BILL ANALYSIS �
SB 651
Page 1
Date of Hearing: June 28, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 651 (Leno) - As Amended: June 22, 2011
SENATE VOTE : 24-15
SUBJECT : Domestic Partnerships
KEY ISSUE : IN ORDER TO REDUCE THE INEQUITIES BETWEEN DOMESTIC
PARTNERSHIP AND MARRIAGE, SHOULD SOME OF THE DIFFERENCES IN
THEIR ESTABLISHMENT, INCLUDING THE REQUIREMENT THAT DOMESTIC
PARTNERS SHARE A COMMON RESIDENCE - WHICH IS NOT REQUIRED IN
ORDER TO BE MARRIED - BE ELIMINATED?
FISCAL EFFECT : As currently in print this bill is keyed
fiscal.
SYNOPSIS
The California Supreme Court has found that, other than the word
marriage, same-sex couples in domestic partnerships have the
same substantive privacy and due process protections as those
accorded to opposite-sex married couples and the same broad
protections under the state's Equal Protection clause. Despite
this, there are still many differences between marriage and
domestic partnership, some, of which are attributable to
differences in state law. This bill, sponsored by Equality
California, seeks to reduce the differences in state law between
domestic partnership and marriage, including the requirements
that domestic partners have a common residence and that they
are, without exception, over 18. This bill is supported by,
among others, the Association of Certified Family Law
Specialists and the National Center for Lesbian Rights. It is
opposed by the California Right to Life Committee.
SUMMARY : Eliminates some of the differences between marriage
and domestic partnership. Specifically, this bill :
1)Eliminates the requirement that domestic partners share a
common residence requirement.
2)Permits a person under 18 years of age to enter a domestic
partnership with the consent of a parent or guardian and a
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court order, as provided.
3)Directs the Secretary of State to establish a process by which
two persons, who satisfy the requirements to be domestic
partners, and who have been living together as domestic
partners, may enter into a confidential Declaration of
Domestic Partnership. Requires the Secretary of State to
maintain the confidential declaration as a permanent record
that is not open to public inspection, except upon court order
issued upon a showing of good cause. Authorizes the Secretary
of State to charge a reasonable fee to offset the costs
directly associated with maintaining the required
confidentiality.
EXISTING LAW :
1)Provides that in order to establish a domestic partnership,
all of the following requirements must be met: (a) Both
persons have a common residence; (b) neither person is married
to someone else or is a member of another domestic
partnership; (c) neither person is related by blood in a way
that would prevent them from being married to each other; (d)
both persons are at least 18 years of age; (e) either of the
following applies: (i) both persons are members of the same
sex; or (ii) if members of the opposite sex, one or both
persons are over the age of 62; and (f) both persons are
capable of consenting to the domestic partnership. (Family
Code Section 297. Unless stated otherwise, all further
statutory references are to that code.)
2)Provides that individuals, meeting the requirements in #1,
above, who desire to become domestic partners, must complete
and file a Declaration of Domestic Partnership with the
Secretary of State. (Section 298.5.)
3)Provides that marriage is a personal relationship arising out
of a civil contract between a man and a woman, to which both
parties must consent. (Section 300.)
4)Allows minors who consent to a marriage to marry, provided
they obtain a court order granting permission to marry.
Requires both the court order and written consent of a parent
or guardian. If no parent is capable of consenting, allows
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the court to make an order consenting to the issuance of a
marriage license. (Sections 302-03.)
5)Allows an unmarried couple, who has been living together as
husband and wife, to enter into a confidential marriage.
Requires the confidential marriage to be solemnized, but does
not require it to be witnessed. Provides that confidential
marriage certificates are not open to public inspection
without a court order. (Section 500 et seq.)
COMMENTS : The California Supreme Court has found that, other
than the word marriage, same-sex couples in domestic
partnerships have the same substantive privacy and due process
protections as those accorded to opposite-sex married couples,
as well as the same broad protections under the state's equal
protection clause. (See Strauss v. Horton (2009) 46 Cal.4th
364, discussed below.) Despite this, there are still many
differences between marriage and domestic partnership, some, of
which are attributable to differences in state law. This bill,
sponsored by Equality California, seeks to reduce the legal
differences between domestic partnership and marriage that are
the result of those differences in state law.
In support of the bill, the author writes:
This bill would eliminate an existing difference between
domestic partners and married spouses by eliminating the
requirement that domestic partners have a common residence.
Existing case law recognizes that while same-sex couples lack
the right to enter into a relationship designated as
"marriage," they possess the right to the core set of basic
substantive legal rights and attributes associated with
marriage, including, the opportunity of an individual to
establish an officially recognized and protected family
possessing mutual rights and responsibilities and entitled to
the same respect and dignity accorded a union traditionally
designated as marriage.
California's Initial Recognition of Same-Sex Couples : The issue
of legal recognition of same-sex couples in California dates
back about 25 years. Before the 1980's, same-sex couples had no
legal recognition in California, or virtually anywhere else - as
families, they were essentially invisible to the law. Beginning
in the mid-1980's, local jurisdictions began to recognize
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same-sex couples by establishing a legal status called "domestic
partnership," which gave same-sex couples not only limited
protections for themselves and their children, but also, for the
first time, government recognition as family units. By 2000, 18
California local governments had established domestic
partnership registries.
Registered Domestic Partnerships: California took notice of
this emerging movement to recognize the rights of same-sex
couples. The most comprehensive set of rights and
responsibilities for registered domestic partners was enacted in
2003 by AB 205 (Goldberg), Chap. 421. That bill became fully
operative on January 1, 2005, and it has been upheld by the
courts against challenges. (See, e.g., Knight v. Superior Court
(2005) 128 Cal.App.4th 14, 30.)
However, although domestic partnership laws extended many
protections to same-sex couples, their protections differ from
those extended to married couples. First, under the existing
laws, domestic partners have been denied access to certain
long-term care benefits that are available to married couples.
(However, after the Supreme Court decisions in Marriage Cases
and Strauss, discussed in more detail below, it is unlikely that
any differences in rights or responsibilities provided under
California law are constitutionally permissible.) In addition,
the prerequisites for entering a domestic partnership differ
from the prerequisites for marriage. Marriage and domestic
partnership also have different formation procedures. For
example, unlike marriage, domestic partnership has no
solemnization requirement, a difference that suggests a
distinction in stature. Finally, domestic partners are denied
the protections available under more than 1,100 federal statutes
relating to marriage.
Coordinated Marriage Cases: Supreme Court Decision : 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 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." (Marriage Cases, 43 Cal.4th at 782
(footnote omitted).)
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The Court found that "�a]lthough our state Constitution does not
contain any explicit reference to a 'right to marry,' past
California cases establish beyond question that the right to
marry is a fundamental right whose protection is guaranteed to
all persons by the California Constitution." (Id. at 809.) The
core substantive rights embodied in the right to marry "include,
most fundamentally, the opportunity of an individual to
establish - with the person with whom the individual has chosen
to share his or her life - an officially recognized and
protected family possessing mutual rights and responsibilities
and entitled to the same respect and dignity accorded a union
traditionally designated as marriage." (Id. at 781.) The Court
noted that "in contrast to earlier times, our state now
recognizes that an individual's capacity to establish a loving
and long-term committed relationship with another person and
responsibly to care for and raise children does not depend upon
the individual's sexual orientation, and, more generally, that
an individual's sexual orientation - like a person's race or
gender - does not constitute a legitimate basis upon which to
deny or withhold legal rights." (Id. at 782.) Accordingly, the
Court concluded that "in light of the fundamental nature of the
substantive rights embodied in the right to marry - and their
central importance to an individual's opportunity to live a
happy, meaningful, and satisfying life as a full member of
society - the California Constitution properly must be
interpreted to guarantee this basic civil right to all
individuals and couples, without regard to their sexual
orientation." (Id. at 820, emphasis added.)
Although the opinion acknowledged that the recent comprehensive
domestic partnership legislation enacted in California affords
same-sex couples most of the substantive elements embodied in
the constitutional right to marry, the opinion further concluded
that by assigning a different name for the family relationship
of same-sex couples, while preserving the historic and honored
designation of "marriage" only for opposite-sex couples, the
California statutes threatened to deny the family relationship
of same-sex couples dignity and respect equal to that accorded
the family relationship of opposite-sex couples.
The Court also addressed whether the statutory assignment of
different labels for the official family relationship of
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opposite-sex couples and same-sex couples raises constitutional
concerns under the California Constitution's Equal Protection
Clause. The Court concluded that the "strict scrutiny" standard
was applicable in this case (1) because the statutes
discriminate on the basis of sexual orientation, a
characteristic the majority determined to be - like gender,
race, and religion - a constitutionally suspect basis upon which
to impose differential treatment, and (2) because the different
statutory treatment impinges upon same-sex couples' fundamental
interest in having their family relationship accorded the same
respect and dignity enjoyed by opposite-sex couples.
To survive strict scrutiny, a law must be necessary to serve a
compelling government interest. The majority found that the
California statutes failed both parts of this test. The
majority determined that the state interest underlying the
marriage statutes' differential treatment of opposite-sex and
same-sex couples - the interest in retaining the traditional and
well-established definition of marriage - cannot properly be
viewed as a compelling state interest for purposes of the Equal
Protection Clause, or as necessary to serve such an interest,
and, thus, the statutes were unconstitutional.
Proposition 8 : On October 5, 2007, the proponents of
Proposition 8, apparently contemplating that the California
Supreme Court might (as it did indeed do) find the state's
discriminatory marriage provisions unconstitutional, began the
legal process of proposing an initiative amendment to add to the
California Constitution the provision that in California
marriage could only be between one man and one woman. Then, as
noted above, on May 15, 2008, the Court issued its decision in
the Marriage Cases, holding that statutes limiting marriage to a
union between a man and a woman unconstitutional. The
Proposition 22 Legal Defense & Education Fund and others
requested a stay of the effective date of the Marriage Cases
decision until after the vote on Proposition 8. The Court
denied the request, and on June 16, 2008 the Marriage Cases
decision took effect. Approximately 18,000 same-sex couples
married in California after the effective date of the Marriage
Cases decision.
On November 4, 2008, Proposition 8 narrowly passed on a vote of
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52-48 percent.
Constitutionality of Proposition 8: Supreme Court Decision :
Immediately after the passage of Proposition 8, its opponents
filed a petition directly with the California Supreme Court
seeking to invalidate the measure on the grounds that it was not
permissibly enacted. On May 26, 2009, the Supreme Court in
Strauss v. Horton 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.
Rights of Same-Sex Couples: While upholding Proposition 8, the
Court reiterated its key holding in Marriage Cases, namely that
in all respects, other than the word marriage, "same-sex couples
retain the same substantive protections embodied in the state
constitutional rights of privacy and due process as those
accorded to opposite-sex couples and the same broad protections
under the state equal protection clause that are set forth in
the majority opinion in the Marriage Cases, including the
general principle that sexual orientation constitutes a suspect
classification and that statutes according differential
treatment on the basis of sexual orientation are
constitutionally permissible only if they satisfy the strict
scrutiny standard of review." (Id. at 412.)
This Bill Seeks to Reduce the Differences Between Marriage and
Domestic Partnership, as required by the Supreme Court in
Marriage Cases and Strauss v. Horton : As recognized by the
California Supreme Court in Marriages Cases and Strauss v.
Horton, same-sex couples retain the same substantive protections
of privacy, due process and equal protection as opposite-sex
couples. Moreover, since sexual orientation constitutes a
suspect classification, statutes providing differential
treatment on the basis of sexual orientation, must satisfy a
strict scrutiny review. Thus, even assuming Proposition 8 were
to be found to be constitutional under the federal constitution
(see the discussion of Perry v. Schwarzenegger, above), many of
the differences that exist today between domestic partnerships
and marriage are likely to be found unconstitutional under a
strict scrutiny review under the state constitution.
Despite this, there remain significant differences between
domestic partnerships and marriage. This bill, seeks to reduce
those differences and make domestic partnership and marriage, at
least under California law, more similar. As a result, this
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bill makes the following changes:
1.Under existing law, in order to register as a domestic
partnership, two people must have a common residence. There
is no such requirement to be married. This bill eliminates
the common residence requirement for domestic partners.
2.Current law requires that domestic partners be at least 18
years old. However, minors are allowed to marry with court
approval and with the consent of their parent or guardian, or
if no parent or guardian is capable of consent, with court
approval alone. This bill allows minors to enter a domestic
partnership on those same terms.
3.Current law allows an unmarried couple, who has been living
together as husband and wife, to get married confidentially.
Confidential marriage certificates are not open to public
inspection without a court order. This bill creates a
confidential declaration of domestic partnership to allow a
couple, who has not registered as domestic partners, but has
otherwise been living together as domestic partners, to
officially register as domestic partners, with all the ensuing
rights and responsibilities, but to do so confidentially.
With these changes, this bill reduces the inequities between
domestic partnerships and marriage.
ARGUMENTS IN SUPPORT : Writes the National Center for Lesbian
Rights: "Domestic partnerships fall short of marriage and are
inherently unequal. This bill, however, brings domestic
partnership closer to providing the legal rights and privileges
afforded opposite-sex and already married same-sex couples in
California."
ARGUMENTS IN OPPOSITION : The California Right to Life
Committee, Inc. opposes the bill "as bad policy and one that
promotes the homosexual agenda to normalize this lifestyle and
change the traditional concept of marriage as a contract between
one man and one woman."
REGISTERED SUPPORT / OPPOSITION :
Support
Equality California (sponsor)
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Association of Certified Family Law Specialists
City of Los Angeles
National Center for Lesbian Rights
Sacramento Gay & Lesbian Center
State Board of Equalization Member Betty Yee
Opposition
California Right to Life Committee, Inc.
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334