BILL ANALYSIS                                                                                                                                                                                                    


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                                    THIRD READING

          Bill No:  SB 1306
          Author:   Leno (D)
          Amended:  As introduced
          Vote:     21

           SENATE JUDICIARY COMMITTEE  :  5-2, 4/8/14
          AYES:  Jackson, Corbett, Lara, Leno, Monning
          NOES:  Anderson, Vidak

           SUBJECT  :    Marriage

           SOURCE  :     Equality California
                      National Center for Lesbian Rights

           DIGEST  :    This bill repeals the provision of the Family Code  
          which provides that only marriage between a man and a woman is  
          valid or recognized by the State, removes language from the  
          Family Code which provides that marriage is only between a man  
          and a woman, and replaces other gendered language in the Family  
          Code with gender-neutral terms.  This bill also provides that  
          marriage is a personal relation arising out of a civil contract  
          between two persons, and removes limitations on the validity of  
          same-sex marriages performed outside of California. 

           ANALYSIS  :    Existing law provides that only marriage between a  
          man and a woman is valid or recognized in California.
          This bill repeals the above code section. 

          Existing law provides that a marriage is a personal relation  


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          arising out of a civil contract between a man and a woman.

          This bill instead provides that marriage is a personal relation  
          arising out of a civil contract between two persons. 

          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.
          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."
          This bill instead provides 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. 

          This bill makes other conforming changes in the Family Code by  
          replacing gendered language with gender neutral language. 

          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  
          52% margin.  Civil rights organizations again filed suit with  
          the California Supreme Court asking that it overturn the  
          initiative as an invalid revision.  

          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  



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          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." 

          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. 

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

           SUPPORT  :   (Verified  4/9/14)

          Equality California (co-source)  
          National Center for Lesbian Rights (co-source) 
          American Federation of State, County and Municipal Employees
          California Teachers Association
          Executive Committee of the Family Law Section of the State Bar
          Secular Coalition for California



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           OPPOSITION  :    (Verified  4/9/14)

          Concerned Women For America
          Catholics for the Common Good

           ARGUMENTS IN SUPPORT  :    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 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  

           ARGUMENTS IN OPPOSITION  :    In opposition, the Concerned Women  
          For America argue that the California Supreme Court found  
          Proposition 22 unconstitutional and part of this bill's intent  
          is to strike that specific language from Section 308.5 of the  
          Family Code, the definition of marriage as it has been known for  
          millennia remains in the California Constitution, Article 1,  
          Section 7.5.  The Legislature cannot remove the amendment placed  
          there by more than seven million California voters who supported  
          Proposition 8 without another vote of the people or by an  
          appellate decision.  Since the U.S. Supreme Court has vacated  
          the Ninth Circuit decision regarding Proposition 8, neither has  
          occurred and Article 1, Section 7.5 remains the law of the land.  
           They also argue the reason "marriages" between people of the  
          same sex are being recognized in this state is not because of a  
          legal decision, but because the Governor and Secretary of State,  
          who both took oaths to defend the state's constitution, decided  
          without the support of the law or the electorate to ignore their  
          duty to defend the state constitution and allow those unions to  

          AL:nl  4/9/14   Senate Floor Analyses 

                           SUPPORT/OPPOSITION:  SEE ABOVE



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