BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 906 (Leno)
As Introduced
Hearing Date: March 23, 2010
Fiscal: No
Urgency: No
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SUBJECT
Marriage
DESCRIPTION
This bill would distinguish between civil and religious marriage
by clarifying that a civil marriage is established pursuant to a
State of California marriage license, to which the consent of
the parties capable of making that contract is necessary. This
bill would specify that no priest, minister, rabbi, or
authorized person of any religious denomination would be
required to solemnize a marriage that is contrary to the tenets
of his or her faith. This bill would additionally state that
any refusal to solemnize a marriage under that provision shall
not affect the tax exempt status of any entity.
BACKGROUND
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. (In re
Marriage Cases (2008) 43 Cal.4th 757.) 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. 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.
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On May 26, 2009, the Supreme Court in Strauss v. Horton (2009)
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. In
Strauss, the Supreme Court first determined that Proposition 8
did not repeal the constitutional rights of individuals to
choose their life partners and enter into "a committed,
officially recognized, and protected family relationship that
enjoys all the constitutionally based incidents of marriage"
recognized by the Court in Marriage Cases. (Strauss, 46 Cal.4th
at 388.) Instead, the Court found, Proposition 8 "carves out a
narrow and limited exception to these state constitutional
rights, reserving the official designation of the term
'marriage' for the union of opposite-sex couples as a matter of
state constitutional law, but leaving undisturbed all of the
other extremely significant substantive aspects of a same-sex
couple's state constitutional right to establish an officially
recognized and protected family relationship and the guarantee
of equal protection of the laws." (Id.)
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.) A
trial was held between January 11-27, 2010 and the case is still
pending.
One of the much publicized arguments in support of Proposition 8
has been that same-sex marriage poses a danger to religious
freedom because churches will lose their tax exempt status if
they refused to solemnize such marriages. (See Laurie
Goodstein, "A Line in the Sand for Same-Sex Marriage Foes," New
York Times, Oct. 27, 2008.) This bill seeks to resolve this
debate by clarifying the distinction between civil and religious
marriage and providing that members of the clergy are not
required to solemnize marriages contrary to the tenets of their
faith.
CHANGES TO EXISTING LAW
Existing law 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
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is necessary. (Fam. Code Sec. 300.)
Existing law enumerates persons who are authorized to solemnize
a marriage, including to, but not limited to, any priest,
minister, rabbi, or authorized person of any religious
denomination. (Fam. Code Sec. 400.)
Existing constitutional law provides that Congress shall make no
law respecting an establishment of religion, or prohibiting the
free exercise thereof. (U.S. Constitution, Amendment 1.)
Existing constitutional law provides that free exercise and
enjoyment of religion without discrimination or preference are
guaranteed. (Cal. Const., art. I, section 4.)
This bill would instead provide that civil marriage is a
personal relation arising out of a civil contract between a man
and a woman established pursuant to a State of California
marriage license, to which the consent of the parties capable of
making that contract is necessary.
This bill would specify that no priest, minister, rabbi, or
authorized person of any religious denomination would be
required to solemnize a marriage that is contrary to the tenets
of his or her faith.
This bill would additionally state that any refusal to solemnize
a marriage under that provision shall not affect the tax exempt
status of any entity.
COMMENT
1. Stated need for the bill
The author states that in the national debate surrounding
marriage equality, one issue raised by opponents is fear that
clergy will be forced to solemnize marriages of same-sex couples
or face legal consequences, even if their faith does not permit
or support such marriages. The author further states that while
proponents of marriage equality disagree that this is a valid
concern it is also true that each state (except Iowa) that
recognizes same-sex marriage has also enacted an explicit
religious exemption. The author asserts that as long as there
is confusion over this issue, the Legislature should act in
order to clarify constitutional rights, particularly because
marriage equality and religious exemptions are parallel
protections for similar claims to individual liberty.
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2. This bill would carve out a religion exemption
consistent with the First Amendment
Freedom of religion is a principle well grounded in both our
federal and state Constitutions. (U.S. Constitution, Amendment
1; Cal. Const., art. I, section 4.)
It is a right that has repeatedly been emphasized in the public
discourse surrounding marriage equality across the nation,
particularly by those who fear that same-sex marriage will
inevitably lead to the erosion of religious freedom. However,
the First Amendment has always prohibited the government from
regulating religious ceremonies and who could participate in
them. The government cannot, for example, compel churches to
marry previously divorced couples, couples from different
faiths, or those who have not been baptized according to the
church's practices. Similarly, the Constitution prohibits
government from coercing clergy and churches to perform same-sex
marriages. As expressly stated by the California Supreme Court
in In re Marriages, affording same-sex couples the opportunity
to marry will not "impinge upon the religious freedom of any
religious organization, official, or any other person; no
religion will be required to change its religious policies or
practices with regard to same-sex couples, and no religious
officiant will be required to solemnize a marriage in
contravention of his or her religious beliefs." (Id. at 855.)
In sum, the right to marry and the right to religious freedom
are not mutually exclusive.
In instances where the application of a general secular law
infringes upon an individual's religious freedom, the proper way
of resolving the conflict is to create a narrow religious
exemption from the law's requirements. (See Employment Division
v. Smith (1990) 485 U.S. 660, 670 n. 13, stating that those
seeking religious exemptions from laws should look to the
democratic process for protection, not the courts; see also
Corporation of Presiding Bishop of the Church of Jesus Christ of
Latter-Day Saints v. Amos (1987) 483 U.S. 327, finding that an
exemption for religious organizations from Title VII's
prohibition against discrimination in employment based on
religion was constitutional.) Accordingly, this bill seeks to
clarify the distinction between civil and religious marriage and
codify a religious exemption which specifically states that no
member of the clergy would be required to solemnize marriages
contrary to the central tenets of his/her faith. Further, this
bill would also specify that a refusal to solemnize a marriage
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under this religious exemption shall not affect the tax exempt
status of any entity. As outlined above, these provisions are
consistent with the protections afforded by both the federal and
state constitutions.
However, religious freedom as protected by the First Amendment
does not provide absolute protection for all religiously
motivated conduct. (See Cantwell v. Connecticut, (1940) 310
U.S. 296, 303-304, stating that under the First Amendment the
freedom to believe is absolute in nature, but the freedom to act
is not.) An absolute constitutional protection for religiously
motivated conduct could prevent the government from protecting
other equally important civil rights. In fact, if such a
blanket protection existed, one could arguably discriminate
against others based on their different religious beliefs under
the guise of religious freedom. Thus, while religious
exemptions are appropriate and sometimes necessary to ensure
that First Amendment rights are not encroached upon, the
Legislature must be careful to ensure that the costs of these
exemptions do not outweigh the public benefit. This bill seeks
to address the specific concern that members of clergy would be
forced to solemnize marriages that are contrary to the central
tenets of his or her faith. As previously stated such
governmental regulation of religious ceremonies is unprecedented
and prohibited by the federal and state constitutions. As such,
this narrow religious exemption is arguably appropriate.
3. Similar religious exemptions have been adopted in other
states
Several other states, such as Vermont, New Hampshire, and
Connecticut, where same-sex couples have been granted the right
to marry have also enacted similar religious exemptions from
their civil marriage laws. (See 18 V.S.A. Sec. 5144; New
Hampshire RSA 457:37; Conn. Gen. Stat. Sec. 46b-22b.) Notably,
unlike these states, same-sex marriage is currently not
recognized in California which may create questions as to the
need for this bill. However, because the issue of religious
freedom was and continues to be prevalent in the broader debate
over marriage equality, the Legislature has an arguable interest
in clarifying this specific matter now. In this manner, the
Legislature can resolve any ambiguity surrounding the issue of
religious freedom and clarify that it will not be adversely
affected should same-sex marriage become legal in California in
the future.
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Support : AIDS Project Los Angeles
Opposition : None Known
HISTORY
Source : Equality California and California Council of Churches
IMPACT
Related Pending Legislation : None Known
Prior Legislation :
AB 43 (Leno, 2007) contained similar religious exemption
language. This bill was vetoed.
AB 849 (Leno, 2005) contained similar religious exemption
language. This bill was vetoed.
AB 19 (Leno, 2005) contained similar religious exemption
language. This bill was vetoed.
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