BILL NUMBER: AB 19 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 12, 2005
AMENDED IN ASSEMBLY APRIL 21, 2005
INTRODUCED BY Assembly Members Leno, Nunez, Goldberg, Koretz,
Laird, and Lieber
(Principal coauthors: Senators Kehoe, Kuehl, and Migden)
(Coauthors: Assembly Members Berg, Calderon, Chan, Chu, Dymally,
Evans, Hancock, Jones, Klehs, Levine, Montanez, Nation,
Oropeza, Ridley-Thomas, Ruskin, Saldana, and Yee)
(Coauthors: Senators Alarcon, Alquist, Cedillo, Simitian, and
Speier)
DECEMBER 6, 2004
An act to amend Sections 300, 301, and 302 of, and to add Section
403 to, the Family Code, relating to marriage.
LEGISLATIVE COUNSEL'S DIGEST
AB 19, as amended, Leno. Gender-neutral marriage.
Existing law provides that marriage is a personal relation arising
out of a civil contract between a man and a woman. Existing law
provides for the issuance of marriage licenses and imposes duties on
county clerks in that connection, as specified. Existing law
Proposition 22, the California Defense of Marriage
Act, further provides that only marriage between a man and a
woman is valid or recognized in this state.
This bill would enact the "Religious
Religious Freedom and Civil Marriage Protection Act,"
Act, which would instead provide that marriage
is a personal relation arising out of a civil contract between 2
persons. The bill would make conforming changes with regard to the
consent to, and solemnization of, marriage, and would make related
findings and declarations.
By adding to the duties of county employees, this bill would
impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act shall be known and may be cited as the
"Religious Freedom and Civil Marriage Protection Act."
SEC. 2. It is the intent of the Legislature that this act be
interpreted consistently with the guarantees of the First Amendment
to the United States Constitution and of Section 4 of Article I of
the California Constitution to free exercise of religion and
enjoyment of religion without discrimination or preference.
SEC. 3. The Legislature finds and declares as follows:
(a) Civil marriage is a legal institution recognized by the state
in order to promote stable relationships and to protect individuals
who are in those relationships. The institution of marriage also
provides important protections for the families of those who are
married, including not only any children or other dependents they may
have, but also members of their extended families.
(b) From 1850 to 1977, the statutory definition of marriage in
California was gender-neutral, containing no reference to "man" or
"woman."
(c) In 1948, the California Supreme Court became the first state
court in the country to strike down a law prohibiting interracial
marriage. It was the only state supreme court to do so before the
United States Supreme Court invalidated all those laws in 1967. The
California Supreme Court held that "marriage is . . . something more
than a civil contract subject to regulation by the state; it is a
fundamental right of free men...Legislation infringing such rights
must be based upon more than prejudice and must be free from
oppressive discrimination to comply with the constitutional
requirements of due process and equal protection of the laws" (Perez
v. Sharp (1948) 32 Cal.2d 711, 714-15).
(d) In 1977, the Legislature amended the state's marriage law to
specify that, as a matter of state law, the gender-neutral definition
of marriage could permit same-sex couples to marry and have access
to equal rights and therefore would be changed. The gender-specific
definition of marriage that the Legislature adopted specifically
discriminated in favor of different-sex couples and, consequently,
discriminated and continues to discriminate against same-sex couples.
(e) The highest courts in three states have held that denying the
legal rights and obligations of marriage to same-sex couples is
constitutionally suspect or impermissible under their respective
state constitutions. These states are Hawaii, Vermont, and
Massachusetts. The highest courts in seven Canadian provinces have
similarly ruled that marriage laws that discriminate in favor of
different-sex couples to the exclusion of same-sex couples violate
the rights of same-sex couples and cannot stand.
(f) California's discriminatory exclusion of same-sex couples from
marriage violates the California Constitution's guarantee of due
process, privacy, equal protection of the law, and free expression by
arbitrarily denying equal marriage rights to lesbian, gay, and
bisexual Californians.
(g) California's discriminatory exclusion of same-sex couples from
marriage harms same-sex couples and their families by denying those
couples and their families specific legal rights and responsibilities
under state law and by depriving members of those couples and their
families of a legal basis to challenge federal laws that deny access
to the many important federal benefits and obligations provided only
to spouses. Those federal benefits include the right to file joint
federal income tax returns, the right to sponsor a partner for
immigration to the United States, the right to social security
survivor's benefits, the right to family and medical leave, and many
other substantial benefits and obligations.
(h) Other jurisdictions have chosen to treat as valid or otherwise
recognize marriages between same-sex couples. California's
discriminatory marriage law therefore also harms California's
same-sex couples when they travel to other jurisdictions by
preventing them from having access to the rights, benefits, and
protections those jurisdictions provide only to married couples.
(i) California's discriminatory exclusion of same-sex couples from
marriage further harms same-sex couples and their families by
denying them the unique public recognition and affirmation that
marriage confers on heterosexual couples.
(j) The Legislature has an interest in encouraging stable
relationships regardless of the gender or sexual orientation of the
partners. The benefits that accrue to the general community when
couples undertake the mutual obligations of marriage accrue
regardless of the gender or sexual orientation of the partners.
(k) It is the intent of the Legislature in enacting this act to
end the pernicious practice of marriage discrimination in California.
This act is in no way intended to alter Section 308.5 of the Family
Code, which prohibits California from treating as valid or otherwise
recognizing marriages of same-sex couples solemnized outside of
California.
SEC. 4. Section 300 of the Family Code is amended to read:
300. (a) Marriage is a personal relation arising out of a civil
contract between two persons, to which the consent of the parties
capable of making that contract is necessary. Consent alone does not
constitute marriage. Consent must be followed by the issuance of a
license and solemnization as authorized by this division, except as
provided by Section 425 and Part 4 (commencing with Section 500).
(b) Where necessary to implement the rights and responsibilities
of spouses under the law, gender-specific terms shall be construed to
be gender-neutral, except with respect to Section 308.5.
SEC. 5. Section 301 of the Family Code is amended to read:
301. Two unmarried persons of the age of 18 years or older, who
are not otherwise disqualified, are capable of consenting to and
consummating marriage.
SEC. 6. Section 302 of the Family Code is amended to read:
302. An unmarried person under the age of 18 years is capable of
consenting to and consummating marriage if each of the following
documents is filed with the county clerk issuing the marriage
license:
(a) The written consent of the parents of each underage person, or
of one of the parents or the guardian of each underage person.
(b) A court order granting permission to the underage person to
marry, obtained on the showing the court requires.
SEC. 7. Section 403 is added to the Family Code, to read:
403. No priest, minister, or rabbi of any religious denomination,
and no official of any nonprofit religious institution authorized to
solemnize marriages, shall be required to solemnize any marriage in
violation of his or her right to free exercise of religion guaranteed
by the First Amendment to the United States Constitution or by
Section 4 of Article I of the California Constitution.
SEC. 8. The Legislature finds and declares that this act does not
amend or modify Section 308.5 of the Family Code, which addresses
marriages from other jurisdictions, as enacted by an initiative
measure.
SEC. 8. The Legislature finds and declares that this act does not
amend or modify Section 308.5 of the Family Code, as enacted by an
initiative measure, to the extent that Section 308.5 addresses only
marriages from other jurisdictions. The Legislature further finds
that Sections 300 and 308.5 of the Family Code have been declared
unconstitutional by a state coordination trial judge appointed by the
Judicial Council, and the Legislature declares that the purpose of
this act is to correct the constitutional infirmities of Section 300,
which was enacted by the Legislature. The Legislature further finds
that the constitutional infirmities of Section 308.5 of the Family
Code, which was enacted through the initiative process, cannot be
corrected by the Legislature and that the California Supreme Court is
the governmental body that has authority to make a final
determination regarding the meaning, validity, or invalidity of
Section 308.5.
SEC. 9. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.