BILL ANALYSIS
AB 19
Page 1
ASSEMBLY THIRD READING
AB 19 (Leno)
As Amended May 12, 2005
Majority vote
JUDICIARY 6-3 APPROPRIATIONS
(vote not
available)
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|Ayes:|Jones, Evans, Laird, | | |
| |Levine, Lieber, Montanez | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Harman, Haynes, Leslie | | |
| | | | |
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SUMMARY : Seeks to end the state's denial of marriage licenses
to same-sex couples in California. Specifically, this bill :
1)Eliminates the current "different-gender" requirement in the
state's definition of marriage.
2)Clarifies gender-specific terms in the state's family laws
shall be construed to be gender-neutral, except in regards to
Family Code Section 308.5, concerning recognition of marriages
contracted in other jurisdictions (Proposition 22 of 2000).
3)Adds Section 403 to the Family Code to declare that no
religious official shall be required to perform or solemnize
any marriage in violation of his or her religious conviction.
4)Includes findings that Family Code Sections 300 and 308.5 have
been declared unconstitutional in coordinated state-court
proceedings and that the bill does not amend Family Code
Section 308.5 to the extent that Section 308.5 addresses only
marriages from other jurisdictions.
5)Acknowledges the authority of the California Supreme Court to
make a final judicial determination regarding Section 308.5's
meaning, and validity or invalidity.
EXISTING LAW :
1)Provides that "Marriage is a personal relation arising out of
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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. All further references
are to this code unless otherwise noted.)
2)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." (Family Code
Section 308.)
3)Provides, immediately following section 308 that "Only
marriage between a man and a woman is valid or recognized in
California." (Family Code Section 308.5.)
4)Provides, in the state's Equal Protection Clause, in Article
I, Section 7, that:
(a) "A person may not be deprived of life, liberty, or
property without due process of law or denied equal
protection of the laws. . . " and (b) "A citizen or class of
citizens may not be granted privileges or immunities not
granted on the same terms to all citizens."
FISCAL EFFECT : According to the Assembly Appropriations
analysis, the cost estimates assume that about one-half of the
estimated 100,000 same-sex couples in California will marry in
the first three years after the effective date of this Act.
(The 2000 Census identified 92,138 same-sex couples living in
California. The Census also found that 92% of heterosexual
couples living together in 2000 were married.) As of May 1,
2005, there were about 27,300 registered domestic partnerships
in the state. (It is assumed that the vast majority of these
are same-sex couples.) Therefore, it is assumed that bestowing
the rights of marriage to same sex couples will result in 50,000
marriages after three years, an amount exceeding the estimated
number of domestic partnerships by that time by about 20,000.
1)Income Taxes: According to a Franchise Tax Board estimate for
similar legislation in 2004, there would be an annual income
tax-related revenue loss of about $1 million for every 4,900
same sex couples whose filing status would change to married.
This is the estimated net effect of these couples being
required to file tax returns as married filing joint or as
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married filing separate. It is therefore assumed that the
total revenue loss will increase incrementally to about $10
million after three years, with minor annual increases
thereafter as additional marriages take place.
2)Means-Tested Public Benefits: The largest potential impacts
are in the Medi-Cal and SSI/SSP, programs. With same-sex
marriage, the income of benefit recipients' same-sex spouses
would be included in calculating program eligibility. In
general, this will reduce caseloads and program costs.
However, eligibility for these programs is determined by
federal laws and regulations. The federal Defense of Marriage
Act limits the definition of a spouse to a husband or wife of
the opposite sex, thus absent a change in federal law or a
waiver of federal regulations for Medi-Cal and SSI/SSP, it is
questionable whether the state could implement this bill with
respect to these programs. Moreover, even though enacted
domestic partnership legislation (AB 205, Goldberg) intends
that registered partners' household income be included in
determining eligibility for means-tested programs, the
Department of Health Services has not yet sought approval from
the federal government to implement those provisions. The
estimates below illustrate potential savings if federal law
were to change or eligibility waivers were obtained:
a) Medi-Cal: Estimated annual GF savings of around $5
million by the third year. Estimate assumes 3,400
households receiving an average of $250 per month in
Medi-Cal benefits would lose eligibility; and,
b) SSI/SSP: Estimated annual GF savings of around $8.6
million by the third year. Estimate assumes 2,400
households receiving an average of $600 per month in
benefits would lose eligibility following marriage.
3)Economic Impacts: There will be increased economic activity
related to the outlays associated with thousands of wedding
ceremonies that would occur upon enactment of this bill. This
would include weddings involving California residents and
same-sex couples from other states that may wish to marry. To
the extent this represents spending that would otherwise not
occur, there would be an increase in tax revenues. This
increase cannot be quantified. It should be noted that much
of the expenditures related to weddings are for services and
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thus are not subject to state sale taxes.
COMMENTS : This legislation seeks to halt the state's practice
of denying same-sex couples the right to marry by defining
marriage as between "two persons" instead of solely between a
man and a woman. The bill thus raises important questions of
law and public policy that are now being discussed across the
nation and around the world, reflecting one of this nation's
most significant civil rights issues for the 21st century.
The issue of legal recognition of same-sex couples in
California dates back two decades. Before the 1980s, same-sex
couples had no legal recognition in California - or virtually
anywhere else. As families, same-sex couples were essentially
invisible to the law. In 1984, however, the City of Berkeley
extended employee benefits to the same-sex partners of
municipal employees, and in 1985 West Hollywood became the
first governmental entity to offer legal recognition to
same-sex couples among the general public by establishing a
legal status called "domestic partnership." By 2000, 18
California local governments had established domestic
partnership registries.
California took notice of this emerging movement. In 1999, the
Legislature enacted AB 26 (Migden) 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 registered domestic partners was enacted in
2003 by AB 205 (Goldberg). That bill became fully operative
this past January 1, 2005, and it has been upheld by the courts
against challengers' arguments that granting legal protections
to same-sex couples is inconsistent with Proposition 22. Even
so, the domestic partner laws fall short in that they preclude
joint filing of income taxes, fail to treat earned income as
community property for state income tax purposes, and deny
access to certain long-term care benefits. In addition,
domestic partners are denied the protections available under
more than 1,100 federal statutes relating to marriage. The
federal benefits afforded to opposite-sex, married couples
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include such basic benefits as social security, Medicare,
federal housing assistance, food stamps, veterans' benefits,
military benefits, tax benefits and federal employment benefits.
In 1996 Congress passed, and President Clinton signed, the
federal Defense of Marriage Act (DOMA), which among other things
says that no state is required under federal law to give effect
to same-sex marriages contracted in other states. In light of
the federal DOMA, other states have also enacted measures
prohibiting recognition of marriages entered into by same-sex
couples in other jurisdictions. Some states have gone so far as
to enact into their constitutions provisions that purport to
prohibit recognition of relationships between same-sex couples
other than marriage, such as domestic partnerships or civil
unions.
In 2000, a group of citizens led by the late state senator Pete
Knight placed Proposition 22 on the March 2000 ballot to
prohibit California from recognizing any same-sex marriages
contracted in other states or countries. The measure passed
with 61% of the vote and became codified as Family Code Section
308.5. However, a superior court judge has recently entered a
judgment declaring Proposition 22 invalid under the state
Constitution.
The Massachusetts Supreme Judicial Court in November 2003 and
February 2004 ruled the Massachusetts definition of marriage
violated that state's constitutional equal protection
provisions. In response to this advisory opinion, the state
legalized same-sex marriage and began issuing marriage licenses
to same-sex couples on May 17, 2004.
In February 2004, the City and County of San Francisco began
issuing marriage licenses to same-sex couples. 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
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filing of a lawsuit in superior court to address this very
issue.
Then, just this past March 14, 2005, the San Francisco Superior
Court concluded that same-sex couples are denied equal
protection by marriage laws that prohibit them from marrying.
The trial court held that California's exclusion of same-sex
couples from marriage constitutes discrimination on the basis of
gender and interferes with the fundamental right to marry the
person of one's choosing.
A major legal question presented by this legislation is whether
it conflicts with Proposition 22. The answer to this question
depends upon how broadly the proposition is read. Under a more
narrow reading, Proposition 22 applies only to marriages
contracted out of state-that is, it simply prevents California
from recognizing marriages between same-sex couples entered into
outside California. Under a more broad reading, Proposition 22
prohibits marriages between same-sex couples whether performed
inside or outside of the state. Regardless of Proposition 22's
reach, Family Code Sections 300 and 308.5 raise critical
constitutional questions. Indeed, the superior court in San
Francisco in the coordinated marriage cases has recently
declared both statutes unconstitutional. Three points were
important to the court's constitutional analysis. First, the
history of California's definition of marriage clearly shows an
explicit intent to discriminate against lesbians and gay men and
to exclude same-sex couples from marriage. Second, there are
two landmark rulings from the California Supreme Court that bear
directly on the question of the constitutionality of a
definition that excludes same-sex couples, and suggest that
California's current statute banning same-sex marriage may
likely be struck down if the issue is heard by the State Supreme
Court. And third, there is an undeniably strong trend in
rulings from other state supreme courts, and from the U.S.
Supreme Court itself, suggesting that the statute likely could
not, and ultimately will not, withstand constitutional scrutiny.
The California Constitution contains two independent equal
protection provisions. For nearly three decades, the California
courts have held that the equal protection clause protects gay
and lesbian persons. In the landmark decision of Gay Law
Students v. Pacific Telephone and Telegraph (1977), the
California Supreme Court expressly held that subdivision (a) of
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Article I, section 7 guarantees lesbians and gay men, as a
class, equal protection.
In 1948, California's Supreme Court was the first in the nation
to hold that a law prohibiting persons from marrying outside
their race violated the constitution. Perez v. Lippold (1948)
preceded the U.S. Supreme Court's decision in Loving v. Virginia
(1967) on the same question by nearly 20 years. Given the
fundamental nature of the right to marry, the Court held that
any infringement of that right "must be based upon more than
prejudice and must be free from oppressive discrimination to
comply with the constitutional requirements of due process and
equal protection of the laws." More, importantly the Court held
that while the state has authority to prohibit marriage between
specific individuals when there is a legitimate state concern,
such legislation would have to be specific to the individuals in
question, and could not use "arbitrary classifications of groups
or races" as a substitute. (Emphasis added.)
Three state supreme courts have addressed the question of
whether a state law that defines marriage so as to exclude same
sex partners violates their respective state constitutions.
Importantly, in each case, the court has ruled in favor of the
same-sex couples. The most recent and most relevant decisions
are those from the Massachusetts Supreme Judicial Court. The
Supreme Judicial Court of Massachusetts ruled in 2003 that laws
prohibiting same-sex marriage violate the Massachusetts
Constitution. Three months later, in February 2004, the Supreme
Judicial Court issued an advisory opinion to the state
legislature in Massachusetts and stated: "The history of our
nation has demonstrated that separate is seldom, if ever,
equal."
Finally, two cases from the U.S. Supreme Court decided by 6-3
majorities, have recently addressed issues relevant to the
pending bill. In Romer v. Evans (1996) the Court overturned
Colorado's Amendment 2, which would have amended the Colorado
Constitution to exclude lesbians and gay men from obtaining
legal protection. More recently, in Lawrence v. Texas (2003),
the U.S. Supreme Court struck down a state homosexual sodomy law
on the ground that the "liberty" protected by the Fourteenth
Amendment includes private, consensual adult sexual relations.
The Court did not need to decide whether gay men and lesbians
have a constitutional right to marry, and the Court expressly
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left that question open. So far, no state high court has found
adequate justification under state law for treating homosexual
couples differently than heterosexual couples in defining
marriage, even under a constitutionally lenient "rational basis"
test. This appears to be where California's courts ultimately
may arrive, as the trial court opinion in the coordinated
marriage cases demonstrates.
Many groups and individuals wrote in support of this measure.
Some supporters assert that although the enactment of recent
domestic partnership legislation provides tangible benefits for
couples, "it also sets up a separate and unequal system for gay
and lesbian people. Moreover, domestic partnerships do nothing
to assist bi-national couples, tax discrimination, federal
employees and a multitude of scenarios faced by same-sex couples
that extend beyond the borders of our state." Other supporters
underscore the beneficial impact the status of marriage gives to
the physical, mental, and economic well-being of individuals:
"the benefits of marriage are many, reaching far beyond legal
benefits to include physical, mental, and economic benefits."
Still other supporters address the concern opponents raise about
children writing: "Some feel awkward explaining to their
children the concept of two men or two women marrying. Our own
congregations are examples of predominantly straight
communities, which have grown to become fully accepting of gay
and lesbian couples and their families. We have found that the
children in our congregations, raised by accepting parents in
inclusive communities, take the love and commitment between two
people at face value."
Many groups and individuals also wrote in opposition to this
measure. These groups and individuals oppose the bill because,
they believe, it violates the will and vote of the people and
the California constitution. In addition, opponents write:
"Federally funded programs, employee health plans, Medi-Cal
benefits, and school curriculum would have to be altered at
taxpayer expense reflecting the newly sanctioned 'marriages' and
new definition of 'family.'" Other opponents maintain that
"homosexuals want to destroy marriage as an institution - not
benefit from it" and that marriage is a sacred institution with
unique attributes to be realized and shared only by the union of
a man and woman. Still others state their concerns for children
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and an overall slippery slope of moral degradation within our
society in general by writing: "Adults should not put their
sexual desires ahead of the needs of children. Studies show us
that children need a mom and a dad. Society should not gamble
with the lives of children by permitting gay marriage."
Opponents claim that the homosexual union to be an "unnatural
and dangerous" one, contrary to the union between a man and a
woman and that if AB 19 passes, "the underlying principles of
everything that built the greatest nation in history will
vanish. By abandoning our culture's basic principles of
morality, the bill will leave no moral rationale to prevent
multiple marriages, communal families, or exploitation of the
physically weak or the politically powerless."
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334
FN: 0010542