BILL ANALYSIS
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|SENATE RULES COMMITTEE | AJR 19|
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THIRD READING
Bill No: AJR 19
Author: Brownley (D), et al
Amended: 8/31/09 in Assembly
Vote: 21
SENATE JUDICIARY COMMITTEE : 3-2, 6/15/10
AYES: Corbett, Hancock, Leno
NOES: Harman, Walters
ASSEMBLY FLOOR : 47-29, 8/31/09 - See last page for vote
SUBJECT : Marriage
SOURCE : California Faculty Association
Equality California
DIGEST : This resolution calls upon the Congress and the
President of the United States to repeal the discriminatory
Defense of Marriage Act.
ANALYSIS :
This resolution declares that 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 eliminate the right of
same-sex couples to marry in this state.
This resolution states that the Defense of Marriage Act is
CONTINUED
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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.
This resolution states that 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.
This resolution declares that 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.
This resolution declares that 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.
This resolution finds that, 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.
This resolution states that the Defense of Marriage Act
provides that no state is required 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.
This resolution finds that the Defense of Marriage Act
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
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travel outside of California; and that the Defense of
Marriage Act causes significant harm and unfairly
discriminates against committed same-sex couples and their
families.
This resolution would call upon the Congress and the
President of the United States to repeal the discriminatory
Defense of Marriage Act.
This resolution calls upon the Congress and the President
of the United States to repeal the discriminatory Defense
of Marriage Act.
Background
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 marriages of same-sex couples contracted in
other states. In light of the federal DOMA, some states,
including California (Proposition 22), enacted statutory
measures prohibiting recognition of marriages entered into
by same-sex couples in other jurisdictions.
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, which sets forth the decision of the
court, was authored by Chief Justice Ronald George, and was
signed by Justices Joyce Kennard, Kathryn Werdegar, and
Carlos Moreno. ( In re Marriage Cases (2008) 43 Cal.4th
757.)
The legal issue identified by the majority opinion for
resolution was whether California's Constitution "prohibits
the state from establishing a statutory scheme in which
both opposite-sex and same-sex couples are granted the
right to enter into an officially recognized family
relationship that affords all of the significant legal
rights and obligations traditionally associated under state
law with the institution of marriage, but under which the
union of an opposite-sex couple is officially designated a
'marriage' whereas the union of a same-sex couple is
officially designated a 'domestic partnership.'" (43
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Cal.4th at 779-80.) In other words, did the failure of the
state to designate the official relationship of same-sex
couples as "marriage" violate the State Constitution?
After determining the nature and scope of the
constitutional "right to marry," the Court 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."
Following the Court's landmark decision, approximately
18,000 same-sex couples wed in California. However,
opponents of same-sex marriage began circulating petitions
to amend the statutory text of invalid Family Code Section
308.5 into the Constitution even before the Supreme Court
issued its ruling, and enough signatures were gathered to
qualify the petition as Proposition 8. Civil rights groups
filed suit with the California Supreme Court in the case of
Bennett v. Brown , arguing that Proposition 8 should not
move forward for a popular vote without going to the
Legislature because the proposition constituted a revision,
or a structural change, to the Constitution. However, the
Court declined to hear the case at the time.
On November 4, 2008, Proposition 8 passed by a narrow 52
percent margin. Civil rights organizations again filed
suit with the California Supreme Court, asking that it
overturn the initiative as an invalid revision. On May 26,
2009, the Supreme Court in Strauss v. Horton (2008) 46
Cal.4th 364, 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. The Court reiterated the widely recognized legal
principle that statutory enactments apply prospectively
only, absent clear intent to the contrary. The Court went
on to discuss whether a retroactive application of the
proposition would deprive any individual of vested rights
with due process: "Here, same-sex couples who married
after the decision in the Marriage Cases , supra, 43 Cal.4th
757, was rendered, and before Proposition 8 was adopted,
acquired vested property rights as lawfully married spouses
with respect to a wide range of subjects, including, among
many others, employment benefits, interests in real
property, and inheritances. These couples' reliance upon
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this court's final decision in the Marriage Cases was
entirely legitimate. A retroactive application of the
initiative would disrupt thousands of actions taken in
reliance on the Marriage Cases by these same-sex couples,
their employers, their creditors, and many others, throwing
property rights into disarray, destroying the legal
interests and expectations of thousands of couples and
their families, and potentially undermining the ability of
citizens to plan their lives according to the law as it has
been determined by this state's highest court. By
contrast, a retroactive application of Proposition 8 is not
essential to serve the state's current interest (as
reflected in the adoption of Prop. 8) in preserving the
traditional definition of marriage by restricting marriage
to opposite-sex couples; that interest is honored by
applying the measure prospectively and by having the
traditional definition of marriage enshrined in the state
Constitution where it can be altered only by a majority of
California voters." (Id. at 473-74.)
Accordingly, the estimated 18,000 same-sex marriages that
occurred in California between the Marriage Cases decision
and passage of Proposition 8 remain valid.
Accordingly, the estimated 18,000 same-sex marriages that
occurred in California between the Marriage Case decision
and passage of Proposition 8 remain valid.
FISCAL EFFECT : Fiscal Com.: No
SUPPORT : (Verified 6/16/10)
California faculty association (co-source)
Equality California (co-source)
California Nurses Association
City f Berkeley
National Association of Social Workers, California Chapter
OPPOSITION : (Verified 6/16/10)
California Catholic Conference
Capitol Resource Family Impact
ARGUMENTS IN SUPPORT : In support of this resoultion, the
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authors' offices states, "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 [of] same-sex couples in
California."
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."
Also 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,
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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."
ASSEMBLY FLOOR :
AYES: Ammiano, Arambula, Beall, Block, Blumenfield,
Brownley, Buchanan, Charles Calderon, Carter, Chesbro,
Coto, De La Torre, De Leon, Eng, Evans, Feuer, Fong,
Fuentes, Furutani, Galgiani, Hall, Hayashi, Hernandez,
Hill, Huber, Huffman, Jones, Krekorian, Lieu, Bonnie
Lowenthal, Ma, Mendoza, Monning, Nava, John A. Perez, V.
Manuel Perez, Ruskin, Salas, Saldana, Skinner, Solorio,
Swanson, Torlakson, Torres, Torrico, Yamada, Bass
NOES: Adams, Anderson, Bill Berryhill, Tom Berryhill,
Blakeslee, Conway, Cook, DeVore, Duvall, Emmerson,
Fletcher, Fuller, Gaines, Garrick, Gilmore, Hagman,
Harkey, Jeffries, Knight, Logue, Miller, Nestande,
Niello, Nielsen, Silva, Smyth, Audra Strickland, Tran,
Villines
NO VOTE RECORDED: Caballero, Davis, Portantino, Vacancy
RJG:do 6/16/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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