BILL ANALYSIS Ó
SB 1140
Page 1
SENATE THIRD READING
SB 1140 (Leno)
As Amended June 13, 2012
Majority vote
SENATE VOTE :23-11
JUDICIARY 7-1
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|Ayes:|Feuer, Atkins, Dickinson, | | |
| |Huber, Monning, | | |
| |Wieckowski, Chesbro | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Wagner | | |
| | | | |
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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.
2)Enumerates those authorized to solemnize a marriage,
including, but not limited to, any priest, minister, rabbi, or
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authorized person of any religious denomination.
3)Provides that Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof.
4)Provides that free exercise and enjoyment of religion without
discrimination or preference are guaranteed.
FISCAL EFFECT : None
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
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%
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
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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.
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.
Freedom of religion is a principle well-grounded in both the
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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 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.
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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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.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
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