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TWO CALIFORNIA LAWS REGARDING SEXUAL MINORITIES

Bill AB-205 to allow same-sex marriage

Bill AB-196 for transsexual persons

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Sponsored link.

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Proposition 22:

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 state recognition of same-sex relationships. This appears to be mistaken. In reality, the proposition has two effects. It prevents same-sex couples from:

bulletReceiving a marriage license in the state of California.
bulletHaving 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 wish.

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

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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.

bulletGeoff Kors 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
bulletRandy 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
bulletLou 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:

bulletMaranatha 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
bulletKen 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." 3
bulletCampaign 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 people’s vote on marriage, the foundation of family and society....If reversing the people’s vote on marriage doesn’t demonstrate political arrogance, I don’t know what does."

These groups appear to be in error.

bulletThere is no conflict between Proposition 22 and AB 205:
bulletProposition 22 defined marriage as a contract between one man and one woman. It said nothing about same-sex civil unions or domestic partnerships.
bulletAB 205 does not describe marriage, only domestic partnerships between two persons who are prohibited from marrying.
bulletAB 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 tax forms.

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." 2

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:

bulletThey 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.
bulletThey 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.

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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."

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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."

bulletRobert 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."
bulletKate 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."
bulletNathan 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.14

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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 and politicians."

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 ballot.

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 importance."

The proposed ballot measures are also aimed at overturning the decision Judge Richard Kramer's ruling that Proposition 22 is unconstitutional.

This essay continues below.

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Bill AB-196:

Another bill, AB-196, will prohibit housing and employment discrimination against transgender individuals who have surgically changed their gender.

bulletGeoffrey 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."
bulletAssembly 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 qualifications."

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

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References:

  1. Michael Bazeley, "Bill would put domestic partners on legal par with married couples," San Jose Mercury News / Contra Costa Times, 2003-JAN-26, at: http://www.savecalifornia.com/
  2. "California Assembly Passes 'Homosexual Marriage' Bill," Maranatha Christian Journal, 2003-JUN-9. at: http://www.mcjonline.com/
  3. Ken Connor, " 'California Dreaming' becoming a nightmare," Washington Update, 2003-JUN-3, Family Research Council.
  4. "California Assembly Passes 'Gay Marriage;' AB 205 Reverses the Vote of the People of California," Campaign for California Families, 2003-JUN-4, at: http://www.savecalifornia.com/.
  5. "Davis says he'll sign domestic partners bill," Associated Press, 2003-AUG-18, at: http://www.trivalleyherald.com/
  6. "Transgender Rights Bill Passes California Committee," Gfn.com, 2003-MAR-21, at: http://www.tgcrossroads.org/news/?AID=633
  7. "California becomes fourth state to ban transgender discrimination," Associated Press, 2003-AUG-4, at: http://www.signonsandiego.com/
  8. "Gov. Davis Takes a Swat at Marriage," Washington Update, Family Research Council, 2003-SEP-23.
  9. "Text of Proposition 22," California Secretary of State, at: http://primary2000.ss.ca.gov/
  10. "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, 2004-APR-20, at: http://www.nclrights.org/
  11. "Text of Proposition 22," California Secretary of State, at: http://primary2000.ss.ca.gov/
  12. "Bill Number AB 1967, Introduced: Bill Text," at: http://info.sen.ca.gov/
  13. Jennifer Coleman, "Calif. Court Upholds Domestic Partner Law, Says It Doesn't Contradict Gay Marriage Ban," Associated Press, at: http://abcnews.go.com/
  14. David Kravets, "Justices uphold California domestic partner law," Associated Press, 2005-JUN-29, at: http://www.sanluisobispo.com/

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Copyright © 2001 to 2005 by Ontario Consultants on Religious Tolerance
Latest update: 2005-JUL-23
Author: B.A. Robinson

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