Gender Neutrality and Same-Sex Equality:
The California Family Code Becomes Politically and Psychologically Correct in 2015!
With a stroke of his pen on July 7, 2014, Governor Gerry Brown signed a
death warrant ending the 150 plus year reign of a statutory framework
that recognized the legal rights and obligations of only heterosexual
couples, ignoring all other relationship configurations as worthy of equal
protection under the laws of our land. With this enactment, our society
takes another policy step that favors inclusion rather than exclusion.
The upcoming changes to the California Family Code are sweeping and breathtaking,
and more than merely symbolic. They begin with the amendment of former
Family Code section 300(a), which defined marriage as "a personal
relationship arising out of a civil contract between a man and a woman."
Effective January 1, 2015, revised section 300(a) deletes its limiting
reference to a "man" and a "woman" and replaces it
with complete gender neutrality, so that government sanctioned marriages
may be contracted between any "two persons". Our legislature
has thus caught up with the 2013 ruling and result in
Hollingsworth v. Perry, which effectively overturned the Proposition 8 constitutional ban on
same-sex marriage that a majority of voters had adopted to counter the
2008 state Supreme Court
In re Marriage Cases decision (finding that statutes limiting marriage to opposite-sex people
violated the State Constitution).
As a consequence, overall gender distinction in our Family Code statutes
has been rendered not merely obsolete, but possibly odious. Henceforth
there will be no references to "husband" and "wife"
or "man" and a "woman", and beginning next year the
word "spouses" will replace those titles. Specifically, these
changes affect at least the following statutes: Sections 300, 301, 302,
420, 500, 720, 721, 750, 751, 752, 754, 761, 1102, 1500, 1620, 1839, 2200,
2201, 2210, 2211, 2322, 2400, 2401, 3120, 3450, 3551, 3580, 3585, 3600,
4323, and 4930 of, to amend the heading of Chapter 2 (commencing with
Section 720) of Part 1 of Division 4 of, to amend the heading of Chapter
3 (commencing with Section 1620) of Part 5 of Division 4 of, to repeal
Section 308.5 of, and to repeal and add Section 308 of, the Family Code,
relating to marriage. Congratulations to the legal book publishers, since
even family law professionals who sometimes skip buying the new codes
will want to this year.
I believe this has important and positive ramifications for how judges
and practitioners think about parties to matrimonial litigation, and for
the parties themselves who, for instance if same-sex persons, might likely
feel diminished when trying to understand how statutes that speak only
to husbands and wives recognize or affect them. Thinking in gender neutral
language does, after all, operate to rewire our brains, and is therefore
a needed evolutionary step for overcoming unconscious prejudices.
I am particularly pleased to note that some of these changes will put to
rest certain open questions that had gone unanswered by appellate court
justices, like the reach of
former Family Code section 4323. Section 4323 presently reads that where spousal or partner support is
at issue, and if a supported spouse lives with a person of the opposite
sex, there is a rebuttable presumption of a reduced need for support.
Up till now, a divorced woman receiving spousal support who took up a
same-sex romantic cohabitation might argue she was exempted from the effect
of this presumption - although most of us suspected that an appellate
court would be inclined to ignore the opposite-sex language (but then,
a court might have deferred to the legisature). Under the 2015 revisions of
new 4323, the words "nonmarital partner" replace "person of the
opposite sex." Alas, this will no longer need to be answered by the
judiciary in what would have been an interesting analysis.
We will be commenting on other changes to the Family Code and California
Rules of Court in the coming weeks, so please stay tuned!
Author: Thurman W. Arnold, III