BILL ANALYSIS
SB 906
Page 1
SENATE THIRD READING
SB 906 (Leno)
As Amended July 1, 2010
Majority vote
SENATE VOTE :23-11
JUDICIARY 6-3
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|Ayes:|Feuer, Brownley, Evans, | | |
| |Huffman, Jones, Monning | | |
| | | | |
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|Nays:|Tran, Hagman, Knight | | |
| | | | |
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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.
2)Specifies that no priest, minister, rabbi, or authorized
person of any religious denomination, or his or her 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.
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.
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3)Provides that Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof.
4)Provides that free exercise and enjoyment of religion without
discrimination or preference are guaranteed.
FISCAL EFFECT : None
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% 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)
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.)
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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.) 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.
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 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
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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. 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. 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 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.
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. 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.
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Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
FN: 0005178