Legislator tries end-run to undermine Proposition 8

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SACRAMENTO, Calif. — Eight months after California voters protected traditional marriage by amending the state constitution, Sen. Mark Leno has used a legislative maneuver to try to circumvent a portion of the new law.

Reminiscent of a classic "bait-and-switch" tactic used by shady retailers, Leno used a procedural move known as "gut and amend," which allows legislators to take an unrelated bill that has already been approved in one or both chambers, remove the original text and replace it with another, often of a more controversial topic.

The switch came just days before the deadline for bills to pass out of committee for this legislative session.

In this instance, Leno, a Democrat from San Francisco, used SB 54, a bill he originally introduced in January that would have prohibited insurers from using gender as a basis of changing premium, price or charge differentials.

The text of the revised bill now "provides that same-sex couples who validly married outside of California be recognized in this state." Its two main provisions would be to recognize out-of-state same-sex marriage that occurred before the November election as valid in California. In addition, any out-of-state gay marriage performed after that date would be granted all of the rights of traditional marriage, short of calling it "marriage."

It is co-sponsored by San Diego-based Sen. Christine Kehoe.

The analysis of the bill alleges that it "addresses the presently uncertain question of how California should treat same-sex marriages entered outside of this state."

During last year's ballot campaign, Proposition 8 leaders touted the clarity of the measures 14-word text: "Only marriage between a man and a woman is valid or recognized in California."

Including the word recognized, supporters said, covers the matter of out-of-state marriages.

In an e-mail to supporters of Proposition 8, Ron Prentice, chairman of the coalition that sponsored the ballot measure, called the move a "direct assault" on the will of the voters. If approved by the full legislature, the bill would advance to Gov. Arnold Schwarzenegger's desk where its fate is unclear.

"It is simply wrong and undemocratic for liberal gay activists like Senator Mark Leno to attempt to circumvent the decision of voters and rewrite our constitution behind our backs with this sneaky 'gut-and-amend' maneuver," Prentice said.  

Anticipating additional challenges to the amendment, the Protect Marriage coalition recently launched two new groups, an action fund to defend attempts to circumvent the constitution an educational committee that promotes the benefits of traditional marriage.

In addition to the legislative attempt, advocates for same-sex marriage have vowed to overturn the amendment through a similar ballot process. A federal lawsuit has also been filed challenging Proposition 8, which was upheld by the state Supreme Court in late May.


History of SB 54
• April 1 Senate Health Committee – referred to judiciary, 8-3 yes vote.

• April 14 Senate Judiciary – referred to Committee on Appropriations, 3-2 yes vote.

• May 15 – Senate Floor vote 24-14, yes vote.

• June 23 – Assembly Health Committee – referred to judiciary 13-5, yes vote.

• June 30 – Senator Leno cuts and amends bill.

• July 6 – Minor revision in text added.

• July 9 – Gutted bill appears before judiciary as same-sex. marriage bill. Where bill highlight lists senate vote the words "Not relevant" appear.

SB 54 as originally introduced by Leno on Jan. 15, 2009 (Click on blue link)
SUMMARY: Eliminates the exception in current law that allows health plans and health insurers to use gender as a basis for premium, price, or charge differentials, when based on valid statistical and actuarial data.

SB 54 as amended in Assembly on June 30 (Click on blue link)
SUMMARY:  Provides that same-sex couples who validly married outside of California be recognized in this state.


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