CFRW Capitol Update July 1, 2024

 Bill No:   ACA 5 Author: Low (D), et al.
 Amended:  6/5/23 in Assembly Vote:    27
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SENATE JUDICIARY COMMITTEE: 11-0, 6/27/23
AYES: Umberg, Wilk, Allen, Ashby, Caballero, Durazo, Laird, Min, Niello, Stern, Wiener

SENATE ELECTIONS & C.A. COMMITTEE: 6-0, 7/5/23
AYES: Glazer, Allen, McGuire, Menjivar, Newman, Umberg NO VOTE RECORDED: Nguyen
SENATE APPROPRIATIONS COMMITTEE: 5-0, 7/10/23
AYES: Portantino, Ashby, Bradford, Wahab, Wiener NO VOTE RECORDED: Jones, Seyarto

ASSEMBLY FLOOR: 67-0, 6/26/23 – See last page for vote
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SUBJECT: Marriage equality
SOURCE: Office of Lieutenant Governor Eleni Kounalakis
Office of Superintendent of Instruction Tony Thurmond ACLU California Action
Equality California Human Rights Campaign
National Center for Lesbian Rights
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DIGEST: This constitutional amendment repeals the void and unconstitutional provision of the California Constitution that limits marriage to a “man and a woman,” and replaces it with a provision that expressly affirms that the right to marry is a fundamental right.

ANALYSIS:
Existing law:

1)        Defines marriage as 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. Specifies that consent must be followed by the issuance of a license and solemnization, as authorized. (Fam. Code § 300.)
2)        Provides that all people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy. (Cal. Const. Art. I, Sec. 1.)
3)        Provides, in an unconstitutional, voided provision of the California Constitution, that only a marriage between a man and a woman is valid or recognized in the state of California. (Cal. Const., Art. I, Sec. 7.5.)
4)        Provides that a marriage contracted outside California is valid in California if it is valid by the laws of the jurisdiction in which it was contracted. (Fam. Code § 308.)
5)        Provides that no person may be deprived of life, liberty, or property without due process of law or denied equal protection of the laws. (Cal. Const. Art. I, Sec. 7; U.S. Const., Amend. XIV.)
6)        Provides that the California Constitution may be revised through any of the following means:
a)    The Legislature, by rollcall vote entered in the journal, two-thirds of the membership of each house concurring, proposes an amendment or revision of the Constitution;
b)    The Legislature, by rollcall vote entered in the journal, two-thirds of the membership of each house concurring, submits at a general election the question whether to call a convention to revise the Constitution. If the majority of the electorate vote yes on that question, the Legislature shall provide for the convention within six months. Delegates to a constitutional convention shall be voters elected from districts as nearly equal in population as may be practicable; or
c)    By an initiative before the voters. (Cal. Const. Art. XVIII.)
7) Provides that a proposed amendment or revision of the Constitution shall be submitted to voters, and if approved by a majority of the vote, will take effect five days after the Secretary of State files the statement of the vote, unless the measure provides for a later effective date. (Cal. Const. Art. XVIII, Sec. 4.)
This bill:
1)        Repeals Section 7.5 of Article 1 of the California Constitution, which states that only marriage between a man and a woman is valid or recognized in California.
2)        Adds Section 7.5 of Article I to the California Constitution to declare that the right to marry in California is a fundamental right and specifies that this section is in furtherance of both of the following:
a)    The inalienable rights to enjoy life and liberty and to pursue and obtain safety, happiness, and privacy guaranteed by Section 1 of Article I of the California Constitution; and
b)    The rights to due process and equal protection guaranteed by Section 7 of Article I of the California Constitution.

Background

The fight for marriage equality in California

Proposition 8, approved by voters in 2008, added the provision to the California Constitution that this amendment seeks to remove: “Only a marriage between a man and a woman is valid or recognized in California.” (Cal. Const. Art. I Sec. 7.5.) After Proposition 8 passed, marriage equality advocates sued to challenge its constitutionality, on grounds that it violated the Due Process Clause and Equal Protection Clause of the United States Constitution. The Ninth Circuit on appeal agreed with the federal district court and the plaintiffs that Proposition 8 was unconstitutional, and the United States Supreme Court did not address the merits of the case in its decision to uphold the Ninth Circuit ruling. (Perry v. Brown, 671 .3d 1052 (2012), Hollingsworth v. Perry, 570 U.S. 693 (2013).) Thus, after 2013, while the language added by Proposition 8 was still in the California Constitution, it was no longer enforceable.

While Perry v. Brown established marriage equality as a constitutional right in California, the United States Supreme Court had not yet decided if this right applied nationwide. That landmark moment came with the Court’s decision in Obergefell v. Hodges in 2015. In a five-to-four ruling, the Court found that the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment provided LGBTQ individuals a fundamental right to marry, and that no state law banning same-sex marriage is Constitutional. (Obergefell v. Hodges, 576 U.S. 644, 675 (2015).) Accordingly, the Court reasoned, no state may refuse to recognize a lawful same-sex marriage performed in another State on the grounds that it is a same-sex marriage. (Id. at 681.)

ACA 5 is a proposed amendment to the California Constitution

After the Ninth Circuit decision invalidating Proposition 8, efforts were taken by the Legislature to remove provisions of the law that prohibited same-sex marriage. SB 1306 (Leno, Chapter 82, Statutes of 2014) removed the provisions of the Family Code stating that marriage is only between a man and a woman, and reset the marriage sections in gender-neutral terms. (Leno Ch. 82, Stats. 2014.) Thus, this Legislature previously made the state’s statutes conform with the legal precedent on marriage equality, but the Legislature has yet to conform the language in the California Constitution.

SB 1306, as an amendment to state law, simply required passage by the Legislature and a signature of the Governor. In contrast, because it is a proposed amendment to the California Constitution, ACA 5’s task is rather different: it must pass both houses of the Legislature by a two-thirds vote, and then be approved by a majority of the voters of the state as an item on the ballot. (Cal. Const. Art. XVII.) This process recognizes that amendments to the Constitution are not meant to be a egular or common occurrence, and that the Constitution serves as the principal, guiding document of the state.

ACA 5 removes discriminatory and unconstitutional language from California’s Constitution

It is true that marriage equality is still currently the law in the United States; however, it is not impossible that this will not always remain the case, not because the reasoning underlying Obergefell and marriage equality is dubious or unclear on the issue, but because Courts can change. And in fact, the United States Supreme Court already has. It no longer includes two of the Justices who were a part of the majority decision in Obergefell, and at least one current Justice has expressed his interest in revisiting the Court’s decision in that case. In Dobbs v. Jackson Women’s Health Organization, Justice Thomas opined in his separate concurrence that the court “should reconsider all of [the] Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” (Dobbs v. Jackson Women’s Health Organization, 597 U.S.    , J. Thomas concurrence 3 (2022).)
Regardless of the probability that the Supreme Court actually revisits Obergefell, the state need not wait until the issue is imminent to align the state Constitution with the state’s ideals.

While the argument for marriage equality is part of the larger LGBTQ movement, it is also incredibly straight-forward. Marriage equality is about equal treatment under the law, and the ability for LGBTQ couples to enjoy recognition and dignity in the eyes of the state. For these reasons, both the California Supreme Court and the United States Supreme Court have found that bans on marriage equality are unconstitutional. Yet the United States Supreme Court’s decision on marriage quality does not by operation remove unconstitutional provisions from the law. Instead, those unlawful provisions remain unless specifically removed by an act of the Legislature, capable of revival if legal precedent changes. ACA 5 corrects this concern: removing the California Constitution’s provision denying marriage quality will not only remove the blight of an unconstitutional infringement on a fundamental right from the face of the state’s principal guiding document, but also will ensure that the provision will not spring back into effect should the legal precedents on marriage equality ever change.

FISCAL EFFECT:  Appropriation:  No  Fiscal Com.:  No  Local: No

According to the Senate Appropriations Committee, one-time costs of approximately $863,513 to the Secretary of State for printing costs related to the Voter Information Guide and the Text of Proposed Laws for the ballot measure. General Fund). It costs $123,359 per page and the Secretary of State anticipates that ACA 5 would require approximately seven pages.

SUPPORT: (Verified 7/12/23)

Office of Lieutenant Governor Eleni Kounalakis (co-source)
Office of Superintendent of Instruction Tony Thurmond (co-source) ACLU California Action (sponsor)
Equality California (co-source) Human Rights Campaign (co-source)
National Center for Lesbian Rights (co-source) AFSCME
AJC San Francisco
American Jewish Committee – Los Angeles American Jewish Committee – San Diego Anti-Defamation League
Bay Area Municipal Elections Committee
Board of Supervisors for the City and County of San Francisco California Employment Lawyers Association
California Faculty Association
California Federation of Teachers, AFL-CIO California Labor Federation, AFL-CIO
California LGBTQ Health and Human Services Network
California Medical Association
California School Employees Association, AFL-CIO California Teachers Association
Chinese for Affirmative Action
City of San Diego
City of Sunnyvale
City of West Hollywood
County of Los Angeles Board of Supervisors
County of Santa Clara
Culver City Democratic Club Disability Rights California Hadassah
Jewish Center for Justice
Jewish Community Federation and Endowment Fund Jewish Community Relations Council of Bay Area Jewish Community Relations Council of Sacramento Jewish Community Relations Council of Silicon Valley Jewish Democratic Club of Silicon Valley
Jewish Democratic Club of Solano County
Jewish Family & Children’s Service of Long Beach and Orange County Jewish Family & Community Services East Bay
Jewish Family Service of Los Angeles Jewish Family Service of the Desert Jewish Family Service-San Diego
Jewish Family Services of Silicon Valley Jewish Federation of Greater Los Angeles Jewish Federation of Greater Santa Barbara
Jewish Federation of the Greater San Gabriel and Pomona Valleys Jewish Federation of the Sacramento Region
Jewish Long Beach
Jewish Public Affairs Committee JVS SoCal
League of Women Voters of California Los Angeles County Democratic Party Los Angeles LGBT Center
National Association of Social Workers, California Chapter
Planned Parenthood Affiliates of California
Progressive Zionists of California
Santa Monica Democratic Club

OPPOSITION: (Verified 7/12/23)

California Capitol Connection
California Family Council
Concerned Women for America Legislative Action Committee
Freedom in Action
Real Impact 

Marriage is about love and commitment. If two people love each other and want to make a lifetime commitment to one another, they should be able to do so – regardless of their gender, sexual orientation, or race. ACA 5 will reaffirm the freedom to marry as a fundamental right and protect loving couples and families across California who deserve to have their marriages respected under the law.

ARGUMENTS IN OPPOSITION: According to California Capitol Connection:

Marriage has been defined as a union between a man and a woman from the beginning. God instituted it. The Bible teaches us in Genesis 1 and 2, “So God created man in his own image, in the image of God created he him; male and female created he them…And God blessed them, and God said unto them, Be fruitful, and multiply, and replenish the earth, and subdue it.…Therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh.” Jesus Christ reaffirmed this truth in Matthew 19 when He said, “…Have ye not read, that he which made them at the beginning made them male and female, And said, For this cause shall a man leave father and mother, and shall cleave to his wife: and they twain shall be one flesh? Wherefore they are no more twain, but one flesh. What therefore God hath joined together, let not man put asunder.”

The debate about marriage is not about love or hate. It is about truth. Man cannot redefine what God has already defined.

ASSEMBLY FLOOR: 67-0, 6/26/23
AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Davies, Dixon, Essayli, Mike Fong, Friedman, Gabriel, Gipson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Kalra, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wood, Zbur, Rendon

NO VOTE RECORDED: Megan Dahle, Flora, Vince Fong, Gallagher, Garcia, Grayson, Jones-Sawyer, Lackey, Jim Patterson, Joe Patterson, Sanchez, Ta, Wilson