BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 1140 (Leno)
As Amended April 23, 2012
Hearing Date: May 1, 2012
Fiscal: No
Urgency: No
NR
SUBJECT
Marriage
DESCRIPTION
This bill would provide that marriage is a personal relation
arising out of a civil, and not religious, contract. This bill
would specify 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 or
her faith. This bill would additionally state that any refusal
to solemnize a marriage under this provision would 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
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 revision.
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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.)
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. On February 7, 2012, the United States Court of
Appeal for the Ninth Circuit reviewed and affirmed the judgment
of the district court. The court held that the People of
California, via Proposition 8, violated the Equal Protection
Clause of the federal constitution by using their power to
target a minority group and withdraw a right that the group
already possessed, without a legitimate reason for doing so.
(Perry v. Brown, 52 Cal.4th 1116.)
One of the much publicized arguments in support of Proposition 8
was that same-sex marriage poses a threat 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.) Legislative attempts, similar to this bill, have
tried to address this concern. Most recently, SB 906 (Leno,
2009), which would have defined the term civil marriage as a
personal relation arising out of a civil contract between a man
and a woman, and contained identical religious exemption
language, was vetoed by the Governor. AB 43 (Leno, 2007), AB 19
(Leno, 2005) and AB 849 (Leno, 2005) would have enacted the
Religious Freedom and Civil Marriage Protection Act, which would
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have provided that a marriage is a personal relation arising out
of a civil contract between two persons, and included similar
religious exemption language as this bill. AB 19 did not pass
the Assembly, and AB 849 and AB 43 were vetoed by the Governor.
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.
CHANGES TO EXISTING LAW
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. (Fam. Code Sec. 400.)
Existing law provides that Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise
thereof. (U.S. Constitution, Amendment 1.)
Existing law provides that free exercise and enjoyment of
religion without discrimination or preference are guaranteed.
(Cal. Const., art. I, Section 4.)
This bill would provide that marriage is a personal relation
arising out of a civil, and not a religious, contract.
This bill would specify 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 or her faith.
This bill would additionally state that any refusal to solemnize
a marriage under the above provision shall not affect the tax
exempt status of any entity.
COMMENT
1. Stated need for the bill
In support of this bill, the author writes:
In the national debate surrounding marriage equality,
opponents argue that clergy will be forced to solemnize
marriages of same-sex couples or face legal consequences,
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even when their faith does not permit or support such
marriages. While proponents of marriage equality disagree
with the validity of this concern, citing a law of evidence
that clergy in states of countries with marriage equality
have ever experienced any such consequences, they acknowledge
that each state (except Iowa) which has enacted a 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.
2. This bill would carve out a religion exemption
consistent with the First Amendment
Freedom of religion is a principle well grounded in both our
federal and state Constitutions. (U.S. Constitution, Amendment
1; Cal. Const., art. I, Section 4.)
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 could 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
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 Employment Division
v. Smith (1990) 485 U.S. 660, 670 n.13, stating that those
seeking religious exemptions from laws should look to the
democratic process for protection, not the courts; see also
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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
codify a religious exemption which specifically states that a
priest, minister, rabbi, or authorized person of any religious
denomination would not be required to solemnize marriages
contrary to the central tenets of his or her faith. Further,
this bill would also specify that a refusal to solemnize a
marriage under this religious exemption shall 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, 303-304, 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
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 would 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 is arguably appropriate.
3. Similar religious exemptions have been adopted in other
states
Several other states, such as Vermont, New Hampshire, New York,
Connecticut, and the District of Columbia 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; NY CLS Dom Rel Sec.
10-a et seq.; Conn. Gen. Stat. Sec. 46b-22b; 31 Stat. 1391 D.C.
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Official Code Secs. 46-401 passim.) 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 arguable interest in clarifying
this specific matter now. In this manner, the Legislature can
resolve any ambiguity surrounding the issue of religious freedom
and clarify that it will not be adversely affected should
same-sex marriage become legal in California in the future.
Support : American Federation of State, County and Municipal
Employees, AFL-CIO (AFSCME)
Opposition : California Right to Life
HISTORY
Source : Equality California; California Council of Churches
IMPACT
Related Pending Legislation : None Known
Prior Legislation : See Background.
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