BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 849| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 445-6614 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 849 Author: Leno (D), et al Amended: 6/28/05 in Senate Vote: 21 SENATE JUDICIARY COMMITTEE : 5-2, 7/12/05 AYES: Dunn, Cedillo, Escutia, Figueroa, Kuehl NOES: Morrow, Ackerman SENATE APPROPRIATIONS COMMITTEE : 7-6, 8/25/05 AYES: Migden, Alarcon, Alquist, Escutia, Murray, Ortiz, Romero NOES: Aanestad, Ashburn, Battin, Dutton, Florez, Poochigian ASSEMBLY FLOOR : Not relevant SUBJECT : Gender-neutral marriage SOURCE : Equality California DIGEST : This bill redefines marriage in California as a union between two persons, making it gender-neutral and thereby permitting same-sex marriages in the state. It does not, however, require any clergy or religious official to solemnize any marriage in violation of his/her right to free exercise of religion as guaranteed by the United States Constitution and the California Constitution. This bill contains legislative findings and declarations that it does not amend or modify Section 308.5 of the Family Code CONTINUED AB 849 Page 2 that declares only a marriage between a man and a woman is valid or recognized in California. Section 308.5 was enacted by the initiative Proposition 22 in 2000. This bill contains other findings and declarations regarding the history of statutes and decisional law that define marriage relative to gender neutrality or that address the constitutional infirmity of statutes that limit the ability to marry to heterosexual couples. Finally, this bill declares the Legislature's intent to end marriage discrimination in California without altering Section 308.5 of the Family Code. NOTE: This bill is identical to AB 19 (Leno, 2005) which failed passage on the Assembly Floor. The contents of AB 19 were amended into AB 849 on June 28. ANALYSIS : Existing law provides that marriage is a personal relation arising out of a civil contract between a man and a woman, to which each of the parties capable of consenting may consent, followed by issuance of a license and solemnization. [Section 300 of the Family Code] [All other references are to the Family Code unless otherwise indicated.] This bill changes "a man and a woman" in the above statute to "two persons." This bill further states that where necessary to implement the rights and responsibilities of spouses under the law, gender-specific terms are to be construed as gender-neutral, except with respect to Sec. 308.5. Existing law provides that an unmarried male of age 18 years or older and an unmarried female of age 18 years or older, who are not otherwise disqualified, are capable of consenting to and consummating a marriage. [Section 301] This bill instead provides that two unmarried persons of age 18 years or older who are not otherwise disqualified are capable of consenting to and consummating marriage. Existing law provides that an unmarried male or female under the age of 18 years is capable of consenting to and consummating marriage with the written consent of the AB 849 Page 3 parent, parents or guardian of each underage person or with a court order granting permission to the underage person to marry. [Section 302] This bill deletes "unmarried male or female" and replaces it with "unmarried person." Existing law authorizes specified persons to solemnize a marriage, including a priest, minister or rabbi of any religious denomination and a county-licensed official of a nonprofit religious institution whose articles of incorporation are registered with the Secretary of State, as well as judges, commissioners, legislators, and other constitutional officers. [Section 400] This bill specifies that 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/her right to free exercise of religion guaranteed by the First Amendment of the United States Constitution or by Section 4 of Article I of the California Constitution. [Proposed Section 403] To this end the bill contains a statement of legislative intent that the act be interpreted consistently with the guarantees of the First Amendment of the United States Constitution and of the California Constitution. Existing law provides that only a marriage between a man and a woman is valid or recognized in California. [Section 308.5 (adopted by initiative, Proposition 22)] This bill specifies the Legislature's intent that this bill not amend or modify Section 308.5 to the extent Section 308.5 addresses only marriages from other jurisdictions. This bill also specifies the Legislature's intent to correct only the constitutional infirmities of Section 300 and not those of Section 308.5, even though both sections were found unconstitutional by a state coordination trial judge appointed by the Judicial Council of California. This bill contains legislative findings relating to civil marriage as recognized by the state, the institution of AB 849 Page 4 marriage, the California Supreme Court's decision in Perez v. Sharp (1948) 32 Cal. 2d 711, the high courts' decisions in the states of Hawaii, Vermont, and Massachusetts that denial of legal rights and obligations of marriage to same-sex couples is constitutionally suspect or impermissible, and declarations that California's discriminatory exclusion of same-sex couples from marriage harms same-sex couples and their families and that the Legislature has an interest in encouraging stable relationships regardless of the gender or sexual orientation of the partners. This act is named the "Religious Freedom and Civil Marriage Protection Act." According to the Senate Judiciary Committee analysis: "Both AB 849 and AB 19 (Leno, 2005), which failed passage in the Assembly, represent a serious legislative challenge to the constitutionality of California's law defining marriage as 'a personal relation arising out of a civil contract between a man and a woman' (Family Code Section 300) and the Proposition 22 enactment declaring that 'only marriage between a man and a woman is valid or recognized in California' (Family Code Section 308.5). The bills address a question now moving its way through the courts: whether those two Family Code sections violate the equal protection and privacy provisions of the California Constitution. The case, Judicial Council Coordination Proceeding No. 4365 (consolidating the San Francisco cases) is being appealed. The Governor and the state, represented by the Attorney General, have requested the Supreme Court to take the appeal of the trial court's decision directly. There is no decision from the Supreme Court as yet. "Judge Richard Kramer, in the San Francisco consolidated cases directly challenging the two Family Code provisions, determined these two provisions are unconstitutional in that they deprive a discreet class of citizens equal protection guaranteed under the California Constitution. By now proposing to change AB 849 Page 5 Section 300 of the Family Code (though not 308.5, because it was enacted by Proposition 22), the Legislature has been joined to determine that the current language of Section 300, defining marriage in terms of a civil contract between a consenting man and a consenting woman violates the California Constitution and must be changed to allow same-sex couples to marry in the state." FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: Yes According to the Senate Appropriations Committee: Fiscal Impact (in thousands) Major Provisions 2005-06 2006-07 2007-08 Fund Personal income tax -- $3,000 $3,000 General revenue loss In 2004, the Franchise Tax Board estimated a state personal income tax (PIT) revenue loss of about $1 million for every 4,900 same-sex couples whose filing status would change. These couples would have a change in state filing status to married filing joint or married filing separate. The 2000 census identified 92,138 same-sex couples living in California (as of May 1, 2005, there were 27,300 registered domestic partnerships in California, the majority of which are same-sex couples). In less than a month last year, over 4,000 same-sex couples were married in San Francisco. Assuming one-half of the existing registered domestic partners marry within the first year, revenue loss for fiscal year 2006-07, and each year thereafter, will be $3 million. The actual number of marriages could be significantly greater. The 2000 census also found that 92 percent of cohabitating heterosexual couples were married. If a similar pattern occurred with same sex couples, actual losses probably would be significantly greater. In addition, there would be a minor revenue increase from marriage license fees and unquantifiable increased economic activity surrounding more weddings in the state. AB 849 Page 6 Offsetting savings could occur from reduced eligibility for Medi-Cal and SSI/SSP, but these savings will accrue only if federal law changes or eligibility waivers were granted. SUPPORT : (Verified 8/25/05) Equality California (source) 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 American Friends Service Community, Pacific Mountain Region American Humanist Association American Jewish Congress Americans for Democratic Action, Southern California Chapter Anti-Defamation League Asian Americans for Civil Rights and Equality Asian Law Caucus Asian Pacific American Labor Alliance, AFL-CIO, Los Angeles Chapter Asian Pacific American Legal Center of Southern California Atascadero Democratic Club Bay Area Lawyers for Individual Freedom Bay Area Municipal Elections Committee Being Alive Los Angeles Beth Chayim Chadashim Congregation Bienestar 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 California Immigrant Welfare Collaborative California National Organization for Women California Safe Schools Coalition California School Employees Association California State Board of Equalization Chair, John Chiang AB 849 Page 7 California State Controller Steve Westly California State Employees Association California State Insurance Commissioner, John Garamendi California State Treasurer Phil Angelides California Teachers Association California Women's Agenda Californians for Justice 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 Good Shepard Lutheran Church, San Jose Christ the Shepard Lutheran Church, Altadena 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 of St. Elizabeth of Hungary and Francis de Sales, Interdenominational Community United Against Violence Conejo Valley Unitarian Universalist Fellowship Conference of Delegates of California Bar Associations Congregation Kol Ami, West Hollywood Congregation Sha'ar Zahav, San Francisco Congregational Church of Belmont Congregational Church of Campbell Congregational Church, San Francisco Congregational Community Church, Sunnyvale 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 AB 849 Page 8 Equality Campaign, Inc. Fairfax Community Church Feminist Majority Filipinos for Affirmative Action First Amendment Project First Congregational Church, Auburn, Santa Cruz First Congregational United Churches of Christ, San Francisco, Oakland, Alameda and Long Beach Fremont Congregational United Church of Christ Fresno Stonewall Democrats Gay & Lesbian Adolescent Social Services, Inc. Gay & Lesbian Alliance of the Central Coast Gay & Lesbian Medical Association Glide Foundation / Glide Memorial United Methodist Church Glory Tabernacle Christian Center, Long Beach GLSEN Orange County Chapter Golden Gate Lutheran Church, San Francisco Grace Community Church 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 International Union Local 1000 Irvine United Congregational Church Island United Church, Foster City Japanese American Citizens League Jewish Labor Committee Justice Matters Institute 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 AB 849 Page 9 LGBT Greens, Los Angeles Live Oak Unitarian Universalist Congregation Log Cabin Republicans Los Angeles City Attorney Los Angeles County Bar Association, Family Law Section Los Angeles Gay & Lesbian Center Los Angeles Lesbian/Gay/Bisexual/Transgender Greens 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 Mira Vista United Church of Christ, El Cerrito Multicultural Education Training and Advocacy, Inc. NARAL Pro-Choice California Foundation 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 New Spirit Community Church, Berkeley Northminster Presbyterian Church, El Cerrito Older Women's League of California Online Policy Group Our Family Coalition Out and Equal Workplace Advocates People for the American Way PFLAG (Parents, Families and Friends of Lesbians and Gays | Bakersfield PFLAG | Central Coast Chapter, & Long Beach, Los Angeles, Marysville, Southern Pacific Region, Oakland-East Bay, Palm Springs/Desert, Palos Verdes/South Bay, Sacramento, San Diego County, San Francisco, Southern Pacific Region, Temecula Valley, Ventura County PFLAG |National Office AB 849 Page 10 Pioneer Congregational United Church of Christ, Sacramento Planned Parenthood Affiliates of California Planned Parenthood Golden Gate Plymouth United Church of Christ, Oakland Pride at Work AFL-CIO, National Office Pride at Work AFL-CIO, Southern California and Washington, D.C. Progressive Christians Uniting Progressive Jewish Alliance Protection & Advocacy, Inc. Public Advocates Rainbow Community Center of Contra Costa County 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 Leandro Community Church 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 Service Employees International Union Local 535 Service Employees International Union Local 790 Service Employees International Union Local 99 Seventh Avenue Presbyterian Church, San Francisco Shepard of the Hills Lutheran Church, Berkeley Silicon Valley Atheists Socially Active Youth of California Sonoma County Board of Supervisors South Hayward Parrish Southern California Lambda Medical Association AB 849 Page 11 Stonewall Democratic Club of Greater Sacramento Suisun Fairfield UCC 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 Legislative Ministry California UNITE HERE, Western States Regional Joint Board United Church of Christ, Northern California/Nevada Conference United Church of Christ, Petaluma United Church of Christ, Southern California Conference United Congregational Christian Church, Lodi United Japanese Christian Church United Lesbians of African Heritage United Staff Workers United Teachers Los Angeles United University Church, Los Angeles University Lutheran Church, Palo Alto Valley Ministries, Stockton 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 OPPOSITION : (Verified 8/25/05) A. Rodak Painting and Decorating Anderson Appraisal Service, Inc. Apostolic Church of Jesus Christ Arcade Church of Sacramento Arden Church of the Nazarene Area Favorites Automotive Management Placement Bayside Church Beth Shalom Messianic Jewish Congregation Booth Chiropractic, Inc. California Catholic Conference California Family Alliance Calvary Chapel East Anaheim AB 849 Page 12 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 Christian Alliance, Chinese New Life Zion Church Christian Church Zion Christian Coalition of San Diego County Church "House of Prayer" Church of Christians of Seventh Day Church of the First-Born Son Community Bible Church Community Faith Christian Center Concerned Women for America Cornerstone Church Covenant Life Christian Church, Orange Cover Graphics, Inc. Crenshaw Die and Manufacturing Crossroads Bible Church Cross Vision Ministries Davis Christian Assembly Downs Energy Dyson & Associates Design Drafting Services 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 and Mt. Shasta Evangelical Reformed Church Family Church, Rancho Santa Margarita First Baptist Church, Elk Grove 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 AB 849 Page 13 Good Shepherd Family Bible Church Grace Fellowship, Dixon Granada Heights Friends Church, La Mirada 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. Knights of Columbus 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 New Song Calvary Chapel Norwalk First Church of the Nazarene Oasis Christian Fellowship Ojai Valley Baptist Church Orchard Community Church Our Lady of Guadalupe, Calexico PACE Technologies Pacto de Amor Foursquare Church Pam's Pool & Leisure Peace Lutheran Church Peninsula Christian Fellowship Pioneer Baptist Church Praise Chapel Christian Fellowship of Baldwin Park Praise Chapel of Concord AB 849 Page 14 Remnant Christian Center 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 Community Center of Sacramento Slavic Evangelical Churches Slavic Missionary Church, Inc. Slavic International Pastors Association 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 The Cornerstone 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 Word to Russia ARGUMENTS IN SUPPORT : The author states: "The purpose of the 'Religious Freedom and Civil Marriage Protection Act' is to end discrimination AB 849 Page 15 against same-sex couples in the issuance of marriage licenses in California. California law currently defines marriage as 'a personal relation arising out of a civil contract between a man and a woman.' It is the author's position that this definition violates the guarantees of privacy, due process, and equal protection of the law in the California Constitution. The bill could remedy this violation by amending Family Code Section 300 to read: 'Marriage is a personal relation arising out of a civil contract between two persons.' The Family Code would thus contain no bar to the issuance of marriage licenses to same sex couples under California law. "For 127 years, from 1850 to 1977, 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?[L]egal 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. "?The Act thus explicitly affirms the freedom of clergy members to refuse to perform marriages for same-sex partners, while also providing equal respect to those religions that bless and treat the committed life partnerships of same-sex couples as valid marriages to be honored and enforced in the same manner as other marriages." ARGUMENTS IN OPPOSITION : Opponents of this bill contend that it "disregards the will of the people clearly stated in [Proposition 22]?Without submitting the matter to the voters, the Legislature cannot change this absolute refusal AB 849 Page 16 to recognize marriages between persons of the same sex?Thus, AB 849 would not only circumvent the people's will, but is a violation of the California Constitution." [Letter from Concerned Women for America, dated July 1, 2005.] They further argue that despite AB 849's intent language not to affect Section 308.5, the changes that would be made to other sections of the Family Code "strips the gender-specific language of current law" and "is clearly designed to pose a contradiction in law that would be subject to legal challenge in the hopes of undermining the language enacted through Proposition 22." This tactic [of gutting AB 849 and inserting the AB 19 language into that bill] gives added weight to Judge Kramer's rationale for striking down Sections 300 and 308.5 in the Coordination Proceedings , says the Traditional Values Coalition (TVC) in its letter dated July 1, 2005. The Traditional Values Coalition advances the following arguments in opposition to this bill: "(1) AB 849 is AB 19 resurrected, and should be rejected by the Senate just as the Assembly rejected AB 19 on three different votes; (2) AB 849 would pose a contradiction in law that would undermine Family Code Section 308.5; (3) AB 849 violates the Voting, Initiative and Referendum, and Recall provisions of the California Constitution; (4) Homosexuals want to destroy marriage as an institution - not benefit from it; (5) The intent of marriage is to maintain monogamous relationships between one man and one woman; however, the actions of the homosexual lifestyle are contrary to this goal; (6) Granting homosexual marriage would affect all areas of public policy thereby posing great burdens to society; and (7) AB 849's affects [sic] would dramatically alter current school frameworks and curriculum." RJG:mel 8/26/05 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END ****