BILL ANALYSIS
SB 906
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Date of Hearing: June 22, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 906 (Leno) - As Amended: April 15, 2010
SENATE VOTE : 23-11
SUBJECT: Marriage: RELIGIOUS EXEMPTION
KEY ISSUE : SHOULD THE LAW BE CLARIFIED TO ENSURE THAT RELIGIOUS
OFFICIALS ARE NOT REQUIRED TO SOLEMNIZE ANY CIVIL MARRIAGE THAT
IS CONTRARY TO THE TENANTS OF THEIR FAITH?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill, sponsored by Equality California and California
Council of Churches IMPACT, distinguishes between civil and
religious marriage by clarifying that a civil marriage is
established pursuant to a State of California marriage license.
This bill also specifies that no priest, minister, rabbi, or
authorized person of any religious denomination is required to
solemnize a marriage that is contrary to the tenets of his or
her faith and that any such refusal to solemnize a marriage will
not affect the tax exempt status of any entity. This bill is
supported by, among others, the California Nurses Association,
the California Teachers Association and Consumer Attorneys of
California, as well as the cities of San Francisco and West
Hollywood. It is opposed by the California Catholic Conference,
the California Family Council, the Church State Council, and
Concerned Women of America of California.
SUMMARY : Defines civil marriage and provides that specified
religious individuals authorized to perform civil marriages are
not required to solemnize a marriage that is contrary to the
tenets of their faith. Specifically, this bill :
1)Provides 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.
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2)Specifies that no priest, minister, rabbi, or authorized
person of any religious denomination is required to solemnize
a marriage that is contrary to the tenets of his or her faith.
States that any refusal to solemnize a marriage under this
provision does not affect the tax exempt status of any entity.
EXISTING LAW :
1)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. Unless otherwise stated, all
further statutory references are to that code.)
2)Enumerates persons who are authorized to solemnize a marriage,
including, but not limited to, any priest, minister, rabbi, or
authorized person of any religious denomination. (Section
400.)
3)Provides that Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof. (U.S. Constitution, Amendment 1.)
4)Provides that free exercise and enjoyment of religion without
discrimination or preference are guaranteed. (Cal.
Constitution, Art. I, Section 4.)
COMMENTS : On May 15, 2008, the California Supreme Court, in a
4-3 decision, struck down as unconstitutional California law
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 constitutional revision.
On May 26, 2009, the Supreme Court, in Strauss v. Horton (2009)
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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 its
application. (Perry v. Schwarzenegger, 09-CV-2292.) A trial
was held in January and closing arguments were made last week.
The case is pending.
One of the much publicized arguments by proponents 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.
In support of the bill, the author writes:
In the national debate surrounding marriage equality,
one issue raised by opponents is a fear that clergy
will be forced to solemnize marriages of same-sex
couples or face legal consequences, even if their
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faith does not permit or support such marriages.
While proponents of marriage equality disagree that
this concern is valid, and there is no evidence that
clergy in states or countries with marriage equality
have ever experienced any consequences, it is also
true that each state (except Iowa) that has enacted
marriage equality law has also enacted an explicit
religious exemption. As long as there is confusion
over this issue it is a valid and necessary area for
the legislature to act in order to clarify
constitutional rights.
Marriage equality laws and religious exemptions are
parallel protections for quite similar claims to
individual liberty in matters essential to personal
identity. The goal is to respect the liberty of both
sides. . . .
The bill protects religious freedom by reaffirming the
separation of church and state where marriage is
concerned. The state is only concerned with the
regulation of civil marriage. The requirements for
religious marriage are a matter for determination by
each denomination, not by government regulation. The
accommodation contained in SB 906 is an appropriate
response to the problem rather than using the
infringement argument as a means to deny marriage
equality completely. When secular law and religious
practice conflict, the solution is to seek religious
exemptions, not to reject secular law.
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.
This Bill Carves Out a Religion Exemption Consistent with the
First Amendment : Freedom of religion is a principle well
grounded in both our federal and state constitutions. 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
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regulating religious ceremonies and who may 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 the 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 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 is required to solemnize marriages contrary to the
central tenets of his or her faith. Further, this bill
specifies that a refusal to solemnize a marriage under this
religious exemption will 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, 303-04, 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
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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 might be
forced to solemnize marriages that are contrary to the central
tenets of their 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 appears appropriate.
The Church State Council has raised a concern that the bill, as
drafted, provides protections for a religious practitioner who
refuses to solemnize a marriage that conflicts with the tenants
of his or her religion, but not for his or her religious
institution. The author has agreed to work with committee staff
to craft similar protection for religious institutions.
Similar Religious Exemptions Have Been Adopted in Other States :
Several other states, including 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 interest in
resolving any ambiguity surrounding the issue of religious
freedom.
Prior Legislation : Three prior bills - AB 43 (Leno, 2007), AB
849 (Leno, 2005) and AB 19 (Leno, 2005) - that would have
permitted same-sex couples to wed in California contained
similar religious exemption language. AB 43 and AB 849 were
vetoed. AB 19 did not pass out of the Legislature.
ARGUMENTS IN SUPPORT : Supporters write that SB 906 protects
religious freedom by reaffirming existing separation of church
and state protections ensuring that clergy can make faith-based
decisions about which marriages to solemnize.
ARGUMENTS IN OPPOSITION : Opponents argue that while the bill
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"offers positive statutory clarification for the protection of
clergy, it will ultimately create confusion about the nature of
marriage in California while still falling short in protecting
our religious liberty." Opponents are concerned that replacing
the term "marriage" with "civil marriage" is confusing and is an
assault on Proposition 8. It should be noted, however, that the
bill continues to define "civil marriage" as a contract between
a man and a woman. It only clarifies that the state is involved
solely in civil, and not religious, marriage.
REGISTERED SUPPORT / OPPOSITION :
Support
Equality California (co-sponsor)
California Council of Churches IMPACT (co-sponsor)
AIDS Project Los Angeles
Anti-Defamation League
Asian Americans for Civil Rights and Equality
California Communities United Institute
California Nurses Association
California Teachers Association
City and County of San Francisco
City of West Hollywood
Consumer Attorneys of California
Friends Committee on Legislation
Inland Counties Stonewall Democrats
Los Angeles Democratic Party
National Center for Lesbian Rights
Sacramento Lawyers for Equality of Gays and Lesbians
Opposition
California Catholic Conference
California Family Council
Church State Council
Concerned Women of America of California
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334