BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015 - 2016 Regular Session
SB 414 (Jackson)
Version: February 25, 2015
Hearing Date: April 7, 2015
Fiscal: No
Urgency: No
NR
SUBJECT
Marriage
DESCRIPTION
This bill would replace references to "husband" or "wife" with
references to a "spouse" and make other conforming changes.
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 the invalid Family Code section into the state
Constitution before the Supreme Court issued its ruling, and the
opponents gathered sufficient signatures 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 asking that it overturn the initiative as an invalid
revision.
Roughly one year later, the California 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
remained valid. In Strauss, the Supreme Court held that
Proposition 8 did not repeal the constitutional rights of
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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." (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.)
Less than a week prior to the Strauss decision, 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 United States 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 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, 671 F.3d 1052 (2012).) 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. (Hollingsworth v.
Perry, 133 S.Ct 786 (2013).) In light of these court decisions,
the Legislature has enacted a number of measures that update the
California Code to accurately reflect the law in California.
(See SB 1306 (Leno, Ch. 82, Stats. 2014) and AB 1403 (Committee
on Judiciary, Ch. 510, Stats. 2013). This bill seeks to update
the remaining codes and ensure clarity with respect to the
rights of same-sex spouses.
CHANGES TO EXISTING LAW
Existing case law prohibits the definition of marriage to be
limited to a union between a man and a woman. (See In re
Marriage Cases (2008) 43 Cal.4th 757; Perry v. Brown, 671 F.3d
1052 (2012).)
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Existing law provides that marriage is a personal relation
arising out of a civil contract between two persons. (Fam. Code
Sec. 300.)
Existing law contains various references to "husband" and/or
"wife" throughout 18 different codes.
This bill would replace "husband" and "wife" with "spouse" and
other non-gendered terms.
COMMENT
1.Stated need for the bill
According to the author:
There are many provisions in statutory law, particularly in
California's Probate Code, with important applications for
married couples and the individual rights of a spouse. Language
that does not accurately reflect the law can create confusion
for courts, litigants, and applicants for state programs about
what rights are available to same-sex spouses, particularly for
self-represented individuals. SB 414 helps to ensure all married
couples and individuals understand the law applies to them, and
all legal professionals and administrators are clear on who is
protected under statutory law.
2.Continuing trend towards gender-neutral language
This bill would delete references to "husband" or "wife"
throughout various codes and would instead refer to a "spouse,"
and make other conforming changes. These changes are in line
with a widespread trend. Across the country, states have been
attempting to make statutes more gender neutral. In 2013 Time
Magazine reported:
About half of the states have moved toward using gender-neutral
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language in their official documents, according to the National
Conference of State Legislatures. State lawmakers in Alaska have
attempted for years to change 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 19,
2015].)
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, in 2013 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 "parent." (See AB 1403,
Assembly Committee on Judiciary, Ch. 510, Stats. 2013.) In
addition, last year the Legislature enacted SB 1306 (Leno, Ch.
82, Stats. 2014 ) which codified recent case law by deleting
references to "husband" or "wife" in the Family Code and instead
referring to a "spouse." Similarly, this bill would update the
remaining codes to accurately reflect California law. The
American Civil Liberties Union of California, in support,
further notes:
Marriage equality is the law of the land in California, and
conformity between case law, legal precedent, and statutory
language ensures a fair process for those seeking remedy under
the law, individual litigants, and those tasked with studying,
developing and applying the law.
In support of this bill, the National Center for Lesbian Rights
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writes, "Senate Bill 1306 ? made an important stride towards
ensuring that the code fully protects same-sex spouses. However,
the language of other statues that control property, elder care,
housing, and probate still potentially leave same-sex spouses
vulnerable and unprotected. Because many people without
representation rely on these provisions when their spouse has
passed away or has become incompetent, these changes are
especially important."
3.Opposition's Concerns
The California Catholic Conference writes in opposition that the
"proposal to eliminate all references to 'husband' or 'wife'
wherever it appears in current state law and replace those words
with the singular, generic, word 'spouse' is inappropriate,
divisive and perhaps unconstitutional. .. Moreover, by making
such unneeded amendments to the laws of California, unintended
consequences are undoubtedly likely to arise."
The author responds:
There is no question of whether this measure is
unconstitutional; it does not violate anyone's right to marry,
right to due process, or civil rights. The courts are
obligated to enforce constitutional limitations on ballot
measures in the same way they are obligated to enforce the
limitations that the California Constitution imposes upon
legislative measures. This authority is necessary to
safeguard the rights of the public from being violated by
voter-approved initiatives that exceed constitutional
limitations. This is an appropriate measure because statute
does not reflect case law. Self-represented litigants rely on
statute, and if that language does not reflect case law, it
creates confusion about what rights are available to
litigants.
4.Author's Amendments
The author offers the following technical amendments:
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Author's amendments:
1. On page 56, line 28 strike "woman's" and insert
"person's"
2. On page 56, line 28 after "of" insert "his or"
3. On page 57, line 13, strike "spouse-spouse" and insert
"marital"
4. On page 63, line 25, strike "surviving spouse" and
insert "widow or a widower"
Support : American Civil Liberties Union of California; American
Federation of State, County and Municipal Employees (AFSCME),
AFL-CIO; Equality California; Executive Committee of the Family
Law Section of the State Bar (FLEXCOM); National Association of
Social Workers, California Chapter; National Center for Lesbian
Rights
Opposition : California Catholic Conference
HISTORY
Source : Author
Related Pending Legislation : None known
Prior Legislation :
SB 1306 (Leno, Chapter 82, Statutes of 2014) See Comment 2.
AB 1403 (Committee on Judiciary, Chapter 510, Statutes of 2013)
See Comment 2.
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