In the year 2000, California voters passed Proposition 22, by a vote of 61.4% to
38.6%. The Proposition, also known as the "California Defense of Marriage
Act" modifies Section 308.5 of the Family Code to read: "Only marriage
between a man and a woman is valid or recognized in California." 9
Many felt that this proposition limited any
of same-sex relationships. This appears to be mistaken. In reality, the
proposition has two effects. It prevents same-sex couples from:
Receiving a marriage license in the state of California.
Having their marriage recognized in the state, in the event that they went to
Canada or Massachusetts, were married there, and returned to California.
Proposition 22 did not limit the ability of the legislature to grant some
state privileges and
obligations enjoyed by all married couples to
committed gay and lesbian couples. The only limitation was that the state cannot
actually marry same-sex couples. The state has been free to create a system
similar to the civil unions in Vermont if they
Geoff Kors, executive director of the gay-positive
California Alliance for Pride and Equality, said: "Polling shows people
moving closer to same-sex marriages and supporting giving rights and
responsibilities to same-sex couples." 1
In 2005-MAR, Judge Richard Kramer of the San Francisco County Superior
Court ruled that Proposition 22, and other California legislation which
prevent same-sex couples from marrying, were unconstitutional. He ruled that
these laws violate the civil rights of same-sex couples because they "implicate
the basic human right to marry a person of one's choice." The ruling has
since been stayed and has been appealed to the San Francisco-based 1st
District Court of Appeal. 14
Bill AB-205 introduced in the state legislature:
Early in 2003, Jackie Goldberg (D-Los Angeles)
of the five-person Lesbian, Gay, Bisexual and Transgender Caucus introduced bill
AB-205 the "Domestic Partner Rights and Responsibilities Act of 2003."
As passed and signed into law, it granted domestic partners
"the same rights [that are] granted to and imposed upon [married] spouses"
by the state of California.
said: "This law would be truly historic for the nation. If California
passes this, it sends a message to the rest of the nation." It
would be historic in that, if it is passed, it would be the first civil
union bill freely passed by a legislature without first having been
ordered to do it by a state supreme court. 1
Randy Thomasson, executive director of the conservative group
Campaign for California Families, criticized the supporters of the
bill. He said: "I wish they'd be honest and call it gay marriage. If
marital rights go to nonmarried couples, then you've really thrown mud
in the face of marriage as an institution. If [Governor] Gray Davis wants to go for
president or vice president, he won't go for this." 1
Lou Sheldon, of the conservative group Traditional Values
Coalition said: "Homosexuality is a gender-identity disorder, and
it's a gender-identity confusion, and you should not reward those
behaviors with special rights." There is no record in the media
accounts as to what "special rights" gays and lesbians are
requesting. All the reports have them asking for about one third of the rights
that are automatically given to married couples. 1
Many Fundamentalist Christian groups are describing AB 205 as a "homosexual
marriage" bill which conflicts with Proposition 22. For example:
Maranatha Christian Journal reported on 2003-JUN-9 that "Pro-family
groups labeled it a 'homosexual marriage' bill and said it violates
Proposition 22, which defines marriage as being solely between a man and
a woman and was passed by voters three years ago." 2
Ken Connor of the Family Research Council reported in his
2003-JUN-3 "Washington Update" that "the Assembly is now poised
to pass AB 205, a same-sex marriage bill in everything but name. The bill
would confer all the rights, benefits and duties of marriage on homosexual
couples. Such legally recognized "domestic partnerships" would have the
same standing in law as marriage." Connor continued: "AB 205 also would require California to recognize
similar same-sex unions that are legal in other states such as Vermont."
Campaign for California Families (CCF)
posted an article on their web site called "California
Assembly Passes 'Gay Marriage;' AB 205 Reverses the Vote of the People of California." The vote
being referred to is apparently Proposition 22. The article
stated that: "AB 205 functionally reverses the vote of the
people of California on marriage. It awards all the rights of marriage
available under California statute to same-sex 'domestic partners.'
Three years ago, 61.4 percent of California voters of all racial and age
groups voted to keep marriage for a man and a woman." 4 CCF executive director, Randy
Thomasson, said: "This arrogant bill barely passed. The Democrat
politicians apparently have no problem reversing the peopleís vote on
marriage, the foundation of family and society....If reversing the
peopleís vote on marriage doesnít demonstrate political arrogance, I
donít know what does."
These groups appear to be in error.
There is no conflict between Proposition 22 and AB 205:
Proposition 22 defined marriage as a contract between one man and
one woman. It said nothing about same-sex civil unions or domestic
AB 205 does not describe marriage, only domestic partnerships
between two persons who are prohibited from marrying.
AB 205 would not give same-sex couples the same rights as
opposite-sex married couples receive. They would only receive all but
one of the
approximately 400 state benefits, compared to the approximately 1,500
state and federal rights enjoyed by married couples. The one state
benefit being withheld, for now, is the right to file joint state income
The Family Research Council's prophecy came true. The Assembly
passed AB 205 by a vote of 41 to 32. This is one vote more than the
minimum necessary for passage. Voting was completely along party lines.
All 41 "yes" votes came from Democrats. All 32 "no" votes came from
Republicans. Seven Democrats abstained.
Maranatha Christian Journal reported that: "The bill would give the
state's 18,000 registered homosexual couples the same benefits as married
couples in such matters as financial support, child custody, debt
assumption and community property, according to The Sacramento Bee."
The bill was considered by the Senate Appropriations
Committee on 2003-AUG-18. They proposed and passed amendments which
were subsequently approved by the Assembly by the same vote of 41 to 32 during
the week of AUG-31. Governor Davis had announced on AUG-16 that, if it reaches his desk, he would
sign the legislation into law in order to help ensure "fairness for all
Californians." He said: "This bill not only provides additional
rights for domestic partners, it also imposes significant new obligations
such as shared responsibility for debts and financial support for
children. As governor I will continue to do everything within my power to
honor the dignity, humanity and privacy of every Californian regardless of
their ethnicity, religion, national origin, gender or sexual orientation."
Geoffrey Kors, executive director of Equality California, a group
which promotes equal rights for gays and lesbians, said: "When this
bill is signed it will be a truly historic day for everyone who supports
civil rights." 5
After approval by the legislature, Randy Thomasson, executive director
of the conservative group Campaign for California Families, said: "This
is a day that will be remembered with anger and disgust." Apparently
referring to the Proposition 22 plebiscite, he said: "[Bill] AB 205
utterly rejects the vote of the people of California - 4.6 million white,
black, Latino and Asian voters who demanded that the rights, privileges
and benefits of marriage be protected for a man and a woman, as it should
be. The Democrat politicians who jammed this through have proved they are
against marriage and against democracy. They have created gay 'marriage'
by another name and utterly rejected the vote of the people. This will go
to court as an unconstitutional hijacking of the people's vote to protect
marriage with Proposition 22."
Religious and social conservatives appear to have a dilemma:
They can try to pass a law or proposition similar to Proposition 22
in other states. But this does not really meet their needs. In essence,
it only protects the word "marriage" from being used to refer to
same-sex registered partnerships. It does not prevent a state
legislature from granting some or all of the rights, privileges and
obligations to same-sex couples that had been previously reserved as
special privileges for opposite-sex married couples.
They can try to pass a law or proposition that goes further than
Proposition 22 by preventing the state government from granting to
same-sex couples any of the special privileges given to opposite-sex
married couples. However, in many states, public opinion would probably
oppose such a law or proposition; it would be perceived as unfair
treatment of committed same-sex couples.
AB-205 becomes law and is challenged:
Governor Gray Davis signed the bill into law on 2003-SEP-19. 8
The Campaign for California Families, a group opposed to equal rights for gays and lesbians,
initiated a lawsuit (Knight v. Superior Court, S133961) which sought to prevent the law from going into effect. They claimed that it violates Proposition 22. This
appears to be a hopeless case on their part. Proposition 22 consists of
only 14 words, and only defines which marriages are recognized in the
state. It states "Only marriage between a man and a woman is valid or recognized in California."
11 Proposition 22 in no way prevents the
legislature from granting some or all of the benefits given to married
couples and their children to registered same-sex couples and their
children. It only prevents the state from recognizing and/or registering
their marriages. 11,12
The law went into effect on 2005-JAN-01. The
California secretary of state revealed that, by
2005-APR, about 29,000 California couples has registered as domestic
partners and have thereby obtained many benefits and protections for themselves
and their children.
As expected, both the trial court and the 3rd District Court
of Appeal rejected the lawsuit. The latter ruled that Proposition 22 was "intended only to limit the status of marriage to heterosexual
couples and to prevent the recognition in California of homosexual
marriages." It did not conflict with the "Domestic Partner Rights and Responsibilities Act of 2003."
The court noted that by 1999, California had legislation in place which
permitted same-sex couples or couples older than 62 years old to register as
domestic partners. Thus, and Proposition 22 didn't express "an intent to
repeal our state's then-existing domestic partners law." Thus it would not
have implications for any future legislation which protected domestic partners.14
Randy Thomasson, spokesperson for the Campaign
for California Families said that they would appeal the decision.
Jenny Pizer, senior counsel for the Lambda Legal Defense and Education
Fund, a gay positive group, said the court ruling "confirms the
common-sense understanding that people in California have that domestic
partnership and marriage are different."
AB-205 found constitutional by the Supreme Court:
On 2005-JUN-29. the California Supreme Court let the domestic partnership law
stand. "Without comment, the unanimous justices upheld appellate and trial
court rulings that the sweeping measure does not conflict with a voter-approved
initiative defining marriage as a union between a man and a woman."
Robert Tyler is an attorney with the Alliance Defense Fund which
opposed the law. He said: "Certainly, this reflects the importance of the
people of California rising up to insure that their vote in 2000 is counted
and not overlooked by the courts."
Kate Kendell, executive director of the National Center for Lesbian
Rights, said that the "anti-gay industry's" reaction to the
decision means "they won't stop until essentially the existence of
lesbians and gay men is eradicated."
Nathan Barankin, a spokesperson for Attorney General Bill Lockyer, said:
"We're extremely pleased. We fought hard to protect California's landmark
domestic partner law and believe the trial court, and the appellate court
and the California Supreme Court reached the exact and right result."
A new proposition to strip rights and protections from domestic partners:
When the 3rd District Court of Appeal upheld
the law, Randy Thomasson, spokesperson for the Campaign
for California Families said that they plan to create another Proposition to
deprive same-sex couples and their children of the rights and protections given
them them under the 2003 act. He said: "This ruling gives impetus to the push
for a constitutional amendment to protect marriage from the clutches of judges
In 2005-JUN, the Attorney General's office received a draft for the new
Proposition. The next step is for the attorney general to write a ballot title
and summary. Californians could vote on the Proposition as soon as the June 2006
Peter Henderson, a spokesperson for the California Family Council,
said his group is one of a coalition of groups promoting the Proposition. He
said: "This decision is why we believe the initiative process is so important
to give voters a direct say through direct democracy on issues of this
The proposed ballot measures are also aimed at overturning the decision Judge
Richard Kramer's ruling that Proposition 22 is
This essay continues below.
Another bill, AB-196, will prohibit housing
and employment discrimination against transgender individuals who have
surgically changed their gender.
Geoffrey Kors, executive director of the
gay/lesbian/bisexual/transsexual positive California Alliance for
Pride and Equality said: "AB 196 will provide critical
protections for those who are fired, evicted, or experience serious
harassment because they are perceived as gender nonconforming."
Assembly member Mark Leno said: "The right to employment and
housing is a basic human right. No one should ever lose a home or job
because of gender characteristics which have nothing to do with one's
Non-profit charities could continue to
discriminate against transgender persons; this covers virtually all
religious groups. Fines of up to $150,000 could be levied. The Family
Research Council described it as a "compulsory transgender hiring
bill" which it is not. It would not require any employer to hire
one or more transgender individuals; it would not set quotas. It would simply criminalize
discrimination against transgender persons.
Bill AB 196 was passed by the state assembly's Labor and Employment
Committee in 2003-MAR. 6 It was passed by the
Senate on 2003-JUL-25, and signed into law by Governor Gray Davis on 2003-AUG-3. It
takes effect on 2004-JAN-1. This makes California only the fourth state in
the U.S. to protect transgender individuals from discrimination. Minnesota, New
Mexico and Rhode Island had already passed similar legislation.
Geoffrey Kors praised Davis for signing the bill, writing in a statement: "His
actions in signing this legislation will help ensure that individuals are judged
on their merit, not their gender characteristics." 7
"Bill would put domestic partners on legal par with married
couples," San Jose Mercury News / Contra Costa Times,
"NCLR Clients Testify in Favor of Historic Marriage Equality Bill;
California Assembly Judiciary Committee Votes 8-3 in Favor of Bill,"
National Center for Lesbian Rights,