BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
SB 1306 (Leno)
As Introduced
Hearing Date: April 8, 2014
Fiscal: No
Urgency: No
NR
SUBJECT
Marriage
DESCRIPTION
This bill would (1) repeal the provision of the Family Code
which provides that only marriage between a man and a woman is
valid or recognized by the State, (2) remove language from the
Family Code which provides that marriage is only between a man
and a woman, and (3) replace other gendered language in the
Family Code with gender-neutral terms.
This bill would provide that marriage is a personal relation
arising out of a civil contract between two persons, and would
remove limitations on the validity of same-sex marriages
performed outside of California.
BACKGROUND
On May 15, 2008, the California Supreme Court, in a 4-3
decision, struck down as unconstitutional the California
statutes enacted by Proposition 22 in 2000 limiting marriage to
a man and a woman. (In re Marriage Cases (2008) 43 Cal.4th
757.) Following the Court's landmark decision, approximately
18,000 same-sex couples wed in California. However, opponents
of same-sex marriage began circulating petitions to amend the
statutory text of invalid Family Code Section 308.5 into the
Constitution even before the Supreme Court issued its ruling,
and enough signatures were gathered to qualify the petition as
Proposition 8. On November 4, 2008, Proposition 8 passed by a
narrow 52 percent margin. Civil rights organizations again
filed suit with the California Supreme Court asking that it
overturn the initiative as an invalid revision.
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On May 26, 2009, the Supreme Court in Strauss v. Horton (2009)
46 Cal.4th 364, upheld Proposition 8 in a 6-1 decision, but
held, unanimously, that the same-sex marriages performed in
California before the passage of Proposition 8 remain valid. In
Strauss, the Supreme Court first determined that Proposition 8
did not repeal the constitutional rights of individuals to
choose their life partners and enter into "a committed,
officially recognized, and protected family relationship that
enjoys all the constitutionally based incidents of marriage"
recognized by the Court in Marriage Cases. (Strauss, 46 Cal.4th
at 388.) Instead, the Court found, Proposition 8 "carves out a
narrow and limited exception to these state constitutional
rights, reserving the official designation of the term
'marriage' for the union of opposite-sex couples as a matter of
state constitutional law, but leaving undisturbed all of the
other extremely significant substantive aspects of a same-sex
couple's state constitutional right to establish an officially
recognized and protected family relationship and the guarantee
of equal protection of the laws." (Id.)
On May 22, 2009, opponents of Proposition 8 filed an action in
federal court in the Northern District of California challenging
Proposition 8 as violating both the due process clause and equal
protection clause of the 14th Amendment to the federal
Constitution. On February 7, 2012, the United States Court of
Appeal for the Ninth Circuit reviewed and affirmed the judgment
of the district court and held that the People of California,
via Proposition 8, violated the Equal Protection Clause of the
federal Constitution by using their power to target a minority
group and withdraw a right that the group already possessed,
without a legitimate reason for doing so. (Perry v. Brown, 52
Cal.4th 1116.) The proponents of Proposition 8 appealed that
decision, but on June 26, 2013, the United States Supreme Court
dismissed the appeal for lack of standing. The State of
California thereafter began allowing same-sex couples to marry,
and began recognizing marriages between same sex couples from
other states. In light of these court decisions, this bill seeks
to update the Family Code to reflect the correct state of law in
California.
CHANGES TO EXISTING LAW
1. Existing law provides that only marriage between a man
and a woman is valid or recognized in California. (Fam.
Code Sec. 308.5.)
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This bill would repeal the above code section.
2. Existing law provides that a marriage is a personal
relation arising out of a civil contract between a man and
a woman. (Fam. Code Sec. 300.)
This bill would instead provide that marriage is a personal
relation arising out of a civil contract between two
persons.
3. Existing law provides that marriages valid in the
jurisdiction where contracted, except for same-sex
marriages contracted after November 5, 2008, are valid in
California. (Fam. Code Sec. 308 (a)-(b).)
Existing law provides that same-sex marriages contracted
after November 5, 2008 have the same rights, protections,
benefits and responsibilities as imposed upon spouses
except for the designation of "marriage." (Fam. Code Sec.
308 (c).)
This bill would instead provide that a marriage contracted
outside of California that would be valid by the laws of
the jurisdiction in which the marriage was contracted, is
valid in California.
4. This bill would make other conforming changes in the
Family Code by replacing gendered language with gender
neutral language.
COMMENT
1. Stated need for the bill
According to the author,
The statutory prohibitions against allowing and recognizing
marriages between same-sex couples were stricken by the
California Supreme Court in In re Marriage Cases but were
never removed. Proposition 8 did not reinstate these
statutory provisions, but rather created a separate
prohibition that is no longer enforced by the state
pursuant to a federal injunction. Because same-sex couples
may now marry in California and are recognized as married
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in California, the existence of these provisions in the
code, and the corresponding use of gendered terms on
Judicial Council and other state forms referencing these
provisions, creates confusion for same-sex married couples,
courts, and government agencies.
2. Continuing trend towards gender-neutral language
This bill would delete references to "husband" or "wife" in
the Family Code and would instead refer to a "spouse," and
make other conforming changes. These changes are in line with
a wide-spread trend. Across the country, states have been
attempting to make statutes more gender neutral. Last year
Time Magazine reported:
About half of the states have moved toward using
gender-neutral language in their official documents,
according to the National Conference of State Legislatures.
State lawmakers in Alaska have attempted for years to
change to their constitution so it contains fewer masculine
pronouns, while states like Florida long ago passed
directives forcing revisers to go through state laws line
by line to purge it of gender bias. In states such as
Nevada and New Mexico, lawmakers have proposed bills in
recent weeks tackling similar issues. (Katy Steinmetz, Down
the Manhole: State Officials Grapple with Gender-Neutral
Language, (Feb. 5, 2013) Time Magazine
[as of
March 28, 2014].)
California was among the first of states to make this
transition in 1974 when the state passed Proposition 11, which
amended the state Constitution to recast terms couched in the
masculine gender. In the context of family law, California's
courts have long been interpreting the code to apply neutrally
regarding gender in an effort to accommodate the evolution of
the nuclear family. In order to best protect parties and
their children, courts recognize that in many families
traditional gender-stereotypes cease to exist: more mothers
are breadwinners, more fathers are primary caretakers, and
many same-sex couples are raising children. To that end, last
year the Legislature updated statutory terms within the
Uniform Parentage Act to conform with case law and other
statutory provisions, including changing "presumed father" to
"presumed parent," and replacing "father" and "mother" with
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"parent." (See AB 1403, Assembly Committee on Judiciary, Ch.
510, Stats. 2013.)
Similarly, this bill would update the Family Code to
accurately reflect case law. Since the court has found that
only recognizing marriage between a man and a woman is
unconstitutional, gendered statutory provisions relating to
marriage no longer accurately reflect California law. The
National Center for Lesbian Rights, a co-sponsor of this bill
writes:
Although Same-sex couples may now marry in California and
are fully recognized as married by the state, the
California code still contains provisions limiting marriage
to one man and one woman. Because of these code
provisions, these restrictions also appear in Judicial
Council forms used in court proceedings, as well as in
other state forms and policies, even though same-sex
married spouses are recognized as married for all purposes.
This inaccurate language can create confusion for courts,
litigants, and applicants for state programs about what
rights are available to same-sex married spouses.
Staff further notes that these changes are particularly
important in the context family law where the vast majority of
litigants are not represented by counsel. For
self-represented individuals, understanding the law and
complex legal processes is often very difficult and can be
nearly impossible when statutes do not reflect the actual law.
Updating the statutes will help ensure that someone reading
the Family Code will have an accurate understanding of the
law.
3. Voter approval not required to make non-substantive
changes to statutes enacted by Proposition.
This bill would repeal Family Code Section 308.5 (which
provides that "only marriage between a man and a woman is
valid or recognized in California"), originally enacted by
Proposition 22 in 2000, and statutory language which specifies
that marriage is "between a man and a woman" in Section 300.
The author has received a number of postcards from individuals
who claim that this would improperly amend Proposition 8.
Proposition 8, however, amended the California Constitution,
which this bill does not seek to alter. This bill instead,
would clarify that the statutory language enacted by
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Proposition 22 has no legal effect.
Generally, California allows for amendment to law enacted by
proposition in only a handful of ways, most of which include
voter approval. However, in order to safeguard the rights of
the public, the courts also have the authority to amend
legislative measures. Consistently, the California courts
have protected the right of voters to exercise the authority
afforded by ballot initiative, but those ballot measures are
subject to the same constitutional limitations that apply to
statutes adopted by the Legislature. Thus, the fact that
Proposition 22 limited marriage to between a man and a woman
by a popular vote does not exempt the resulting statutory
provision from constitutional scrutiny or justify a more
deferential standard of review from the court. In the In re
Marriage Cases the court explained that:
Although defendants maintain that this court has an
obligation to defer to the statutory definition of marriage
contained in section 308.5 because that statute-having been
adopted through the initiative process-represents the
expression of the "people's will," this argument fails to
take into account the very basic point that the provisions
of the California Constitution itself constitute the
ultimate expression of the people's will, and that the
fundamental rights embodied within that Constitution for
the protection of all persons represent restraints that the
people themselves have imposed upon the statutory
enactments that may be adopted either by their elected
representatives or by the voters through the initiative
process. (In re Marriage (2008) 43 Cal.4th 757, 852)
Similarly, in Superior Court v. County of Mendocino (1996) 13
Cal.4th 45, 53 the court reasoned that under the
constitutional theory of 'checks and balances' that the
separation of powers doctrine is intended to serve, a court
has an obligation to enforce the limitations that the
California Constitution imposes upon legislative measures. A
court would shirk the responsibility it owes to each member of
the public were it to consider such statutory provisions to be
insulated from judicial review.
Accordingly, it was the California Supreme Court who
substantively amended the contents of Proposition 22, upon
issuing the decision of the In re Marriage Cases, where it
ordered that the language "between a man and a woman" be
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stricken from the Family Code and ordered that the entirety of
Family Code 308.5 could not stand because it violated the
California Constitutional rights to equal protection, due
process, and privacy. (In re Marriage Cases at 857.) Thus,
this bill would simply reconcile existing statutory language
with case law.
Support : American Federation of State, County and Municipal
Employees (AFSCME); California Teachers Association; Executive
Committee of the Family Law Section of the State Bar (FLEXCOM)
Opposition : None Known
HISTORY
Source : Equality California; National Center for Lesbian Rights
Related Pending Legislation : None Known
Prior Legislation :
SB 1140 (Leno, Chapter 834, Statutes 2012) distinguished between
civil and religious marriage and would have specified that no
authorized person of any religious denomination would be
required to solemnize a marriage that is contrary to the tenets
of his or her faith.
SB 906 (Leno, 2009) contained similar religious exemption
language. This bill was vetoed by the Governor.
AB 43 (Leno, 2007) contained similar religious exemption
language. This bill was vetoed by the Governor.
AB 19 (Leno, 2005) contained similar religious exemption
language. This bill was vetoed by the Governor.
AB 849 (Leno, 2005) contained similar religious exemption
language. This bill was vetoed by the Governor.
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