BILL ANALYSIS Ó SB 1306 Page 1 Date of Hearing: June 10, 2014 ASSEMBLY COMMITTEE ON JUDICIARY Bob Wieckowski, Chair SB 1306 (Leno) - As Amended: April 29, 2014 SENATE VOTE : 25-10 SUBJECT : MARRIAGE KEY ISSUE : SHOULD CALIFORNIA STATUTES BE UPDATED, CONSISTENT WITH STATE AND FEDERAL CASE LAW PRECEDENT AND THE AUTHOR'S EXTRAORDINARY AND TENACIOUS EFFORTS TO RECOGNIZE THAT ALL ADULTS - INCLUDING SAME-SEX COUPLES - HAVE THE RIGHT AND DIGNITY TO MARRY? SYNOPSIS This bill represents the culmination of a decades-long effort, spearheaded by the author's leadership, to allow same-sex couples to marry in California. In 1999, California created its first domestic partnership statute for same-sex couples, following similar actions by local jurisdictions beginning in the 1980's. The drive for marriage equality was advanced substantially in 2005 when the author introduced legislation to permit same-sex couples to marry. AB 849 (Leno) became the first marriage equality bill in the nation to pass a state legislature, but then-Governor Schwarzenegger vetoed it. Three years later, the California Supreme Court, in its landmark In re Marriage Cases ruling (43 Cal.4th 757 (2008)), following similar reasoning as this Committee enumerated three years earlier, struck down as unconstitutional statutes that limited marriage to a man and a woman, and same sex-couple were able to marry. That lasted until November of that year, when Proposition 8, which defined marriage in the state constitution as the union of a man and a woman, passed. Proposition 8 was subsequently found unconstitutional by a federal district court and that decision remains the law of the land today after the U.S. Supreme Court just last year found that appellants lacked standing to appeal. (Perry v. Schwarzenegger (2010) 740 F. Supp. 2d 921 (N.D. Cal.); Hollingsworth v. Perry (2013) 133 S. Ct. 2652.) Thus, same-sex couples may now marry in California and California must recognize same-sex marriages from other jurisdictions. And though once quite lonesome in the debates SB 1306 Page 2 surrounding marriage equality, California is certainly no longer alone in its recognition of same-sex marriages. More and more states are now either recognizing same-sex marriages or are having their bans on such marriages challenged in court. As of now, fully 29 states have either enacted marriage equality through legislation or the ballot, or had their state marriage bans struck down as unconstitutional. This bill therefore appropriately conforms California's marriage statutes to the precedential court decisions noted above, defining marriage in gender-neutral terms as a civil contract between two persons. The measure is jointly sponsored by Attorney General Kamala Harris, Equality California and the National Center for Lesbian Rights, and is supported by, among others, the American Civil Liberties Union, the California Teachers Association and the Family Law Section of the State Bar. It is opposed by the California Family Council, Catholics for the Common Good, Concerned Women for America of California and several individuals, who argue that it improperly amends Proposition 8. Proposition 8, however, amended the California Constitution, which this bill does not seek to alter. This bill instead, logically clarifies that the statutory language enacted by the earlier Proposition 22, no longer has, after In re Marriage Cases, any legal effect. The bill received a bipartisan vote of 25-10 in the State Senate. SUMMARY : Logically clarifies that the anachronistic statutory language in California's Family Code enacted a decade and a half ago by Proposition 22 no longer has, after the State Supreme Court's In re Marriage Cases, any legal effect, and therefore defines marriage gender-neutrally. Specifically, this bill: 1)Provides, consistent with the State Supreme Court's In re Marriage Cases, that marriage is a personal relation arising out of a civil contract between two persons. 2)Repeals the provision that provides that only marriage between a man and a woman is valid or recognized in California. 3)Provides that a marriage contracted outside of California that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in California. 4)Replaces gendered language regarding marriage with gender-neutral terms. SB 1306 Page 3 5)States the declaration of the Legislative that all laws relating to marriage and the rights and responsibilities of spouses apply equally to opposite-sex and same-sex spouses. Provides that the changes in this bill are not intended to affect any existing decisional law otherwise interpreting the amended statutes. EXISTING LAW : 1)Provides that a marriage is a personal relation arising out of a civil contract between a man and a woman. (Family Code Section 300. Unless stated otherwise, all further statutory provisions are to that code.) 2)Provides that marriages valid in the jurisdiction where contracted, except for same-sex marriages contracted after November 5, 2008, are valid in California. (Section 308(a)-(b).) 3)Provides that same-sex marriages contracted after November 5, 2008 have the same rights, protections, benefits and responsibilities as imposed upon spouses except for the designation of "marriage." (Section 308(c).) 4)Provides that only marriage between a man and a woman is valid or recognized in California. (Section 308.5.) FISCAL EFFECT : As currently in print this bill is keyed non-fiscal. COMMENTS : This bill, conforming existing statutes to superseding state and federal case law, provides that marriage is the gender-neutral union of two individuals. Writes the author: The statutory prohibitions against allowing and recognizing marriages between same-sex couples were stricken by the California Supreme Court in In re Marriage Cases but were never removed. Proposition 8 did not reinstate these statutory provisions, but rather created a separate prohibition that is no longer enforced by the state pursuant to a federal injunction. Because same-sex couples may now marry in California and are recognized as married in California, the existence of these provisions in the SB 1306 Page 4 code, and the corresponding use of gendered terms on Judicial Council and other state forms referencing these provisions, creates confusion for same-sex married couples, courts, and government agencies. For self-represented individuals, understanding the law and complex legal processes is often very difficult and can be nearly impossible when statutes do not reflect the actual law. Updating the statutes will help ensure that someone reading the Family Code will have an accurate understanding of the law. Such updating will also logically clarify that the anachronistic statutory language in California's Family Code enacted a decade and a half ago by Proposition 22 no longer has, after the State Supreme Court's In re Marriage Cases, any legal effect. More Than That, This Bill Represents the Culmination of a Decades' Long Fight, Spearheaded in the Legislature by the Author, for Marriage Equality in California : The origins of this bill - and the civil rights struggle it represents - goes back decades. California's Initial Recognition of Same-Sex Couples: The issue of legal recognition of same-sex couples in California dates back two decades. Before the 1980's, same-sex couples had no legal recognition in California, or virtually anywhere else - as families, they were essentially invisible to the law. Beginning in the mid-1980's, local jurisdictions began to recognize same-sex couples by establishing a legal status called "domestic partnership," which gave same-sex couples not only limited protections for themselves and their children, but also, for the first time, government recognition as family units. By 2000, 18 California local governments had established domestic partnership registries. Registered Domestic Partnerships: California took notice of this emerging movement to recognize the rights of same-sex couples. In 1999, the Legislature enacted AB 26 (Migden), Chap. 588, Stats. 1999, to create the state's first domestic partnership statute. This statute, which forms the backbone of California's domestic partnership law, provided for domestic partnerships to be registered with the Secretary of State, for public employers to offer health benefits to domestic partners, and for domestic partners to have hospital visitation rights. The most comprehensive set of rights and responsibilities for SB 1306 Page 5 registered domestic partners was enacted in 2003 by AB 205 (Goldberg), Chap. 421. That bill became fully operative on January 1, 2005, and it was upheld by the courts against challenges. (See, e.g., Knight v. Superior Court (2005) 128 Cal.App.4th 14, 30.) However, although domestic partnership laws extended many protections to same-sex couples, their protections differed from those extended to married couples. First, under the existing laws, domestic partners have been denied access to certain long-term care benefits that are available to married couples. (However, after the Supreme Court decisions in In re Marriage Cases and Strauss, discussed in more detail below, it is unlikely that any differences in rights or responsibilities provided under California law are constitutionally permissible.) In addition, the prerequisites for entering a domestic partnership differ from the prerequisites for marriage. Marriage and domestic partnership also have different formation procedures. For example, unlike marriage, domestic partnership has no solemnization requirement, a difference that suggests a distinction in stature. Finally, domestic partners were denied the protections available under more than 1,100 federal statutes relating to marriage. The Federal Defense of Marriage Act: In 1996 Congress passed, and President Clinton signed, the federal Defense of Marriage Act (DOMA), which includes the provision that no state is required under federal law to give effect to a same-sex marriage contracted in another state. In addition, DOMA prevented the federal government from recognizing same-sex marriages. Last year, the Supreme Court struck down that latter provision in United States v. Windsor (2013) 570 U.S. 12, holding that denying recognition to same-sex couples who are legally married unconstitutionally discriminates against them simply to express disapproval of state-sanctioned same-sex marriage. California's Proposition 22: A group of citizens led by the late State Senator William J. ("Pete") Knight placed an initiative on the March 2000 California ballot to prohibit California from recognizing same-sex marriages. The Proposition 22 ballot materials emphasized the prospect that California might soon be required to recognize the out-of-state marriages of same-sex couples. The measure passed with 61 percent of the vote and became codified as Section 308.5 of the Family Code. SB 1306 Page 6 San Francisco Allows Same-Sex Couple to Marry: In February 2004, the City and County of San Francisco began issuing marriage licenses to same-sex couples. However, on March 11, 2004, after 4,037 same-sex couples had married, the California Supreme Court ordered San Francisco to stop issuing marriage licenses to same-sex couples while the Court considered the legality of San Francisco's actions. On August 12, 2004, the California Supreme Court unanimously ruled that San Francisco officials exceeded their authority in issuing the licenses because it is the role of the courts, not local officials, to determine the constitutionality of the state's marriage laws. By a 5-2 vote, the Court also invalidated the 4,037 marriages that had taken place in San Francisco. The Court did not rule on the constitutionality of the state's statutory prohibition of marriage by same-sex couples. Rather, an order filed by the Court in March 2004 expressly invited the filing of a lawsuit in Superior Court to address this issue, which occurred thereafter (see "Coordinated Marriage Cases" discussion below). AB 849, First Such Bill to Pass in the Country: Senator Leno's first legislative attempt to permit same-sex couples to marry was AB 19 in 2005, which passed this Committee that year but failed passage on the Assembly Floor. Senator Leno then revived the bill later in the year as AB 849, which became the first such bill in the nation to be passed by both houses of a legislature. However, Governor Schwarzenegger vetoed the bill, suggesting that the only way the law could be changed was if the courts voided the ban as unconstitutional, or if the people reversed Proposition 22 through another initiative or a referendum. Senator Leno nevertheless reintroduced the measure in 2007 as AB 43, and Governor Schwarzenegger once again vetoed the bill, stating it was up to the Supreme Court to decide if the state's ban on same-sex marriage was constitutional, which happened the very next year. Coordinated Marriage Cases: State Supreme Court Decision: 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." (In re Marriage Cases (2008) 43 Cal.4th 757, 782 (footnote omitted).) SB 1306 Page 7 The Court found that "[a]lthough our state Constitution does not contain any explicit reference to a 'right to marry,' past California cases establish beyond question that the right to marry is a fundamental right whose protection is guaranteed to all persons by the California Constitution." (Id. at 809.) The core substantive rights embodied in the right to marry "include, most fundamentally, the opportunity of an individual to establish - with the person with whom the individual has chosen to share his or her life - an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage." (Id. at 781.) The Court noted that "in contrast to earlier times, our state now recognizes that an individual's capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual's sexual orientation, and, more generally, that an individual's sexual orientation - like a person's race or gender - does not constitute a legitimate basis upon which to deny or withhold legal rights." (Id. at 782.) Accordingly, the Court concluded 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.) Although the opinion acknowledges that the comprehensive domestic partnership legislation enacted in California affords same-sex couples most of the substantive elements embodied in the constitutional right to marry, the opinion concludes that by assigning a different name for the family relationship of same-sex couples, while preserving the historic and honored designation of "marriage" only for opposite-sex couples, the California statutes threatened to deny the family relationship of same-sex couples dignity and respect equal to that accorded the family relationship of opposite-sex couples. Proposition 8: In late 2007, the proponents of Proposition 8, apparently contemplating that the California Supreme Court might (as it did indeed do) find the state's discriminatory marriage SB 1306 Page 8 provisions unconstitutional, began the legal process of proposing an initiative amendment to add to the California Constitution the provision that in California marriage could only be between one man and one woman. Then, as noted above, on May 15, 2008, the Court issued its decision in the In re Marriage Cases, holding that statutes limiting marriage to a union between a man and a woman unconstitutional. The Proposition 22 Legal Defense & Education Fund and others requested a stay of the effective date of the In re Marriage Cases decision until after the vote on Proposition 8. The Court denied the request, and on June 16, 2008 the In re Marriage Cases decision took effect. Approximately 18,000 same-sex couples married in California after the effective date of the In re Marriage Cases decision. On November 4, 2008, Proposition 8 narrowly passed on a vote of 52-48 and same-sex marriages were once again prohibited in California. Constitutionality of Proposition 8: State Supreme Court Decision: Immediately after the passage of Proposition 8, its opponents filed a petition directly with the California Supreme Court seeking to invalidate the measure on the grounds that it was not permissibly enacted. 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. While upholding Proposition 8, the Court reiterated its key holding in In re 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 In re 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." (Id. at 412.) Proposition 8 Struck Down by Federal Court: In 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 SB 1306 Page 9 clause of the 14th Amendment to the federal constitution and seeking injunctive relief enjoining application of the proposition. After a lengthy trial, the district court concluded that Proposition 8 was unconstitutional, violating both the federal due process and the equal protection clauses: Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional. (Perry v. Schwarzenegger (2010) 704 F. Supp. 2d 921, 1003 (N.D. Cal.).) Ninth Circuit Agrees on Narrower Grounds and the Supreme Court Dismisses for Lack of Standing: Defendants appealed and the Ninth Circuit granted a stay pending the appeal. The Ninth Circuit, after dismissing one of the defendants - Imperial County - for lack of standing, and certifying a question to the California Supreme Court regarding whether the other defendants (proponents of Proposition 8) had standing to defend the action in the place of the State of California, agreed with the trial court that Proposition 8 was unconstitutional, but on much narrower grounds. In a 2-1 decision, the Ninth Circuit ruled that Proposition 8 violated the equal protection clause by targeting a minority group and withdrawing a right that the group already possessed (the right to marriage under the In re Marriage Cases), without a legitimate reason for doing so. (Perry v. Brown (9th Cir. 2012) 671 F.3d 1052.) The proponents of Proposition 8 appealed that decision, but on June 26, 2013, the United States Supreme Court, on a 5-4 decision, dismissed the appeal for lack of standing. The Supreme Court found that the proponents of the initiative lacked standing to appeal. (Hollingsworth v. Perry (2013) 133 S. Ct. 2652.) As a result, the district court decision is now the law SB 1306 Page 10 of California. Same-Sex Marriages Begin Again in California: On June 28, 2013, the Ninth Circuit lifted the stay on the district court order and on that same date Governor Brown ordered all county clerks to begin issuing marriage licenses to same-sex couples. The State of California thereafter began allowing same-sex couples to marry, and began recognizing marriages between same sex couples from other states. In light of these court decisions, this bill seeks to update the Family Code to reflect the correct state of law in California. California is Not Alone in its Recognition of Same-Sex Marriages: As noted above, more and more states are now either recognizing same-sex marriages or are having their bans on such marriages challenged in court. As of May 21, 2014, fully 29 states have either enacted marriage equality through legislation or the ballot, or had their state marriage bans struck down as unconstitutional. Same-sex couples can legally marry in nineteen states and the District of Columbia, while 31 states have a law or constitutional amendment restricting marriage to the union of one man and one woman. Only one state - North Dakota- has a ban on marriage equality but no current court case challenging its constitutionality. Voter Approval Not Required to Make Non-Substantive Changes to Statutes Enacted by Proposition : This bill repeals Family Code Section 308.5 (which provides that "only marriage between a man and a woman is valid or recognized in California"), originally enacted, as noted above, by Proposition 22 in 2000, and statutory language which specifies that marriage is "between a man and a woman" in Section 300. Catholics for the Common Good and Concerned Women for America of California, as well as a number of individuals, oppose the bill, erroneously suggesting that the measure improperly amends Proposition 8 itself. Proposition 8, however, amended the California Constitution, which this bill does not seek to alter. This bill instead, clarifies that the statutory language enacted by Proposition 22 has no legal effect - which is indeed the case under the In re Marriage Cases. Generally, California allows for amendment to law enacted by proposition in only a handful of ways, most of which involve voter approval. However, in order to safeguard the rights of SB 1306 Page 11 the public, the courts also have the authority to amend legislative measures. Consistently, the California courts have protected the right of voters to exercise the authority afforded by ballot initiative, but those ballot measures are subject to the same constitutional limitations that apply to statutes adopted by the Legislature. Thus, the fact that Proposition 22 limited marriage to between a man and a woman by a popular vote does not exempt the resulting statutory provision from constitutional scrutiny or justify a more deferential standard of review from the court. In the In re Marriage Cases the court found that: Although defendants maintain that this court has an obligation to defer to the statutory definition of marriage contained in section 308.5 because that statute-having been adopted through the initiative process-represents the expression of the "people's will," this argument fails to take into account the very basic point that the provisions of the California Constitution itself constitute the ultimate expression of the people's will, and that the fundamental rights embodied within that Constitution for the protection of all persons represent restraints that the people themselves have imposed upon the statutory enactments that may be adopted either by their elected representatives or by the voters through the initiative process. (In re Marriage Cases, 43 Cal.4th at 852.) Accordingly, it was the California Supreme Court who substantively "amended" Proposition 22, upon deciding In re Marriage Cases, where it ordered that the language "between a man and a woman" be stricken from the Family Code, and ordered that the entirety of Family Code 308.5 could not stand because it violated the California Constitutional rights to equal protection, due process, and privacy. (Id. at 857.) Thus, this bill does not change the law; it simply appropriately reconciles statutory language with existing Supreme Court precedent and helps ensure that someone reading the Family Code will have an accurate understanding of the law. ARGUMENTS IN SUPPORT : Equality California and the National Center for Lesbian Rights, co-sponsors of the bill, state that they have both been working for years for the freedom of same-sex couples to marry and that they are sponsoring this bill to clarify the law: SB 1306 Page 12 Although same-sex couples may now marry in California and are fully recognized as married by the state, the California code still contains provisions limiting marriage to one man and one woman. Because of these code provisions, these restrictions also appear in Judicial Council forms used in court proceedings, as well as in other state forms and policies, even though same-sex married spouses are recognized as married for all purposes. This inaccurate language can create confusion for courts, litigants, and applicants for state programs about what rights are available to same-sex married spouses. ARGUMENTS IN OPPOSITION : Catholics for the Common Good write to express concerns: There is a well-known crisis regarding the breakdown of marriage that has resulted in increased children living in poverty and increasing human and societal[] consequences of fatherlessness. . . . What concrete steps can the state and public institutions take to teach young people the value of men and women marrying before having children if marriage is redefined so that there is no longer a legal basis for connecting marriage with conception, birth and rearing of children in the family of common ancestry? Will not such an effort be prohibited as discriminatory? . . . We recognize that these questions are unrelated to the sincere desires of same-sex couples to have their relationships recognized, but they address some of the unintended consequences of redefining marriage. These [] consequences were rationally considered by voters when Prop 8 was passed and must be considered today. REGISTERED SUPPORT / OPPOSITION : Support Attorney General Kamala Harris (co-sponsor) Equality California (co-sponsor) National Center for Lesbian Rights (co-sponsor) American Civil Liberties Union American Federation of State, County and Municipal Employees, AFL-CIO California Communities United Institute California Teachers Association Family Law Section of the State Bar SB 1306 Page 13 National Association of Social Workers, California Chapter Secular Coalition for California Opposition California Family Council Catholics for the Common Good Concerned Women for America of California Some individuals Analysis Prepared by : Drew Liebert and Leora Gershenzon / JUD. / (916) 319-2334