BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 906|
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VETO
Bill No: SB 906
Author: Leno (D), et al
Amended: 7/1/10
Vote: 21
SENATE JUDICIARY COMMITTEE : 3-2, 3/23/10
AYES: Corbett, Hancock, Leno
NOES: Harman, Walters
SENATE FLOOR : 23-11, 5/27/10
AYES: Alquist, Calderon, Cedillo, Corbett, Correa,
DeSaulnier, Ducheny, Florez, Hancock, Kehoe, Leno, Liu,
Lowenthal, Negrete McLeod, Padilla, Pavley, Price,
Romero, Simitian, Steinberg, Wolk, Wright, Yee
NOES: Aanestad, Ashburn, Cogdill, Denham, Dutton,
Hollingsworth, Huff, Runner, Strickland, Walters, Wyland
NO VOTE RECORDED: Cox, Harman, Oropeza, Wiggins, Vacancy,
Vacancy
ASSEMBLY FLOOR : 51-26, 8/19/10 - See last page for vote
SENATE FLOOR : 23-11, 8/25/10
AYES: Alquist, Blakeslee, Calderon, Cedillo, Corbett,
Correa, DeSaulnier, Ducheny, Florez, Hancock, Kehoe,
Leno, Liu, Lowenthal, Negrete McLeod, Padilla, Pavley,
Price, Romero, Steinberg, Wolk, Wright, Yee
NOES: Aanestad, Ashburn, Cogdill, Denham, Dutton,
Emmerson, Huff, Runner, Strickland, Walters, Wyland
NO VOTE RECORDED: Harman, Hollingsworth, Oropeza,
Simitian, Wiggins, Vacancy
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SUBJECT : Marriage
SOURCE : Equality California
California Council of Churches IMPACT
DIGEST : This bill distinguishes 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 specifies
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/her faith.
This bill additionally states that any refusal to solemnize
a marriage under that provision shall not affect the tax
exempt status of any entity.
Assembly Amendments add clarifying language to exempt a
person's religious denomination.
ANALYSIS : 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 is necessary. (Section 300
of the Family Code)
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. (Section 400 of the Family Code)
Existing constitutional law provides that Congress shall
make no law respecting an establishment of religion, or
prohibiting the free exercise thereof. (Amendment 1 of the
United States Constitution)
Existing constitutional law provides that free exercise and
enjoyment of religion without discrimination or preference
are guaranteed. (Article I, Section 4 of the California
Constitution)
This bill instead provides that civil marriage is a
personal relation arising out of a civil contract between a
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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 specifies that civil marriage may be solemnized
by any of the following who is of the age of 18 years or
older: A priest, minister, rabbi, or authorized person of
any religious denomination. No person authorized by this
subdivision, or his/her religious denomination, shall be
required to solemnize a marriage that is contrary to the
tents of his/her/its faith.
This bill additionally states 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 Section 308.5 of the Family Code 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.
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"
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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, October 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.
Prior Legislation
AB 43 (Leno), 2007-08 Session, contained similar religious
exemption language. The bill which passed the Senate with
a vote of 22-15 on September 27, 2007, was vetoed by the
Governor.
AB 849 (Leno), 2005-06 Session, contained similar religious
exemption language. The bill was vetoed by the Governor.
AB 19 (Leno), 2005-06 Session, contained similar religious
exemption language. The bill was vetoed by the Governor.
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FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 8/20/10)
Equality California (co-source)
California Council of Churches IMPACT (co-source)
AIDS Project Los Angeles
Anti-Defamation League
Asian Americans for Civil Rights & Equality
California Commission on the Status of Women
California Communities United Institute
California Nurses Association/National Nurses Organizing
Committee
California Teachers Association
City of West Hollywood
Consumer Attorneys of California
Friends Committee on Legislation
Inland Counties Stonewall Democrats
Jewish Public Affairs Committee of California
Los Angeles County Democratic Party
National Center for Lesbian Rights
Sacramento Lawyers for the Equality of Gays and Lesbians
San Francisco Jewish Community Relations Council
OPPOSITION : (Verified 8/20/10)
California Family Council
Catholics for Common Good
Concerned Women for America of California
ARGUMENTS IN SUPPORT : The author's office 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's office 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's
office asserts that as long as there is confusion over this
issue, the Legislature should act in order to clarify
constitutional rights, particularly because marriage
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equality and religious exemptions are parallel protections
for similar claims to individual liberty.
ARGUMENTS IN OPPOSITION : Opponents argue that while the
bill "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.
GOVERNOR'S VETO MESSAGE:
"I am returning Senate Bill 906 without my signature.
This measure clarifies that the head of a religious
denomination would not be required to solemnize same
sex marriages if performing such ceremonies would
conflict with the person's beliefs. In addition,
this measure would specify that such refusal would
not affect the tax exempt status of the organization.
Finally, this measure would add the term "civil" to
describe marriages in related code sections.
I strongly support the rights of same-sex couples to
be married. In addition, I support the portions of
this measure that will preserve the rights of
priests, ministers, rabbis, and other authorized
persons from other religious denominations from
having to perform marriage ceremonies if performing
such ceremonies would violate the person's religious
beliefs. Unfortunately, I cannot sign this bill due
to the extraneous amendments that will change the
term "marriage" to "civil marriage" within the
California Family Code. Proponents of this bill
argue that delineating between civil and religious
marriage in statute will make the codes less
confusing. However, the Family Code itself does not
make a distinction between religious marriage and
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civil marriage. Consequently, inserting the term
"civil" before the word "marriage" without
explanation does not make things any less confusing.
By creating a distinct type of marriage within the
code, I believe this measure undermines the goal of
marriage equality.
Consequently, I am unable to sign this bill."
ASSEMBLY FLOOR :
AYES: Ammiano, Arambula, Bass, Beall, Blakeslee, Block,
Blumenfield, Bradford, Brownley, Buchanan, Caballero,
Charles Calderon, Chesbro, Coto, Davis, De La Torre, De
Leon, Eng, Evans, Feuer, Fletcher, Fong, Fuentes,
Furutani, Gatto, Hall, Hayashi, Hernandez, Hill, Huber,
Huffman, Jones, Lieu, Bonnie Lowenthal, Ma, Mendoza,
Monning, Nava, V. Manuel Perez, Portantino, Ruskin,
Salas, Saldana, Skinner, Solorio, Swanson, Torlakson,
Torres, Torrico, Yamada, John A. Perez
NOES: Adams, Anderson, Bill Berryhill, Tom Berryhill,
Conway, Cook, DeVore, Fuller, Gaines, Garrick, Gilmore,
Hagman, Harkey, Jeffries, Knight, Logue, Miller,
Nestande, Niello, Nielsen, Norby, Silva, Smyth, Audra
Strickland, Tran, Villines
NO VOTE RECORDED: Carter, Galgiani, Vacancy
RJG:mw 10/5/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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