BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
SCA 1 S
Senator Morrow C
As Introduced A
Hearing Date: May 10, 2005
GMO:cjt 1
SUBJECT
Marriage
DESCRIPTION
This measure would place before the voters a proposed
constitutional amendment to recognize as valid or
recognized in California only a marriage between a man and
a woman whether the marriage was contracted in California
or elsewhere, and to confer the benefits, rights and
responsibilities of a marriage only upon a man and a woman
in marriage, and not upon any other union or partnerships.
Enactment of SCA 1 would effectively repeal the California
Domestic Partner Rights and Responsibilities Act of 2003
and prevent any action of the Legislature to reinstate any
of those and similar rights without another constitutional
amendment.
BACKGROUND
Since the Hawaii Supreme Court's decision in Baehr v.
Lewin , (1993) 852 P. 2d 44, finding that Hawaii law banning
same-sex marriage violated the equal protection clause of
the Hawaii Constitution, same-sex marriage has been debated
across the United States in various fora and on different
platforms. Beginning with AB 1982 (Knight, 1996), and
followed by AB 3227 (Knight, 1996) and SB 911 (Knight,
1997), the Legislature has dealt with a procession of
measures designed to embed in California statutory law a
public policy that makes a marriage, though valid in
(more)
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another state, invalid in this state if it is not a
marriage between a man and a woman. In addition, the
measures would add a corollary to that public policy, that
a same-sex union or relationship treated as a marriage by
another jurisdiction is contrary to the public policy of
this state and shall be void ab initio. These bills (AB
1982, AB 3227, and SB 911) were never enacted, but they did
engender vigorous debate on the constitutionality of a
state statute that may violate the full faith and credit
clause of the United States Constitution. The author of
those measures eventually spearheaded an initiative,
Proposition 22, that did enact Family Code 308.5 to
provide that only a marriage between a man and a woman is
valid and recognized in California.
Defense of Marriage Acts and legislative history of AB 205
In 1996, Congress passed and President Clinton signed the
In Defense of Marriage Act. The Act, for purposes of
federal benefits, defines marriage as "a union between a
man and a woman," and then allows states to refuse to
recognize same-sex marriages performed in other states.
"As any good federalist should recognize, this law leaves
states the appropriate amount of wiggle room to decide
their own definitions of marriage or other similar social
compacts, free of federal meddling, " stated former
Congressman Barr, R-GA in August 2003.
In 1999, AB 26 (Migden), Chapter 588, Statutes of 1999,
enacted the Domestic Partnership Act, established the
statewide domestic partnership registry, provided
registered domestic partners hospital visitation rights,
and granted health benefits to domestic partners of state
employees.
In March 2000, the initiative Proposition 22, named the
California Defense of Marriage Act, was adopted by the
state. The initiative enacted Family Code Section 308.5,
which provides, "[o]nly marriage between a man and a woman
is valid or recognized in California."
Undaunted by both the federal In Defense of Marriage Act
and Proposition 22, equal rights advocates, since passage
of AB 26, have been marching California towards parity in
rights and benefits between domestic partners and married
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couples under state law.
Following on the heels of AB 26, in the following year SB
2011 (Escutia, Chapter 1004, Statutes of 2000) qualified
registered domestic partners for housing in specially
designed accessible housing for senior citizens. Two years
later, AB 25 (Migden, Chapter 893, Statutes of 2001)
granted 12 new rights and benefits to registered domestic
partners, including the right to sue for wrongful death, to
use employee sick leave to care for an ill partner or
partner's child, to make medical decisions on behalf of an
incapacitated partner, to receive unemployment benefits if
forced to relocate because of a partner's job, and to adopt
a partner's child as a stepparent. SB 1049 (Speier,
Chapter 146, Statutes of 2001) permitted San Mateo County
to offer death benefits to surviving domestic partners of
county employees. AB 2216 (Keeley, Ch. 447, Statutes of
2002) conferred intestacy rights to registered domestic
partners.
Finally, the California Domestic Partner Rights and
Responsibilities Act of 2003 (AB 205, Goldberg, Chapter
421, Statutes of 2003) recast all of the previous
legislation relating to domestic partnerships and extended
to registered domestic partners substantially all rights,
benefits, and obligations of married persons under state
law, with the exception of rights, benefits, and
obligations accorded only to married persons by federal
law, the California Constitution, or initiative statutes.
AB 205 specifically recognized a legal union of the same
sex that was validly formed in another jurisdiction as
substantially equivalent to a registered domestic
partnership in the state, whether or not the legal union is
called a domestic partnership, and thus accord those legal
unions the same status, rights and obligations (Family Code
299.2).
In enacting AB 205, the Legislature was advised by
Legislative Counsel in an opinion dated March 24, 2003,
that the bill would not constitute an amendment of
Proposition 22, and therefore the bill would not require
the approval of the voters. A recent appellate decision,
Knight v. Superior Court of Sacramento County (2005 DJDAR
3889), reached the same conclusion.
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2004: San Francisco takes action, Congress weighs in,
constitutional amendments pass in November
In 2004, several events once again brought to the forefront
the issues of same-sex marriages, civil unions, and
domestic partnerships. On February 24, 2004, President
Bush endorsed the idea of an amendment to the U.S.
Constitution to ban same-sex marriages in the country.
This endorsement followed a flurry of events surrounding
same-sex marriages, including the issuance of marriage
licenses to same-sex couples in San Francisco the week
before; the Massachusetts high court decision stating that
only marriage - not civil unions - would provide same-sex
couples equal protection under that state's constitution;
the decision of the Canadian Supreme Court invalidating a
prohibition against same-sex marriages; and the
introduction of two bills in the U.S. Congress (in 2003) to
amend the U.S. Constitution to define marriage as only
between a man and a woman. Two other congressional
measures were introduced in March and July, both declaring
that marriage in the United States shall consist only of a
union between a man and a woman. [S.J. Res. 30 and H.R.
4892.] These congressional measures are opposed by many
members of both the Democratic and Republican parties and
are still pending in their respective houses.
Last year, this Legislature enacted AJR 85 (Leno, Res. Ch.
172, 2004), a resolution to be delivered to the President
of the United States indicating this state's opposition to
"any federal enactment designed to prohibit or restrict the
provision of rights and obligations under the law for
same-sex couples and their families."
In November, 2004, constitutional amendments banning
same-sex marriages (and civil unions in some but not
others) were passed in several states.
Current events: AB 19, SCA 1 and ACA 3 and the courts
High courts of two states have held that same-sex couples
are entitled to the privileges of civil marriage.
[ Goodridge v. Department of Public Health , 440 Mass. 309,
798 N.E.2d 941 (2003); Baker v. State , 170 Vt. 194, 744 A.
2d 864 (1999).]
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In California, Superior Court Judge Kramer in San Francisco
ruled that Family Code Sections 300 and 308.5 (enacted by
Proposition 22), effectively banning same-sex marriages in
the state, violate the equal protection clause of the
California Constitution. The court's decision, issued
March 14, 2005, applied to cases filed in San Francisco
after the state Supreme Court halted the city's issuance of
marriage licenses to same-sex couples. [ Coordination
Proceeding, Special Title (Rule 1550(c), Marriage Cases ,
Judicial Council Coordination Proceeding No. 4365.] And on
April 4, 2005, the Third Appellate District ruled in Knight
v. Superior Court of Sacramento County , supra, that the
Legislature's enactment of the domestic partners act (AB
205) did not constitute an amendment of the defense of
marriage initiative (Proposition 22) and thus, the
Legislature's action without separate voter approval did
not violate article II, section 10, subdivision (c) of the
California Constitution. This case is discussed further in
Comment 2.
AB 19 (Leno) would redefine "marriage" in California as a
union between two persons, making it gender-neutral and
thereby permitting same-sex marriages in the state. The
bill passed the Assembly Judiciary Committee on a 6-3 vote,
and is pending in the Assembly Appropriations Committee.
Similar measures failed passage in recent legislative
sessions [AB 1338 (Koretz, 2001) and AB 1967 (Leno, 2004)].
SCA 1 and ACA 3 (Haynes) are identical measures that intend
to place before the voters a constitutional amendment not
only to ban same-sex marriages, whether contracted in
California or elsewhere, but also to prohibit the state
from granting or bestowing the rights and obligations of
marriage on unions other than a valid marriage between a
man and a woman.
CHANGES TO EXISTING LAW
Existing law , the California Domestic Partner Rights and
Responsibilities Act of 2003, extends to registered
domestic partners substantially all rights, benefits,
responsibilities and obligations of married persons under
state law, with the exception of rights, benefits,
responsibilities and obligations accorded only to married
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persons by federal law, the California Constitution, or
initiative statutes. A domestic partnership may consist of
two persons of the same sex who are over the age of 18, or
two persons of opposite sexes, provided one is age 62 or
older. Both types of domestic partnerships must meet
specified requirements in order to register with the
Secretary of State as a registered domestic partnership.
Existing law provides that only a marriage between a man
and a woman is valid in California. [Family Code Sec.
308.5 (adopted by initiative, Proposition 22).]
This measure would propose to the people of California an
amendment that would add section 7.5 to article I of the
California Constitution, to provide that only marriage
between a man and a woman is valid or recognized in
California.
This measure would also provide in that amendment that 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.
COMMENT
1. Stated need for the constitutional amendment
The sponsor of SCA 1, the Traditional Values Coalition
(TVC), states:
Due to the various pending and conflicting court cases
and legal ambiguity, the need for a marriage amendment
is necessary to succinctly clarify the intent of Prop.
22 that passed in March 2000 with 61.4% of the
vote?Since that time we have seen the City of San
Francisco, various members of the Legislature and
various other same-sex marriage advocates attempt to
circumvent the intent of Prop. 22 and to expand
domestic partnership laws and enact full-blown
same-sex marriage here in California. There have been
attempts to grant marriage-like arrangements with
legislation like AB 1338 (2001,Koretz), AB 1967 (2004,
Leno) and AB 19 (2005, Leno)?[s]everal pieces of
legislation have been enacted into law that have
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granted first limited rights of marriage to those
registered as domestic partners then complete rights
of marriage to those registered as domestic partners?
There has been a concerted effort on the part of
same-sex marriage advocates to incrementally obtain
those rights only given to those joined in a valid
marriage. It was their goal first to get some of
those rights, then incrementally increase their demand
for more until all rights of marriage have ceded [sic]
to them. We have seen just that?AB 26 turned into
their full-fledged demand for AB 205, which granted
them all state rights of marriage, but one?
Now, we find ourselves being asked to surrender
marriage itself with all its holdings, custom,
traditions, and benefits. The very redefinition of
marriage and family itself is their goal.
The TVC further states the following as the reasons for
passing a constitutional amendment: (1) a constitutional
amendment is needed to settle all questions regarding
marriage itself and marriage rights; (2) current attempts
to alter the marriage code would pose a contradiction in
law that would further add to the legal confusion; (3) a
constitutional amendment defining marriage is needed to
avoid the Legislature's attempt to violate the voting
initiative and referendum and recall provisions of the
state Constitution; (4) homosexuals want to destroy
marriage as an institution - not benefit from it; and (5)
the push for marriage by the homosexual community should
not be treated and regarded as a bonafide minority group
worthy of civil rights protections.
SCA 1 must pass each house on a two-thirds vote and, if
placed before the voters, pass by a majority vote of the
electorate. If it passes, it would become effective on
the day after the election.
2. If enacted, SCA 1 would make AB 205 unconstitutional,
despite the court's ruling in Knight v. Superior Court
that AB 205 does not conflict with Prop. 22
The Domestic Partner Rights and Responsibilities Act of
2003 (AB 205, Goldberg) became effective January 1, 2005.
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Plaintiffs in Knight v. Superior Court (2005 DJDAR 3889)
challenged the statute in December, 2004, claiming that
AB 205 has created a "marriage" by another name and
granted domestic partners a status equivalent to married
spouses, thereby amending Proposition 22, the Defense of
Marriage Initiative, without voter approval, in violation
of article II, section 10, subdivision (c) of the
California Constitution. The Third District Court of
Appeal ruled on April 4, 2005 that the Legislature's
action in approving AB 205 without voter approval did not
violate the Constitution, because the statute did not
amend Proposition 22. In affirming the trial court's
decision, the appellate court stated that if plaintiffs
"feel that the statutory scheme is not wise public
policy, petitioners must turn to the Legislature or to
the electorate, not the courts, to correct it."
According to an opponent of this measure, an equal rights
advocate, "[b]y proposing SCA 1, those who would turn the
clock back to the times when the state sanctioned
anti-miscegenation laws, denied equal rights to citizens
since declared to be in a protected class under fair
employment and housing and other statutes, imposed their
religious beliefs on others in violation of the First
Amendment, and denied full faith and credit to the laws
of other states in violation of the U.S. Constitution,
would turn to the electorate in the hope of inciting a
homophobic frenzy to destroy what the Legislature has
thoughtfully structured as a less-than-ideal substitute
for same-sex marriage in California in light of
Proposition 22."
As further explained below, SCA 1, if enacted, would
invalidate the gains made by equal rights advocates
through the passage of AB 205 (and earlier legislation)
because the constitutional amendment would take
precedence over the statute. The passage of SCA 1 would
take immediate effect, throwing into limbo somewhat
settled questions and issues between domestic partners
and California society in general.
3. SCA 1 would specifically prohibit the Legislature from
conferring any rights, responsibilities, benefits and
obligations of marriage on any union or partnership other
than a marriage between a man and a woman
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The Legislature in 1999 recognized that the California
family has evolved into many forms other than the
"nuclear family" of the 1950's and 1960's and enacted a
domestic partnership act that provided a limited number
of rights to registered domestic partners. These rights
and benefits were expanded over several years in order to
address common, everyday needs of domestic partners and
their families, until the piece-meal legislative scheme
was reorganized and recast by AB 205.
Thus AB 205 provides that "registered domestic partners
shall have the same rights, protections, and benefits,
and shall be subject to the same responsibilities,
obligations, and duties under law, whether they derive
from statutes, administrative regulations, common law, or
any other provisions or sources of law, as are granted to
and imposed upon spouses." [Family Code 297.5(a).]
Registered domestic partners are those who meet
enumerated criteria and who officially register with the
Secretary of State. AB 205 also provides specifically
that same-sex legal unions, validly formed in another
jurisdiction and substantially equivalent to a domestic
partnership as defined in the statute, are recognized as
a valid domestic partnership in the state, regardless of
whether it bears the name domestic partnership. Thus,
all rights and benefits, as well as duties and
obligations, available to California-formed domestic
partners are available to out-of-state unions, provided
they are registered as required by 297.5 of the Family
Code.
AB 205 did not just grant to registered domestic partners
benefits such as health insurance or the right to be a
conservator of an ailing partner. It required domestic
partners to submit to the jurisdiction of the courts to
resolve issues such as child custody and visitation and
division of partnership property in the event of
termination of the partnership. It imposed mutual
responsibility for debts to third parties incurred during
the partnership and fiduciary duty to each other. It
provided the right to financial support during and after
the relationship has terminated, and the right to
exercise the same evidentiary privilege of communication
between spouses. It granted the right of a domestic
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partner to make legal claims dependent on family status,
such as victims' compensation funds, and the right to
file suit in the same manner. It granted other rights
and benefits that are not in conflict with federal law or
regulation.
If SCA 1 passes, all of these rights and responsibilities
would be held in conflict with the terms of the
constitutional amendment, and would be struck down as
being unconstitutional. The more than 21,000 domestic
partnerships registered since 1999 would be
disenfranchised. Judicial decisions of custody and
support for families and children of registered domestic
partners would be placed in limbo. [Cf. Sharon S. v.
Superior Court (Annette F.) (2003) 31 Cal. 4th 417,
affirming second-parent adoptions by domestic partners.]
Entitlements to health insurance benefits, retirement
and death benefits, and other employment benefits
provided by both the public and private sectors to their
employees and their families would suddenly become
unlawful. The impact of SCA 1 will be tremendous and
tragic for the many registered domestic partners and
their families.
Besides invalidating any and all state and judicial
actions taken in reliance on AB 205, SCA 1 would prevent
the Legislature in the future from enacting legislation
restoring any of such rights and responsibilities, unless
another amendment to the Constitution so authorizes.
SHOULD THE PUBLIC POLICY ADOPTED BY THE LEGISLATURE IN
ENACTING AB 205 BE SUMMARILY REJECTED AND REPLACED BY AN
ABSOLUTE BAN OF ANY LEGAL PARTNERSHIP RELATIONSHIP OTHER
THAN MARRIAGE?
SHOULD THE LEGISLATURE BE CONSTRAINED FROM PASSING LAWS
IN THE FUTURE TO ADDRESS STATEWIDE ISSUES RELATING TO
DOMESTIC PARTNERS AND THEIR FAMILIES, AS WELL AS CIVIL
MARRIAGE OF SAME-SEX COUPLES?
4. The Constitution as a living document: Should a ban
on same-sex marriage be frozen in time?
AB 19 (Leno, 2005) which passed the Assembly Judiciary
Committee and is pending in the Assembly Appropriations
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Committee, represents a serious legislative challenge to
the constitutionality of California's law defining
marriage as "a personal relation arising out of a civil
contract between a man and a woman" (Family Code 300)
and the Proposition 22 enactment declaring that "only
marriage between a man and a woman is valid or recognized
in California" (Family Code 308.5). Although the
Knight appellate court did not reach the equal protection
argument advanced by the trial court in deciding the
merits of the challenge to AB 205, the San Francisco
trial court in the consolidated cases directly
challenging the two Family Code provisions did, and
determined they are unconstitutional in that they deprive
a discreet class of citizens equal protection guaranteed
under the Constitution.
While these cases are winding their way to the higher
courts and the Legislature is reassessing the rationale
behind Family Code 300, SCA 1 is getting ready to
preemptively freeze the definition of marriage in
derogation of the Legislature's historic responsibility
to define civil relationships in the state.
a. The history of Family Code 300 shows apparent
animus against a minority (gay men and lesbians),
which is suspect under the U.S. constitution; SCA 1
would cement this animus into the state Constitution
The responsibility for defining the parameters of
civil marriage and other societal relationships has
been left to the legislatures of the states. Even
under the federal In Defense of Marriage Act, the
states were left to legislate what would and would not
be recognized as a valid marriage. The definition of
civil marriage "is a matter about which the people of
the State of California have now or may have in the
future differing viewpoints," according to the
California Attorney General, who opposes SCA 1.
Family Code 300, enacted in 1992, replaced former
Civil Code 4100, which prior to 1977 defined
marriage as "a personal relation arising out of a
civil contract, to which the consent of the parties
capable of making it is necessary." There was no
reference to this relation being limited to one
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between a man and a woman until 1977, when a perceived
ambiguity in the law regarding who may consent to
marriage was resolved in what is now 301. That
amendment spilled over into a reworking of 4100 (now
300), manifesting the clear intent of the
Legislature and then-Governor Jerry Brown to exclude
gay men and lesbians from the right to marry their
partners under California law. A similar treatment of
gay men and lesbians under a Colorado referendum
amendment to that state's constitution (precluding 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) was held constitutionally suspect in
Romer v. Evans (1996) 517 U.S. 620. In a 6-3 decision
(Justices Scalia, Rehnquist and Thomas dissenting),
the U.S. Supreme Court upheld the Colorado Supreme
Court, holding that the amendment "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. [The]
amendment?violates the Equal Protection Clause?"
While Romer did not specifically declare homosexuals
as a suspect class, its holding remains the law of the
land. If SCA 1 passes, a constitutional challenge
based on Romer will likely be launched.
b. Perez v. Sharp bans arbitrary classifications of
groups or races in determining who may marry;
infringement on the right to marry must be based upon
more than prejudice
The California Supreme Court's decision in Perez v.
Sharp (1948) 32 Cal. 2d 711 was the first in the
nation to address a statute prohibiting persons from
marrying outside of their race. The decision preceded
the U.S. Supreme Court's decision in Loving v.
Virginia 388 U.S. 1 (1967) on the same question by
almost 20 years.
In Perez, the Supreme Court held that the state's law
banning interracial marriage was unconstitutional.
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The California statute then 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 Court held that "liberty" within the
meaning of the 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, to establish a home, and bring up
children?." It also held that any infringement of
that right (to marry) "must be based on 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," and that any legislation prohibiting
marriage between specific individuals would have to be
specific to the individuals and cannot be based on
"arbitrary classifications of groups or races" as a
substitute. "The right to marry is the right of
individuals, not of racial groups." [Id. at 716.]
In his concurring opinion rejecting all the
justifications proferred to support the
constitutionality of the state law then, Justice
Carter stated:
Even if I concede, which I do not, that the
statutes here involved were at any time reasonable,
they are no longer reasonable and therefore no
longer valid today. The rule is that the
constitutionality of a statute is not determined
once and for all by a decision upholding it. A
change of conditions may invalidate a statute which
was reasonable and valid when enacted. (Nashville,
C. & St. L. Ry. Co. v. Walters, 294 U.S. 405
(1935).
Thus, the answer to the question of whether there is a
rational basis or a compelling state interest to
constitutionally justify a ban on same-sex marriage,
or the recognition of same-sex marriage, is one that
may change over time. Accordingly, if SCA 1 passes,
the Legislature will no longer be able to revisit the
validity of those justifications, except by another
proposal to repeal the constitutional ban on same-sex
marriages. And the last recourse will be the courts,
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who must examine these justifications for the
constitutional ban in light of Romer , Perez , and other
cases that are yet to be decided under federal law.
SHOULD THE LEGISLATURE AND THE COURTS BE PRECLUDED
FROM REVISITING THE JUSTIFICATIONS FOR BANNING
SAME-SEX MARRIAGE IN CALIFORNIA?
c. Is procreation the purpose of marriage, justifying
the ban on same-sex marriage that SCA 1 would cement
into the Constitution?
Those who challenge the constitutionality of AB 205
and who wave the imprimatur of Proposition 22 argue
that California courts "have long recognized that the
purpose of marriage is procreation and that limiting
the institution to members of the opposite sex
rationally would further that purpose." [ Coordination
Proceeding, Marriage Cases , supra.] The court in that
coordinated proceeding examined the various cases in
which procreation as a primary purpose of marriage was
advanced as the rationale for justifying the current
ban on same-sex marriage in the state. That court
found that in all cases, the promise of children was
merely a passing contention in an action to nullify
the consent to marriage based on fraudulent
inducements. The cases also, according to the court,
confirm the obvious natural and social reality that
one does not have to be married in order to procreate,
nor does one have to procreate in order to be married.
Thus, that court found no legitimate state interest
to justify the preclusion of same-sex marriage in the
state.
If enacted, SCA 1 would more or less permanently
preclude same-sex marriage in the state, and would
preclude recognition of other unions or partnerships
that, in another state, would be equivalent to
same-sex marriage.
d. SCA 1 is not necessary to ensure that religious
groups will never be forced to recognize same-sex
marriages against their will
One of the arguments advanced by religious or
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faith-based groups for the passage of SCA 1 is that
the conferral of "marriage-like" rights and
responsibilities on domestic partners portend the
inevitable validation of same-sex marriage in
California. The proponents of this measure see
California as a major factor in their continuing march
across the country to push for constitutional
amendments that would ban same-sex marriages, civil
unions and other similar partnerships (Hawaii has
"reciprocal beneficiaries" for example.) They fear
that passage of a same-sex marriage statute would
force them to recognize these unions against their
will.
This fear, according to opponents, is irrational,
unfounded, and false. The guarantees provided by the
First Amendment's Establishment and Free Exercise
clauses protect their right to not recognize, in the
context of their religious beliefs, same-sex
marriages. The Supreme Court's doctrine of religious
autonomy that is rooted in both clauses provides them
further protection. "Our nation's founders adopted the
First Amendment precisely because they foresaw the
dangers of allowing government to have control over
religious doctrine and decision?If that freedom is to
be preserved, we must respect the rights of those in
the faith community to apply these religious teachings
and values to the issue of same-sex relationships. It
is surely not the business of [the Legislature], much
less the constitution, to assert control over the
doctrine and practice of our faith communities."
[Letter from Chinese for Affirmative Action/Center for
Asian American Advocacy dated May 3, 2005.]
5. Arguments in support of SCA 1
Proponents of SCA 1 have opposed passage of California's
domestic partnership laws consistently over the last
decade. They contend that "homosexual activists have
openly called for the abolition of marriage as a holy,
God-ordained institution." (Traditional Values Coalition
Memorandum dated May 5, 2005.) They call for SCA 1 to
amend the Constitution "to essentially solidify Prop 22
language?[to] clarify that it applies to marriages both
in the state of California and out-of-state?[and to]
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clarify Prop 22 to make domestic partnerships
unlawful?Only marriage between a man and a woman should
be valid or recognized in California because that is what
stabilizes society and provides the best environment in
which to raise the next generation." [Capitol Resource
Institute letter dated May 3, 2005.]
Still others contend that "[t]he institution of marriage
is under attack from the will of the minority.
Therefore, the sanctity of marriage, and with it all of
the rights, privileges and benefits, must be forever
protected for the one man/one woman union." [Form letter
submitted by numerous individuals dated May 3, 2005.]
And in support of the constitutional amendment banning
same-sex marriage, the California Catholic Conference
states, "[it] has become necessary because unelected
judges around the country have taken it upon themselves
to redefine marriage - under the mistaken notion that to
not allow same sex marriage is to deny those individuals
`equal treatment'."
6. Arguments in opposition to SCA 1
The Family Law Section of the Los Angeles County Bar
Association opposes SCA 1. "[B]eyond being on the wrong
side of history, [SCA 1 and ACA 3] are to be rejected as
unworthy and insupportable attempts to shamefully clamp
intolerance, denial of due process, discrimination and
unequal treatment under the law into our precious
California Constitution." [Letter dated March 21, 2005,
citing Perez v. Sharp , supra and Loving v. Virginia ,
supra.]
Other opponents, such as the Ministry In Action
Commission of St. Mark's United Methodist Church in
Sacramento, state: "We believe strongly in the concept of
marriage equality. We further believe that many of those
who support SCA 1 would like legislators to act as their
agents in imposing their beliefs about marriage upon all
of society. By contrast, we believe government should
grant each individual, each clergy member, and each
religious body the freedom to practice their faith as
they see fit. We believe SCA 1 would prevent that. That
is why we oppose this bill." [Letter dated February 22,
2005.] This view is supported by groups such as the
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Anti-Defamation League.
Still others point to the fact that thousands of couples
live today in de facto marriages, and many wish to share
in the responsibilities and rights of legal marriage.
"The government should have compelling reasons before it
restricts the freedoms and liberties of the people."
[Letter from the California Teachers Association dated
March 15, 2005.]
7. Same-sex marriage statutes and constitutional
amendments in other states
A survey conducted by the sponsor of SCA 1, the
Traditional Values Coalition, reports that the following
states have constitutional amendments banning same-sex
marriages and civil unions: Alaska, Hawaii, Louisiana,
Missouri, Nebraska, and Nevada. The survey also reports
that in November 2004, and in April, 2005, the following
states passed constitutional amendments banning same-sex
marriage: Arkansas, Georgia, Kansas, Kentucky, Michigan,
Mississippi, Montana, North Dakota, Ohio, Oklahoma,
Oregon, and Utah. Civil unions are not banned (but also
not yet expressly permitted) in the following states:
Mississippi, Oregon, and Montana. Vermont permits civil
unions. Court challenges to the constitutional amendment
passed by the voters are pending in the following states:
Alaska, Georgia, Louisiana, Nebraska, and Oregon. Only
Massachusetts has legalized same-sex marriages through
its supreme court ruling in 2004. Combined, 18 states
have banned same-sex marriages via a constitutional
amendment (five are being challenged currently), three
states arguably may permit civil unions, one state
permits civil unions (Vermont) and one state allows
same-sex marriage (Massachusetts). The TVC declares that
in 13 more states, constitutional amendments have been
submitted for the general elections in 2005 or 2006. In
April, 2005, Connecticut became the second state to
permit civil unions.
Support: California Catholic Conference; Capitol Resource
Institute; Concerned Women for America; Responsible
Citizens, Inc.; First Southern Baptist Church;
Santa Maria Foursquare Church; Trinity Baptist
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Church; Lighthouse Financial Group; numerous
individuals
Opposition: Attorney General, Bill Lockyer; American Civil
Liberties Union; Anti-Defamation League;
California Teachers Association; Family Law
Section, Los Angeles County Bar Association;
Planned Parenthood Affiliates of California; The
Ministry in Action Commission, St. Marks United
Methodist Church; Asian Americans for Civil
Rights and Equality; 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;
Tenderloin Housing Clinic; The Center Orange
County; The Center San Diego County; Transgender
Law Center; UC San Diego Queer People of Color;
Union for Reform Judaism; Unitarian Universalist
Legislative Ministry; numerous individuals
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HISTORY
Source: Traditional Values Coalition
Related Pending Legislation: ACA 3 (Haynes). See
Background. ACA 3 is identical to
SCA 1.
AB 19 (Leno). See Background.
Prior Legislation: AB 1892 (Knight, 1996) Died on the
Senate Inactive file.
AB 3227 (Knight, 1996) Died on the Assembly
Inactive file.
SB 911 (Knight, 1997) Failed passage in
this Committee.
AB 1059 (Migden, 1998) Vetoed.
AB 26 (Migden, Ch. 588, Stats. 1999) See
Background.
SB 2011 (Escutia, Ch. 1004, Stats, 2000) See
Background.
AB 25 (Migden, Ch. 893, Stats. 2001) See
Background.
AB 1080 (Kehoe, 2001) dealt with state
contracts with employers that provide
benefits to domestic partners equal to
those provided to spouses of employees.
Died in the Assembly.
SB 1049 (Speier, Ch. 146, Stats. 2001). See
Background.
SB 1575 (Sher, Ch. 412, Stats. 2002) dealt
with probate rules and domestic
partners.
SB 1661 (Kuehl, Ch. 901, Stats. 2002)
granted six weeks of paid family leave
to an employee to care for a sick
spouse or domestic partner.
AB 2777 (Nation, Ch. 373, Stats. 2002) added
more counties to those that may offer
death benefits.
AB 2216 (Keeley, Ch. 447, Stats. 2002)
granted intestacy rights to domestic
partners.
AB 2862 (Migden, 2002) would have extended
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retiree rights similar to those granted
to spouses. Vetoed on budgetary
grounds.
AB 205 (Goldberg, Ch. 421, Stats. 2003).
See Background.
(This list is not exhaustive.)
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