BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 19
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          Date of Hearing:  April 26, 2005 

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Dave Jones, Chair
                      AB 19 (Leno) - As Amended: April 21, 2004

           SUBJECT  :   CIVIL RIGHTS:  EQUAL MARRIAGE RIGHTS

           KEY ISSUES  :  
           
          1)ARE THERE ANY LEGITIMATE REASONS WHY CIVIL MARRIAGES  
            RECOGNIZED BY OUR GOVERNMENT SHOULD BE LIMITED TO OPPOSITE-SEX  
            COUPLES?

          2)DOES THE STATE'S CONSTITUTION APPEAR TO PERMIT OR PROHIBIT  
            CALIFORNIA'S EXCLUSION OF SAME-SEX COUPLES FROM MARRIAGE?

          3)WOULD ENACTMENT OF THIS LEGISLATION VIOLATE THE TERMS OR  
            INTENT OF CALIFORNIA'S PROPOSITION 22 OF 2000?

          4)WHAT CONSEQUENCES ARE LIKELY IF THE STATE WERE TO RECOGNIZE  
            MARRIAGES BETWEEN SAME-SEX PARTNERS?  WHAT CONSEQUENCES ARE  
            LIKELY IF THE STATE WERE TO CONTINUE NOT TO RECOGNIZE THEM?
                                          
                                      SYNOPSIS
           
           This bill seeks to amend California's family law by defining  
          marriage as between "two persons" instead of solely between a  
          man and a woman.  The bill raises important questions of law and  
          public policy that are now being discussed across the nation and  
          around the world, reflecting one of this nation's most  
          significant civil rights issues for the 21st century. 

          In support of the bill, the author states "The time has come for  
          California to honor its commitment to equality for all  
          Californians."  According to the bill's supporters, this  
          legislation provides necessary protections for gay and lesbian  
          couples who wish to take on the responsibility of marriage and  
          ensure their partners, as well as all their children, receive  
          the protections offered to all married couples and their  
          children.  Supporters argue the state currently relegates  
          same-sex couples and their families to second-class status and  
          thereby affirmatively inflicts insidious harm upon them by  
          insisting on two separate institutions-marriage for heterosexual  
          couples and the less-recognized status of domestic partnership  








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          for gay and lesbian couples.  Supporters also emphasize the bill  
          will protect religious freedom by expressly providing that no  
          priest, minister, or rabbi will be required to solemnize any  
          marriage that is against his or her religious beliefs.   
          Opponents of the bill contend the legislation attempts to  
          unlawfully supplant Family Code Section 308.5 which was enacted  
          by Proposition 22 in 2000 and that it is unconstitutional.  For  
          example, the Committee on Moral Concerns voices the fear the  
          bill would "bring homosexual 'marriage' into California,  
          violating the will and vote of the people."  According to the  
          Committee on Moral Concerns, this bill "is an extremist bill  
          which ... would completely destroy the uniqueness of marriage  
          for a man and a woman and turn the sacred institution of  
          marriage upside down."
           
          SUMMARY  :  Seeks to end the state's denial of marriage licenses  
          to same-sex couples in California.  Specifically,  this bill  : 

          1)Eliminates the current "different-gender" requirement in the  
            state's definition of marriage.

          2)Clarifies gender-specific terms in the state's family laws  
            shall be construed to be gender-neutral, except in regards to  
            Section 308.5, concerning recognition of marriages contracted  
            in other jurisdictions (Proposition 22 of 2000).

          3)Adds Section 403 to the Family Code to declare that no  
            religious official shall be required to perform or solemnize  
            any marriage in violation of his or her religious conviction. 
           
          EXISTING LAW  :   

          1)Provides that "Marriage is a personal relation arising out of  
            a civil contract between a man and a woman, to which the  
            consent of the parties capable of making that contract is  
            necessary."  (Family Code section 300.  All further references  
            are to this code unless otherwise noted.)

          2)Provides that "A marriage contracted outside this state that  
            would be valid by the laws of the jurisdiction in which the  
            marriage was contracted is valid in this state."  (Section  
            308.)

          3)Provides, immediately following section 308 that "Only  
            marriage between a man and a woman is valid or recognized in  








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            California."  (Section 308.5.)

          4)Provides, in the state's Equal Protection Clause, in Article  
            I, Section 7, that:

            (a)  "A person may not be deprived of life, liberty, or  
            property without due process of law or   denied equal  
            protection of the laws. . . " and


            (b)  "A citizen or class of citizens may not be granted  
            privileges or immunities not granted on the same terms to all  
            citizens."

          5)Provides, in the state Constitution's Declaration of Rights,  
            in Article I, Section 1, that "All people . . . have  
            inalienable rights.  Among these are enjoying and defending  
            life and liberty, acquiring, possessing, and protecting  
            property, and pursuing and obtaining safety, happiness, and  
            privacy."

          6)Provides, in the Equal Protection Clause of the Fourteenth  
            Amendment to the United States Constitution, that "[n]o State  
            shall . . . deny to any person within its jurisdiction the  
            equal protection of the laws."

          7)Provides, in the Due Process Clause of the Fourteenth  
            Amendment to the United States Constitution, that "[n]o State  
            shall . . . deprive any person of . .  liberty, or property  
            without due process of law."  
           
          FISCAL EFFECT  :   As currently in print this bill is keyed  
          fiscal.

           COMMENTS  :   This legislation seeks to halt the state's practice  
          of denying same-sex couples the right to marry.  In support of  
          the bill, the author states:  

               For 127 years ? California marriage law was  
               gender-neutral, containing no reference to "man" or  
               "woman."  The Religious Freedom and Civil Marriage  
               Protection Act simply would restore the pre-1977 language  
               to the Family Code in order to provide equal marriage  
               rights to same-sex couples? Although California's  
               domestic partner laws provide many of the benefits,  








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               obligations, and protections to same-sex couples that are  
               afforded to married heterosexual partners, domestic  
               partnerships are not equal to marriage? legal  
               distinctions between heterosexual and same-sex couples  
               relegate lesbian, gay, and bisexual Californians to  
               second-class status and constitute an impermissible use  
               of government power to stigmatize same-sex couples and  
               their families with a brand of inferiority.  

           California's Recognition of Same-Sex Couples  :  The issue of  
          legal recognition of same-sex couples in California dates back  
          two decades.  Before the 1980s, same-sex couples had no legal  
          recognition in California - or virtually anywhere else.  As  
          families, same-sex couples were essentially invisible to the  
          law.  In 1984, however, the City of Berkeley extended employee  
          benefits to the same-sex partners of municipal employees, and in  
          1985 West Hollywood became the first governmental entity to  
          offer legal recognition to same-sex couples among the general  
          public by establishing a legal status called "domestic  
          partnership."  Through the status of domestic partnership,  
          same-sex couples could obtain not only limited protections for  
          themselves and their children, but also, for the first time,  
          government recognition as family units.  By 2000, eighteen  
          California local governments had established domestic  
          partnership registries-namely, the cities of West Hollywood,  
          Laguna Beach, San Francisco, Berkeley, Sacramento, Davis, Palo  
          Alto, Santa Monica, Oakland, Long Beach, Cathedral City, Santa  
          Barbara, Arcata, Petaluma, and Palm Springs, as well as Marin  
          County, Santa Barbara County, and the state's largest local  
          government, the County of Los Angeles.


           Prior Related State Legislation-Domestic Partnership:   The State  
          of California took notice of this emerging movement.  In 1999,  
          the Legislature enacted AB 26 (Migden), Ch. 588, Stats. of 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.  In 2001 and 2002,  
          the Legislature broadened the rights of domestic partners in AB  
          25 (Migden), Ch. 893, Stats. of 2001, and AB 2216 (Keeley), Ch.  
          447, Stats. of 2002.  In all, at least thirteen statutes have  
          been enacted to provide legal protections to domestic partners  








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          in California.

          The most comprehensive set of rights and responsibilities for  
          registered domestic partners was enacted in 2003 by AB 205  
          (Goldberg).  That bill became fully operative on January 1,  
          2005, and it has been upheld by the courts against challengers'  
          arguments that granting legal protections to same-sex couples is  
          inconsistent with Proposition 22.  Even so, the domestic partner  
          laws fall short in that they preclude joint filing of income  
          taxes, fail to treat earned income as community property for  
          state income tax purposes, and deny access to certain long-term  
          care benefits.  In addition, domestic partners are denied the  
          protections available under more than 1,100 federal statutes  
          relating to marriage.  The federal benefits afforded to  
          opposite-sex, married couples include such basic benefits as  
          social security, Medicare, federal housing assistance, food  
          stamps, veterans' benefits, military benefits, tax benefits and  
          federal employment benefits.  

           Recognition in other states  :  In 1993, the state of Hawaii  
          Supreme Court became the first in the nation to hold that the  
          state could not, on equal protection grounds, exclude same-sex  
          couples from marriage without a compelling reason.  The state  
          legislature subsequently passed a law creating a new status of  
          "Reciprocal Beneficiaries," under which certain limited benefits  
          were made available to same-sex couples.  With that law in  
          place, the voters then passed a constitutional amendment giving  
          the legislature authority to define "marriage" in whatever way  
          it saw fit, and the legislature then recodified its existing  
          definition of marriage as between a man and a woman, while  
          continuing to grant "reciprocal beneficiaries" as a limited set  
          of parallel benefits.  In 1999, the Vermont Supreme Court ruled  
          that Vermont's Equal Benefits Clause prohibited the Vermont  
          Legislature from denying to same-sex couples the rights,  
          benefits, and privileges granted to married heterosexual  
          couples.  The legislature responded by passing a comprehensive  
          Civil Unions law that until this past week was the only such law  
          in the country.  Connecticut recently became the second state in  
          the country to enact a Civil Unions statute.  

           The Federal DOMA  :  In 1996 Congress passed, and President  
          Clinton signed, the federal Defense of Marriage Act (DOMA),  
          which among other things says that no state is required under  
          federal law to give effect to same-sex marriages contracted in  
          other states.  








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           California's Proposition 22  :  A group of citizens led by the  
          late State Senator Pete Knight placed an initiative on the March  
          2000 California ballot to prohibit California from recognizing  
          any same-sex marriages contracted in other states or countries.   
          The measure passed with 61% of the vote and became codified as  
          Section 308.5 of the Family Code.  However, as explained in more  
          detail below, a superior court judge has recently entered a  
          judgment declaring Proposition 22 invalid under the state  
          Constitution.

           Other States' Laws Enacted in Light of the Federal DOMA  :  In  
          light of the federal DOMA, other states have also enacted  
          measures prohibiting recognition of marriages entered into by  
          same-sex couples in other jurisdictions.  Some states have gone  
          so far as to enact into their constitutions provisions that  
          purport to prohibit recognition of relationships between  
          same-sex couples other than marriage, such as domestic  
          partnerships or civil unions.

           Efforts to Amend the Federal Constitution  :  In 2003,  
          Congresswoman Marilyn Musgrave of Colorado introduced a  
          resolution in the U.S. House of Representatives seeking to amend  
          the U.S. Constitution to define marriage as between a man and a  
          woman.  Senator Wayne Allard of Colorado introduced a companion  
          measure in the Senate.  Although President Bush has expressed  
          support for those efforts to amend the U.S. Constitution, those  
          measures have thus far failed to garner the necessary level of  
          support in Congress.

           Massachusetts Marriage Ruling  :  The Massachusetts Supreme  
          Judicial Court in November 2003 and February 2004 ruled the  
          Massachusetts definition of marriage violated that state's  
          constitutional equal protection provisions.  In response to this  
          advisory opinion, the state legalized same-sex marriage and  
          began issuing marriage licenses to same-sex couples on May 17,  
          2004.  
           
          San Francisco  :  In February 2004, the City and County of San  
          Francisco began issuing marriage licenses to same-sex couples.   
          From February 12 through March 11, 2004, 4,037 same-sex couples  
          from 46 states and eight countries married in San Francisco.   
          However, on March 11, 2004, the California Supreme Court ordered  
          San Francisco to stop issuing marriage licenses to same-sex  
          couples while the court considered the legality of the County's  








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          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 very issue.  

           San Francisco Marriage Litigation  :   Two lawsuits were brought  
          against the state in San Francisco Superior Court contending  
          California's statutory exclusion of same-sex couples from  
          marriage is unconstitutional.  On March 14, 2005, the San  
          Francisco Superior Court issued its ruling in the coordinated  
          marriage cases, concluding that same-sex couples are denied  
          equal protection by marriage laws that prohibit them from  
          marrying.  The trial court held that California's exclusion of  
          same-sex couples from marriage constitutes discrimination on the  
          basis of gender and interferes with the fundamental right to  
          marry the person of one's choosing.  Under the court's  
          reasoning, California's statutory exclusion of same-sex couples  
          from marriage should thus be subject to the strictest level of  
          constitutional scrutiny.  But according to the court, the  
          marriage exclusion could not survive even the lowest level of  
          constitutional scrutiny-that is, review to determine whether the  
          law has even a rational basis.  The court explained that  
          California could not demonstrate any rational basis for denying  
          same-sex couples the right to marry.  The court emphasized that  
          so-called "separate but equal" systems have long been rejected  
          by the courts as unconstitutional.  It is expected the Superior  
          Court's decision in the coordinated marriage cases will be  
          appealed.  The appeal process could take one, two, or more  
          years.
           
          The Key Legal Issues  : 

          1.  The first legal question:  Does this bill violate  
          Proposition 22?

          The first major legal question presented by this legislation is  
          whether it conflicts with Prop. 22.  As discussed below, the  
          answer to this question depends upon how broadly the proposition  








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          is read.  Under a more narrow reading, Prop. 22 applies only to  
          marriages contracted out of state-that is, it simply prevents  
          California from recognizing marriages between same-sex couples  
          entered into outside California. Under a more broad reading,  
          Prop. 22 prohibits marriages between same-sex couples whether  
          performed inside or outside of the state. 

          Proposition 22 has, as noted above, been declared  
          unconstitutional by the Superior Court in San Francisco in the  
          coordinated marriage cases.  Depending on how the appellate  
          courts rule in those cases, the entire consideration of  
          Proposition 22's meaning that follows may be beside the point.   
          If the Superior Court's ruling is upheld on appeal, a  
          Proposition 22 concern would appear to evaporate.

             a)   The "out-of-state marriage" reading of Proposition 22

          Proponents of this bill argue Prop. 22 was designed to protect  
          state sovereignty.  The ballot arguments in support of Prop. 22  
          made clear the proposition was directed at preventing  
          recognition of same-sex marriages performed outside the state.   
          Under this narrow reading, the Legislature may properly permit  
          partners of the same sex to marry within California, even if it  
          may not recognize same-sex marriages contracted in other states  
          absent a new vote of the people.  

          A recent opinion of the Second Appellate District of the Court  
          of Appeal, issued March 30, 2005, supports this narrower reading  
          of Prop. 22.  In the case of  Armijo v. Miles  , the appellate  
          court considered Prop. 22's meaning in the course of rejecting  
          the argument that Prop. 22 prevents the Legislature from  
          enacting protections for same-sex couples.  The court stated  
          "Proposition 22 was crafted with a prophylactic purpose in mind.  
           It was designed to prevent same-sex couples who could marry  
          validly in other countries or who in the future could marry  
          validly in other states from coming to California and claiming,  
          in reliance on Family Code section 308, that their marriages  
          must be recognized as valid marriages."  

             b)   The "complete ban" reading of Prop. 22

          Prop. 22 may also be read more broadly, however, as a general  
          ban on same-sex marriage in California.  A recent opinion of the  
          Third Appellate District, issued April 4, 2005 in the case of  
          Knight v. Superior Court, took this view of Prop. 22 in one  








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          portion of its opinion.  Although the Third Appellate District  
          emphasized that Prop. 22 was focused on preventing recognition  
          of out-of-state marriages of same-sex couples, the court's  
          opinion included dicta that stated "California will not  
          legitimize or recognize same-sex marriages from other  
          jurisdictions" and "California will not permit same-sex partners  
          to validly marry within the state."

          2.  The larger legal question:  Is a total ban of same-sex  
          marriage constitutional?

          Regardless of Prop. 22's reach, Family Code sections 300 and  
          308.5 raise critical constitutional questions.  Indeed, the  
          superior court in San Francisco in the coordinated marriage  
          cases has recently declared  both  statutes unconstitutional.   
          Three points were important to the court's constitutional  
          analysis.  First, the history of California's definition of  
          marriage clearly shows an explicit intent to discriminate  
          against lesbians and gay men and to exclude same-sex couples  
          from marriage.  Second, there are two landmark rulings from the  
          California Supreme Court that bear directly on the question of  
          the constitutionality of a definition that excludes same-sex  
          couples, and suggest that California's current statute banning  
          same-sex marriage may likely be struck down if the issue is  
          heard by the State Supreme Court.  And third, there is an  
          undeniably strong trend in rulings from other state supreme  
          courts, and from the U.S. Supreme Court itself, suggesting that  
          the statute likely could not, and ultimately will not, withstand  
          constitutional scrutiny.

          A.  History of Family Code Section 300

          Prior to 1977, California law defined marriage as a relationship  
          between two "persons."  In 1977, this gender neutral language  
          was changed to the current gender specific language by the  
          legislature and then-Governor Jerry Brown.  The history of the  
          1977 amendment is important because is indicates a clear intent  
          by policy-makers to exclude lesbians and gay men from the right  
          to marry their chosen partners under California law.  Such  
          apparent animus against a minority, and specifically against gay  
          men and lesbians, has been held constitutionally suspect under  
          the federal constitution.  (  Romer v. Evans  , 517 U.S. 620  
          (1996).)
           
          B.  State Constitutional Authority for Evaluating the Equal  








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          Protection Question

          (i)  California's two independent constitutional provisions  
          guaranteeing equality

          The California Constitution contains two independent equal  
          protection provisions.  Article I, Section 7 (a), provides "[a]  
          person may not be deprived of life, liberty, or property without  
          due process of law or denied equal protection of the laws. . ."   
          For nearly three decades, the California courts have held that  
          the equal protection clause protects gay and lesbian persons. In  
          the landmark decision of  Gay Law Students v. Pacific Telephone  
          and Telegraph  , 24 Cal.3d 458 (1977), the California Supreme  
          Court expressly held that subdivision (a) of Article I, section  
          7 guarantees lesbians and gay men, as a class, equal protection.  
           

          In addition, Article I, section 7 (b) provides: "A citizen or  
          class of citizens may not be granted privileges or immunities  
                                                                                 not granted on the same terms to all citizens."  Under  
          California's current marriage laws, heterosexual couples and  
          their families are an identifiable "class of citizens" who are  
          granted rights, privileges, and immunities that are denied to  
          another  identifiable class of citizens: gay and lesbian couples  
          and their families.

          (ii)  California's seminal case on equal protection and the  
          importance of marriage:  Perez v. Lippold

          In 1948, California's Supreme Court was the first in the nation  
          to hold that a law prohibiting persons from marrying outside  
          their race violated the constitution.   Perez v. Lippold  , 32  
          Cal.2d 711 (1948) preceded the U.S. Supreme Court's decision in  
           Loving v. Virginia  , 388 U.S. 1 (1967) on the same question by  
          nearly 20 years.   Perez  examined the California statute that  
          provided, "no license may be issued authorizing the marriage of  
          a white person with a Negro, mulatto, Mongolian or member of the  
          Malay race."  The  Perez  opinion held that "liberty," within the  
          meaning of the state's due process clause, included the "right  
          of the individual to contract, to engage in any of the common  
          occupations of life, to acquire useful knowledge, to marry,  
          establish a home, and bring up children. . . "  (Emphasis  
          added.)  Given the fundamental nature of the right to marry, the  
          Court held that any infringement of that right "must be based  
          upon more than prejudice and must be free from oppressive  








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          discrimination to comply with the constitutional requirements of  
          due process and equal protection of the laws."  More,  
          importantly the Court held that while the state has authority to  
          prohibit marriage between specific individuals when there is a  
          legitimate state concern, such legislation would have to be  
          specific to the individuals in question, and could not use  
          "arbitrary classifications of groups or races" as a substitute.   
          (Emphasis added.)  

          C.  Other constitutional authority

          Three state supreme courts have addressed the question of  
          whether a state law that defines marriage so as to exclude same  
          sex partners violates their respective state constitutions.   
          Importantly, in each case, the court has ruled in favor of the  
          same-sex couples.  The most recent and most relevant decisions  
          are those from the Massachusetts Supreme Judicial Court. 

          (i)   Goodridge v. Dept. of Public Health:  The Massachusetts  
          Cases  

          (a)  Goodridge I:  The Supreme Judicial Court of Massachusetts  
          ruled in 2003 that laws prohibiting same-sex marriage violate  
          the Massachusetts Constitution.  Noteworthy portions of the  
          court's opinion include:

               The marriage ban works a deep and scarring hardship on  
               a very real segment of the community for no rational  
               reason.  The absence of any reasonable relationship  
               between, on the one hand, an absolute disqualification  
               of same-sex couples who wish to enter into civil  
               marriage and, on the other, protection of public  
               health, safety, or general welfare, suggests that the  
               marriage restriction is rooted in persistent  
               prejudices against persons who are (or who are  
               believed to be) homosexual.  'The Constitution cannot  
               control such prejudices but neither can it tolerate  
               them.  Private biases may be outside the reach of the  
               law, but the law cannot, directly or indirectly, give  
               them effect.'  Limiting the protections, benefits, and  
               obligations of civil marriage to opposite-sex couples  
               violates the basic premises of individual liberty and  
               equality under law protected by the Massachusetts  
               Constitution." (Emphasis added and citation omitted.)









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          (b)  Goodridge II:  Three months later, in February 2004, the  
          Supreme Judicial Court issued an advisory opinion to the state  
          legislature in Massachusetts and stated: "The history of our  
          nation has demonstrated that separate is seldom, if ever,  
          equal."  Even where a state grants substantially similar rights  
          to same-sex "civil unions," the court found that refusing to  
          recognize these unions as "marriage" is a "considered choice of  
          language that reflects a demonstrable assigning of same-sex,  
          largely homosexual, couples to second-class status."  (Emphasis  
          added.)  To permit such a distinction would amount to  
          "maintaining and fostering a stigma of exclusion that the  
          Constitution prohibits."    

          (ii)  Recent U.S. Supreme Court cases:  Finally, two cases from  
          the U.S. Supreme Court decided by 6-3 majorities, have recently  
          addressed issues relevant to the pending bill.  In  Romer v.  
          Evans  , 517 U.S. 620 (1996), the Court overturned Colorado's  
          Amendment 2, which would have amended the Colorado Constitution  
          to exclude lesbians and gay men from obtaining legal protection.  
           The Court specifically noted that animus against a political  
          minority is an improper motive under the U.S. Constitution's  
          Fourteenth Amendment.  The Court stated "that Amendment 2  
          classifies homosexuals not to further a proper legislative end  
          but to make them unequal to everyone else.  This Colorado cannot  
          do.  A State cannot so deem a class of persons a stranger to its  
          laws."   

          More recently, in  Lawrence v. Texas  , 123 S.Ct. 2472 (2003), the  
          U.S. Supreme Court struck down a state homosexual sodomy law on  
          the ground that the "liberty" protected by the Fourteenth  
          Amendment includes private, consensual adult sexual relations.   
          The Court did not need to decide whether gay men and lesbians  
          have a constitutional right to marry, and the Court expressly  
          left that question open.  In dissent, Justice Scalia argued that  
          the majority's opinion would logically lead to recognition of  
          marriage rights, as well, just as he had argued in dissent in  
          Romer that Romer would lead to the result the Court ultimately  
          reached in Lawrence.

          D.  Rationale offered for opposite-sex only marriage laws so far  
          unaccepted by high courts

          The primary rationale that Hawaii, Vermont, and Massachusetts  
          have offered in unsuccessful defense of their laws prohibiting  
          same-sex marriage are similar to the main argument offered in  








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          opposition to the current bill, that being that only  
          heterosexuals can procreate and optimally rear children.   
          Opponents of same-sex marriage insist that "marriage" has always  
          been defined as a relationship between a man and a woman, the  
          primary purpose of which is procreation and the raising of  
          children.  While a strong argument can be made that marriage has  
          been traditionally defined in this way, in  Perez v. Lippold  , as  
          noted above, the California Supreme Court held that tradition  
          alone, no matter how longstanding, cannot justify excluding a  
          class of couples from marriage.  Indeed, such a reading of law  
          would lead to the seemingly absurd conclusion that heterosexual  
          couples that do not, or cannot, procreate should be barred from  
          marriage and its corresponding benefits.  

          Closely related to the argument that only heterosexual couples  
          can procreate is the argument that only marriage between a man  
          and a woman can create a stable home for child rearing.  Few  
          would dispute that the promotion of stable marriages is sound  
          public policy.  For example, the provision of benefits to  
          married spouses reinforces marital commitment, thereby helping  
          to maintain stable families that benefit children.  But such  
          policies would benefit same-sex couples raising children just as  
          much as they benefit opposite-sex couples.  Opponents of  
          same-sex marriage, however, contend that, while it is possible  
          for same-sex couples to rear a child, heterosexual parents  
          provide the "optimal" setting for child-rearing.  However, in  
          light of the state's determination that homosexual couples could  
          be "excellent" parents (a fact borne out by scientific study and  
          research noted by the court) this reasoning, too, seems suspect.  
           California already allows same-sex couples to adopt by statute,  
          and the California Supreme Court has upheld second-parent  
          adoptions by domestic partners.  In  Sharon S. v. Superior Court  
          (Annette F.)  (2003) 31 Cal. 4th 417, 438-39, California's high  
          court rejected the argument that affirming second parent  
          adoptions "would offend the State's strong public interest in  
          promoting marriage" and stated instead: "[O]ur decision  
          encourages and strengthens family bonds." 

          So far, no state high court has found adequate justification  
          under state law for treating homosexual couples differently than  
          heterosexual couples in defining marriage, even under a  
          constitutionally lenient "rational basis" test.  This appears to  
          be where California's courts ultimately may arrive, as the trial  
          court opinion in the coordinated marriage cases discussed above  
          demonstrates.  








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           ARGUMENTS IN SUPPORT  :  Many groups and individuals wrote in  
          support of this measure.  Some supporters assert that although  
          the enactment of recent domestic partnership legislation  
          provides tangible benefits for couples, "it also sets up a  
          separate and unequal system for gay and lesbian people.   
          Moreover, domestic partnerships do nothing to assist bi-national  
          couples, tax discrimination, federal employees and a multitude  
          of scenarios faced by same-sex couples that extend beyond the  
          borders of our state."  Other supporters underscore the  
          beneficial impact the status of marriage gives to the physical,  
          mental, and economic well-being of individuals:  "the benefits  
          of marriage are many, reaching far beyond legal benefits to  
          include physical, mental, and economic benefits."  Still other  
          supporters address the concern opponents raise about children  
          writing: "Some feel awkward explaining to their children the  
          concept of two men or two women marrying.  Our own congregations  
          are examples of predominantly straight communities, which have  
          grown to become fully accepting of gay and lesbian couples and  
          their families.  We have found that the children in our  
          congregations, raised by accepting parents in inclusive  
          communities, take the love and commitment between two people at  
          face value."

           ARGUMENTS IN OPPOSITION:   Many groups and individuals wrote in  
          opposition to this measure.  These groups and individuals oppose  
          the bill because, they believe, it violates the will and vote of  
          the people and the California constitution.  In addition,  
          opponents write: "Federally funded programs, employee health  
          plans, Medi-Cal benefits, and school curriculum would have to be  
          altered at taxpayer expense reflecting the newly sanctioned  
          'marriages' and new definition of 'family.'"  Other opponents  
          maintain that "homosexuals want to destroy marriage as an  
          institution - not benefit from it" and that marriage is a sacred  
          institution with unique attributes to be realized and shared  
          only by the union of a man and woman.  Still others state their  
          concerns for children and an overall slippery slope of moral  
          degradation within our society in general by writing: "Adults  
          should not put their sexual desires ahead of the needs of  
          children.  Studies show us that children need a mom and a dad.  
          Society should not gamble with the lives of children by  
          permitting gay marriage."  Opponents claim that the homosexual  
          union to be an "unnatural and dangerous" one, contrary to the  








                                                                  AB 19
                                                                  Page  15

          union between a man and a woman and that if AB 19 passes, "the  
          underlying principles of everything that built the greatest  
          nation in history will vanish.  By abandoning our culture's  
          basic principles of morality, the bill will leave no moral  
          rationale to prevent multiple marriages, communal families, or  
          exploitation of the physically weak or the politically  
          powerless." 


           RELATED PENDING BILLS  :  On December 6, 2004, Assembly Member  
          Haynes and Senator Morrow introduced identical constitutional  
          amendments in their respective houses.  ACA 3 (Haynes) would add  
          Section 7.5 to Article I of the California Constitution.   
          Section 7.5(a) reaffirms existing law by stating that "only  
          marriage between a man and a woman is valid or recognized in  
          California, whether contracted in this state or elsewhere."   
          This language thus reiterates Family Code section 300 and  
          Proposition 22.  However, Section 7.5(b) of the proposed  
          constitutional amendment states that the "rights,  
          responsibilities, benefits, and obligations of a marriage shall  
          only be granted, bestowed, and conferred upon a man and a woman  
          joined in a valid marriage, and may not be conferred upon any  
          other union or partnership."  Sect. 7.5(b), that is, would, if  
          passed by the people, seemingly negate California's domestic  
          partner laws, including AB 205, which went into effect this  
          year.  

           
          REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Equality California (Sponsor)
          AIDS Legal Referral Panel
          AIDS Project Los Angeles
          Alameda County Human Relations Commission
          American Academy of Pediatrics, California District
          American Civil Liberties Union
          American Federation of State, County, and Municipal Employees
          Americans for Democratic Action, Southern California Chapter
          American Humanist Association
          American Jewish Congress
          Anti-Defamation League
          Asian Pacific American Labor Alliance, AFL-CIO, Los Angeles  
          Chapter








                                                                  AB 19
                                                                  Page  16

          Asian Pacific American Legal Center of Southern California
          Asian Americans for Civil Rights and Equality
          Asian Law Caucus
          Atascadero Democratic Club
          Bay Area Lawyers for Individual Freedom
          Bay Area Municipal Elections Committee
          Being Alive Los Angeles
          Beth Chayim Chadashim Congregation
          Bienstar Human Services
          California Abortion and Reproductive Rights Action League
          California Association of Human Relations Organizations
          California Coalition for Civil Rights
          California Council of Churches and California IMPACT
          California Democratic Party
          California Faculty Association
          California Federation of Teachers
          Californians for Justice
          California Immigrant Welfare Collaborative
          California National Organization for Women
          California Safe Schools Coalition
          California School Employees Association
          California State Controller Steve Westly
          California State Treasurer Phil Angelides
          California Teachers Association
          California Women's Agenda
          Center for Third World Organizing
          Center on Juvenile and Criminal Justice
          Centro Legal De La Raza
          Charles Houston Bar Association
          Child Care Law Center
          Children of Lesbians and Gays Everywhere
          Chinese for Affirmative Action
          Christ the Shepard Lutheran Church, Altadena
          Christ the Good Shepard Lutheran Church, San Jose
          City and County of San Francisco
          City of Los Angeles Human Relations Commission
          City of West Hollywood
          Coalition for Economic Equity
          Coalition of Black Trade Unionists, Northern California Chapter
          Coalition of Labor Union Women
          College Community Congregational United Church of Christ, Fresno
          Communication Workers of America, AFL-CIO, District 9
          Communication Workers of America, AFL-CIO, Local 9000
          Communities for a Better Environment
          Community United Against Violence








                                                                  AB 19
                                                                  Page  17

          Conference of Delegates of California Bar Associations
          Congregation Kol Ami, West Hollywood
          Disability Rights Education & Defense Fund
          Educational Fund to Stop Gun Violence
          Eleanor Roosevelt Democratic Club, Orange County
          Elections Committee of the County of Orange
          Equal Rights Advocates
          Equality Campaign, Inc.
          Feminist Majority
          Filipinos for Affirmative Action
          First Amendment Project
          First Congregational United Church of Christ, San Francisco
          Fremont Congregational United Church of Christ
          Gay & Lesbian Adolescent Social Services, Inc.
          Gay & Lesbian Alliance of the Central Coast
          Gay & Lesbian Medical Association
          Glory Tabernacle Christian Center, Long Beach
          GLSEN Orange County Chapter
          Golden Gate Lutheran Church, San Francisco
          Gray Panthers
          Holy Redeemer Lutheran Church, San Jose 
          Housing Rights Inc.
          Human Rights Campaign
          Human Rights/Fair Housing Commission of the City and County of  
          Sacramento
          Immigration Equality
          Instituto Laboral De La Raza
          Intergroup Clearing House
          Irvine United Congregational Church
          Japanese American Citizens League
          Jewish Labor Committee
          Justice Matters Institute
          L.A. Gay & Lesbian Center
          La Familia Counseling Service
          La Raza Centro Legal
          Lambda Legal
          Lambda Letters Project
          Lawrence Ellis and Associates
          Lawyers Committee for Civil Rights of the San Francisco Bay Area
          Legal Aid Society - Employment Law Center
          Legal Services for Prisoners with Children*
          Lesbian and Gay Lawyers Association of Los Angeles
          LGBT Caucus, California Democratic Party
          LGBT Greens, Los Angeles
          Log Cabin Republicans








                                                                  AB 19
                                                                  Page  18

          Los Angeles County Bar Association, Family Law Section
          Love Sees No Borders
          Lutheran Church of Our Redeemer, Sacramento
          Meiklejohn Civil Liberties Institute
          Metropolitan Community Church, Los Angeles
          Metropolitan Community Church, San Diego
          Metropolitan Community Church, San Francisco
          Metropolitan Community Church, West Hollywood
          Mexican American Legal Defense and Education Fund
          Multicultural Education Training and Advocacy, Inc.
          National Association for the Advancement of Colored People,  
          California State Conference 
          National Association of Social Workers, California Chapter
          National Black Justice Coalition
          National Center for Lesbian Rights
          National Center for Youth Law
          National Conference for Community and Justice
          National Gay and Lesbian Task Force
          National Lawyers Guild, San Francisco Bay Area Chapter
          National Lesbian and Gay Law Association
          New Hope Metropolitan Community Church, Santa Rosa
          Northminster Presbyterian Church, El Cerrito
          Older Women's League of California
          Online Policy Group
          Out and Equal
          People for the American Way
          PFLAG | National Office
          PFLAG | Central Coast Chapter
          PFLAG | Long Beach
          PFLAG | Los Angeles
          PFLAG | Marysville
          PFLAG | Southern Pacific Region 
          PFLAG | Oakland-East Bay
          PFLAG | Palm Springs/Desert
          PFLAG | Palos Verdes/South Bay
          PFLAG | Sacramento
          PFLAG | San Diego County
          PFLAG | San Francisco 
          PFLAG | Southern Pacific Region 
          PFLAG | Temecula Valley
          PFLAG | Ventura County  
          Pioneer Congregational United Church of Christ, Sacramento
          Planned Parenthood Affiliates of California
          Planned Parenthood Golden Gate
          Plymouth United Church of Christ, Oakland








                                                                  AB 19
                                                                  Page  19

          Pride at Work AFL-CIO, National Office
          Pride at Work AFL-CIO, Southern California
          Progressive Christians Uniting
          Progressive Jewish Alliance
          Protection & Advocacy, Inc. 
          Public Advocates
          Rock The Vote
          SAC Legal
          Saint George's Episcopal Church, Laguna Hills
          Saint John's Presbyterian Church
          Saint Mark's United Methodist Church, Sacramento
          Saint Paul Lutheran Church, Oakland
          Saint Paulus Lutheran Church, San Francisco
          San Diego Democratic Club
          San Diego LGBT Center
          San Francisco AIDS Foundation
          San Francisco Labor Council, AFL-CIO
          San Francisco LGBT Community Center
          San Francisco NOW
          San Francisco Zen Center
          San Luis Obispo County Democratic Central Committee
          San Mateo County Board of Supervisors
          Santa Clara County Bar Association
          Santa Cruz County Clerk Gail Pellerin
          Scouting for All
          Sebastopol City Council
          Service Employees International Union Local 99
          Service Employees International Union Local 535
          Service Employees International Union Local 790
          Seventh Avenue Presbyterian Church, San Francisco
          Shepard of the Hills Lutheran Church, Berkeley
          Silicon Valley Atheists
          Socially Active Youth of California
          South Hayward Parish
          Southern California Lambda Medical Association
          Stonewall Democratic Club of Greater Sacramento 
          Tenderloin Housing Clinic
          The Center Orange County
          The Workmen's Circle
          Thirty-Third Assembly District, California Democratic Party
          Town of Fairfax, California
          Transgender Law Center
          Unitarian Universalist Community Church of Santa Monica
          Unitarian Universalist Legislative Ministry California
          UNITE HERE, Western States Regional Joint Board








                                                                  AB 19
                                                                  Page  20

          United Church of Christ, Northern California/Nevada Conference
          United Church of Christ, Southern California Conference
          United Lesbians of African Heritage
          United Staff Workers
          United Teachers Los Angeles
          United University Church, Los Angeles
          University Lutheran Church, Palo Alto
          Ventura County Rainbow Alliance
          West Hollywood Presbyterian Church
          Women's International League for Peace and Freedom
          Yolo County Supervisor Mariko Yamada
          Youth Force Coalition
          Zuna Institute
          Many Individuals

           Opposition 
           
          A. Rodak Painting and Decorating
          Anderson Appraisal Service, Inc.
          Arcade Church of Sacramento
          Arden Church of the Nazarene 
          Area Favorites
          Beth Shalom Messianic Jewish Congregation
          Booth Chiropractic, Inc.
          Automotive Management Placement
          California Catholic Conference
          California Family Alliance
          Calvary Chapel East Anaheim 
          Calvary Chapel of El Cajon 
          Calvary Chapel of Guadalupe 
          Calvary Chapel of Santa Maria 
          Campaign for California Families
          Campaign for Children and Families
          Capital Christian Center 
          Capitol Resource Institute
          Cerritos Republican Club 
          Champion Life Church 
                 Cherry Valley Grace Brethren Church 
          Chinese New Life Zion Church 
          Christian Church Zion 
          Christian Coalition of San Diego County 
          Church "House of Prayer"
          Community Bible Church 
          Concerned Women for America
          Cornerstone Church 








                                                                  AB 19
                                                                  Page  21

          Cover Graphics, Inc.
          Crenshaw Die and Manufacturing
          Crossroads Bible Church 
          Davis Christian Assembly 
          Downs Energy
          Dyson & Associates
          East Clairemont Southern Baptist Church 
          El Retiro San Inigo 
          Estrada Professional Services
          Evangelical Baptist Ukrainian Church 
          Evangelical Bible Book Store
          Evangelical Free Church of Fremont
          Evangelical Free Church of Hamilton City
          Evangelical Reformed Church 
          First Baptist Church of Redwood Valley
          First Baptist Church of Taft
          First Slavic Evangelical Baptist Church of Sacramento
          First Ukrainian Baptist Church of Santa Barbara
          First Ukrainian Church of Christians of Evangelical Faith 
          Grove Community Church
          Hope Chapel 
          Idyllwild Bible Church 
          Immanuel Evangelical Church 
          Impact Community Church 
          Independent Baptist Church
          Inyokern Baptist Church 
          JC Graphics
          JC Resource Center
          J.P.H. Professional Sciences, Inc.
          Joseph Dean Knapp Insurance and Financial Services
          Kristi Freeman, D.V.M., Inc.
          L & L Trucking Company, LLC
          Light of the Gospel Missionary Church 
          Lighthouse Coastal Community Church 
          Lighthouse Regional Church 
          Living Waters Christian Fellowship 
          Living Word Calvary Chapel 
          Melchizedek Church
          Mid Valley Learning Center
          Mike Hourigan Construction
          Morgan Hill Presbyterian Church 
          My Lord's Salvation Ministries, Inc.
          New Hope Baptist Church 
          New Hope Gospel Ministries
          New Life Presbyterian Church 








                                                                  AB 19
                                                                  Page  22

          New Song Calvary Chapel 
          Norwalk First Church of the Nazarene 
          Oasis Christian Fellowship
          Ojai Valley Baptist Church
          PACE Technologies
          Pam's Pool & Leisure
          Peace Lutheran Church 
          Peninsula Christian Fellowship 
          Pioneer Baptist Church 
          Praise Chapel Christian Fellowship of Baldwin Park
          Praise Chapel Christian Fellowship of Concord
          Quail Lakes Baptist Church 
          Revival Slavic Christian Center 
          River Oak Grace Community Church 
          Russian Baptist Church
          Russian Cultural Center of Sacramento
          Russian Speaking Forum
          Sacramento Mission Church FWB
          Saddleback Church
          Saddleback Covenant Church 
          Sanctuary Full Gospel Fellowship 
          Second Slavic Baptist Church 
          Sequoia Heights Baptist Church 
          Shadow Mountain Community Church
          Shield of Faith Fellowship of Churches International, Inc.
          Shropshire H.V.A.C. Repair & Service
          Skyline Wesleyan Church 
          Slavic Baptist Church 
          Slavic Baptist Church "Bethel" 
          Slavic Baptist Church The Cornerstone 
          Slavic Evangelical Churches
          Slavic Missionary Church, Inc.
          South Valley Christian Church 
          South Valley Community Church
          St. John's Mission of the Charismatic Episcopal Church 
          St. Mark Lutheran Church 
          Start to Finish Roofing
          Sunset Chinese Baptist Church
          Tazza da Caffe/BL Foods
          Traditional Values Coalition
          Ukrainian Church of The Evangelical Christian Baptists 
          Valley Christian Center 
          Western Garden Nursery
          Western Ukrainian Evangelical Baptist Convention, Inc.
          Woodland United Fellowship 








                                                                  AB 19
                                                                  Page  23

          Word to Russia 
          Many Individuals
           

          Analysis Prepared by  :  Drew Liebert / JUD. / (916) 319-2334