could create two distinct
types of marriages and is an assault on Proposition 8. It
should be noted, however, that the bill continues to define
"civil marriage" as a contract between a man and a woman. It
only clarifies that the state is involved solely in civil, and
not religious, marriage.
REGISTERED SUPPORT / OPPOSITION :
Support
California Churches IMPACT (co-sponsor)
Equality California (co-sponsor)
American Federation of State, County and Municipal Employees,
AFL-CIO
Anti-Defamation League
California Communities United Institute
Board of Equalization Member Betty Yee
Opposition
California Catholic Conference
Catholics for the Common Good
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334
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