Issue:  Vol. 48 / No. 12 / 22 March 2018

Bill would divorce
religion from marriage


State Senator Mark Leno, flanked by religious leaders, introduced his Civil Marriage Religious Freedom Act bill at a news conference last week in Sacramento. Photo: Charles Peer
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It is a breakup many LGBT activists say is long overdue, and now openly gay state Senator Mark Leno wants the state to intervene in the split. Leno is pushing a bill that would, in effect, divorce religion from marriage under California's statutes.

Leno's bill, SB 906, is called the Civil Marriage Religious Freedom Act. It would emphatically state that faith leaders in California will not face penalties or be arrested if they refuse to marry same-sex couples. The legislation also clarifies that any church that does not sanction same-sex marriages would not lose its tax-exempt status.

The legislative push is also a reaction to the successful campaign in 2008 to pass Proposition 8, the voter-approved constitutional amendment that banned same-sex marriage in California. During the ballot measure fight, the proponents of Prop 8 flooded the airwaves with television commercials featuring religious leaders warning they could face penalties if they refused to preside over gay nuptials.

"We knew it wasn't true because of the constitution's protections for religious freedom, but they continued to say it," said Leno (D-San Francisco). He introduced his bill, he said, "so that ambiguity is gone and that debate can be laid to rest."

The bill is a retread, of sorts, of legislation that Leno twice pushed through the Legislature that in addition to the religious freedom language would have allowed same-sex marriage in the Golden State. Both times Governor Arnold Schwarzenegger vetoed the bill.

The latest legislation would merely edit the state's family code so that the word marriage would be modified to specify the statutes are talking about civil marriage.

"People clearly have been confused about the difference between civil marriage and religious marriage. The government should not, nor should it be, in the business of religious marriage," said Leno.

The lawmaker likened his bill to how society sanctions "civil divorces" that the Catholic Church is not required to recognize.

"The Catholic Church has a First Amendment right not to recognize civil divorce. We want to make the case they have no requirement to recognize marriage equality and same-sex couples," said Leno. "And that they have no business interfering with the fundamental right of everyone's access to marriage."

By passing Leno's bill LGBT advocates hope to blunt such messages from religious leaders in 2012 when they will seek a repeal of Prop 8 on the ballot that November.

"There is full blown evidence, undeniable evidence all around, that this fear, this concern from the opposition that somehow the ability for same-sex couples to marry and be provided the same rights to civil marriage would erode the concept and practice of separation of church and state by taking away tax exempt status, etc. The bill is very much informed by those kinds of statements," said Andrea Shorter, Equality California's deputy marriage and coalitions coordinator. "We have to take all of the feedback to heart. I think this bill is a clear reflection of that."

EQCA, along with the California Council of Churches Impact, is a sponsor of Leno's bill. Shorter said she understands why some people question why any bill is needed when the U.S. Constitution already protects religious freedom.

But rather than be redundant, Shorter said Leno's legislation is needed.

"This is a real fear that churches and religious institutions have had, especially those who are opponents of marriage rights for same-sex couples," said Shorter, who has spent the last year meeting with faith-based groups to talk to them about marriage equality. "This bill is a response to what has become a real necessity to clarify and strengthen religious protection for clergy through state law. It will help eliminate any uncertainty for clergy and the public."

Pastor Samuel M. Chu, interim executive director of California Faith for Equality, echoed those comments on his group's blog in discussing Leno's bill.

"While there has never been any real possibility that anyone would be forced to marry same-sex couples against their will, we believe this bill will take away that false argument in an upcoming political campaign." wrote Chu. "This bill will further define the separation between church and state."

Mayor Gavin Newsom, who is Catholic and was the brunt of outrage from Catholic leaders after he ordered city officials to marry gays and lesbians in 2004, said Leno's proposed legislation reinforces the principle "that the separation of church and state is real and absolute." He noted some religious institutions have felt they'd be "forced" to perform same-sex marriages and the bill "could be very helpful to the debate."

Ron Prentice, executive director for the California Family Council who was chairman of, issued a statement last week in which he raised concerns that Leno's bill could lead to the redefining of marriage being only between a man and a woman.

"Senate Bill 906 introduces a new term into California law, namely 'civil marriage.' It alters the term for marriage, and it actually may alter the definition of marriage," stated Prentice.

EQCA Executive Director Geoff Kors said he expects the bill to sail through the Legislature.

"I can't imagine this won't garner unanimous support in the Legislature," he said.

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