BILL ANALYSIS �
SB 1306
Page 1
Date of Hearing: June 10, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
SB 1306 (Leno) - As Amended: April 29, 2014
SENATE VOTE : 25-10
SUBJECT : MARRIAGE
KEY ISSUE : SHOULD CALIFORNIA STATUTES BE UPDATED, CONSISTENT
WITH STATE AND FEDERAL CASE LAW PRECEDENT AND THE AUTHOR'S
EXTRAORDINARY AND TENACIOUS EFFORTS TO RECOGNIZE THAT ALL ADULTS
- INCLUDING SAME-SEX COUPLES - HAVE THE RIGHT AND DIGNITY TO
MARRY?
SYNOPSIS
This bill represents the culmination of a decades-long effort,
spearheaded by the author's leadership, to allow same-sex
couples to marry in California. In 1999, California created its
first domestic partnership statute for same-sex couples,
following similar actions by local jurisdictions beginning in
the 1980's. The drive for marriage equality was advanced
substantially in 2005 when the author introduced legislation to
permit same-sex couples to marry. AB 849 (Leno) became the
first marriage equality bill in the nation to pass a state
legislature, but then-Governor Schwarzenegger vetoed it. Three
years later, the California Supreme Court, in its landmark In re
Marriage Cases ruling (43 Cal.4th 757 (2008)), following similar
reasoning as this Committee enumerated three years earlier,
struck down as unconstitutional statutes that limited marriage
to a man and a woman, and same sex-couple were able to marry.
That lasted until November of that year, when Proposition 8,
which defined marriage in the state constitution as the union of
a man and a woman, passed. Proposition 8 was subsequently found
unconstitutional by a federal district court and that decision
remains the law of the land today after the U.S. Supreme Court
just last year found that appellants lacked standing to appeal.
(Perry v. Schwarzenegger (2010) 740 F. Supp. 2d 921 (N.D. Cal.);
Hollingsworth v. Perry (2013) 133 S. Ct. 2652.)
Thus, same-sex couples may now marry in California and
California must recognize same-sex marriages from other
jurisdictions. And though once quite lonesome in the debates
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surrounding marriage equality, California is certainly no longer
alone in its recognition of same-sex marriages. More and more
states are now either recognizing same-sex marriages or are
having their bans on such marriages challenged in court. As of
now, fully 29 states have either enacted marriage equality
through legislation or the ballot, or had their state marriage
bans struck down as unconstitutional.
This bill therefore appropriately conforms California's marriage
statutes to the precedential court decisions noted above,
defining marriage in gender-neutral terms as a civil contract
between two persons. The measure is jointly sponsored by
Attorney General Kamala Harris, Equality California and the
National Center for Lesbian Rights, and is supported by, among
others, the American Civil Liberties Union, the California
Teachers Association and the Family Law Section of the State
Bar. It is opposed by the California Family Council, Catholics
for the Common Good, Concerned Women for America of California
and several individuals, who argue that it improperly amends
Proposition 8. Proposition 8, however, amended the California
Constitution, which this bill does not seek to alter. This bill
instead, logically clarifies that the statutory language enacted
by the earlier Proposition 22, no longer has, after In re
Marriage Cases, any legal effect. The bill received a
bipartisan vote of 25-10 in the State Senate.
SUMMARY : Logically clarifies that the anachronistic statutory
language in California's Family Code enacted a decade and a half
ago by Proposition 22 no longer has, after the State Supreme
Court's In re Marriage Cases, any legal effect, and therefore
defines marriage gender-neutrally. Specifically, this bill:
1)Provides, consistent with the State Supreme Court's In re
Marriage Cases, that marriage is a personal relation arising
out of a civil contract between two persons.
2)Repeals the provision that provides that only marriage between
a man and a woman is valid or recognized in California.
3)Provides that a marriage contracted outside of California that
would be valid by the laws of the jurisdiction in which the
marriage was contracted is valid in California.
4)Replaces gendered language regarding marriage with
gender-neutral terms.
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5)States the declaration of the Legislative that all laws
relating to marriage and the rights and responsibilities of
spouses apply equally to opposite-sex and same-sex spouses.
Provides that the changes in this bill are not intended to
affect any existing decisional law otherwise interpreting the
amended statutes.
EXISTING LAW :
1)Provides that a marriage is a personal relation arising out of
a civil contract between a man and a woman. (Family Code
Section 300. Unless stated otherwise, all further statutory
provisions are to that code.)
2)Provides that marriages valid in the jurisdiction where
contracted, except for same-sex marriages contracted after
November 5, 2008, are valid in California. (Section
308(a)-(b).)
3)Provides that same-sex marriages contracted after November 5,
2008 have the same rights, protections, benefits and
responsibilities as imposed upon spouses except for the
designation of "marriage." (Section 308(c).)
4)Provides that only marriage between a man and a woman is valid
or recognized in California. (Section 308.5.)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : This bill, conforming existing statutes to
superseding state and federal case law, provides that marriage
is the gender-neutral union of two individuals. Writes the
author:
The statutory prohibitions against allowing and recognizing
marriages between same-sex couples were stricken by the
California Supreme Court in In re Marriage Cases but were
never removed. Proposition 8 did not reinstate these
statutory provisions, but rather created a separate
prohibition that is no longer enforced by the state
pursuant to a federal injunction. Because same-sex couples
may now marry in California and are recognized as married
in California, the existence of these provisions in the
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code, and the corresponding use of gendered terms on
Judicial Council and other state forms referencing these
provisions, creates confusion for same-sex married couples,
courts, and government agencies.
For self-represented individuals, understanding the law and
complex legal processes is often very difficult and can be
nearly impossible when statutes do not reflect the actual law.
Updating the statutes will help ensure that someone reading the
Family Code will have an accurate understanding of the law.
Such updating will also logically clarify that the anachronistic
statutory language in California's Family Code enacted a decade
and a half ago by Proposition 22 no longer has, after the State
Supreme Court's In re Marriage Cases, any legal effect.
More Than That, This Bill Represents the Culmination of a
Decades' Long Fight, Spearheaded in the Legislature by the
Author, for Marriage Equality in California : The origins of
this bill - and the civil rights struggle it represents - goes
back decades.
California's Initial Recognition of Same-Sex Couples: The issue
of legal recognition of same-sex couples in California dates
back two decades. 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
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. In 1999, the Legislature enacted AB 26 (Migden), Chap.
588, Stats. 1999, to create the state's first domestic
partnership statute. This statute, which forms the backbone of
California's domestic partnership law, provided for domestic
partnerships to be registered with the Secretary of State, for
public employers to offer health benefits to domestic partners,
and for domestic partners to have hospital visitation rights.
The most comprehensive set of rights and responsibilities for
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registered domestic partners was enacted in 2003 by AB 205
(Goldberg), Chap. 421. That bill became fully operative on
January 1, 2005, and it was 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 differed 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 In re 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 were denied
the protections available under more than 1,100 federal statutes
relating to marriage.
The Federal Defense of Marriage Act: In 1996 Congress passed,
and President Clinton signed, the federal Defense of Marriage
Act (DOMA), which includes the provision that no state is
required under federal law to give effect to a same-sex marriage
contracted in another state. In addition, DOMA prevented the
federal government from recognizing same-sex marriages. Last
year, the Supreme Court struck down that latter provision in
United States v. Windsor (2013) 570 U.S. 12, holding that
denying recognition to same-sex couples who are legally married
unconstitutionally discriminates against them simply to express
disapproval of state-sanctioned same-sex marriage.
California's Proposition 22: A group of citizens led by the
late State Senator William J. ("Pete") Knight placed an
initiative on the March 2000 California ballot to prohibit
California from recognizing same-sex marriages. The Proposition
22 ballot materials emphasized the prospect that California
might soon be required to recognize the out-of-state marriages
of same-sex couples. The measure passed with 61 percent of the
vote and became codified as Section 308.5 of the Family Code.
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San Francisco Allows Same-Sex Couple to Marry: In February
2004, the City and County of San Francisco began issuing
marriage licenses to same-sex couples. However, on March 11,
2004, after 4,037 same-sex couples had married, the California
Supreme Court ordered San Francisco to stop issuing marriage
licenses to same-sex couples while the Court considered the
legality of San Francisco's actions. On August 12, 2004, the
California Supreme Court unanimously ruled that San Francisco
officials exceeded their authority in issuing the licenses
because it is the role of the courts, not local officials, to
determine the constitutionality of the state's marriage laws.
By a 5-2 vote, the Court also invalidated the 4,037 marriages
that had taken place in San Francisco. The Court did not rule
on the constitutionality of the state's statutory prohibition of
marriage by same-sex couples. Rather, an order filed by the
Court in March 2004 expressly invited the filing of a lawsuit in
Superior Court to address this issue, which occurred thereafter
(see "Coordinated Marriage Cases" discussion below).
AB 849, First Such Bill to Pass in the Country: Senator Leno's
first legislative attempt to permit same-sex couples to marry
was AB 19 in 2005, which passed this Committee that year but
failed passage on the Assembly Floor. Senator Leno then revived
the bill later in the year as AB 849, which became the first
such bill in the nation to be passed by both houses of a
legislature. However, Governor Schwarzenegger vetoed the bill,
suggesting that the only way the law could be changed was if the
courts voided the ban as unconstitutional, or if the people
reversed Proposition 22 through another initiative or a
referendum. Senator Leno nevertheless reintroduced the measure
in 2007 as AB 43, and Governor Schwarzenegger once again vetoed
the bill, stating it was up to the Supreme Court to decide if
the state's ban on same-sex marriage was constitutional, which
happened the very next year.
Coordinated Marriage Cases: State 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." (In re Marriage Cases (2008) 43 Cal.4th
757, 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 acknowledges that the 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 concludes 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.
Proposition 8: In late 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
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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 In re
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 In re Marriage
Cases decision until after the vote on Proposition 8. The Court
denied the request, and on June 16, 2008 the In re Marriage
Cases decision took effect. Approximately 18,000 same-sex
couples married in California after the effective date of the In
re Marriage Cases decision.
On November 4, 2008, Proposition 8 narrowly passed on a vote of
52-48 and same-sex marriages were once again prohibited in
California.
Constitutionality of Proposition 8: State 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. 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. While upholding Proposition 8, the Court
reiterated its key holding in In re 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 In re 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.)
Proposition 8 Struck Down by Federal Court: In 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
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clause of the 14th Amendment to the federal constitution and
seeking injunctive relief enjoining application of the
proposition. After a lengthy trial, the district court
concluded that Proposition 8 was unconstitutional, violating
both the federal due process and the equal protection clauses:
Proposition 8 fails to advance any rational basis in
singling out gay men and lesbians for denial of a marriage
license. Indeed, the evidence shows Proposition 8 does
nothing more than enshrine in the California Constitution
the notion that opposite sex couples are superior to
same-sex couples. Because California has no interest in
discriminating against gay men and lesbians, and because
Proposition 8 prevents California from fulfilling its
constitutional obligation to provide marriages on an equal
basis, the court concludes that Proposition 8 is
unconstitutional.
(Perry v. Schwarzenegger (2010) 704 F. Supp. 2d 921, 1003 (N.D.
Cal.).)
Ninth Circuit Agrees on Narrower Grounds and the Supreme Court
Dismisses for Lack of Standing: Defendants appealed and the
Ninth Circuit granted a stay pending the appeal. The Ninth
Circuit, after dismissing one of the defendants - Imperial
County - for lack of standing, and certifying a question to the
California Supreme Court regarding whether the other defendants
(proponents of Proposition 8) had standing to defend the action
in the place of the State of California, agreed with the trial
court that Proposition 8 was unconstitutional, but on much
narrower grounds. In a 2-1 decision, the Ninth Circuit ruled
that Proposition 8 violated the equal protection clause by
targeting a minority group and withdrawing a right that the
group already possessed (the right to marriage under the In re
Marriage Cases), without a legitimate reason for doing so.
(Perry v. Brown (9th Cir. 2012) 671 F.3d 1052.)
The proponents of Proposition 8 appealed that decision, but on
June 26, 2013, the United States Supreme Court, on a 5-4
decision, dismissed the appeal for lack of standing. The
Supreme Court found that the proponents of the initiative lacked
standing to appeal. (Hollingsworth v. Perry (2013) 133 S. Ct.
2652.) As a result, the district court decision is now the law
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of California.
Same-Sex Marriages Begin Again in California: On June 28, 2013,
the Ninth Circuit lifted the stay on the district court order
and on that same date Governor Brown ordered all county clerks
to begin issuing marriage licenses to same-sex couples. The
State of California thereafter began allowing same-sex couples
to marry, and began recognizing marriages between same sex
couples from other states. In light of these court decisions,
this bill seeks to update the Family Code to reflect the correct
state of law in California.
California is Not Alone in its Recognition of Same-Sex
Marriages: As noted above, more and more states are now either
recognizing same-sex marriages or are having their bans on such
marriages challenged in court. As of May 21, 2014, fully 29
states have either enacted marriage equality through legislation
or the ballot, or had their state marriage bans struck down as
unconstitutional. Same-sex couples can legally marry in
nineteen states and the District of Columbia, while 31 states
have a law or constitutional amendment restricting marriage to
the union of one man and one woman. Only one state - North
Dakota- has a ban on marriage equality but no current court case
challenging its constitutionality.
Voter Approval Not Required to Make Non-Substantive Changes to
Statutes Enacted by Proposition : This bill repeals Family Code
Section 308.5 (which provides that "only marriage between a man
and a woman is valid or recognized in California"), originally
enacted, as noted above, by Proposition 22 in 2000, and
statutory language which specifies that marriage is "between a
man and a woman" in Section 300. Catholics for the Common Good
and Concerned Women for America of California, as well as a
number of individuals, oppose the bill, erroneously suggesting
that the measure improperly amends Proposition 8 itself.
Proposition 8, however, amended the California Constitution,
which this bill does not seek to alter. This bill instead,
clarifies that the statutory language enacted by Proposition 22
has no legal effect - which is indeed the case under the In re
Marriage Cases.
Generally, California allows for amendment to law enacted by
proposition in only a handful of ways, most of which involve
voter approval. However, in order to safeguard the rights of
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the public, the courts also have the authority to amend
legislative measures. Consistently, the California courts have
protected the right of voters to exercise the authority afforded
by ballot initiative, but those ballot measures are subject to
the same constitutional limitations that apply to statutes
adopted by the Legislature. Thus, the fact that Proposition 22
limited marriage to between a man and a woman by a popular vote
does not exempt the resulting statutory provision from
constitutional scrutiny or justify a more deferential standard
of review from the court. In the In re Marriage Cases the court
found that:
Although defendants maintain that this court has an
obligation to defer to the statutory definition of marriage
contained in section 308.5 because that statute-having been
adopted through the initiative process-represents the
expression of the "people's will," this argument fails to
take into account the very basic point that the provisions
of the California Constitution itself constitute the
ultimate expression of the people's will, and that the
fundamental rights embodied within that Constitution for
the protection of all persons represent restraints that the
people themselves have imposed upon the statutory
enactments that may be adopted either by their elected
representatives or by the voters through the initiative
process. (In re Marriage Cases, 43 Cal.4th at 852.)
Accordingly, it was the California Supreme Court who
substantively "amended" Proposition 22, upon deciding In re
Marriage Cases, where it ordered that the language "between a
man and a woman" be stricken from the Family Code, and ordered
that the entirety of Family Code 308.5 could not stand because
it violated the California Constitutional rights to equal
protection, due process, and privacy. (Id. at 857.) Thus, this
bill does not change the law; it simply appropriately reconciles
statutory language with existing Supreme Court precedent and
helps ensure that someone reading the Family Code will have an
accurate understanding of the law.
ARGUMENTS IN SUPPORT : Equality California and the National
Center for Lesbian Rights, co-sponsors of the bill, state that
they have both been working for years for the freedom of
same-sex couples to marry and that they are sponsoring this bill
to clarify the law:
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Although same-sex couples may now marry in California and
are fully recognized as married by the state, the
California code still contains provisions limiting marriage
to one man and one woman. Because of these code
provisions, these restrictions also appear in Judicial
Council forms used in court proceedings, as well as in
other state forms and policies, even though same-sex
married spouses are recognized as married for all purposes.
This inaccurate language can create confusion for courts,
litigants, and applicants for state programs about what
rights are available to same-sex married spouses.
ARGUMENTS IN OPPOSITION : Catholics for the Common Good write to
express concerns:
There is a well-known crisis regarding the breakdown of
marriage that has resulted in increased children living in
poverty and increasing human and societal[] consequences of
fatherlessness. . . . What concrete steps can the state
and public institutions take to teach young people the
value of men and women marrying before having children if
marriage is redefined so that there is no longer a legal
basis for connecting marriage with conception, birth and
rearing of children in the family of common ancestry? Will
not such an effort be prohibited as discriminatory? . . .
We recognize that these questions are unrelated to the
sincere desires of same-sex couples to have their
relationships recognized, but they address some of the
unintended consequences of redefining marriage. These []
consequences were rationally considered by voters when Prop
8 was passed and must be considered today.
REGISTERED SUPPORT / OPPOSITION :
Support
Attorney General Kamala Harris (co-sponsor)
Equality California (co-sponsor)
National Center for Lesbian Rights (co-sponsor)
American Civil Liberties Union
American Federation of State, County and Municipal Employees,
AFL-CIO
California Communities United Institute
California Teachers Association
Family Law Section of the State Bar
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National Association of Social Workers, California Chapter
Secular Coalition for California
Opposition
California Family Council
Catholics for the Common Good
Concerned Women for America of California
Some individuals
Analysis Prepared by : Drew Liebert and Leora Gershenzon / JUD.
/ (916) 319-2334