BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
John L. Burton, Chairman
1997-98 Regular Session
SB 911 S
Senator Knight B
As Introduced
Hearing Date: April 22, 1997 9
Family Code 1
JMR:cjt 1
SUBJECT
Same-sex marriages
DESCRIPTION
This bill would declare the strong public policy of this
state that only a marriage contracted between one man and
one woman outside this state which is valid in that
jurisdiction, is invalid in this state, and that any other
union or relationship treated as a marriage by another
jurisdiction, involving members of the same sex, is
contrary to the public policy of this state and shall be
void ab initio.
BACKGROUND
In May 1993, the Hawaii Supreme Court ruled that making a
person's ability to marry depend on the sex of the proposed
spouse is sex discrimination under the Hawaii Constitution.
The Supreme Court remanded the case for a trial on the
issue of whether the State has a compelling reason to
continue discrimination.
Last December, the trial court ruled that the Hawaii law
which bans same-sex marriages violated the equal protection
clause of the Hawaii constitution, finding that the state
had failed to prove a "compelling state interest"
sufficient to allow the state to continue to issue marriage
licenses only to opposite-sex couples. The state has
appealed to the Hawaii Supreme Court, so there is likely to
be a final decision later this year or early next year.
CHANGES TO EXISTING LAW
Existing law provides that a marriage contracted outside
this state that would be valid by the laws of the
jurisdiction in which the marriage was contracted, is valid
in this state.
This bill would provide that any marriage contracted
outside this state between individuals of the same sex is
not valid in this state.
COMMENT
1. Author's purpose : The author has stated that the
purpose of this bill is "to defend California's definition
of civil marriage from being undermined when Hawaii
legalizes same-sex marriages and same-sex couples return to
demand recognition in California of their Hawaii marriage."
2. Does this bill violate the Full Faith and Credit Clause
of the United States Constitution ?
Section 1, of Article IV of the U.S. Constitution provides,
in part:
"Full faith and credit shall be given in each state to
the public acts, records, and judicial proceedings of
every other state. And the Congress may by general
laws prescribe the manner in which such acts, records
and proceedings shall be proved and the effect
thereof."
In addition, Congress enacted Section 1738 of Title 28 of
the U.S. Code, which provides, in part, as follows:
"Such acts, records, and judicial proceedings ...
shall have the same full faith and credit in every
court within the United States ... as they have by law
or usage in the courts of such state ... from which
they were taken."
There is an exception to full faith and credit where the
judicial proceedings of a sister state involve a lack of
jurisdiction ( Adam v. Saenger (1938) 82 L.Ed. 649, reh.
den.; cert. den. 83 L. Ed. 1511), are not final ( Hendrix v.
Hendrix (Conn. 1970) 273 A.2d 890), involve the enforcement
of a sister state's penal law ( Huntington v. Attrill
(1892) 146 U.S. 657), or where the enforcement of the
judicial proceedings would deny to a party or parties due
process of law ( Hanson v. Deckla (1958) 2 L.Ed.2d 1283,
reh. den., 3 L.Ed.2d 92).
The courts are generally in accord that the "full faith and
credit" clause of the United States Constitution and the
implementing federal statute require that each state give
to the judicial proceedings the same force and effect as
such proceedings would have in the rendering state.
( Magnolia Petroleum Co. v. Hunt (1943) 88 L.Ed. 149,
154-155, reh. den. 88 L.Ed. 1088; Nowell v. Nowell (Conn.
1969) 254 A.2d 889, 893 cert. den. 24 L.Ed.2d 94.)
The Supreme Court has never ruled on the issue of whether
marriages must be accorded Article IV, Section 1 respect,
but state courts and lower federal courts often have, even
in instances where the marriages would not be recognized
under the laws of the forum state. (See Parish v.
Minvielle (LA 1969) 217 So.2d 684, 688, Louisiana does not
recognize or permit common-law marriages but must give
effect to them when validly contracted in Texas; Guidry v.
Mezeal (LA 1986) 487 So.2d 780, 781; Commonwealth ex rel.
Alexander v. Alexander (PA 1971) 289 A.2d 83, 86; Orsburn
v. Graves (AK 1948) 210 S.W.2d 496.)
a. Federal "Defense of Marriage Act"
On September 21, 1996, President Bill Clinton signed HR
3396 into law. (Public Law 104-199; 110 Statute 2419.)
The effect of the "Defense of Marriage Act" was two-fold:
to prohibit the legal recognition of same-sex marriages for
any purpose under federal law, and
to allow each state to pass laws declining to give "effect"
to any same-sex relationship treated as a marriage under
the laws of another jurisdiction.
The federal legislation has been widely debated as to its
constitutionality. Some scholars believe the legislation
exceeds the federal government's authority and intervenes
into matters legitimately within the power of the states,
such as divorce and probate. Other legal commentators
argue that the legislation runs afoul of the constitution
by allowing states to be relieved of their general
obligation to recognize other states' laws under the Full
Faith and Credit Clause of the Constitution.
Interestingly, even the U.S. House Report from the
Judiciary Committee, which asserted that it believes that
states currently possess the ability to avoid recognizing a
same-sex marriage license from another state, recognized
"that that conclusion is far from certain." (House Report
No. 104-664, July 9, 1996, p. 9.) Still, others believe
that the constitutional history and case precedent
overwhelmingly confirm that a state can refuse to recognize
a same-sex marriage when the state has a strong public
policy against same-sex marriage. One thing seems certain,
the passage of HR 3396 has not resolved the
constitutionality of a state's refusal to recognize a
same-sex marriage of another state.
b. "Conflicts of law" as a competing analysis
While it has been held that considerations of local law and
policy do not diminish the requirement of enforcing sister
state judgments ( Fauntleroy v. Lum (1908) 52 L.Ed. 1039;
Kenney v. Supreme Lodge of the World (1920) 64 L.Ed. 638),
the courts have appeared to follow a less stringent
approach regarding the enforcement of sister state statutes
and laws, recognizing that the laws of one state need not,
in all cases, be subordinated to the laws of a sister
state. (See Hughes v. Fetter (1951) 95 L.Ed. 1212, 1216 ;
Pink v. A.A.A. Highway Express Inc . (1941) 86 L.Ed. 152,
158, reh. den., 86 L.Ed. 570 ; Alaska Packers Assoc. v.
Industrial Acci. Com . (1935) 79 L.Ed. 1044, 1052.)
This dichotomy appears to have resulted not from any
inherent superiority of judgments over statutes and other
laws, but rather because of a tendency of cases to combine
the requirement of "full faith and credit" with the
doctrine of comity; the former requiring enforcement, the
latter permitting enforcement. (See Rich v. Con-Stan
Industries (Tex. 1969) 449 S.W.2d 323, 327.)
The United States Supreme Court in Pink v. A.A.A. Highway
Express Inc . (1941) 86 L.Ed. 152, 158, stated:
"Every State has authority under the Constitution to
establish laws through both its judicial and its
legislative arms, which are controlling upon its
inhabitants and domestic affairs. When it is demanded
in the domestic forum that the operation of those laws
be supplanted by the statute of another state, that
forum is not bound, apart from the full faith and
credit clause, to yield to the demand, and the law of
neither can, by its own force, determine the choice of
law for the other...
"...But the full faith and credit clause is not an
inexorable and unqualified command. It leaves some
scope for state control within its borders of affairs
which are peculiarly its own. This court has often
recognized that, consistent with the appropriate
application of the full faith and credit clause, there
are limits to the extent to which the laws and policy
of one state may be subordinated to those of
another...
"It was the purpose of that provision to preserve
rights acquired or confirmed under the public acts and
judicial proceedings of one state by recognition of
their validity in others. But the very nature of the
federal union of states, to each of which is reserved
the sovereign right to make its own laws, precludes
resort to the Constitution as the means for compelling
one state wholly to subordinate its own laws and
policy concerning its particularly domestic affairs to
the laws and policy of others. When such conflict of
interest arises it is for this Court to resolve it by
determining how far the full faith and credit clause
demands the qualification or denial of rights asserted
under the laws of one state, that of the forum, by the
public acts and judicial proceedings of another..."
(Citations omitted, emphasis added.)
Thus, while it is clear from the above, that there may be
exceptions to the application of the full faith and credit
clause, it is not clear precisely what the parameters of
such exceptions may be, and the U.S. Supreme Court seems
content to provide for the exceptions on a case-by-case
basis.
Proponents resisting recognition of same-sex marriages rely
on this equivocal area of exceptions to argue that the Full
Faith and Credit Clause does not require the state to treat
such marriages as an act, proceeding, or record to which
they must give effect, but rather allows the state to
invoke its own marriage laws as applicable.
Opponents argue that the argument is misplaced, and assert
that what is at issue is not whose law should govern, but
rather what respect must be accorded a res , a marital
status, that the couples would possess and embody.
Opponents argue that the proper conflicts of law analysis
is that when state acts, records, or judicial proceedings
have been applied to the facts of a particular case to
determine the rights, obligations, or status of specific
parties, the other states must give those acts, records, or
proceedings the same effect they would have at home. The
status has been created, the judgment rendered, the record
recorded, and rights established - no question of what
legal regime may be invoked is appropriate. However, when
asked to recognize an unfulfilled or general right based on
another state's statute or case law, states may weigh the
competing interest before deciding which rule of law to
apply.
This distinction seems consistent with California
decisions. In Metropolitan Creditors Service v. Sadri ,15
Cal.App.4th 1821, the defendant had exchanged checks and
memoranda of indebtedness for gambling chips at a Nevada
casino and thereafter lost the chips playing baccarat. The
defendant stopped payment of the checks and memoranda, and
the assignee of the casino brought an action in California
to collect on the credit instruments. The appellate court
affirmed the trial court's judgment for the defendant,
ruling that the enforcement of gambling debts is against
public policy in California. The court explained the
principles of the full faith and credit clause as applied
to foreign judgments and cause of action, as follows:
"A forum state must give full faith and credit to a
sister state judgment, regardless of the forum state's
public policy on the underlying claim.... However,
the forum state may refuse to entertain a lawsuit on a
sister state cause of action if its enforcement is
contrary to the strong public policy of the forum
state."
c. Common law and California statute
The California cases involving the recognition of marriages
contracted in other states have not relied on the full
faith and credit clause. In Colbert v. Colbert (1946) 28
Cal.2d 276, 280, the court relied on the proposition that
ordinarily the law of the place of marriage controls the
question of its validity, as well as relying on Civil Code
Section 63 (now Family Code Section 308), in ruling that
California recognizes common law marriages validly
contracted in a sister state.
The Restatement of Conflict of Laws (Second) elaborates on
the practice of recognizing marriages performed in other
states. The Restatement states a presumptive rule that the
lex loci celebrationis (the law of the place of marriage)
governs, unless upholding the marriage would violate the
"strong public policy" of another state that had the most
significant relationship to the couple. (Restatement
(Second) of Conflict of Laws Section 283 (1971); see also
McDonald v. McDonald (1936) 6 Cal.2d 457, 459-460; Pearson
v. Pearson (1873) 51 Cal. 120, 125; Estate of Bir (1948)
83 Cal.App.2d 256, 261; Barrons v. United States (9th Cir.
1951) 191 F.2d 92, 95.)
The California Supreme Court, in Norman v. Thomson (1898)
121 Cal. 620, at 624, cited with approval the following
rule set forth in Commonwealth v. Lane 113 Mass. 458, as
follows:
"'A marriage which is prohibited here by statute,
because contrary to the policy of our laws, is yet
valid if celebrated elsewhere according to the law of
the place, even if the parties are citizens and
residents of this commonwealth, and have gone abroad
for the purpose of evading our laws, unless the
legislature has clearly enacted that such marriages
out of the state shall have no validity here.'"
Norman notwithstanding, California courts have upheld
certain marriages which were contrary to the public policy
of the laws of California, when validly contracted in other
jurisdictions. For example, interracial marriages at a
time interracial marriages were invalid in California
( People v. Godines (1936) 17 Cal.App.2d 721,723); a
marriage which would be deemed bigamous under California
law because of a law prohibiting marriage within a year
after a divorce, where the marriage was validly contracted
in Nevada ( Estate of Wood 137 Cal. 129.); a valid Nevada
marriage of underage persons who went to that state for the
purpose of evading the laws of California requiring the
consent of a parent or guardian ( McDonald v. McDonald
(1936) 6 Cal.2d 457, 459-460); and where a proxy marriage
validly contracted in Nevada that would not otherwise be
valid in California was upheld as valid ( Barrons v. United
States (9th Cir. 1951) 191 F.2d 92, 95-96).
Thus, the issue is whether the public policy of the state
which would be offended by the statute is sufficiently
strong to be deemed an exception to the general rule of
recognizing marriages performed in other states. As
discussed above, California has followed a long-standing
policy of validating marriages valid in other forums, even
where they would be invalid under California law. Last
year, during the Senate Judiciary Committee hearing on this
same subject, Professor Sullivan of Standard University Law
School facility, surmised that the state's refusal to
recognize same-sex marriages when it has recognized all
other out-of-state marriages, including those which may be
contrary to California policy, would be constitutionally
suspect.
2. SB 911, on its face and as applied, would discriminate
based on sexual orientation and gender in the exercise of
marriage, thereby implicating the equal protection clause
a. Classification based on sexual orientation
Last year the United States Supreme Court decided Romer v.
Evans (1996) U.S. Lexis 3245. The basic facts of Romer,
taken from the Supreme Court decision, are as follows:
After various Colorado municipalities passed
ordinances banning discrimination based on sexual
orientation in housing, employment, education, public
commendations, health and welfare services, and other
transactions and activities, Colorado voters adopted a
statewide referendum "Amendment 2" to the State
Constitution, which precluded all legislative,
executive, or judicial action at any level of state or
local government designed to protect the status of
persons based on their "homosexual, lesbian or
bisexual orientation, conduct, practices or
relationships."
Respondents, who included aggrieved homosexuals and
municipalities, commenced suit in state court against
the state (Roy Romer is sued in his capacity as the
Governor of Colorado) to declare Amendment 2 invalid.
The trial court granted a preliminary injunction which
was sustained by the Colorado Supreme Court, which
held that Amendment 2 was subject to strict scrutiny
under the Equal Protection Clause of the Fourteenth
Amendment because it infringed the fundamental right
of gays and lesbians to participate in the political
process.
On remand, the trial court found that the Amendment
failed to satisfy strict scrutiny and so, enjoined its
enforcement. The Colorado Supreme Court affirmed that
decision, in its second opinion on the case.
In Romer , the Court concluded that:
"..Amendment 2 classifies homosexuals not to further a
proper legislative end but to make them unequal to
everyone else. This Colorado cannot do. A State
cannot so deem a class of persons a stranger to its
laws. Amendment 2 violates the Equal Protection
Clause, and the judgment of the Supreme Court of
Colorado is affirmed."
The Court noted that it did not rely on its own
interpretation of the amendment, but on the authoritative
construction of the Colorado Supreme Court. "The state
court, deeming it unnecessary to determine the full extent
of the amendment's reach, found it invalid even on a modest
reading of its implications." ( Id . at p. 5.) The Court
also chose not to decide whether Amendment 2 denied
homosexuals the protections of generally applicable
anti-discrimination laws, because it found that even if it
did not have such an effect, the imposition of a special
disability on homosexuals alone, forbidding them, and no
others, from seeking the safeguards that others enjoy or
may seek without constraint was impermissible. ( Id . at p.
5.)
The Court noted that when making an equal protection
evaluation, "we insist on knowing the relation between the
classification adopted and the object to be attained. The
search for the link between classification and objective
gives substance to the Equal Protection Clause." ( Id . at
p. 7.)
The Court noted further that "the law will be sustained if
it can be said to advance a legitimate government interest,
even if the law seems unwise or works to the disadvantage
of a particular group, or if the rationale for it seems
tenuous. The court also notes that by requiring a
classification bear a rational relationship to an
independent and legitimate legislative end, we ensure that
the classifications are not drawn for the purpose of
disadvantaging the group burdened by the law." ( Id . at p.
8.)
Romer may stand for the proposition that the U.S. Supreme
Court will seriously scrutinize any statute that clearly
disfavors homosexuals. The majority opinion struck down
the statute because there was no legitimate government
purpose. Throughout the years, the Supreme Court in
applying a rational basis review has rarely invalidated a
statute based on a illegitimate governmental purpose.
Usually, the court gives a great deal of deference to
government's stated purpose without inquiring into its
motives.
An issue raised by legal commentators is whether Romer
truly applied a rational basis test. Although Romer stated
it was applying a rational basis analysis, the practical
result looked more like a heightened scrutiny analysis, in
which a state is either required to show an important
governmental interest or a compelling state interest, not
merely a legitimate state interest. This would be
consistent with previous decisions stating that
classifications based on sex are subject to a standard
intermediate between rational basis and strict scrutiny.
( Craig v. Boren (1976) 429 U.S. 190, 197.)
In Romer , the court clearly did not buy the government's
rationale for the statute and found the only plausible
argument to be discrimination. Conversely, the author of
SB 911 contends that the bill is to preserve the union of
marriage for male-female pairings for the purpose of
procreation and the survival of the race, not to
discriminate, and thus would satisfy even the Romer
standard of a legitimate governmental interest.
It is indisputable that court's have pointed to the
fundamental right to marry and have linked that right to
the right of procreation. ( Skinner v. Oklahoma (1942) 86
L.Ed. 1655, 1660.) However, to imply that procreation is
the sole or primary purpose behind marriage ignores the
surplus of legitimate reasons and concerns which guide
people to marry.
Opponents state that marriage is a critically important
institution because it is the only vehicle our society has
for recognizing the existence of primary relationships not
defined by blood. They contend that this relationship has
powerful emotional consequences, and powerful practical
consequences as well.
Among the more practical consequences of marriage are the
rights to:
visit a partner or a partner's child in a hospital;
inherit from your partner is she or he does not have a
valid will;
obtain joint health, home and auto insurance policies;
enter joint rental agreements;
continue to live in the family home if one partner enters a
nursing home through Medicaid;
make medical decisions on a partner's behalf in event of
illness;
take bereavement or sick leave to care for a partner or a
partner's child;
choose a final resting place for a deceased partner
obtain wrongful death benefits for a surviving partner and
children;
get an equitable division of property in a divorce;
have joint child custody, visitation, adoption and foster
care; determine child custody and support in a divorce;
file joint tax returns; obtain veterans' discounts on
medical care, education and home loans;
apply for immigrations and residency for partners from
other countries; and
obtain domestic violence protective orders.
Many of these consequences cannot be duplicated by private
arrangements or contracts. Even for those problems which
can be handled by agreements, that solution is only
available to people with the money and sophistication to
hire a competent lawyer.
Thus, like Amendment 2, opponents argue that SB 911 is not
narrowly drawn as to avoid the over-breadth aspect of Romer
and negate its application. Amendment 2 prohibited
homosexuals from access to all forms of the political and
law-making process, except for the ability to obtain a new
constitutional amendment. The Romer Court found that
Amendment 2 excluded homosexuals from "an almost limitless
number of transactions and endeavors that constitute
ordinary civic life in a free society." ( Id ., at 16.)
Likewise, while on its face,
SB 911 appears to exclude persons of the same sex only from
the right to marry, in practice it would prohibit a surplus
of opportunities afforded married persons. Thus, it would
appear that SB 911 would raise the same over-breadth
concerns that Amendment 2 raised in Romer .
b. Classification based on gender: application of a
heightened scrutiny analysis
In May 1993, the Hawaii Supreme Court ruled that the states
refusal to issue marriage licenses to same-sex couples
under the Hawaii marriage law implicates the state
constitution's guarantee of equal protection, and remanded
the case for a trial on the issue of whether the state has
a compelling reason to continue discriminating. ( Baehr v.
Lewin (Haw. 1993) 852 P.2d 44, 58.) The court held that
making a person's ability to marry depend on the sex of the
proposed spouse is sex discrimination under the Hawaii
Constitution, just as laws which made the ability to marry
depend on the proposed spouse's race were race
discrimination under the federal constitution.
While the Hawaii court applied the strict scrutiny test to
the constitutionality of its marriage law based on the
state's inclusion of "sex" as a suspect class under its
equal protection clause, the court correctly noted that
even under the federal constitution a standard intermediate
between rational basis and strict scrutiny is applied to
such classifications. "(C)lassification by gender must
serve important governmental objectives and must be
substantially related to achievement of those objectives
(citations omitted)." ( Baehr , at 72.)
The dissent in Baehr attempted to argue that the state
marriage law did not constitute a classification based on
sex because the law "treats everyone alike and applies
equally to both sexes," with the result that neither sex is
being granted a right or benefit the other does not have.
( Id ., at 96-97.) This is similar to an argument put forth
by the author's office with regards to SB 911.
In rejecting the dissent's contention, the Baehr court held
that this type of argument was expressly considered and
rejected by the U.S. Supreme Court in Loving v. Virginia
(1967) 388 U.S. 1, 8, regarding laws based on race:
"Thus, the State contends that, because its
miscegenation statutes punish equally both the white
and the Negro participants in an interracial marriage,
these statutes, despite their reliance on racial
classifications do not constitute an invidious
discrimination based upon race. . . . (W)e reject the
notion that the mere "equal application" of a statute
containing racial classifications is enough to remove
the classifications from the Fourteenth Amendment's
proscriptions of all invidious discrimination . . . .
In the case at bar, . . . we deal with statutes
containing racial classifications, and the fact of
equal application does not immunize the state from the
very heavy burden of justification which the
Fourteenth Amendment has traditionally required of
state statutes drawn according to race."
Thus, it seems likely that the bill would be subjected to a
heightened scrutiny analysis, and would be upheld only if
it was found to serve important governmental objectives and
was substantially related to achievement of those
objectives. Based on the arguments above, it appears that
this will be a difficult hurdle.
3. Affects the bill would have on the right to interstate
travel
The right to interstate travel was first recognized by the
Supreme Court in Crandall v. Nevada (1867) 73 U.S. 6, which
held that the right is a necessary inference from the
structure of the Constitution and the federal government.
In other cases, courts have found the right in an explicit
provision of the Constitution or through prior decisions of
the court. (See Edwards v. California (1941) 314 U.S. 160,
176, stating that the Commerce Clause requires recognition
of the right to interstate travel.)
More recently, the Supreme Court has held that a state
cannot discriminate against people entering its territory
by imposing unconstitutional conditions on the right to
enter. ( Shapiro v. Thompson (1969) 394 U.S. 618, 631,
state may not impose unduly long residence requirements on
access to state services.) While the Supreme Court has
held that a lesser standard applies when restrictions based
on interstate travel are of a limited duration, opponents
argue that this is plainly not the case with the refusal to
recognize a marriage. (See Sosna v. Iowa (1975) 419 U.S.
393, upholding one-year durational residency requirement
for divorce because recent travelers not "irretrievably
foreclosed" from divorce but "merely delayed.")
Opponents argue that these cases provide strong, additional
support to the arguments that the United States is one
nation, that the policy of the Constitution is that we
should be able to move freely, and that making marital
status depend on which state you are in at the moment seems
inconsistent with these basic policies.
Support: California Catholic Conference; Committee on
Moral Concerns; Capitol
Resource Institute; Choices Ministry; two
individuals
Opposition: American Civil Liberties Union; Frontiers News
Magazine; Planned
Parenthood; Pacific Pride Foundation; ; Life; Unity Pride
Coalition;
nine individuals
HISTORY
Source: Author
Related Pending Legislation:
Prior Legislation:
AB 1982 (Knight, 1996), died on the Senate Inactive File.
AB 167 (Burton, 1991) amended what is now Section 300 to
delete the reference to male and female, thus statutorily
providing for same-sex marriage. Held in the Senate
Judiciary Committee without a vote.
AB 2810 (Katz, 1994) provided a scheme for the statewide
registry for domestic partners which specifically allowed
for the following rights: hospital visitation;
conservatorship; and inheritance. Vetoed by the Governor.
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