BILL ANALYSIS
AJR 19
Page 1
Date of Hearing: August 18, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AJR 19 (Brownley and Feuer) - As Introduced: May 18, 2009
SUBJECT : MARRIAGE: REPEAL OF FEDERAL DEFENSE OF MARRIAGE ACT
(DOMA)
KEY ISSUE : SHOULD THE CALIFORNIA LEGISLATURE CALL UPON THE
CONGRESS AND PRESIDENT TO REPEAL THE DEFENSE OF MARRIAGE ACT,
WHICH PREVENTS SAME-SEX SPOUSES FROM ACCESSING THE MORE THAN
1,000 FEDERAL RIGHTS AND BENEFITS THAT ARE AFFORDED TO
OPPOSITE-SEX SPOUSES?
FISCAL EFFECT : As currently in print this resolution is keyed
non-fiscal.
SYNOPSIS
This resolution calls upon the Congress and the President of the
United States to repeal the federal Defense of Marriage Act
(DOMA). The DOMA provides that the United States government
will not recognize or give effect to marriages between persons
of the same sex for purposes of federal law. The authors state
in support of the resolution that the DOMA discriminatorily
prevents same-sex couples from enjoying many of the critical
rights and benefits federal law provides to all other couples,
including the right to sponsor a spouse for immigration
benefits, the right to access Social Security survivors
benefits, the right to receive health insurance from a federal
employee spouse, the right to file federal income taxes jointly,
and hundreds of other crucial protections. The measure is
sponsored by Equality California, and it is opposed by Capitol
Resource Family Impact and the California Catholic Conference.
SUMMARY : Urges Congress and the President of the United States
to repeal the Defense of Marriage Act (DOMA). Specifically,
this resolution makes the following findings:
1)Thousands of same-sex couples in California were legally
married following the California Supreme Court's May 2008
decision in In re Marriage Cases, prior to the passage of the
discriminatory Proposition 8, which purported to prospectively
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eliminate the right of same-sex couples to marry in this
state;
2)The Defense of Marriage Act is a federal law passed on
September 21, 1996, and codified at Section 7 of Title 1 and
Section 1738C of Title 28 of the United States Code;
3)The Defense of Marriage Act provides that the United States
government will not recognize or give effect to marriages
between persons of the same sex for purposes of federal law;
4)The Defense of Marriage Act excludes same-sex couples who are
legally married in California from accessing the more than
1,000 federal rights and benefits that are afforded to
opposite-sex spouses;
5)Among the critical rights and benefits that federal law
provides to protect couples and families are the right to
sponsor a spouse for immigration benefits, the right to access
Social Security survivors benefits, the right to receive
health insurance from a federal employee spouse, the right to
file federal income taxes jointly, and hundreds of other
crucial protections;
6)Among other discriminatory harms, because of the Defense of
Marriage Act, workers in California must pay federal income
taxes on the value of health benefits provided by an employer
to the same-sex spouse of an employee, while health benefits
provided to different-sex spouses are not taxed, and this
discrimination results in serious financial detriment to many
same-sex couples and their families in California;
7)The Defense of Marriage Act provides that no state is required
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to give effect to any public act, record, or judicial
proceeding of any other state respecting a relationship
between persons of the same sex that is treated as a marriage
under the laws of the other state or a right or claim arising
from that relationship;
8)The Defense of Marriage Act, therefore, authorizes other
states to discriminate against same-sex couples who are
legally married in California by refusing to recognize or
protect their relationships when they travel outside of
California; and
9)The Defense of Marriage Act causes significant harm and
unfairly discriminates against committed same-sex couples and
their families
EXISTING LAW :
1)Provides that, pursuant to Proposition 8 which narrowly passed
on November 4, 2008, only a marriage between a man and a woman
is valid or recognized in California. (California
Constitution, Article I, Section 7.5.)
2)Provides, pursuant to the California Supreme Court's landmark
decision, in In re Marriage Cases ((2008) 43 Cal.4th 757) and
upheld by the Supreme Court's very recent decision in Strauss
v. Horton ((2009) 46 Cal.4th 364), that any law discriminating
on the basis of sexual orientation is constitutionally
suspect. (In re Marriage Cases, 43 Cal.4th at 840-41.)
3)Upheld the validity of the same-sex marriages entered into in
California from the effective date of the Marriage Cases
decision until passage of Proposition 8. (Strauss v. Horton
(2009) 46 Cal.4th 364.)
4)Provides that a marriage contracted outside of California that
would be valid by the laws of the jurisdiction in which the
marriage was contracted is valid in California. (Family Code
Section 308.)
5)Provides registered domestic partners with the same rights,
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protections, and benefits, and subjects them to the same
responsibilities, obligations, and duties under law, as are
granted to and imposed upon spouses. (Family Code Section
297.5)
6)Provides, in the California Constitution'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."
7)Provides, in the California 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."
8)Provides, in the Defense of Marriage Act (DOMA) that was
signed by President Clinton on Sept. 21, 1996, that the United
States government will not recognize or give effect to
marriages between persons of the same sex for purposes of
federal law. (Pub.L. 104-199, 110 Stat. 2419, codified at 1
USC 7 and 28 USC 1738C.)
COMMENTS : This resolution, sponsored by Equality California,
requests that the President and Congress repeal the federal
Defense of Marriage Act (DOMA). In support of the measure, the
authors state:
Approximately 18,000 same-sex couples in California were
legally married following the California Supreme Court's
May 2008 decision in the In re Marriage Cases prior to the
passage of Proposition 8, the ballot measure that
prospectively eliminated the right of same-sex couples to
marry in this state. On May 28, 2009, the California
Supreme Court upheld Proposition 8. At the same time, the
court unanimously ruled that the more than 18,000 marriages
of same-sex couples that took place between June 16 and
November 4, 2008 continue to be fully valid and recognized
by the State of California. ?
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The Defense of Marriage Act (DOMA), which took effect on
September 21, 1996, provides that the United States
government will not recognize or give effect to marriages
between persons of the same sex for purposes of federal
law. DOMA also provides that no state is required to give
effect to any public act, record, or judicial proceedings
of any other state respecting a relationship between
persons of the same sex that is treated as a marriage under
the laws of the other state or a right or claim arising
from that relationship.
DOMA excludes same-sex couples who are legally married in
California and other states from accessing the more than
1,000 federal rights and benefits that are afforded to
opposite-sex spouses. Among the critical rights and
benefits that federal law provides to protect couples and
families are the right to sponsor a spouse for immigration
benefits, the right to access Social Security survivor
benefits, the right to receive health insurance from a
federal employee spouse, the right to file federal income
taxes jointly, and hundreds of other crucial protections.
AJR 19 would allow the California Legislature to call on
Congress and the President to repeal DOMA, ending legal
discrimination and exclusion from critical federal
protections that impact thousands same-sex couples in
California.
Recent General Background on the Marriage Equality Issue
The Federal Defense of Marriage Act : In 1996 Congress passed,
and President Clinton signed, the federal Defense of Marriage
Act (DOMA), which includes the provision that no state is
required under federal law to give effect to a same-sex marriage
contracted in another state.
Other States' Laws Enacted in Light of the Federal DOMA : In
light of the federal DOMA, many states have 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
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unions.
Coordinated Marriage Cases: California Supreme Court's Landmark
Decision : On May 15, 2008, the California Supreme Court, in a
4-3 decision, struck down as unconstitutional the California
statutes limiting marriage to a man and a woman. The majority
opinion concluded that "the California Constitution properly
must be interpreted to guarantee this basic civil right to all
Californians, whether gay or heterosexual, and to same-sex
couples as well as to opposite-sex couples." (Marriage Cases,
43 Cal.4th at 782 (footnote omitted).)
The Court found that "[a]lthough our state Constitution does not
contain any explicit reference to a 'right to marry,' past
California cases establish beyond question that the right to
marry is a fundamental right whose protection is guaranteed to
all persons by the California Constitution." (Id. at 809.) The
core substantive rights embodied in the right to marry "include,
most fundamentally, the opportunity of an individual to
establish - with the person with whom the individual has chosen
to share his or her life - an officially recognized and
protected family possessing mutual rights and responsibilities
and entitled to the same respect and dignity accorded a union
traditionally designated as marriage." (Id. at 781.) The Court
noted that "in contrast to earlier times, our state now
recognizes that an individual's capacity to establish a loving
and long-term committed relationship with another person and
responsibly to care for and raise children does not depend upon
the individual's sexual orientation, and, more generally, that
an individual's sexual orientation - like a person's race or
gender - does not constitute a legitimate basis upon which to
deny or withhold legal rights." (Id. at 782.) Accordingly, the
Court concluded that "in light of the fundamental nature of the
substantive rights embodied in the right to marry - and their
central importance to an individual's opportunity to live a
happy, meaningful, and satisfying life as a full member of
society - the California Constitution properly must be
interpreted to guarantee this basic civil right to all
individuals and couples, without regard to their sexual
orientation." (Id. at 820, emphasis added.)
Although the opinion acknowledges that the recent comprehensive
domestic partnership legislation enacted in California affords
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same-sex couples most of the substantive elements embodied in
the constitutional right to marry, the opinion further concludes
that by assigning a different name for the family relationship
of same-sex couples, while preserving the historic and honored
designation of "marriage" only for opposite-sex couples, the
California statutes threatened to deny the family relationship
of same-sex couples dignity and respect equal to that accorded
the family relationship of opposite-sex couples.
The Court also addressed whether the statutory assignment of
different labels for the official family relationship of
opposite-sex couples and same-sex couples raises constitutional
concerns under the California Constitution's Equal Protection
Clause. The Court concluded that the "strict scrutiny" standard
was applicable in this case (1) because the statutes
discriminate on the basis of sexual orientation, a
characteristic the majority determined to be - like gender,
race, and religion - a constitutionally suspect basis upon which
to impose differential treatment, and (2) because the different
statutory treatment impinges upon same-sex couples' fundamental
interest in having their family relationship accorded the same
respect and dignity enjoyed by opposite-sex couples.
To survive strict scrutiny, a law must be necessary to serve a
compelling government interest. The majority found that the
California statutes failed both parts of this test. The
majority determined that the state interest underlying the
marriage statutes' differential treatment of opposite-sex and
same-sex couples - the interest in retaining the traditional and
well-established definition of marriage - cannot properly be
viewed as a compelling state interest for purposes of the Equal
Protection Clause, or as necessary to serve such an interest,
and, thus, the statutes were unconstitutional.
Proposition 8 : On October 5, 2007, the proponents of
Proposition 8, apparently contemplating that the California
Supreme Court might (as it did indeed do) find the state's
discriminatory marriage provisions unconstitutional, began the
legal process of proposing an initiative amendment to add to the
California Constitution the provision that in California
marriage could only be between one man and one woman. Then, as
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noted above, on May 15, 2008, the Court issued its decision in
the Marriage Cases, holding that statutes limiting marriage to a
union between a man and a woman unconstitutional. The
Proposition 22 Legal Defense & Education Fund and others
requested a stay of the effective date of the Marriage Cases
decision until after the vote on Proposition 8. The Court
denied the request, and on June 16, 2008 the Marriage Cases
decision took effect. Approximately 18,000 same-sex couples
married in California after the effective date of the Marriage
Cases decision. On November 4, 2008, Proposition 8 narrowly
passed on a vote of 52-48 percent.
Constitutionality of Proposition 8: Supreme Court Decision :
Immediately after the passage of Proposition 8, its opponents
filed a petition directly with the California Supreme Court
seeking to invalidate the measure on the grounds that it was not
permissibly enacted. On May 26, 2009, the Supreme Court in
Strauss v. Horton upheld Proposition 8 in a 6-1 decision, but
held, unanimously, that the same-sex marriages performed in
California before the passage of Proposition 8 remain valid.
However while upholding Proposition 8, the Court reiterated its
key holding in Marriage Cases, namely that in all respects,
other than the word marriage, "same-sex couples retain the same
substantive protections embodied in the state constitutional
rights of privacy and due process as those accorded to
opposite-sex couples and the same broad protections under the
state equal protection clause that are set forth in the majority
opinion in the Marriage Cases, including the general principle
that sexual orientation constitutes a suspect classification and
that statutes according differential treatment on the basis of
sexual orientation are constitutionally permissible only if they
satisfy the strict scrutiny standard of review." (Id. at 412.)
New Federal Court Action Challenging Proposition 8 : On May 22,
2009, opponents of Proposition 8 filed an action in federal
court in the Northern District of California challenging
Proposition 8 as violating both the due process clause and equal
protection clause of the 14th Amendment to the federal
constitution and seeking injunctive relief enjoining application
of the proposition. (Perry v. Schwarzenegger, 09-CV-2292.) On
July 2, 2009, U.S. District Court Judge Vaughn Walker denied
plaintiffs' request for a preliminary injunction to enjoin
Proposition 8, but set the matter to proceed expeditiously to a
trial on the merits. The next hearing in the case is scheduled
for tomorrow, August 19, 2009.
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Same-Sex Recognition by Other Jurisdictions : Currently, six
states permit same-sex couples to marry. These states are
Connecticut, Iowa, Maine, Massachusetts, New Hampshire and
Vermont. Seven foreign countries - Belgium, Canada, the
Netherlands, Norway, South Africa, Spain, and Sweden - also
allow same-sex couples to marry.
In addition, while not allowing same-sex couples to marry, New
York and the District of Columbia recognize marriages between
same-sex couples entered in other jurisdictions.
ARGUMENTS IN SUPPORT : In support of the resolution, the
California Nurses Association states:
In 2004, the U.S. Government Accountability Office updated
its list of the myriad ways the federal government now
discriminates against same-sex couples. Included in that
list are the nation's failures to recognize the right to
sponsor a spouse for immigration benefits, the right to
access Social Security survivor benefits, the right to
receive health insurance from a federal employee spouse,
the right to jointly file federal income taxes, and
hundreds of other protections denied same-sex couples on
the basis of who they love. As a result, even though
same-sex marriages are now recognized by the laws of seven
states from California to Maine and are on the brink of
recognition in New Hampshire, New York and New Jersey, the
federal government still does not consider married same-sex
couples to be family. Thus, they cannot enjoy the vibrant
and vital protections federal law confers on families.
Because of this inequity, tens of thousands of lesbian and
gay couples are forced to live as second-class citizens
without access to equal treatment under federal law.
Furthermore, the National Association of Social Workers
(California Chapter) states:
On May 28, 2009, the California Supreme Court reaffirmed
the validity of over 18,000 same-sex marriages performed in
California between June 16 and November 5, 2008, prior to
the passage of Proposition 8, which amended the state
constitution to eliminate marriage for same-sex couples.
California now has a significant stake in ensuring that
these married couples are treated with total dignity and
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fairness under all the laws of this nation. At least seven
other countries have already removed discrimination from
their marriage laws granting equal access and equal rights:
Belgium, Canada, the Netherlands, Norway, South Africa,
Spain, and Sweden. As we do in so many areas of human
rights, the United States should be leading on this basic
issue of equality, and it is time for California to
officially go on record supporting the repeal of DOMA.
ARGUMENTS IN OPPOSITION : In opposition to the resolution, the
California Catholic Conference states:
The resolution is overtly biased in its language and
predicated on assumptions about marriage that have
been rejected in every public vote of the people in
every state that has held a referendum on a
redefinition of marriage? Marriage has always been
understood to be a relationship between a woman and a.
man? It is a "public good," not a "private right..."
There are many far more pressing issues for the common
good of our state that should be occupying the time
and talent of this legislature.
In opposition to the resolution, Capitol Resource Family Impact
states that "Like California, federal law recognizes only
traditional, heterosexual marriage. Last November millions of
Californians, for the second time, voted to protect the
traditional definition of marriage being between one man and one
woman. Yet the California Legislature has repeatedly attempted
to thwart the people's decision. AJR 19 does not express the
beliefs of the majority of Californians."
REGISTERED SUPPORT / OPPOSITION :
Support
Equality California (sponsor)
California Nurses Association
National Association of Social Workers, California Chapter
City of Berkeley
Opposition
California Catholic Conference
Capitol Resource Family
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Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334