BILL ANALYSIS
AB 19
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Date of Hearing: May 18, 2005
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Judy Chu, Chair
AB 19 (Leno) - As Amended: May 12, 2005
Policy Committee: JudiciaryVote:6-3
Urgency: No State Mandated Local Program:
Yes Reimbursable: Yes
SUMMARY
This bill enacts the Religious Freedom and Civil Marriage
Protection Act:
1)Amends Section 300 of the Family Code to allow two persons of
the same sex to enter into the civil contract of marriage in
California.
2)Establishes that no religious official shall be required to
perform or solemnize any marriage in violation of their
religious conviction.
3)Finds and declares that:
a) The Act does not amend or modify the Family Code Section
308.5, enacted by Proposition 22, to the extent that
section addresses only marriages from other jurisdictions.
b) Family Code Sections 300 and 308.5 have been declared
unconstitutional by a state trial court judge, and the
purpose of this act is to correct constitutional
infirmities of Section 300, which was enacted by the
Legislature.
c) The California Supreme Court, and not the Legislature,
has the authority to make a final determination regarding
the meaning, validity, or invalidity of Section 308.5.
FISCAL EFFECT
The cost estimates assume that about one-half of the estimated
100,000 same-sex couples in California will marry in the first
three years after the effective date of this Act. (The 2000
Census identified 92,138 same-sex couples living in California.
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The Census also found that 92% of heterosexual couples living
together in 2000 were married.) As of May 1, 2005, there were
about 27,300 registered domestic partnerships in the state. (It
is assumed that the vast majority of these are same-sex
couples.) Therefore, it is assumed that bestowing the rights of
marriage to same sex couples will result in 50,000 marriages
after three years, an amount exceeding the estimated number of
domestic partnerships by that time by about 20,000.
1)Income Taxes . According to a Franchise Tax Board estimate for
similar legislation in 2004, there would be an annual income
tax-related revenue loss of about $1 million for every 4,900
same sex couples whose filing status would change to married.
This is the estimated net effect of these couples being
required to file tax returns as married filing joint or as
married filing separate. It is therefore assumed that the
total revenue loss will increase incrementally to about $10
million after three years, with minor annual increases
thereafter as additional marriages take place.
2)Means-Tested Public Benefits . The largest potential impacts
are in the Medi-Cal and SSI/SSP, programs. With same-sex
marriage, the income of benefit recipients' same-sex spouses
would be included in calculating program eligibility. In
general, this will reduce caseloads and program costs.
However, eligibility for these programs is determined by
federal laws and regulations. The federal Defense of Marriage
Act limits the definition of a spouse to a husband or wife of
the opposite sex, thus absent a change in federal law or a
waiver of federal regulations for Medi-Cal and SSI/SSP, it is
questionable whether the state could implement AB 19 with
respect to these programs. Moreover, even though enacted
domestic partnership legislation (AB 205,Goldberg) intends
that registered partners' household income be included in
determining eligibility for means-tested programs, the
Department of Health Services has not yet sought approval from
the federal government to implement those provisions. The
estimates below illustrate potential savings if federal law
were to change or eligibility waivers were obtained.
a) Medi-Cal . Estimated annual GF savings of around $5
million by the third year. Estimate assumes 3,400
households receiving an average of $250 per month in
Medi-Cal benefits would lose eligibility.
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b) SSI/SSP . Estimated annual GF savings of around $8.6
million by the third year. Estimate assumes 2,400
households receiving an average of $600 per month in
benefits would lose eligibility following marriage.
3)Economic Impacts . There will be increased economic activity
related to the outlays associated with thousands of wedding
ceremonies that would occur upon enactment of this bill. This
would include weddings involving California residents and
same-sex couples from other states that may wish to marry. To
the extent this represents spending that would otherwise not
occur, there would be an increase in tax revenues. This
increase cannot be quantified. It should be noted that much of
the expenditures related to weddings are for services and thus
are not subject to state sale taxes.
COMMENTS
1)Purpose . 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,
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."
2)Recent Events and Status of Litigation . In November 2003 and
February 2004, the Massachusetts Supreme Court ruled that the
Massachusetts definition of marriage violated that state's
constitutional equal protection provisions. In response to
this advisory opinion, that state legalized same-sex marriage
and began issuing marriage licenses to same-sex couples on May
17, 2004. In February 2004, the Mayor of San Francisco issued
an order that the county clerk should start allowing same-sex
couples to obtain marriage licenses. From February 12 through
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March 11, 2004, 4,037 same-sex couples were 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 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.
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, a 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
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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 Assembly Judiciary Committee's analysis of this bill
contains a thorough discussion of the related legal history
and the legal and constitutional questions surrounding this
issue.]
3)Opposition . Opponents, which include the Traditional Values
Coalition, the Campaign for California Families, the Capitol
Resource Institute, and many individual churches generally
express their moral opposition to same sex marriage and argue
that the bill violates will and vote of the people as
expressed by their approval of Proposition 22. 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.'"
4)Related Legislation . ACA 3 (Haynes), which proposes to amend
the state constitution to limit marriage and the rights and
responsibilities of marriage to opposite-sex couples only,
failed passage in the Assembly Judiciary Committee.
SCA 1 (Morrow), which is identical to ACA 3, failed passage in
the Senate Judiciary Committee.
5)Prior Legislation . Last year, AB 1967 (Leno), which was
substantially similar to AB 19, was held on this committee's
Suspense file. Since 1999, several statutes have been enacted
to first allow the registration of domestic partners with the
state and then to expand their legal rights.
Most recently, AB 205 (Goldberg), Statutes of 2003, extends
most of the rights and responsibilities available to married
couples under state law to registered domestic partners. 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
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with Proposition 22. The provisions of AB 205 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.
Analysis Prepared by : Chuck Nicol / APPR. / (916) 319-2081