Home » Legal Commentary » The Multivocality of Changing State Laws on Marriage

The Multivocality of Changing State Laws on Marriage

A Gawker headline yesterday announces, “California Children Can Now Legally Have Three Parents“. And indeed, they can. But this headline obscures as much as it reveals. The law it reports, SB 274, recently signed by California Governor Jerry Brown, has all sorts of internal tensions around what parenting means. I want to offer some quick reflections on the law itself and also ask what this means for how we think about changing social and legal norms.

SB 274, as the text of the bill explains, is explicitly aimed at overturning a California court decision. The case, In re M.C., held that the court could only recognize parentage claims of two parents, despite valid claims of three individuals. During a separation from her partner, Melissa became pregnant with M.C. Jesus, the biological father, was supportive. However, Melissa reconciled with Irene and married her before M.C. was born. Jesus remained supportive of the child and occasionally sent child support. Because Melissa and Irene were considered parents, the court denied Jesus’s otherwise valid claim. In re M.C. notes the important roles played by all three individuals and explains that the court would prefer to recognize all three, but the court felt bound by California law.

SB 274 does important work in changing California law to address this situation. But the law is fascinating for how it simultaneously extends the meaning of parent and limits the reach of that change. There are two competing discourses running through the body of this law. The first is the centrality of the dyadic couple as parents (but with same-sex couples now firmly included in this normal). The second is the limited recognition of other arrangements, and in particular, the importance of the best interests of the child.

Despite explicitly recognizing the possibility of three or more valid parents under the law, the whole tone of SB 274 is still based on a presumption of the normality of two parents in a couple as parents. It leaves in place parts of the law that refer to “either parent” or “one or the other parent”, only tacking on additional sections that note that in “rare” instances there might be more than just two parents. But the text stresses that these should be understood as rare. In addition to the instance noted above, the law seems aimed at cases where adoptive parents (same-sex or not) want to recognize the continued role of biological parents, or where artificial insemination is used and the individuals involved want to recognize the role of the biological father.

This is where we see a real tension in the text of the law. The text shifts from explaining how rare these exceptions are to explaining that family law should properly support families as they exist in society. In this second discourse, the purpose of the law is to recognize and support the real and actual parent-child relationships that people create, regardless of how the state might judge those relationships. In particular, the law notes that children suffer real harms when the state fails to recognize these important relationships. In a few places, the law stresses the importance of not using state interests to impose these harms on children. When the state attempts to limit what families it recognizes, it hurts families as they exist.

Despite this second discourse, emphasizing families as they exist in society, SB 274 remains fixed on the idea of the two parent family. It defines the parent child relationship based on a clear legal or natural relationship. It does not address cases where the individuals involved do not have clear legal or biological parenting claims. It does not address cases where parenting relationships change over time. So what happens when future cases come before the California courts involving competing parenting claims of three or more people? If the courts emphasize the “two-parent normality” discourse in this law, they might strictly limit when a third person can qualify as a parent. On the other hand, if the courts emphasize the “recognize families as they exist” discourse, they might expand when a third person can qualify as a parent.

What does this multivocality mean for how we think about changing legal and social norms? It means we cannot think of the state as a unified actor. Even in a single law, we see competing norms of what “parent” means. We see a legislature struggling to respond to social change in different ways. We don’t see a unified debate over what parent means, but instead mobilization of competing sets of definitions and competing norms. Indeed, many people in the legislature probably did not see these discourses as in tension. Explaining change then is not simply a matter of explaining change in a single set of legal norms. Instead, explaining change requires careful attention to the shifting relationships between competing legal norms.

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