"The Religious Freedom and Civil Marriage Protection Act"
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
Assembly Bill AB-19 has two components:
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.
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
Bill AB-19 introduced:
AB-19 was introduced by Assemblymembers Mark Leno (D-San Francisco) and
Assembly Speaker Fabian Núñez (D-Los Angeles) with the support of Assemblymembers
Goldbert, Paul Koretz, John Laird, and Sally Lieber, on 2004-DEC-06.
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.
The bill's text states:
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act shall be known and may be cited as the "Religious
Freedom and Civil Marriage Protection Act."
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.
SEC. 3. The Legislature finds and declares as follows:
(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.
(b) From 1850 to 1977, the statutory definition of marriage in
California was gender-neutral, containing no reference to "man"
(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,
(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.
(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
(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
(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
(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.
(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.
(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.
(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
SEC. 4. Section 300 of the Family Code is amended to read:
(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).
(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
SEC. 5. Section 301 of the Family Code is amended to read:
Two unmarried persons of the age of 18 years or
older, who are not otherwise disqualified, are capable of
consenting to and consummating marriage.
SEC. 6. Section 302 of the Family Code is amended to read:
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
(a) The written consent of the parents of each underage
person, or of one of the parents or the guardian of each
(b) A court order granting permission to the underage person
to marry, obtained on the showing the court requires.
SEC. 7. Section 403 is added to the Family Code , to read:
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.
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
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
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.
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
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)
Bill AB-19 passes Assembly Judiciary Committee:
By 2005-APR-19, the Assembly Judiciary Committee had received hundreds
submissions. The Campaign for Children and Families has provided a list:
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."
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."
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.
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."
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."
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
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."
Baltimore Gonzalez, EQCA’s 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."
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 can’t tinker with the language or intent."
California Family Alliance, Focus on the Family and Family
Research Council, who all oppose the bill, have formed a coalition
called ProtectMarriage.com. 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
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
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."
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.