BILL ANALYSIS �
SB 651
Page 1
SENATE THIRD READING
SB 651 (Leno)
As Amended September 2, 2011
Majority vote
SENATE VOTE :24-15
JUDICIARY 6-3 APPROPRIATIONS 12-5
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|Ayes:|Feuer, Atkins, Dickinson, |Ayes:|Fuentes, Blumenfield, |
| |Huber, Monning, | |Bradford, Charles |
| |Wieckowski | |Calderon, Campos, Davis, |
| | | |Gatto, Hall, Hill, Lara, |
| | | |Mitchell, Solorio |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Wagner, Beth Gaines, |Nays:|Harkey, Donnelly, |
| |Jones | |Nielsen, Norby, Wagner |
| | | | |
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SUMMARY : Eliminates some of the differences between marriage
and domestic partnership and provides a forum for same-sex
couples who married in California to terminate their marriages.
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
court order, as provided.
3)Directs the Secretary of State (SOS) 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 SOS 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 SOS to charge a
reasonable fee to offset the costs directly associated with
maintaining the required confidentiality.
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4)Allows a proceeding for dissolution, nullity, or legal
separation of a marriage between persons of the same sex to be
filed in California even if neither spouse is a resident of,
or maintains a domicile in, the state at the time the
proceedings are filed, provided both of the following are
true: a) the marriage was entered in California; and, b)
neither party resides in a jurisdiction that will dissolve the
marriage. Creates a rebuttable presumption that a
jurisdiction that does not recognize the marriage will not
dissolve it. Provides that the superior court in the county
where the marriage was entered is the proper court for the
proceeding. Requires the dissolution to be adjudicated in
accordance with California law.
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.
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 SOS.
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.
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
the court to make an order consenting to the issuance of a
marriage license.
5)Allows an unmarried couple, who has been living together as
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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.
6)Provides that two persons of the same sex who contracted a
marriage outside of California on or after November 5, 2008,
that is valid by the laws of the jurisdiction in which it was
contracted have the same rights, protections, and benefits and
subject to the same responsibilities, obligations, and duties
under law as are granted to and imposed upon spouses with the
sole exception of the designation of "marriage." Allows
courts in this state to dissolve those marriages.
7)Provides that a judgment of dissolution of marriage may not be
entered unless one of the parties has been a resident of
California for six months and of the county in which the
proceeding is filed for three months preceding the filing of
the petition.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1)Administrative costs . The SOS will incur one-time costs of
around $100,000 for reprogramming related to establishing a
confidential Declaration of Domestic Partnership. Any other
costs to the SOS for implementing the bill's provisions will
be minor and absorbable.
2)Revenue impact . SB 1827 (Migden) Chapter 802 Statutes of 2006
allowed registered domestic partners to file joint income
taxes in order to receive the same financial protection
afforded to married couples. According to the Franchise Tax
Board, the average income tax benefit for married filing
jointly versus those filing as single or head of household
could range from $200 to $1,500 per year depending on each
individual's income levels. For every 1% increase in
registered domestic partnerships, as a result of this bill,
who receive this tax benefit, the resulting income tax revenue
loss is $110,000 to $825,000 annually. Additionally, the
exclusion from gross income for specified medical expenses and
health insurance benefits for these additional domestic
partnerships could result in additional potentially
significant lost tax revenue.
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3)Health benefits . The California Public Employees Retirement
System (CalPERS) has indicated that any employee adding a
spouse or domestic partner to his or her health plan increases
health benefit costs by $5,500 annually, plus unknown
increases for retiree and survivor's health benefits as
afforded by the state. Thus these costs will increase to the
extent that additional domestic partnerships formed under the
provisions of this bill involve state employees.
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 . 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.
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).) The Court wrote 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.)
On November 4, 2008, Proposition 8, which amended the California
Constitution to state that that marriage can only be between one
man and one woman, narrowly passed on a vote of 52-48%. 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
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Proposition 8 remain valid.
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." (Strauss v.
Horton (2009) 46 Cal.4th 364, 412.)
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
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
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domestic partnerships and marriage.
This bill also helps ensure that same-sex couples who married in
California after Marriage Cases and before passage of
Proposition 8, and who later moved out of the state have a forum
in which they can dissolve their marriage should they so choose.
No changes in the statutes relating to dissolution of marriages
were made when same-sex couples were allowed to marry in
California. As a result, at least one spouse must be a
California resident in order to bring an action to end the
marriage. However, if these couples move to jurisdictions that
do not recognize their marriage, such as Nevada, they will be
unable to dissolve their marriage there and, without residency
in California, will also be unable to dissolve their marriage
here.
This bill allows California courts to dissolve these marriages
in the very limited instance where the couple married in
California, but neither spouse now resides in a jurisdiction
whose courts will dissolve the marriage. This will ensure that
these couples, like any other couples, are provided a forum in
which to terminate their marriage, should they wish to do so.
In these cases, the bill provides that the superior court in the
county where the marriage was entered is the proper venue for
the proceeding and that the marriage be dissolved in accordance
with California law.
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334
FN: 0002585