Same-sex marriage/domestic partnerships in California

Bill AB-43: the "Religious Freedom
and Civil Marriage Protection Act."

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Background:

Prior to 2008-JUN, California allowed loving, committed same-sex couples to register as a domestic partnership. However, they were not allowed to marry. Partnerships do not have the universal recognition as marriage would.

Bill AB 43, the "Religious Freedom and Civil Marriage Protection Act" was introduced by Assemblymember Mark Leno on 2006-DEC-04. It would allow all loving, committed couples in the state to marry, whether they are of opposite-sexes or the same-sex couples. This is his third attempt to pass a marriage equity law in California.

The law contains a clause that guarantees the right of any religious group to refuse to marry same-sex couples if their beliefs require them to discriminate in this way.

The bill passed the Assembly Judiciary Committee on 2007-APR-10 and was approved by the California State Assembly by a vote of 42 to 34. It passed the Senate by a vote of 22 to 15. It was vetoed by Governor Arnold Schwarzenegger (R).

Text of the bill:

The text states, in part:

"This bill would enact the Religious Freedom and Civil Marriage Protection Act, which would instead provide that marriage is a personal relation arising out of a civil contract between 2 persons. ..."

"(f) By excluding same-sex couples from marriage, California's marriage law discriminates against members of same-sex couples based on their sexual orientation and based on their gender. The exclusion of same-sex couples from marriage is based in significant part on, and perpetuates, gender stereotypes about the roles of men and women in families and in society."

"(g) California's discriminatory exclusion of same-sex couples from marriage harms same-sex couples and their families by denying those couples and their families specific legal rights and responsibilities under state law and by depriving members of those couples and their families of a legal basis to challenge federal laws that deny access to the many important federal benefits and obligations provided only to spouses . ... Those federal benefits include the right to file joint federal income tax returns, the right to sponsor a partner for immigration to the United States, the right to social security survivor's benefits, the right to family and medical leave, and many other substantial benefits and obligations. ,,,"

"(i) California's discriminatory exclusion of same-sex couples from marriage further harms same-sex couples and their families by denying them the unique public recognition and validation that marriage confers.

"(j) The Legislature has an interest in encouraging stable relationships regardless of the gender or sexual orientation of the partners. The benefits that accrue to the general community when couples undertake the mutual obligations of marriage accrue regardless of the gender or sexual orientation of the partners."

The bill would have modified Section 300, 301, and 302 of the Family Code to make them gender-neutral. It also adds section 403 to guarantee clergy the right to discriminate against same-sex couples if they wish:

"No priest, minister, or rabbi of any religious denomination, and no official of any nonprofit religious institution authorized to solemnize marriages, shall be required to solemnize any marriage in violation of his or her right to free exercise of religion guaranteed by the First Amendment to the United States Constitution or by Section 4 of Article I of the California Constitution."

The full text of the bill is available online. ₁

Introduction of the bill into the House:

AB 43 was co-authored by 28 Assemblymembers and 14 Senators. It is supported by a coalition of over 250 civil rights organizations and leaders, including the NAACP California State Conference, United Farm Workers, Mexican American Legal Defense and Educational Fund, Chinese for Affirmative Action, California Teachers Association, ACLU, California Nurses Association, Anti-Defamation League, California National Organization for Women, California Church Impact, and the National Center for Lesbian Rights. It is opposed by the Capitol Resource Institute, and all or essentially all conservative religious groups. A full list of supporting and opposing churches and other organizations  is available online. ₂

According to Equality California, a LGBT positive organization:

"The Religious Freedom and Civil Marriage Protection Act would guarantee the California Constitution's promise of religious freedom and extend the vital protections afforded by marriage to loving and committed same-sex couples. ..."

" 'The California Assembly has once again affirmed that every Californian deserves the opportunity to marry the person he or she loves,' said EQCA Executive Director Geoff Kors. 'Today's vote shows that support for ending the exclusion of same-sex couples from marriage is growing. The people of California, through their elected representatives, are speaking on this issue and they are coming down on the side of fairness'. ..."

" 'We have lived with domestic partnerships in California for seven years and we know that they are not a substitute for marriage,' said Kors. 'Today's vote demonstrates that the Legislature recognizes this unjustifiable inequity, and we applaud their determination to end it. Marriage is one of life's significant and universally understood progressions that all people should have the ability to experience if they so desire'." ₃

The Capitol Resource Institute promotes the status quo. In a suggested letter to Assembly Members, they state:

"The importance of preserving traditional marriage cannot be overestimated. The traditional family unit of mother, father and children is the safest, healthiest environment in which to raise children. Please stand with the vast majority of Californians by voting to protect traditional marriage." ₄

The term "traditional marriage" is used by religious and social conservative to refer to laws that exclude same-sex couples from marrying.

Their reference to a "vast majority" of Californians being against same-sex marriage appears to be based on the Proposition 22 vote in the year 2000 where 61% of voters agreed that California would not recognize same-sex marriage.

VoteYesMarriage.com states:

"Marriage between a man and a woman is good and natural -- even sacred. Since the beginning of time, marriage has been the foundation of family and society. You need a man and a woman to further our civilization by bringing children into the world. ..."

Do you see how marriage provides an important foundation for children? Without going into all the details, it's self-evident that a man and a woman were made to fit together. You need a man and a woman to achieve sexual intercourse. You need a man and a woman for the miracle of procreation, to conceive a baby. You need a man and a woman to have a marriage and provide a healthy marriage role model for children everywhere.

Marriage is especially important for the raising of children. Research shows a child does best when raised by a father and mother who are married. On average, marriage serves the well-being of children -- by raising boys and girls who are better educated, physically healthier, emotionally more stable, and less likely to get involved with drugs, drop out of school, get pregnant before marriage, or become victims of violent crime.

The implication is that a marriage between two men or between two women is not good and is unnatural, and irreligious. They appear to base their argument on studies that compare a man-woman led family with single parent families, and then use the data to denigrate same-sex marriages. They appear to ignore the use of artificial insemination to enable two married women to conceive, and the use of adoption to enable two married men to raise a family. They also ignore the findings of a meta-study that examined over 100 studies on parenting in various family types. It concluded that same-sex parents were equal or better than opposite-sex parents in child rearing.

Conservative Christian response:

According to the fundamentalist Christian group, The Traditional Values Coalition:

" 'The State Assembly has turned its back on California's families yet again,' said Benjamin Lopez, Lobbyist for Traditional Values Coalition (TVC). 'Forty-Two Democrats have taken it upon themselves to ram down the throats of Californians a twisted, out-of-step, out-of-mainstream version of marriage and family. Make no mistake; this vote proves that it is Democrats who are pro-homosexual and anti-family. They will surely pay for this'."

"Just moments ago the California State Assembly voted 42 to 34, just one vote over the bear [sic] minimum number needed for passage, to pass Assembly Bill 43, by homosexual Assemblyman Mark Leno (D-San Francisco), a bill that would strike references to 'male' and 'female' in the marriage code and would instead add the phrase 'two persons' to the definition of marriage thereby allowing two men or two women to marry. ..."

" 'We will be relentless in conveying to Senators that California is not in favor of blatant homosexual marriages,' Lopez added. 'Any Senator who now votes for this bill will do so at their own peril. Our roads need repairing, gas prices are too high, people can't afford homes, we're running out of water and Democrats see homosexual marriage as the burning issue of the day. Just which party has California's families' best interests in mind'!" ₅

It would seem that the economic criticism of same-sex marriage is not justifiable. The cost of implementing same-sex marriages would be minimal in California. It would cost money to promulgate and print a new version of the marriage act. But, government workers who now handle marriage and domestic partnership registration would have their job simplified; they would only have to handle marriages. There would only need to be one data base maintained for married couples, compared to two separate data bases today.

Twenty-one Assemblymembers and the Speaker of the Assembly spoke in favor of AB 43. ₆

According to Capitol Resource Institute, an advocacy group promoting "family-friendly policies" for opposite-sex couples, eight members spoke against the bill:

"Assemblyman Chuck DeVore eloquently argued that this is not an issue of rights, but is a fundamental question of the purpose of marriage. Assemblyman Doug La Malfa expressed his dismay that there are no longer any institutions so sacred that they are untouchable by the liberal California legislature. Also speaking out against AB 43 were Assembly members Anthony Adams, Joel Anderson, Sharon Runner, Bill Maze, Mike Villines and Ted Gaines." ₆

Passage of the bill by the Senate:

State Senator Sheila Kuehl, D-Santa Monica, presented the bill to the Senate. She was also the first openly gay person to be elected to the Legislature. She said:

"Marriage is more than just a civil contract ... it is different from domestic partners, it's just different from civil unions - it means something. And because it means something, that's why it's been denied to us." ₇

Benjamin Lopez, a lobbyist for the fundamentalist Christian Traditional Values Coalition, said:

"We see AB43 as yet another heavy-handed, blatant attempt for Mark Leno and Co. to skirt the current restrictions in law that prevents same-sex marriages in California. ₇

The San Francisco Chronicle reported:

"Lopez said that if Leno's bill were signed, it would be the result of 'sympathetic liberal legislators and liberal judges who force it upon the people,' and that 'the whole definition of the family will be torn asunder'." ₇

The California Senate approved bill AB-43 by a vote of 22 to 15 to substitute the term "two persons" for "man and wife" in the state's marriage law. This would allow all loving committed couples to marry, whether they are of the opposite-sex or same-sex. All 12 Republicans and three Democrats voted against the bill.

The bill went to Governor Schwarzenegger who vetoed the legislation.

Proposed constitutional amendment:

VoteYesMarriage.com ₈ is proposing a marriage amendment to the state constitution that would override all legislation and court rulings. It would prohibit same-sex marriage and retain marriage as a special privilege of opposite-sex couples only. ₉

More details.

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. "Bill number: AB 43, December 4, 2006," text at: http://www.leginfo.ca.gov/
2. "Support and Opposition to AB 43," Capitol Resource Institute, at: http://www.capitolresource.org/
3. "Fact Sheet: The Religious Freedom and Civil Marriage Protection Act (AB 43)," Equality California, 2007-JUN-05, at: http://www.eqca.org/
4. "AB 43 Same Sex Marriage," Capitol Resource Institute, at: http://www.capitolresource.org/
5. "California State Assembly Democrats Barely Pass Homosexual Marriage Bill Yet Again and Defy Voters," News release, Traditional Values Coalition, 2007-JUN-05.
6. "Homosexual Marriage Approved by California Assembly," Capitol Resource Institute, 2007-MAY-05, at: http://www.capitolresource.org/
7. Haley Davies, "Legislature OKs same-sex marriage bill; governor expected to veto," San Francisco Chronicle, 2007-SEP-08, at: http://sfgate.com/
8. "VoteYesMarriage.com" is, as one would suspect, at: http://voteyesmarriage.com
9. Hilary White, "California Senate Votes to Impose Same-Sex 'Marriage' on State," Life Site News, 2007-SEP-11.