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"The Religious Freedom and Civil Marriage Protection Act"

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Proposition 22 and Bill AB-19:

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

A "Proposition" in this state has the same status as a law passed by the legislature and signed by the Governor. It can be annulled or modified at any time by mutual agreement of the Assembly, Senate and Governor.

Assembly Bill AB-19 has two components:

bullet It would repeal Proposition 22 and define marriage as a union of two persons. That is, it would permit all loving, committed couples to marry, both opposite-sex and same-sex partners.
bullet It would protect religious institutions from legal challenges if they elect to continue to refuse to recognize same-sex relationships. That is, if a same-sex couple went to a minister and asked him or her to marry them, and if the minister refused, then the clergyperson and denomination could not be sued for discrimination under California's human rights legislation.

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Bill AB-19 introduced:

AB-19 was introduced by Assemblymembers Mark Leno (D-San Francisco) and Assembly Speaker Fabian Nez (D-Los Angeles) with the support of Assemblymembers Aaron Goldbert, Paul Koretz, John Laird, and Sally Lieber, on 2004-DEC-06.

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The bill's preamble states:

Existing law provides for the issuance of marriage licenses and imposes duties on county clerks in that connection, as specified. Existing law further provides that only marriage between a man and a woman is valid or recognized in this state.

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. The bill would make conforming changes with regard to the consent to, and solemnization of, marriage, and would make related findings and declarations.

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The bill's text states:


bullet SECTION 1. This act shall be known and may be cited as the "Religious Freedom and Civil Marriage Protection Act."
bullet SEC. 2. It is the intent of the Legislature that this act be interpreted consistently with the guarantees of the First Amendment to the United States Constitution and of Section 4 of Article I of
the California Constitution to free exercise of religion and enjoyment of religion without discrimination or preference.
bullet SEC. 3. The Legislature finds and declares as follows:
bullet (a) Civil marriage is a legal institution recognized by the state in order to promote stable relationships and to protect individuals who are in those relationships. The institution of marriage also provides important protections for the families of those who are married, including not only any children or other dependents they may have, but also members of their extended families.
bullet (b) From 1850 to 1977, the statutory definition of marriage in California was gender-neutral, containing no reference to "man" or "woman."
bullet (c) In 1948, the California Supreme Court became the first state court in the country to strike down a law prohibiting interracial marriage. It was the only state supreme court to do so before the United States Supreme Court invalidated all those laws in 1967. The California Supreme Court held that "marriage is . . . something more than a civil contract subject to regulation by the state; it is a fundamental right of free men...Legislation infringing such rights must be based upon more than prejudice and must be free from oppressive discrimination to comply with the constitutional requirements of due process and equal protection of the laws" (Perez v. Sharp (1948) 32 Cal.2d 711, 714-15).
bullet (d) In 1977, the Legislature amended the state's marriage law to specify that, as a matter of state law, the gender-neutral definition of marriage could permit same-sex couples to marry and have access to equal rights and therefore would be changed. The gender-specific definition of marriage that the Legislature adopted specifically discriminated in favor of different-sex couples and, consequently, discriminated and continues to discriminate against same-sex couples.
bullet (e) The highest courts in three states have held that denying the legal rights and obligations of marriage to same-sex couples is constitutionally suspect or impermissible under their respective state constitutions. These states are Hawaii, Vermont, and Massachusetts. The highest courts in seven Canadian provinces have similarly ruled that marriage laws that discriminate in favor of different-sex couples to the exclusion of same-sex couples violate the rights of same-sex couples and cannot stand.
bullet (f) California's discriminatory exclusion of same-sex couples from marriage violates the California Constitution's guarantee of due process, privacy, equal protection of the law, and free expression, by arbitrarily denying equal marriage rights to lesbian, gay, and bisexual Californians.
bullet (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.
bullet (h) Other jurisdictions have chosen to treat as valid or otherwise recognize marriages between same-sex couples. California's discriminatory marriage law therefore also harms California's same-sex couples when they travel to other jurisdictions by preventing them from having access to the rights, benefits, and protections those jurisdictions provide only to married couples.
bullet (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 affirmation that marriage confers on heterosexual couples.
bullet (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.
bullet (k) It is the intent of the Legislature in enacting this act to end the pernicious practice of marriage discrimination in California. This act is in no way intended to alter Section 308.5 of the Family Code, which prohibits California from treating as valid or otherwise recognizing marriages of same-sex couples solemnized outside of California.
bullet SEC. 4. Section 300 of the Family Code is amended to read:
bullet 300.
bullet (a) Marriage is a personal relation arising out of a civil contract between two persons, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization as authorized by this division, except as provided by Section 425 and Part 4 (commencing with Section 500).
bullet (b) Where necessary to implement the rights and responsibilities of spouses under the law, gender-specific terms shall be construed to be gender-neutral, except with respect to Section 308.5.
bullet SEC. 5. Section 301 of the Family Code is amended to read:
bullet 301.
bullet Two unmarried persons of the age of 18 years or older, who are not otherwise disqualified, are capable of consenting to and consummating marriage.
bullet SEC. 6. Section 302 of the Family Code is amended to read:
bullet 302.
bullet An unmarried person under the age of 18 years is capable of consenting to and consummating marriage if each of the following documents is filed with the county clerk issuing the marriage license:
bullet (a) The written consent of the parents of each underage person, or of one of the parents or the guardian of each underage person.
bullet (b) A court order granting permission to the underage person to marry, obtained on the showing the court requires.
bullet SEC. 7. Section 403 is added to the Family Code , to read:
bullet 403.
bullet 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.
bullet SEC. 8. The Legislature finds and declares that this act does not amend or modify Section 308.5 of the Family Code, which addresses marriages from other jurisdictions, as enacted by an initiative
bullet SEC. 9. If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code. 1

Modified text is shown in italics.

The bill was amended on 2005-APR-21 by adding three additional senators to the list of co-authors.

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Conference of supportive religious leaders:

Equality California (formerly called California Alliance for Pride and Equality [CAPE]) hosted a news conference on the steps of the Library and Courts Building in the state capitol, Sacramento, CA. Their news release stated that:

Clergy and faith leaders from various denominations will be present to discuss the importance of equal marriage rights for LGBT families. 

The day will also offer an opportunity for religious leaders to discuss and meet with elected officials to support equal marriage rights for LGBT Californians.  Equality California-sponsored Assembly Bill 19: the Religious Freedom and Civil Marriage Protection Act, authored by Assemblymember Mark Leno, will be heard on Tuesday, April 26, and this news conference is an opportunity to break the stereotype that people of faith are opposed to equality rights for lesbian, gay, bisexual, and transgender (LGBT) Californians. 2

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Bill AB-19 passes Assembly Judiciary Committee:

By 2005-APR-19, the Assembly Judiciary Committee had received hundreds of written submissions. The Campaign for Children and Families has provided a list:

bullet Among the 203 religious and ethical groups supporting the bill were: American Humanist Association, American Jewish Congress, Anti-Defamation League, California Council of Churches, two Jewish congregations, eight Lutheran congregations, five Metropolitan Community Church congregations, five Presbyterian congregations, five United Church of Christ congregations, two Unitarian Universalist congregations, Progressive Christians Uniting, Progressive Jewish Alliance,  San Francisco Zen Center, five additional congregations, and "many individuals."
bullet Among the 125 groups in opposition were: 16 Baptist congregations, two Bible Churches, four Cavalry Chapels, California Catholic Conference, Christian Coalition of San Diego County, two Church of the Nazarene congregations, five Community Churches, two Evangelical Free Churches, one Jewish congregation, four Presbyterian congregations, two Lutheran congregations, 46 additional congregations, "many individuals." Twenty-two commercial establishments also submitted material. 4

The bill was approved on 2005-APR-26 by the Assembly Judiciary Committee by a 6 to 3 vote along party lines.

bullet Leno said: "America was founded on the concept of separation of church and state, with the guarantee that religious freedom will be respected and the state will treat all people equally in the eyes of the law. AB 19 puts that fundamental right into practice."
bullet Geoffrey Kors is the Executive Director of Equality California (EQCA). As their name implies, they promote "the dignity, safety, equality and civil rights of all lesbian, gay, bisexual and transgender Californians." He said: "Today is a tremendous day for committed couples and their children who only wish to protect and provide for their families. California cannot continue to discriminate against love and commitment. Two loving people who simply want to live their lives together deserve equal treatment under the law."
bullet Alice Huffman, President of the California State Convention of the National Association for the Advancement of Colored People (NAACP) said: "California cannot have an honest discussion about civil rights without talking about gay and lesbian rights. Both movements have a place in history as the NAACP stands tall with the gay and lesbian community."
bullet Reverend Bea Chun, pastor of Christ the Good Shepard Lutheran Church in San Jose, AC, said: "As a woman of faith and as a spiritual leader, I am committed to strive for justice and to affirm the dignity and equality of every human being as a child of God. I have come to believe that the question of civil marriage equality is very much a justice issue."
bullet Baltimore Gonzalez, EQCAs Volunteer Chapter Leader in Fresno, CA, said: "Our family should be afforded the same rights and responsibilities as any other family. We should not be second class citizens in our own homes." 3
bullet Senator Dennis Hollingsworth, referring to Proposition 22 which would be overturned if AB-19 were signed into law, said: "The blatant disregard for this law now requires the voters to defend, once and for all, the authentic definition of marriage by amending the California Constitution so that judges and legislators cant tinker with the language or intent."
bullet California Family Alliance, Focus on the Family and Family Research Council, who all oppose the bill, have formed a coalition called Their intent is to pass an amendment to the California constitution. It would make same-sex marriage unavailable. If passed, it would be the first amendment to the state constitution that would identify a specific group for the purpose of limiting some of their human rights. 5
bullet Campaign for Children and Families estimated on APR-27 that they "...need to secure only one or two more votes to defeat AB 19 on the Assembly floor." 6

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Bill AB-19 passes Appropriations Committee:

On 2005-MAY-25, bill A19 was approved by the Appropriations Committee. This is the last step before it is passed to the full Assembly. It is scheduled to be debated during the week of MAY-29. Eddie Gutierrez, spokesperson for Equality California, said: "We have very high hopes it will prevail. But as every piece of LGBT civil rights legislation that reached this stage of the process -- from hate crimes to domestic partnerships - the vote will come down to the wire." 7

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Bill AB-19 dies in the State Assembly:

The bill died on 2005-JUN-02, after failing to obtain a majority. It failed by only three votes. Several Democrats either voted against the bill or abstained. The bill was later reactivated as AB 849.

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  1. "Bill Number: AB 19 Introduced," at:; as amended, at:
  2. "Religious leaders to hold news conference in Sacramento to support marriage equality," Equality California, 2005-APR-15, at:
  3. "Historic marriage equality bill passes the Assembly Judiciary Committee," Equality California, 2005-APR-26 news release, at:
  4. "Churches, Businesses: Oppose AB 19," Campaign for Children and Families, 2005-APR-29, at:
  5. "Californians seeking constitutional protection for marriage," Blog, Massachusetts Family Institute, 2005-APR-28, at:
  6. "California Marriage Showdown," Campaign for Children and Families, 2005-APR-27, at: This is a temporary listing.
  7. Mary Ellen Peterson, "California Gay Marriage Bill Heads To Historic Assembly Vote," 365, at:

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Home > "Hot" topics > Homosexuality > Couples > California > here

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Copyright 2005 by Ontario Consultants on Religious Tolerance
Latest update: 2005-JUN-03
Author: B.A. Robinson

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