BILL ANALYSIS Ó
SB 1306
Page 1
SENATE THIRD READING
SB 1306 (Leno)
As Amended April 29, 2014
Majority vote
SENATE VOTE :25-10
JUDICIARY 7-1
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|Ayes:|Wieckowski, Alejo, Chau, | | |
| |Dickinson, Garcia, | | |
| |Muratsuchi, Stone | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Wagner | | |
| | | | |
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SUMMARY : Clarifies that the statutory language in California's
Family Code enacted by Proposition 22 of 2000 no longer has,
after the California Supreme Court's In re Marriage Cases (2008)
43 Cal.4th 757, any legal effect, and therefore defines marriage
gender-neutrally. Specifically, this bill :
1)Provides, consistent with the State Supreme Court's In re
Marriage Cases, that marriage is a personal relation arising
out of a civil contract between two persons.
2)Seeks to repeal the provision that provides that only marriage
between a man and a woman is valid or recognized in
California.
3)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.
4)Replaces gendered language regarding marriage with
gender-neutral terms.
5)States the declaration of the Legislature that all laws
relating to marriage and the rights and responsibilities of
spouses apply equally to opposite-sex and same-sex spouses.
Provides that the changes in this bill are not intended to
affect any existing decisional law otherwise interpreting the
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amended statutes.
EXISTING LAW :
1)Provides that a marriage is a personal relation arising out of
a civil contract between a man and a woman.
2)Provides that marriages valid in the jurisdiction where
contracted, except for same-sex marriages contracted after
November 5, 2008, are valid in California.
3)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."
4)Provides that only marriage between a man and a woman is valid
or recognized in California.
5)Provides that the Legislature may amend or repeal an
initiative statute by another statute that becomes effective
only when approved by the voters, unless the initiative
statute permits amendments or repeal without voter approval.
FISCAL EFFECT : None
COMMENTS : This bill, conforming existing statutes to
superseding state and federal case law, provides that marriage
is the gender-neutral union of two individuals. The author
writes:
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
[of 2008] 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
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married couples, courts, and government agencies.
This bill represents the culmination of a decades-long effort to
allow same-sex couples to marry in California. In 1999,
California created its first domestic partnership statute for
same-sex couples, following similar actions by local
jurisdictions beginning in the 1980s. The drive for marriage
equality was advanced substantially in 2005 when the author
introduced legislation to permit same-sex couples to marry. AB
849 (Leno) of 2005, became the first marriage equality bill in
the nation to pass a state legislature, but then-Governor
Schwarzenegger vetoed it. Three years later, the California
Supreme Court, in its landmark In re Marriage Cases ruling,
struck down as unconstitutional statutes that limited marriage
to a man and a woman, and same-sex couple were able to marry.
That lasted until November of that year, when Proposition 8,
which defined marriage in the state constitution as the union of
a man and a woman, passed. Proposition 8 was subsequently found
unconstitutional by a federal district court and that decision
remains the law of the land today after the United States
Supreme Court just last year found that appellants lacked
standing to appeal. (Perry v. Schwarzenegger (2010) 740 F.
Supp. 2d 921 (N.D. Cal.); Hollingsworth v. Perry (2013) 133 S.
Ct. 2652.)
Thus, same-sex couples may now marry in California and
California must recognize same-sex marriages from other
jurisdictions. California is no longer alone in its recognition
of same-sex marriages. More and more states are now either
recognizing same-sex marriages or are having their bans on such
marriages challenged in court. As of now, 29 states have either
enacted marriage equality through legislation or the ballot, or
had their state marriage bans struck down as unconstitutional.
This bill seeks to remove Family Code Section 308.5 (which
provides that "only marriage between a man and a woman is valid
or recognized in California"), originally enacted, as noted
above, by Proposition 22, and statutory language which specifies
that marriage is "between a man and a woman" in Family Code
Section 300. It has been erroneously suggested that this
measure improperly amends Proposition 8 itself. Proposition 8,
however, amended the California Constitution, which this bill
does not seek to alter. This bill instead, seeks to clarify
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that the statutory language enacted by Proposition 22 has no
legal effect - which is indeed the case under the In re Marriage
Cases.
The California Constitution does not permit the Legislature to
amend or repeal a statute enacted by initiative unless the
initiative itself allows for that or voters approve the
legislative change. While it may be argued that this measure
runs afoul of the prohibition against legislative action on
initiatives, it is inarguable that this measure has no
substantive effect because any "repeal" of the statute was
effectively accomplished by the California Supreme Court in In
re Marriage Cases, where it ordered that the language "between a
man and a woman" be stricken from Family Code Section 300, and
ordered that the entirety of Family Code Section 308.5 could not
stand because it violated the California Constitutional rights
to equal protection, due process, and privacy. (In re Marriage
Cases) Consequently this bill does make a substantive change in
the law and therefore does not effectively amend or repeal an
initiative statute. The California Supreme Court effectively
did that in its In re Marriage Cases decision. Instead, this
measure simply seeks to reconcile statutory language with
existing Supreme Court precedent, and help ensure that
individuals reading California's Family Code will have an
accurate understanding of existing law.
Analysis Prepared by : Drew Liebert and Leora Gershenzon /
JUD. / (916) 319-2334
FN: 0003924