BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          SB 1005 (Jackson)
          Version: March 16, 2016
          Hearing Date:  March 29, 2016
          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  








          SB 1005 (Jackson)
          Page 2 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." (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).) 







          SB 1005 (Jackson)
          Page 3 of ? 


           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. 

           This bill  would add the term "registered domestic partner" to  
          various codes to ensure that individuals understand that  
          registered domestic partners are treated the same under  
          California law as spouses. 




                                        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 1005 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: 







          SB 1005 (Jackson)
          Page 4 of ? 


            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 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 7,  
            2016].)

          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, 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."  Equality California, sponsor, writes "SB 1306 ?  
          updated the Family Code by replacing references of 'husband' and  
          'wife' with gender-neutral language and made specific revisions  
          in line with directives in In re Marriage Cases and the federal  
          court ruling that Proposition 8 is unconstitutional.  This bill  
          takes the next steps to reflect these decisions in California  
          code." 









          SB 1005 (Jackson)
          Page 5 of ? 

           Support  :  American Civil Liberties Union of California; American  
          Federation of State, County and Municipal Employees, AFL-CIO;  
          National Center for Lesbian Rights           

           Opposition  :  California Catholic Conference (late)

                                        HISTORY
           
           Source  :  Equality California

           Related Pending Legislation  : None known

           Prior Legislation  :

          SB 414 (Jackson, Chapter 609, Statutes of 2015), as introduced,  
          was substantially similar to this bill, but was subsequently  
          amended to address an unrelated issue. 

          SB 1306 (Leno, Chapter 82, Statutes of 2014) See Comment 2. 

          AB 1403 (Committee on Judiciary, Chapter 510, Statutes of 2013)  
          See Comment 2.

                                   **************