Assembly bill AB 43 was the most recent of
many failed bills that could have brought marriage equity to
the state by allowing all loving, committed couples to marry, whether they be of
opposite or same sex. 1 It was approved by the California
State Assembly with a vote of 42 to 34, and by the the Senate with a vote of 22
to 15. However, it is was vetoed by Governor Schwarzenegger (R) in 2007-SEP.
If AB 43 had been signed into law, it would repeal Section 308.5 of the marriage
act, which was created in the year 2000 by Proposition 22.
In California, propositions generate "initiative statutes" that are added to
state law. The 14-word statement of Prop 22 ("Only marriage between a man and a woman is valid or
recognized in California.") became Section 308.5 -- part of the state marriage act.
Any move by the legislature to modify or repeal a statute such as this
one must be approved by the voters. Thus, even if AB 43 had been signed by the governor,
the change would have to be later ratified by the voters.
Meanwhile, six lawsuits were launched by same-sex couples in an
effort to have the existing marriage act declared unconstitutional. They
were consolidated into a single case before the California Supreme
Court: S147999. More details.
According to the Court:
"This case includes the following issue: Does California's statutory
ban on marriage between two persons of the same sex violate the
California Constitution by denying equal protection of the laws on the
basis of sexual orientation or sex, by infringing on the fundamental
right to marry, or by denying the right to privacy and freedom of
The Supreme Court held a hearing on the case starting on 2006-NOV-13. On
2008-MAY-14, they ruled that Proposition 22 was unconstitutional and that
same-sex couples were to be free to marry. Their ruling became final in mid-2008-JUN. 3 More
VoteYesMarriage.com 4 promoted an amendment to the California constitution
called "The Voters' Right to Protect Marriage Initiative." 5
Their amendment was backed by four extreme fundamentalist Christian groups:
Liberty Counsel, the American Family Association, Campaign for Children and
Families, and the Traditional Values Coalition. Their goal was to keep marriage as a privilege
solely for opposite-sex couples. It would prevent same-sex couples from
marrying. It would also remove all of the benefits currently given to common-law
partners and same-sex domestic partners that are also given to married couples, If it were approved by the voters and became part of the state
constitution, it could not be over-ridden by legislature or court action.
However, even a constitutional amendment would probably not ban marriage equality forever.
Every public poll that reports opinion about same-sex marriage by age shows a
profound difference between young adults and the elderly. The former have
much greater support for marriage equality. If current trends continue, even if
an anti same-sex relationship amendment were passed, it would inevitably be
repealed, perhaps decades in the future.
Proposed constitutional amendment:
VoteYesMarriage.com proposed a marriage amendment to the state constitution
that would prohibit same-sex marriage and retain marriage as a special privilege
of opposite-sex couples only. Their proposed wording was:
"Only marriage between one man and one woman is valid or recognized in
California, whether contracted in this state or elsewhere. A man is an adult
male human being who possesses at least one inherited Y chromosome, and a
woman is an adult female human being who does not possess an inherited Y
chromosome. Neither the Legislature nor any court, government institution,
government agency, initiative statute, local government, or government
official shall abolish the civil institution of marriage between one man and
one woman, or decrease statutory rights, incidents, or employee benefits of
marriage shared by one man and one woman, or require private entities to
offer or provide rights, incidents, or benefits of marriage to unmarried
individuals, or bestow statutory rights, incidents, or employee benefits of
marriage on unmarried individuals. Any public act, record, or judicial
proceeding, from within this state or another jurisdiction, that violates
this section is void and unenforceable." 5
This proposal would effect three types of loving committed couples in
Opposite-sex married couples would continue to enjoy the full
benefits of marriage.
Opposite-sex couples living together would be stripped of all
of those state benefits that they share with married couples. The critical text from the
proposed amendment states that:
"Neither the Legislature nor any court, government institution,
government agency, initiative statute, local government, or government
official shall ... bestow statutory rights, incidents, or employee
benefits of marriage on unmarried individuals."
So, it would be unconstitutional for the government to guarantee that a
common-law wife would be able to visit her partner in hospital, or to
receive child care benefits equal to those given to married couples, or be
given the same maternity leave, etc. Their relationship would be be not
recognized by the state government; the couple would have the status of
Same-sex couples would be similarly deprived of those benefits,
obligations and protections for themselves and their children that they
currently share with married couples. They would be
able to continue to have their relationship registered. However, they would
not be able to receive any benefits that are also given to married couples. They
would also be viewed by the state as roommates.
The petition that VoteYesMarriage.com contained a preamble that gives their
justification for stripping rights and privileges away from common-law and
"The people find that marriage between one man and one woman is
diminished when government ... bestows statutory rights, incidents, or
employee benefits of marriage on unmarried individuals." 5
They do not explain how, for example, guaranteeing a woman the right to visit
her common-law or same-sex partner in hospital will diminish the quality of an
opposite-sex couple's marriage who lives down the street.
"The People further find and declare that it is in a child's best
interest to have both a father and a mother, and that marriage rights for
one man and one woman must be protected for the well-being of children,
families, and society." 5
They did not explain how it is in the best interest to a child being raised by
a common-law or same-sex couple to be deprived of rights, privileges and
protection, and for the child's parents to be similarly treated.
Former Assemblyman Larry Bowler who supports this
amendment told Christian News Service:
people fund, qualify and pass the VoteYesMarriage.com amendment,
marriage will be threatened with destruction and eventual extinction.
Even Governor Schwarzenegger and Attorney General Brown have said that
the Legislature has the power to abolish marriage and yank marriage
rights from husbands and wives." 6
The California legislature has jumped through hoops three times in an
attempt to expand the rights of marriage (Bill AB 19,
Bill AB 849, and Bill AB 43)
Their goal has been to change the marriage act so that all loving, committed couples
and their children
-- whether same-sex or opposite-sex -- can enjoy the benefits, protections, and recognition of
marriage. It is doubtful that the legislators would want to turn around and start
reducing those rights.
The VoteYesMarriage.com initiative failed:
The group had hoped to place their proposed amendment on the
2006-NOV ballot. 690,000 signatures to their petition were needed before they
could submit their initiative to the California Secretary of State for
authorization. They failed to obtain sufficient signatures. They tried again in
2008 and again failed.
An second group of religious and social conservatives proposed a different
Constitutional amendment. They are backed by four fundamentalist Christian
groups: Focus on the Family, Family Research Council, the Alliance Defense
Fund, and Concerned Women for America.
Their proposal is to simply ban same-sex marriage in California. Existing
laws granting limited rights to same-sex registered domestic partners would
remain in force. They used the same wording as was used in Prop 22 during the