BILL ANALYSIS
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Date of Hearing: May 10, 2005
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
ACA 3 (Haynes) - As Introduced: December 6, 2004
SUBJECT : MARRIAGE: CONSTITUTIONAL AMENDMENT LIMITING TO
OPPOSITE-SEX COUPLES ONLY AND ELIMINATING DOMESTIC PARTNERSHIP
KEY ISSUES :
1)ARE THERE ANY LEGITIMATE REASONS WHY CIVIL MARRIAGES
RECOGNIZED BY OUR GOVERNMENT SHOULD BE LIMITED TO OPPOSITE-SEX
COUPLES?
2)SHOULD CALIFORNIA'S LANDMARK DOMESTIC PARTNERSHIP LAW, WHICH
PROVIDES REGISTERED PARTNERS WITH THE SAME RIGHTS,
RESPONSIBILITIES, BENEFITS AND OBLIGATIONS AS MARRIED COUPLES,
BE MADE TO BE UNCONSTITUTIONAL? ARE THERE ANY LEGITIMATE
REASONS TO PROHIBIT DOMESTIC PARTNERSHIPS?
3)WOULD THIS MEASURE ENSHRINE DISCRIMINATION IN THE CALIFORNIA
CONSTITUTION?
SYNOPSIS
This proposed constitutional amendment, sponsored by the
Traditional Values Coalition, seeks to ask the state's voters to
amend the California Constitution by limiting marriage to
opposite sex couples only. This measure would also limit the
rights, responsibilities, benefits and obligations afforded to
married couples to those couples only, thus effectively
eliminating domestic partnership in California. This proposed
constitutional amendment 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 author argues that this proposed constitutional amendment is
necessary to prevent circumvention of the intent of Proposition
22, approved by the voters in 2000, through the expansion of
domestic partnership laws and enactment of full-blown same-sex
marriages here in California. Supporters argue "The future of
California and American depends on keeping marriage from being
undermined by legal competition from less stable 'family'
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arrangements."
Opponents of the measure contend this constitutional amendment
would "repeal all protections for gay and lesbian families and
undo the California's constitution's guarantee of equal
protection under the law for all its citizens." These groups
further argue strongly that the Constitution should be used only
to protect the rights of individuals, not to deny them rights.
This measure, they contend would "appear to be the first time
the California Constitution would explicitly authorize
discrimination against a discreet group of individuals."
SUMMARY : Seeks to amend the state Constitution to limit
marriage and the rights and responsibilities of marriage to
opposite-sex couples only. Specifically, this measure :
1)Requires that only marriage between a man and a woman, whether
contracted in California or elsewhere, is valid and recognized
in California.
2)Requires that the rights, responsibilities, benefits and
obligations of marriage can only be granted to a man and a
woman joined in a valid marriage and cannot be conferred upon
any other union or partnership.
EXISTING LAW :
1)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."
2)Provides, in the state Constitution's Declaration of Rights,
in Article I, Section 1, that "All people . . . have
inalienable rights. Among these are enjoying and defending
life and liberty, acquiring, possessing, and protecting
property, and pursuing and obtaining safety, happiness, and
privacy."
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3)Provides, in the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution, that "[n]o State
shall . . . deny to any person within its jurisdiction the
equal protection of the laws."
4)Provides, in the Due Process Clause of the Fourteenth
Amendment to the United States Constitution, that "[n]o State
shall . . . deprive any person of . . . liberty, or property
without due process of law."
5)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. All further references
are to this code unless otherwise noted.)
6)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." (Section
308.)
7)Provides, immediately following section 308 that "Only
marriage between a man and a woman is valid or recognized in
California." (Section 308.5.)
8)Defines "domestic partners" as two adults who have chosen to
share in a committed relationship. Establishes domestic
partnerships in California when both persons file a
Declaration of Domestic Partnership with the Secretary of
State. Affords domestic partners the same rights,
protections, benefits, responsibilities, obligations and
duties as are guaranteed to and imposed upon spouses.
Provides former domestic partners the same rights,
protections, benefits, responsibilities, obligations and
duties to as imposed upon former spouses. (Section 297 et
seq .)
FISCAL EFFECT : As currently in print, this measure is keyed
fiscal.
COMMENTS : On April 26, 2005, this Committee passed AB 19
(Leno) which would amend California's family law by defining
marriage as between "two persons" instead of solely between a
man and a woman. This proposed constitutional amendment,
sponsored by the Traditional Values Coalition, seeks to ask the
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state's voters to enshrine in the state Constitution that
marriage is limited to opposite-sex couples only and that the
rights, responsibilities, benefits and obligations of marriage
are limited to opposite-sex couples who have entered into a
valid marriage. As a result, this measure would effectively
eliminate domestic partnerships in California, in addition to
negating AB 19. In support of the measure, the author states:
In 2000, Californians passed Proposition 22 which
amended the family code to recognize only marriages
between one man and one woman. Since that time the
City of San Francisco, various members of the
Legislature and same-sex advocates have been
attempting to circumvent the intent of Prop. 22 to
expand domestic partnership laws and enact full-blown
same-sex marriages here in California.
ACA 3 amends the California Constitution so that there
is no doubt as to the intent that:
(a) Only marriage between a man and a woman is
valid or recognized in California, whether
contracted in this state or elsewhere.
(b) The rights, responsibilities, benefits, and
obligations of a marriage shall only be granted,
bestowed, and conferred upon a man and a woman
joined in a valid marriage, and may not be
conferred upon any other union or partnership.
California's Constitution Guarantees Equality : The California
Constitution contains two independent equal protection
provisions. Article I, Section 7 (a), provides "[a] person may
not be deprived of life, liberty, or property without due
process of law or denied equal protection of the laws. . ." 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 , 24 Cal.3d 458 (1977), the California Supreme
Court expressly held that subdivision (a) of Article I, section
7 guarantees lesbians and gay men, as a class, equal protection.
In addition, Article I, section 7 (b) provides: "A citizen or
class of citizens may not be granted privileges or immunities
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not granted on the same terms to all citizens." Under
California's current marriage laws, heterosexual couples and
their families are an identifiable "class of citizens" who are
granted rights, privileges, and immunities that are denied to
another identifiable class of citizens: gay and lesbian couples
and their families.
California's Seminal Case on Equal Protection and the Importance
of Marriage: Perez v. Lippold : 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 state
Constitution. Perez v. Lippold , 32 Cal.2d 711 (1948) preceded
the U.S. Supreme Court's decision in Loving v. Virginia , 388
U.S. 1 (1967) on the same question by nearly 20 years. Perez
examined the California statute that provided, "no license may
be issued authorizing the marriage of a white person with a
Negro, mulatto, Mongolian or member of the Malay race." The
Perez opinion held that "liberty," within the meaning of the
state's due process clause, included the "right of the
individual to contract, to engage in any of the common
occupations of life, to acquire useful knowledge, to marry,
establish a home, and bring up children. . . " (Emphasis
added.) 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.)
California's Recognition of Same-Sex Couples : 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." Through the status of domestic partnership,
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same-sex couples could obtain not only limited protections for
themselves and their children, but also, for the first time,
government recognition as family units. By 2000, eighteen
California local governments had established domestic
partnership registries-namely, the cities of West Hollywood,
Laguna Beach, San Francisco, Berkeley, Sacramento, Davis, Palo
Alto, Santa Monica, Oakland, Long Beach, Cathedral City, Santa
Barbara, Arcata, Petaluma, and Palm Springs, as well as Marin
County, Santa Barbara County, and the state's largest local
government, the County of Los Angeles.
California's Establishment of Domestic Partnership: The State
of California took notice of this emerging movement. In 1999,
the Legislature enacted AB 26 (Migden), Ch. 588, Stats. of 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. In 2001 and 2002,
the Legislature broadened the rights of domestic partners in AB
25 (Migden), Ch. 893, Stats. of 2001, and AB 2216 (Keeley), Ch.
447, Stats. of 2002. In all, at least thirteen statutes have
been enacted to provide legal protections to domestic partners
in California.
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 on 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 include such basic benefits as
social security, Medicare, federal housing assistance, food
stamps, veterans' benefits, military benefits, tax benefits and
federal employment benefits.
Recognition in Other States : In 1993, the state of Hawaii
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Supreme Court became the first in the nation to hold that the
state could not, on equal protection grounds, exclude same-sex
couples from marriage without a compelling reason. The state
legislature subsequently passed a law creating a new status of
"Reciprocal Beneficiaries," under which certain limited benefits
were made available to same-sex couples. With that law in
place, the voters then passed a constitutional amendment giving
the legislature authority to define "marriage" in whatever way
it saw fit, and the legislature then recodified its existing
definition of marriage as between a man and a woman, while
continuing to grant "reciprocal beneficiaries" as a limited set
of parallel benefits. In 1999, the Vermont Supreme Court ruled
that Vermont's Equal Benefits Clause prohibited the Vermont
Legislature from denying to same-sex couples the rights,
benefits, and privileges granted to married heterosexual
couples. The legislature responded by passing a comprehensive
Civil Unions law that until a few weeks ago was the only such
law in the country. Connecticut recently became the second
state in the country to enact a Civil Unions statute.
The Federal DOMA : 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.
California's Proposition 22 : A group of citizens led by the
late State Senator Pete Knight placed an initiative on the March
2000 California 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
Section 308.5 of the Family Code. However, as explained in more
detail below, a superior court judge has recently entered a
judgment declaring Proposition 22 invalid under the state
Constitution.
Other States' Constitutional Amendments : Eighteen states, most
in light of the federal DOMA, have also enacted measures
prohibiting recognition of marriages entered into by same-sex
couples in other jurisdictions. These states include Alaska,
Michigan, Nebraska and Ohio. A majority of these states,
including Kansas, Louisiana and Utah, have gone as far as this
measure would by enacting into their constitutions provisions
that purport to prohibit recognition of relationships between
same-sex couples other than marriage, such as domestic
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partnerships or civil unions. A number of other states, in
addition to California, are now considering constitutional
amendments restricting marriage.
Efforts to Amend the Federal Constitution : In 2003,
Congresswoman Marilyn Musgrave of Colorado introduced a measure,
similar to this measure, in the U.S. House of Representatives
seeking to amend the U.S. Constitution to define marriage as
between a man and a woman. Senator Wayne Allard of Colorado
introduced a companion measure in the Senate. Although
President Bush has expressed support for those efforts to amend
the U.S. Constitution, those measures have thus far failed to
garner the necessary level of support in Congress. AJR 85
(Leno), Resolution Chapter 172 of 2004, expressed the
Legislature's opposition to any federal enactment designed to
prohibit or restrict the provision of providing rights and
obligations under the law for same-sex couples and their
families.
San Francisco : In February 2004, the City and County of San
Francisco began issuing marriage licenses to same-sex couples.
From February 12 through March 11, 2004, 4,037 same-sex couples
from 46 states and eight countries married in San Francisco.
However, on March 11, 2004, the California Supreme Court ordered
San Francisco to stop issuing marriage licenses to same-sex
couples while the court considered the legality of the County'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 very issue.
San Francisco Marriage Litigation : Two lawsuits were brought
against the state in San Francisco Superior Court contending
California's statutory exclusion of same-sex couples from
marriage is unconstitutional. On April 15, 2005, the San
Francisco Superior Court issued its final ruling in the
coordinated marriage cases, concluding that same-sex couples are
denied equal protection by marriage laws that prohibit them from
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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. Under the court's
reasoning, California's statutory exclusion of same-sex couples
from marriage should thus be subject to the strictest level of
constitutional scrutiny. But according to the court, the
marriage exclusion could not survive even the lowest level of
constitutional scrutiny-that is, review to determine whether the
law has even a rational basis. The court explained that
California could not demonstrate any rational basis for denying
same-sex couples the right to marry. The court emphasized that
so-called "separate but equal" systems have long been rejected
by the courts as unconstitutional. The Superior Court's
decision has been stayed pending appeal. The appeal process
could take one, two, or more years. Obviously, the proposed
constitutional amendment would significantly affect the outcome
of this litigation.
ARGUMENTS IN SUPPORT : Many groups and individuals wrote in
support of this measure. They argue that conflicting court
decisions create legal confusion and "therefore pave the need
for a constitutional amendment defining marriage and settling
all pending questions regarding marriage itself and marriage
rights." They argue further that this constitutional amendment
is needed to avoid the Legislature's attempt to go around the
will of the people, as expressed through Proposition 22. This
proposed constitutional amendment will clarify Proposition 22,
limit marriage to one man and one woman, and eliminate domestic
partnership, which they argue is just "marriage by another
name." They further argue that "The future of California and
American depends on keeping marriage from being undermined by
legal competition from less stable 'family' arrangements."
Finally they contend that "Homosexuals want to destroy marriage
as an institution-not benefit from it" and that they should not
be regarded as a "minority group worthy of Civil Rights
protections."
ARGUMENTS IN OPPOSITION : Many groups and individuals wrote in
opposition to this measure. These groups and individuals oppose
the constitutional amendment because it would "repeal all
protections for gay and lesbian families and undo the California
constitution's guarantee of equal protection under the law for
all its citizens. . . . Every Californian deserves access to the
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legal rights and responsibilities designed to protect
relationships and families. All families deserve equal access
to the civil institution of marriage without regard to their
gender or sexual orientation." These groups further argue
strongly that the Constitution should be used only to protect
the rights of individuals, not to deny them rights, as this
measure would do. This measure, they contend would "appear to
be the first time the California Constitution would explicitly
authorize discrimination against a discreet group of
individuals." In addition, opponents are concerned that this
measure, by effectively making California's domestic partnership
laws unconstitutional would "be a sever blow to the civil rights
of California's citizenry."
Related Pending Legislation : SCA 1 (Morrow), which is identical
to this measure, is before the Senate Judiciary Committee.
AB 19 (Leno), which would define marriage as between "two
persons," passed out of this Committee in April.
Prior Legislation : AJR 85 (Leno), Resolution Chapter 172 of
2004, expressed the Legislature's opposition to any federal
enactment designed to prohibit or restrict the provision of
providing rights and obligations under the law for same-sex
couples and their families.
REGISTERED SUPPORT / OPPOSITION :
Support
Traditional Values Coalition (sponsor)
Capitol Resources Institute
Concerned Women for America
First Southern Baptist Church
Responsible Citizen
Santa Maria Foursquare Church
Many individuals
Opposition
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American Civil Liberties Union
Anti-Defamation League
Asian Americans for Civil Rights and Equality
Attorney General's Office
Beth Chayim Chadashim
Bienstar Human Services Inc.
California Democratic Party, LGBT Caucus
Chinese for Affirmative Action
City of West Hollywood
Community United Against Violence
Congregation Kol Ami
Congregation Sha'ar Zahav
Equality California
Fringe Benefits Alliance
GLSEN | Orange County
Greater San Diego Business Association
Human Rights Campaign
Irvine United Congregation Church
Lambda Legal
Lambda Letters Project
Log Cabin Republicans
Love Sees No Borders
Metropolitan Community Church, Los Angeles
NARAL Pro-Choice California
National Association of Social Workers, California Chapter
National Center for Lesbian Rights
National Council of Jewish Women
PFLAG California
PFLAG Los Angeles
PFLAG Pasadena
PFLAG San Francisco
San Diego Democratic Club
San Francisco AIDS Foundation
San Francisco LGBT Center
Southern California Nevada Conference of the United Church of
Christ
Stonewall Democratic Club
Temple Sinai, Oakland
The Center Orange County
The Center San Diego County
Transgender Law Center
UC San Diego Queer People of Color
Union for Reform Judaism
Many Individuals
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Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334