BILL LOCKYER, as Attorney General, etc., Petitioner, v. CITY AND COUNTY OF SAN FRANCISCO et al., Respondents. BARBARA LEWIS et al., Petitioners, v. NANCY ALFARO, as County Clerk, etc., Respondent.
No. S122923. | No. S122865.
Supreme Court of California
Aug. 12, 2004.
1055
Bill Lockyer, Attorney General, Andrea Lynn Hoch, Chief Assistant Attorney General, Louis R. Mauro, Assistant Attorney General, Kathleen A. Lynch, Zackery Morazzini, Hiren Patel, Timothy M. Muscat, Douglas J. Woods and Christopher E. Krueger, Deputy Attorneys General, for Petitioner Bill Lockyer, as Attorney General of the State of California.
Alliance Defense Fund, Benjamin W. Bull, Jordan W. Lorence, Gary S. McCaleb, Glen Lavy, Robert H. Tyler; Center for Marriage Law, Vincent P. McCarthy; Law Offices of Terry L. Thompson and Terry L. Thompson for Petitioners Barbara Lewis, Charles McIlhenny and Edward Mei.
Liberty Counsel, Mathew D. Staver, Rena M. Lindevaldsen; and Ross S. Heckmann for Randy Thomasson and Campaign for California Families as Amici Curiae on behalf of Petitioner Bill Lockyer, as Attorney General of the State of California.
Divine Queen Mariette Do-Nguyen as Amicus Curiae on behalf of Petitioner Bill Lockyer, as Attorney General of the State of California.
Law Offices of Peter D. Leposcopo and Peter D. Leposcopo for California Senators William J. (“Pete“) Knight, Dennis Hollingsworth, Rico Oller, Bill Morrow, Thomas McClintock, Dick Ackerman, Samuel Aanestad, Bob Margett, Ross Johnson, Jim F. Battin, Jr., California Assembly Members Ray Haynes, George A. Plescia, Tony Strickland, Bill Maze, Robert Pacheco, Doug La Malfa, Guy S. Houston, Steven N. Samuleian, Dave Codgill, Tom Harman, Dave Cox, Patricia C. Bates, Russ Bogh, Kevin McCarthy, Todd Spitzer, Alan Nakanishi, Keith S. Richman, Shirley Horton, Sharon Runner, Jay La Suer and Pacific Justice Institute as Amici Curiae on behalf of Petitioners Barbara Lewis, Charles McIlhenny and Edward Mei.
Dennis J. Herrera, City Attorney, Therese M. Stewart, Chief Deputy City Attorney, Ellen Forman, Wayne K. Snodgrass, Thomas S. Lakritz, K. Scott Dickey, Kathleen S. Morris, Sherri Sokeland Kaiser, Deputy City Attorneys; Howard Rice Nemerovski Canady Falk & Rabkin, Bobbie J. Wilson, Pamela K. Fulmer, Amy E. Margolin, Sarah M. King, Kevin H. Lewis, Ceide Zapparoni, Glenn M. Levy and Chandra Miller Fienen for Respondents.
Alma Marie Triche-Winston and Charel Winston as Amici Curiae on behalf of Respondents.
Morrison & Foerster, Ruth N. Borenstein, Stuart C. Plunkett and Johnathan E. Mansfield for Marriage Equality California, Inc., and Twelve Married Same-Sex Couples as Amici Curiae on behalf of Respondents.
Ann Miller Ravel, County Counsel (Santa Clara) and Martin H. Dodd, Assistant County Counsel, as Amici Curiae on behalf of Respondents.
Dana McRae, County Counsel (Santa Cruz), Shannon M. Sullivan and Jason M. Heath, Assistant County Counsel, as Amici Curiae on behalf of Respondents.
Bingham McCutchen, John R. Reese, Matthew S. Gray, Susan Baker Manning, Huong T. Nguyen and Danielle Merida for Bay Area Lawyers for Individual Freedom as Amicus Curiae on behalf of Respondents.
National Center for Lesbian Rights, Shannon Minter, Courtney Joslin; Heller Ehrman White & McAuliffe, Stephen V. Bomse, Richard DeNatale, Hilary E. Ware; ACLU of Southern California, Martha A. Matthews; Lambda Legal Defense and Education Fund, Jon W. Davidson, Jennifer C. Pizer; Steefel, Levitt & Weiss, Dena L. Narbaitz, Clyde J. Wadsworth; ACLU Foundation of Northern California, Tamara Lange, Alan I. Schlosser; Law Office of David C. Codell, David C. Codell and Aimee Dudovitz for Del Martin and Phyllis Lyon, Sarah Conner and Gillian Smith, Margot McShane and Alexandra D‘Amario, Dave Scott Chandler and Jeffrey Wayne Chandler, Theresa Michelle Petry and Cristal Rivera-Mitchel, Lancy Woo and Cristy Chung, Joshua Rymer and Tim Frazer, Jewell Gomez and Diane Sabin, Myra Beals and Ida Matson, Arthur Frederick Adams and Devin Wayne Baker, Jeanne Rizzo and Pali Cooper, Our Family Coalition and Equality California as Amici Curiae on behalf of Respondents.
Roger Jon Diamond as Amicus Curiae on behalf of Respondents.
OPINION
GEORGE, C. J.---We assumed jurisdiction in these original writ proceedings to address an important but relatively narrow legal issue-whether a local executive official who is charged with the ministerial duty of enforcing a state
In the present case, this legal issue arises out of the refusal of local officials in the City and County of San Francisco to enforce the provisions of California‘s marriage statutes that limit the granting of a marriage license and marriage certificate only to a couple comprised of a man and a woman.
The same legal issue and the same applicable legal principles could come into play, however, in a multitude of situations. For example, we would face the same legal issue if the statute in question were among those that restrict the possession or require the registration of assault weapons, and a local official, charged with the ministerial duty of enforcing those statutes, refused to apply their provisions because of the official‘s view that they violate the Second Amendment of the federal Constitution. In like manner, the same legal issue would be presented if the statute were one of the environmental measures that impose restrictions upon a property owner‘s ability to obtain a building permit for a development that interferes with the public‘s access to the California coastline, and a local official, charged with the ministerial duty of issuing building permits, refused to apply the statutory limitations because of his or her belief that they effect an uncompensated “taking” of property in violation of the just compensation clause of the state or federal Constitution.
Indeed, another example might illustrate the point even more clearly: the same legal issue would arise if the statute at the center of the controversy were the recently enacted provision (operative January 1, 2005) that imposes a ministerial duty upon local officials to accord the same rights and benefits to registered domestic partners as are granted to spouses (see
As these various examples demonstrate, although the present proceeding may be viewed by some as presenting primarily a question of the substantive
As indicated above, that issue-phrased in the narrow terms presented by this case-is whether a local executive official, charged with the ministerial duty of enforcing a statute, has the authority to disregard the terms of the statute in the absence of a judicial determination that it is unconstitutional, based solely upon the official‘s opinion that the governing statute is unconstitutional. As we shall see, it is well established, both in California and elsewhere, that-subject to a few narrow exceptions that clearly are inapplicable here-a local executive official does not possess such authority.
This conclusion is consistent with the classic understanding of the separation of powers doctrine that the legislative power is the power to enact statutes, the executive power is the power to execute or enforce statutes, and the judicial power is the power to interpret statutes and to determine their constitutionality. It is true, of course, that the separation of powers doctrine does not create an absolute or rigid division of functions. (Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 52 [51 Cal.Rptr.2d 837, 913 P.2d 1046].) Furthermore, legislators and executive officials may take into account constitutional considerations in making discretionary decisions within their authorized sphere of action such as whether to enact or veto proposed legislation or exercise prosecutorial discretion. When, however, a duly enacted statute imposes a ministerial duty upon an executive official to follow the dictates of the statute in performing a mandated act, the official generally has no authority to disregard the statutory mandate based on the official‘s own determination that the statute is unconstitutional. (See, e.g., Kendall v. United States (1838) 37 U.S. 524, 613 [9 L.Ed. 1181] [“To contend, that the obligation imposed on the president to see the
Accordingly, for the reasons that follow, we agree with petitioners that local officials in San Francisco exceeded their authority by taking official action in violation of applicable statutory provisions. We therefore shall issue a writ of mandate directing the officials to enforce those provisions unless and until they are judicially determined to be unconstitutional and to take all necessary remedial steps to undo the continuing effects of the officials’ past unauthorized actions, including making appropriate corrections to all relevant official records and notifying all affected same-sex couples that the same-sex marriages authorized by the officials are void and of no legal effect.
To avoid any misunderstanding, we emphasize that the substantive question of the constitutional validity of California‘s statutory provisions limiting marriage to a union between a man and a woman is not before our court in this proceeding, and our decision in this case is not intended, and should not be interpreted, to reflect any view on that issue. We hold only that in the absence of a judicial determination that such statutory provisions are unconstitutional, local executive officials lacked authority to issue marriage licenses to, solemnize marriages of, or register certificates of marriage for same-sex couples, and marriages conducted between same-sex couples in violation of the applicable statutes are void and of no legal effect. Should the applicable statutes be judicially determined to be unconstitutional in the future, same-sex couples then would be free to obtain valid marriage licenses and enter into valid marriages.
I
The events that gave rise to this proceeding began on February 10, 2004, when Gavin Newsom, the Mayor of the City and County of San Francisco and a respondent in one of the consolidated cases before us,2 sent a letter to
In response to the mayor‘s letter, the county clerk designed what she describes as “a gender-neutral application for public marriage licenses, and a gender-neutral marriage license,” to be used by same-sex couples. The newly designed form altered the official state-prescribed form for the “Application
The county clerk, using the altered forms, began issuing marriage licenses to same-sex couples on February 12, 2004, and the county recorder thereafter registered marriage certificates submitted on behalf of same-sex couples who had received licenses from the city and had participated in marriage ceremonies. The declaration of the county clerk, filed in this court on March 5, 2004, indicates that as of that date, the clerk had issued more than approximately 4,000 marriage licenses to same-sex couples. In more recent filings, the city has indicated that approximately 4,000 same-sex marriages have been performed under licenses issued by the County Clerk of the City and County of San Francisco.
On February 13, 2004, two separate actions were filed in San Francisco County Superior Court seeking to halt the city‘s issuance of marriage licenses to same-sex couples and the solemnization and registration of marriages of such couples. (Thomasson v. Newsom (Super. Ct. S.F. City and County, 2004, No. CGC-04-428794); Proposition 22 Legal Defense and Education Fund v. City and County of San Francisco (Super. Ct. S.F. City and County, 2004, No. CPF-04-50943) (hereafter Proposition 22 Legal Defense).) In each case, a request for an immediate stay of the city‘s actions was denied by the superior court after a hearing.6
Anticipating that the respondent city officials likely would oppose the petition by arguing that the applicable state laws are unconstitutional, the petition maintained that such a claim could not justify the officials’ issuance of same-sex marriage licenses in violation of state law “because article III, section 3.5 of the California Constitution prohibits administrative agencies from declaring state laws unconstitutional in the absence of an appellate court determination.” The petition asserted that “[t]he county is a political subdivision of the state charged with administering state government, and local registrars of vital statistics act as state officers. The state‘s agents at the local level simply cannot refuse to enforce state law.”
the show cause order for March 29, 2004. On February 19, 2004, the city filed a cross-complaint for declaratory relief against the State of California in Proposition 22 Legal Defense, seeking a declaration that the California statutes that deny the issuance of marriage licenses to same-sex couples are unconstitutional.
On February 25, 2004, two days prior to the filing of the petition in Lockyer, the petition in Lewis was filed in this court. In Lewis, three residents and taxpayers in the City and County of San Francisco sought a writ of mandate to compel the county clerk to cease and desist issuing marriage licenses to couples other than those who meet state law marriage requirements and on forms that do not comply with state law license requirements, and also sought an immediate stay pending the court‘s determination of the petition.
After receiving the petitions in Lockyer and Lewis, we requested that the city file an opposition to the petition in each case on or before March 5, 2004. The city filed its opposition to the petitions on March 5, arguing that the provisions of
On March 11, 2004, we issued an order in both Lockyer and Lewis directing the city officials to show cause why a writ of mandate should not issue requiring the officials to apply and abide by the current California marriage statutes in the absence of a judicial determination that the statutory provisions are unconstitutional. Pending our determination of these matters, we directed the officials to enforce the existing marriage statutes and refrain from issuing marriage licenses or certificates not authorized by such provisions. We also stayed all proceedings in the two pending San Francisco County Superior Court cases (the Proposition 22 Legal Defense action and the Thomasson v. Newsom action), but specified that the stay “does not
Our March 11 order also specified that the return to be filed by the city officials in each case was to be limited “to the issue whether respondents are exceeding or acting outside the scope of their authority in refusing to enforce the provisions of
Our March 11 order further established an expedited briefing schedule and indicated that the court would hear oral argument in these matters at its late May 2004 or June 2004 oral argument calendar. After receiving the briefs filed by the parties and numerous amici curiae, we requested that the parties file supplemental letter briefs addressing several questions relating to the validity of the marriage licenses and certificates of registry of marriage that already had been issued or registered by city officials to or on behalf of same-sex couples. The supplemental briefs were timely filed, and the cases were argued before this court on May 25, 2004. After oral argument, we filed an order consolidating the two cases for decision.
II
It is well settled in California that “the Legislature has full control of the subject of marriage and may fix the conditions under which the marital status may be created or terminated. . . .” (McClure v. Donovan (1949) 33 Cal.2d 717, 728 [205 P.2d 17].) “The regulation of marriage and divorce is solely within the province of the Legislature, except as the same may be restricted by the Constitution.” (Beeler v. Beeler (1954) 124 Cal.App.2d 679, 682 [268 P.2d 1074]; see, e.g., Estate of DePasse (2002) 97 Cal.App.4th 92, 99 [118 Cal.Rptr.2d 143].) In view of the primacy of the Legislature‘s role in this area, we begin by setting forth the relevant statutes relating to marriage that have some bearing on the issue before us. As we shall see, the Legislature has dealt with the subject of marriage in considerable detail.
As applicable to the issues presented by this case, the relevant statutes dealing with marriage are contained in the
Section 300 provides in full: “Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization as authorized by this division, except as provided by Section 4258 and Part 4 (commencing with Section 500).9” (Italics added.)
Section 301 provides: “An unmarried male of the age of 18 years or older, and an unmarried female of the age of 18 or older, and not otherwise disqualified, are capable of consenting to and consummating marriage.” (Italics added.)
Section 308.5 provides: “Only marriage between a man and a woman is valid or recognized in California.” (Italics added.)
In the opposition filed in this court, the city takes the position that neither section 301 nor section 308.5 is relevant to the question whether current California statutes limit marriages performed in California to marriages between a man and a woman,10 but the city concedes that section 300, both
by its terms and its purpose, imposes such a limitation on marriages performed in California.11 Because we agree that section 300 clearly establishes that current California statutory law limits marriage to couples comprised of a man and a woman, we need not and do not address the scope or effect of sections 301 and 308.5 in this case.
The Family Code provisions relating to marriage licenses and to the certificate of registry of marriage are set forth in
Provisions regarding the solemnization of marriage are set forth in
The Health and Safety Code contains numerous additional provisions prescribing in detail the procedures governing marriage licenses and marriage
The relevant Health and Safety Code statutes also specify that “[t]he county recorder is the local registrar of marriages and shall perform all the duties of the local registrar of marriages” (
Pursuant to the foregoing provisions, the State Registrar of Vital Statistics (who, as noted, is also the California Director of Health Services) has prescribed a form—Department of Health Services Form VS-117—which serves as the application for license to marry, the license to marry, and the certificate of registry of marriage. One of the principal California family law practice guides describes the relevant portions of the form as follows: “The
The city acknowledges that the county clerk altered the form prescribed by the State Registrar of Vital Statistics by replacing references to “bride,” “groom,” and “unmarried man and unmarried woman” with references to “first applicant,” “second applicant,” and “unmarried individuals,” that the county clerk further issued marriage licenses to same-sex couples, and that the county recorder registered certificates of registry of marriage for such couples, despite the knowledge of these officials that the current California statutes do not authorize such actions. The city defends the actions of these officials on the ground that they were based on the belief that the statutory restriction in California law limiting marriage to a man and a woman is unconstitutional. The principal question before us is whether the local officials exceeded or acted outside of their authority in taking these actions.
III
In light of several questions raised by the briefs filed by the city in this court, we begin with a brief discussion of the respective roles of state and local officials with regard to the enforcement of the marriage statutes (in particular, the issuance of marriage licenses and the registering of marriage certificates), and of the nature of the duties of local officials under the applicable statutes.
A
As is demonstrated by the above review of the relevant statutory provisions, the Legislature has enacted a comprehensive scheme regulating marriage in California, establishing the substantive standards for eligibility for marriage and setting forth in detail the procedures to be followed and the public officials who are entrusted with carrying out these procedures. In light of both the historical understanding reflected in this statutory scheme and the statutes’ repeated emphasis on the importance of having uniform rules and procedures apply throughout the state to the subject of marriage,
Furthermore, the relevant statutes also reveal that the only local officials to whom the state has granted authority to act with regard to marriage licenses and marriage certificates are the county clerk and the county recorder. The statutes do not authorize the mayor of a city (or city and county, as is San Francisco) or any other comparable local official to take any action with regard to the process of issuing marriage licenses or registering marriage certificates. Although a mayor may have authority under a local charter to supervise and control the actions of a county clerk or county recorder with regard to other subjects, a mayor has no authority to expand or vary the authority of a county clerk or county recorder to grant marriage licenses or register marriage certificates under the governing state statutes, or to direct those officials to act in contravention of those statutes. (See, e.g., Coulter v. Pool (1921) 187 Cal. 181, 187 [“A public officer is a public agent and as such acts only on behalf of his principal . . . . The most general characteristic of a public officer . . . is that a public duty is delegated and entrusted to him, as agent, the performance of which is an exercise of a part of the governmental functions of the particular political unit for which he, as agent, is acting” (italics added)]; Sacramento v. Simmons (1924) 66 Cal.App. 18, 24-25 [when state statute designated local health officers as local registrars of vital statistics, “to the extent [such officials] are discharging such duties they are acting as state officers. They are state officers performing state functions and are under the exclusive jurisdiction of the state registrar of vital statistics” (italics added)]; Boss v. Lewis (1917) 33 Cal.App. 792, 794 [city clerk, when acting as local registrar of vital statistics under state law, is state officer].)
Accordingly, to the extent the mayor purported to “direct” or “instruct” the county clerk and the county recorder to take specific actions with regard to the issuance of marriage licenses or the registering of marriage certificates, we conclude he exceeded the scope of his authority. (See, e.g., Sacramento v. Simmons, supra, 66 Cal.App. 18, 24-28.)15 Furthermore, if the county clerk or the county recorder acted in this case in contravention of the
Notes
With regard to section 308.5—which provides that “[o]nly marriage between a man and woman is valid or recognized in California“—the opposition maintains that, in light of the provision‘s history, “[t]his statute is irrelevant to the case at hand because it addresses only
Section 351 provides: “The marriage license shall show all of the following: [] (a) The identity of the parties to the marriage. [] (b) The parties’ real and full names, and places of residence. [] (c) The parties’ ages.”
Section 354 provides: “(a) Each applicant for a marriage license may be required to present authentic identification as to name. [] (b) For the purpose of ascertaining the facts mentioned or required in this part, if the clerk deems it necessary, the clerk may examine the applicants for a marriage license on oath at the time of the application. The clerk shall reduce the examination to writing and the applicants shall sign it. [] (c) If necessary, the clerk may request additional documentary proof as to the accuracy of the facts stated. [] (d) Applicants for a marriage license shall not be required to state, for any purpose, their race or color.” (Italics added.)
Section 355 provides: “(a) The forms for the application for a marriage license and the marriage license shall be prescribed by the State Department of Health Services, and shall be adapted to set forth the facts required in this part. [] (b) The form for the application for a marriage license shall include an affidavit on the back, which the applicants shall sign,
AFFIDAVIT
I acknowledge that I have received the brochure titled _________________
___________________ ___________
Signature of Bride Date
___________________ ___________
Signature of Groom Date
[End of section 355.]” (Italics added.)
Section 359 provides: “(a) Applicants for a marriage license shall obtain from the county clerk issuing the license, a certificate of registry of marriage. [] (b) The contents of the certificate of registry are as provided in Division 9 (commencing with Section 102100) of Division 102 of the Health and Safety Code. [] (c) The certificate of registry shall be filled out by the applicants, in the presence of the county clerk issuing the marriage license, and shall be presented to the person solemnizing the marriage. [] (d) The person solemnizing the marriage shall complete the registry and shall cause to be entered on the certificate of registry the signature and address of one witness to the marriage ceremony. [] (e) The certificate of registry shall be returned by the person solemnizing the marriage to the county recorder of the county in which the license was issued within 10 days after the ceremony. [] (f) As used in this division, ‘returned’ means presented to the appropriate person in person, or postmarked, before the expiration of the specified time period.” (Italics added.)
Section 422 provides in relevant part: “The person solemnizing a marriage shall make, sign, and endorse upon or attach to the marriage license a statement, in the form prescribed by the State Department of Health Services, showing all of the following: [] (a) The fact, date (month, day, year), and place (city and county) of solemnization. [] (b) The names and places of residence of one or more witnesses to the ceremony. [] (c) The official position of the person solemnizing the marriage. . . .” (Italics added.)
Section 423 provides: “The person solemnizing the marriage shall return the marriage license, endorsed as required in Section 422, to the county recorder of the county in which the license was issued within 10 days after the ceremony.” (Italics added.)
Although it is not clear that the county clerk and the county recorder acted on the basis of each individual official‘s own opinion or determination as to the unconstitutionality of the applicable statutes (see fn. 15, ante), and the actions of these officials might be vulnerable to challenge on that ground alone, it is nonetheless appropriate in this case to address the question whether a public official may refuse to enforce a statute when he or she determines the statute to be unconstitutional. The city maintains that when, as here, a public official has asserted in a mandate proceeding that a statutory provision that the official has refused to enforce is unconstitutional, a court may not issue a writ of mandate to compel the official to perform a ministerial duty prescribed by the statute unless the court first determines that the statute is constitutional. If, however, the controlling rule of law requires such an official to carry out a ministerial duty dictated by statute unless and until the statute has been judicially determined to be unconstitutional, it follows that such an official cannot compel a court to rule on the constitutional issue by refusing to apply the statute and that a writ of mandate properly may issue, without a judicial determination of the statute‘s constitutionality, directing the official to comply with the statute unless and until the statute has been judicially determined to be unconstitutional. Accordingly, in deciding whether a writ of mandate should issue, it is appropriate to determine whether the city officials were obligated to comply with the ministerial duty prescribed by statute without regard to their view of the constitutionality of the statute.
B
In addition, we believe it is appropriate to clarify at the outset that, under the statutes reviewed above, the duties of the county clerk and the county recorder at issue in this case properly are characterized as ministerial rather than discretionary. When the substantive and procedural requirements
Thus, the issue before us is whether under California law the authority of a local executive official, charged with the ministerial duty of enforcing a state statute, includes the authority to disregard the statutory requirements when the official is of the opinion the provision is unconstitutional but there has been no judicial determination of unconstitutionality.
IV
In the opposition and supplemental opposition filed in this court, the city maintains that a local executive official‘s general duty and authority to apply the law includes the authority to refuse to apply a statute whenever the official believes it to be unconstitutional, even in the absence of a judicial determination of unconstitutionality and even when the duty prescribed by the statute is ministerial. The city asserts that such authority flows from every public official‘s duty “to conform [his or her] acts to constitutional norms.” The Attorney General argues, by contrast, that it is well established that a duly enacted statute is presumed to be constitutional, and he maintains that “the prospect of local governmental officials unilaterally defying state laws with which they disagree is untenable and inconsistent with the precepts of our legal system.”
As we shall explain, we conclude that a local public official, charged with the ministerial duty of enforcing a statute, generally does not have the authority, in the absence of a judicial determination of unconstitutionality, to refuse to enforce the statute on the basis of the official‘s view that it is unconstitutional.16
In the initial petitions filed in this matter, petitioners relied primarily on the provisions of
The city vigorously contests petitioners’ suggested interpretation of
Although one Court of Appeal decision contains language directly supporting petitioners’ argument that
As we shall explain, we have determined that we need not (and thus do not) decide in this case whether the actions of the local executive officials here at issue fall within the scope or reach of
B
We begin with a few basic legal principles that were well established prior to the adoption of
First, one of the fundamental principles of our constitutional system of government is that a statute, once duly enacted, “is presumed to be constitutional. Unconstitutionality must be clearly shown, and doubts will be resolved in favor of its validity.” (7 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, § 58, pp. 102-103 [citing, among numerous other authorities, In re Madera Irrigation District (1891) 92 Cal. 296, 308; San Francisco v. Industrial Acc. Com. (1920) 183 Cal. 273, 280; People v. Globe Grain and Mill. Co. (1930) 211 Cal. 121, 127].)
Second, it is equally well established that when, as here, a public official‘s authority to act in a particular area derives wholly from statute, the scope of that authority is measured by the terms of the governing statute. “It is well settled in this state and elsewhere, that when a statute prescribes the particular method in which a public officer, acting under a special authority, shall perform his duties, the mode is the measure of the power.” (Cowell v. Martin (1872) 43 Cal. 605, 613-614; see, e.g., County of Alpine v. County of Tuolumne (1958) 49 Cal.2d 787, 797; California State Restaurant Assn. v. Whitlow (1976) 58 Cal.App.3d 340, 346-347 [“[a]dministrative bodies and officers have only such powers as have expressly or impliedly been conferred upon them by the Constitution or by statute“].)
The city has not identified any provision in the California Constitution or in the applicable statutes that purports to grant the county clerk or the county recorder (or any other local official) the authority to determine the constitutionality of the statutes each public official has a ministerial duty to enforce. Instead, the city‘s position appears to be that a public executive official‘s duty
As we shall see, the California authorities that were in place prior to the adoption of
C
Although in this case we need not determine the scope of
In Southern Pacific, the plaintiff railroad company sought review of two decisions of the Public Utilities Commission (PUC) in which the PUC held that
In Southern Pacific, the PUC concluded in an administrative proceeding that
On review, this court unanimously disagreed with the PUC‘s constitutional determination. Observing that
Justice Mosk‘s concurring and dissenting opinion in Southern Pacific acknowledged that a prior California decision—Walker v. Munro (1960) 178 Cal.App.2d 67 (hereafter Walker)—had held that an administrative agency that has been granted judicial or quasi-judicial power by the California Constitution (a type of entity commonly referred to as a “constitutional agency“)19 has the authority to consider the constitutionality of a statute in the course of its quasi-judicial proceedings. Justice Mosk suggested, however, that Walker had been “indirectly criticized and implicitly disapproved” (Southern Pacific, supra, 18 Cal.3d at p. 316 (conc. & dis. opn. of Mosk, J.)) in State of California v. Superior Court (1974) 12 Cal.3d 237, 250-251 (hereafter State of California v. Superior Court (Veta)), and he took issue with “the debatable premise that any and all ‘judicial power’ inherently entails the authority to declare a law unconstitutional.” (Southern Pacific, supra, 18 Cal.3d at p. 317.) Relying upon language in numerous decisions of the United States Supreme Court indicating that an administrative agency or executive official has no power to adjudicate constitutional issues (id. at p. 316), and decisions from other jurisdictions holding “that administrative agencies lack the powers appropriated in this case” (ibid.), Justice Mosk concluded that the extensive powers granted by the California Constitution to the PUC did not include the power to declare a statute unconstitutional and to refuse to apply it.
The majority in Southern Pacific stated in this regard: “[T]he Constitution and statutes of this state grant the commission wide administrative, legislative, and judicial powers. [Citations.] The Legislature has limited the judiciary from interfering with the commission by restricting review to the Supreme Court and by additionally restricting review to determining ‘whether the commission has regularly pursued its authority, including a determination of whether the order or decision under review violates any right of the petitioner under the Constitution of the United States or of this State.’ (Italics added; [citations].) Public Utilities Code section 1732 provides corporations and individuals may not raise matters in any court not presented to the commission on petition for rehearing, reflecting, when read with the judicial review sections, legislative determination that all issues must be presented to the commission. Under the broad powers granted it, the commission may determine the validity of statutes.” (Southern Pacific, supra, 18 Cal.3d at pp. 311-312, fn. 2, italics added.)
This review of the decision in Southern Pacific demonstrates that there was a significant disagreement in this court on the particular question whether a so-called constitutional agency (like the PUC), that has been granted the authority to exercise quasi-judicial power by the California Constitution, has the authority to determine that a statute the agency is called upon to apply is unconstitutional and need not be followed. We are unaware, however, of any case, either prior to or subsequent to Southern Pacific, that suggests that under the California Constitution a local executive official such as a county clerk, who is charged with the ministerial duty to enforce a statute, has the authority to exercise judicial power by determining whether a statute is unconstitutional.
The case of Walker, supra, 178 Cal.App.2d 67, cited (and criticized) in Justice Mosk‘s concurring and dissenting opinion in Southern Pacific, appears to be the first case in California to address the question whether an administrative agency has the authority to determine the constitutionality of a
On appeal, the plaintiffs argued that the exhaustion of remedies doctrine upon which the trial court had relied was inapplicable, because the Department of Alcoholic Beverage Control “does not have the power . . . to decide constitutional questions.” (Walker, supra, 178 Cal.App.2d at p. 73.) In rejecting this contention, the Court of Appeal in Walker began by referring to the applicable provision of the California Constitution that empowers the Alcoholic Beverage Control Appeals Board to review questions ” ‘whether the department has proceeded without or in excess of its jurisdiction, whether the department has proceeded in the manner required by law, whether the decision is supported by the findings, and whether the findings are supported by substantial evidence in light of the whole record.’ (
In response to the plaintiffs’ claim in Walker that the department only could make findings of fact and that the appeals board only was empowered “to review certain questions of law, which are only procedural” (Walker, supra, 178 Cal.App.2d at p. 74), the court in Walker stated: “However, there does not appear to be any basis for so limiting the grant of power to the Appeals Board. The Appeals Board may determine whether the department acted within its jurisdiction. In United Insurance Co. v. Maloney [(1954)] 127 Cal.App.2d [155,] 157, the court stated: ‘A charge of unconstitutional action goes to the very jurisdiction of the administrative officer or body to entertain the proceeding. . . .’ [Citation.] This would also seem applicable to a charge that the statute which the agency is seeking to enforce is unconstitutional.” (Walker, supra, 178 Cal.App.2d at p. 74.)
As noted in Justice Mosk‘s concurring and dissenting opinion in Southern Pacific, this court held in State of California v. Superior Court (Veta), supra, 12 Cal.3d 237, some years after the appellate court‘s decision in Walker, that a plaintiff seeking a declaration that the California Coastal Zone Conservation Act of 1972 was unconstitutional was not required to pursue that constitutional claim before the Coastal Zone Conservation Commission prior to bringing a court action. (12 Cal.3d at pp. 250-251.) Although there is some language in Veta critical of Walker, the two cases nonetheless are clearly and easily distinguishable, because the Coastal Zone Conservation Commission, unlike the Alcoholic Beverage Control Appeals Board, had not been granted any judicial power by the California Constitution. Thus, the holding in State of California v. Superior Court (Veta) that the commission lacked authority to pass on the constitutionality of the statute establishing its status and functions was not inconsistent with the Walker decision.
In light of the foregoing review of the relevant case law, we believe that after this court‘s decision in Southern Pacific, supra, 18 Cal.3d 308, the state of the law in this area was clear: administrative agencies that had been granted judicial or quasi-judicial power by the California Constitution possessed the authority, in the exercise of their administrative functions, to determine the constitutionality of statutes, but agencies that had not been granted such power under the California Constitution lacked such authority. (See Hand v. Board of Examiners in Veterinary Medicine (1977) 66 Cal.App.3d 605, 617-619.) Accordingly, these decisions recognize that, under
Given the foregoing decisions and their reasoning, it appears evident that under California law as it existed prior to the adoption of
The city, in arguing that
Accordingly, we conclude that at the time
The adoption of
statute is unconstitutional.” (Italics added.) As we already have noted, we need not and do not decide in this case what effect the adoption of
D
In support of its contrary claim that, as a general matter, California law long has recognized that an executive public official has the authority to refuse to comply with a ministerial statutory duty whenever the official personally believes the statute is unconstitutional, the city relies upon a line of California decisions that have reviewed the validity of statutes or ordinances authorizing the issuance of bonds, the letting of public contracts, or the disbursement of public funds in mandate actions filed against public officials who refused to comply with a ministerial duty. As the city accurately notes, numerous California decisions addressing these three subjects have held that “mandate is the proper remedy to compel a public officer to perform ministerial acts such as issuance of bonds [and that] the constitutionality of the law authorizing a bond issuance may be determined in a proceeding for such a writ.” (California Housing Finance Agency v. Elliott (1976) 17 Cal.3d 575, 579-580 [131 Cal.Rptr. 361, 551 P.2d 1193] [bond]; see, e.g., California Educational Facilities Authority v. Priest (1974) 12 Cal.3d 593, 598 [116 Cal.Rptr. 361, 526 P.2d 513] [bond]; Metropolitan Water District v. Marquardt (1963) 59 Cal.2d 159, 170-171 [28 Cal.Rptr. 724, 379 P.2d 28] [public contract]; City of Whittier v. Dixon (1944) 24 Cal.2d 664, 666 [151 P.2d 5] [warrant]; Golden Gate Bridge etc. Dist. v. Felt (1931) 214 Cal. 308, 315-320 [5 P.2d 585] [bond]; Los Angeles Co. F.C. Dist. v. Hamilton (1917) 177 Cal. 119, 121 [169 P. 1028] [bond]; Denman v. Broderick (1896) 111 Cal. 96, 99, 105 [43 P. 516] [warrant].)
In each of the foregoing cases, the mandate action was instituted after a public official who was under a statutory duty to perform a ministerial act that was a necessary step in the issuance of the bond, the letting of the contract, or the disbursement of public funds (such as affixing the official‘s signature to the bond or contract, or issuing a warrant) refused to perform that act based upon the official‘s ostensible doubts as to the constitutional validity of the statute authorizing the bond, contract, or public expenditure. The city emphasizes that in none of these cases did the court criticize such a public official for declining to perform his or her ministerial act, but instead concluded that the public official‘s refusal to act was an appropriate means of
We believe the city‘s argument misconceives the state of the law prior to the adoption of
It is the line of public finance cases upon which the city relies that involves the exceptional situation. As the applicable decisions make clear, the public official in each of those cases was permitted to refuse to perform a ministerial act when he or she had doubts about the validity of the underlying bond, contract, or public expenditure, both in order to ensure that a mechanism was available for obtaining a timely judicial determination of the validity of the bond issue, contract, or public expenditure—a determination often essential to the marketability of bonds or to the contracting parties’ willingness to go forward with the contract (see, e.g., Golden Gate Bridge etc. Dist. v. Felt, supra, 214 Cal. 308, 315), or to avoid irreparable loss of public funds25—and in recognition of the circumstance that, in this specific context, the public official frequently faced potential personal liability (as distinguished from the potential liability of a governmental entity) if the bond, contract, or public expenditure ultimately was found to be invalid. (See, e.g., Golden Gate Bridge etc. Dist. v. Felt, supra, 214 Cal. at pp. 316-317; Denman v. Broderick, supra, 111 Cal. 96, 105.)
Although the city points to language in some of these decisions that could be read to support the city‘s broad position here, the holdings in these cases clearly are limited to a public official‘s ability to refuse to perform a ministerial act necessary for the execution of a bond issue or public contract, or the disbursement of public funds, where such refusal permits a judicial determination prior to the actual sale of the bonds, the carrying out of the contract, or the disbursement of public funds, and where the official‘s personal liability frequently is at stake. Contrary to the city‘s contention, the circumstance that a public official may refuse to perform a ministerial act in that context does not signify that in all other contexts every public official is free to refuse to perform a ministerial act based upon the official‘s view that the statute the officer is statutorily obligated to apply is unconstitutional.
The city attempts to bring the present matter within the reach of the foregoing cases by arguing that if the city officials enforced California‘s current marriage laws limiting marriage to a man and a woman, the officials would face possible personal liability for monetary damages under state or federal law if the marriage statutes subsequently were determined to be unconstitutional. The city‘s argument in this regard clearly lacks merit.
First, as a matter of state law,
Second, under federal
Finally, even if the city officials were to be sued in their personal capacity for actions taken pursuant to statute and in the scope of their employment, under
E
Some academic commentators, while confirming that as a general rule executive officials must comply with duly enacted statutes even when the officials believe the provisions are unconstitutional, have suggested that there may be room to recognize an exception to this general rule in instances in which a public official‘s refusal to apply the statute would provide the most practical or reasonable means of enabling the question of the statute‘s constitutionality to be brought before a court. (See, e.g., May, Presidential Defiance of “Unconstitutional” Laws: Reviving the Royal Prerogative (1994) 21 Hastings Const. L.Q. 865, 994-996.)26 As we have just seen, the line of public finance cases relied upon by the city may be viewed as an example of
Although it may be appropriate in some circumstances for a public entity or public official to refuse or decline to enforce a statute as a means of bringing the constitutionality of the statute before a court for judicial resolution, it is nonetheless clear that such an exception does not justify the actions of the local officials at issue in the present case. Here, there existed a clear and readily available means, other than the officials’ wholesale defiance of the applicable statutes, to ensure that the constitutionality of the current marriage statutes would be decided by a court. If the local officials charged with the ministerial duty of issuing marriage licenses and registering marriage certificates believed the state‘s current marriage statutes are unconstitutional and should be tested in court, they could have denied a same-sex couple‘s request for a marriage license and advised the couple to challenge the denial in superior court. That procedure—a lawsuit brought by a couple who has been denied a license under existing statutes—is the procedure that was utilized to challenge the constitutionality of California‘s antimiscegenation statute in Perez v. Sharp (1948) 32 Cal.2d 711 [198 P.2d 17], and the procedure apparently utilized in all of the other same-sex marriage cases that have been litigated recently in other states. (See, e.g., Baehr v. Lewin (1993) 74 Haw. 530 [852 P.2d 44]; Goodridge v. Department of Pub. Health (2003) 440 Mass. 309 [798 N.E.2d 941]; Baker v. State of Vermont (1999) 170 Vt. 194 [744 A.2d 864].) The city cannot plausibly claim that the desire to obtain a judicial ruling on the constitutional issue justified the wholesale defiance of the applicable statutes that occurred here.27
Accordingly, the city cannot defend the challenged actions on the ground that such actions were necessary to obtain a judicial determination of the constitutionality of California‘s marriage statutes.
F
The city also relies on the circumstance that each of the city officials in question took an oath of office to “support and defend” the state and federal Constitutions,28 suggesting that a public official would violate his or her oath of office were the official to perform a ministerial act under a statute that the official personally believes violates the Constitution. In our view, this contention clearly lacks merit.
As Justice Mosk explained in his concurring and dissenting opinion in Southern Pacific, supra, 18 Cal.3d 308, 319, a public official “faithfully upholds the Constitution by complying with the mandates of the Legislature, leaving to courts the decision whether those mandates are invalid.” A public official does not honor his or her oath to defend the Constitution by taking action in contravention of the restrictions of his or her office or authority and justifying such action by reference to his or her personal constitutional views. For example, it is clear that a justice of this court or of an intermediate appellate court does not act in contravention of his or her oath of office when the justice follows a controlling constitutional decision of a higher court even though the justice personally believes that the controlling decision was wrongly decided and that the Constitution actually requires the opposite result. On the contrary, the oath to support and defend the Constitution requires a public official to act within the constraints of our constitutional system, not to disregard presumptively valid statutes and take action in violation of such statutes on the basis of the official‘s own
G
The city further contends that a general rule requiring an executive official to comply with an existing statute unless and until the statute has been judicially determined to be unconstitutional is impractical and would lead to intolerable circumstances. The city posits a hypothetical example of a public official faced with a statute that is identical in all respects to another statute that a court already has determined is unconstitutional, and suggests it would be absurd to require the official to apply the clearly invalid statute in that instance. For support, the city points to a passage in the majority opinion in Southern Pacific, which asks rhetorically: “[W]hen the United States Supreme Court, for example, repudiates the separate but equal doctrine established by the statutes of one state, should the school boards of other states continue to apply identical statutes until a court declares them invalid[?]” (Southern Pacific, supra, 18 Cal.3d 308, 311, fn. 2.)
Whatever force this argument might have in a case in which a governing decision previously has found an identical statute unconstitutional or in which the invalidity of the statute is so patent or clearly established that no reasonable official could believe the statute is constitutional,31 the
II
Accordingly, we conclude that, under California law, the city officials had no authority to refuse to perform their ministerial duty in conformity with the current California marriage statutes on the basis of their view that the
It is worth noting that the California rule generally precluding an executive official from refusing to perform a ministerial duty imposed by statute on the basis of the official‘s determination or opinion that the statute is unconstitutional is consistent with the general rule applied in the overwhelming majority of cases from other jurisdictions. (See generally Annot., Unconstitutionality of Statute as Defense to Mandamus Proceeding (1924) 30 A.L.R. 378, 379 [“[t]he weight of authority [holds] that a public officer whose duties are of a ministerial character cannot question the constitutionality of a statute as a defense to a mandamus proceeding to compel him to perform some official duty, where in the performance of such duty his personal interests or rights will not be affected, and he will not incur any personal liability, or violate his oath of office“]; Annot. (1940) 129 A.L.R. 941 [supplementing 30 A.L.R. 378]; see also Note (1928) 42 Harv. L.Rev. 1071.)34
In addition to the California decisions reviewed above and the weight of judicial authority from other jurisdictions, consideration of the practical consequences of a contrary rule further demonstrates the unsoundness of the city‘s position.
To begin with, most local executive officials have no legal training and thus lack the relevant expertise to make constitutional determinations. Although every individual (lawyer or nonlawyer) is, of course, free to form his or her own opinion of what the Constitution means and how it should be interpreted and applied, a local executive official has no authority to impose his or her personal view on others by refusing to comply with a ministerial duty imposed by statute. (See, e.g., Southern Pacific, supra, 18 Cal.3d 308, 321 (conc. & dis. opn. of Mosk, J.) [“Certainly attorneys have no monopoly on wisdom, but a person trained for three or more years in a college of law and then tempered with at least a decade of experience within the judicial system is likely to be far better equipped to make difficult constitutional judgments than a lay administrator with no background in the law“].)35
Second, if, as the city maintains, a local official were to possess the authority to act on the basis of his or her own constitutional determination, such an official generally would arrive at that determination without affording the affected individuals any due process safeguards and, in particular, without providing any opportunity for those supporting the constitutionality of the statutes to be heard. In its opposition to the initial petition filed in this case, the city urged this court not to immediately accept jurisdiction over the substantive question of the constitutionality of California‘s marriage laws at this time, because that question properly could be determined only after a full presentation of evidence before a trial court. The city officials themselves, however, made their own constitutional determination without conducting any such evidentiary hearing or taking other measures designed to protect the rights of those who maintain that the statute is constitutional. Thus, despite the settled rule that a duly enacted statute is presumed to be constitutional, under the city‘s proposed rule a local executive official would be free to determine that a statute is unconstitutional and refuse to enforce it, without providing even the most rudimentary of due process procedures—notice and an opportunity to be heard—to anyone directly affected by the official‘s action.
Third, there are thousands of elected and appointed public officials in California‘s 58 counties charged with the ministerial duty of enforcing thousands of state statutes. If each official were empowered to decide whether or not to carry out each ministerial act based upon the official‘s own personal judgment of the constitutionality of an underlying statute, the enforcement of statutes would become haphazard, leading to confusion and chaos and thwarting the uniform statewide treatment that state statutes generally are intended to provide. (Cf. Haring v. Blumenthal, supra, 471 F.Supp. 1172, 1178-1179 [“Unless and until the Congress, or a court of competent jurisdiction determines that a particular tax exemption ruling is invalid, the employees of the [Internal Revenue] Service are obliged to implement that ruling. Not merely the concept of a uniform tax policy but the effectiveness of the government of the United States as a functioning entity would be
Fourth, the confused state of affairs arising from diverse actions by a multiplicity of local officials frequently would continue for a considerable period of time, because under the city‘s proposed rule a court generally could not order a public official to comply with the challenged statute until the court actually had determined that it was constitutional. In view of the many instances in which a constitutional challenge to a statute entails lengthy litigation, the lack of uniform treatment afforded to similarly situated citizens throughout the state often would be a long-term phenomenon.
These practical considerations simply confirm the soundness of the established rule that an executive official generally does not have the authority to refuse to comply with a ministerial duty imposed by statute on the basis of the official‘s opinion that the statute is unconstitutional.36
V
The city further claims, however, that even if California law does not recognize the authority of a local official to refuse to comply with a statutorily mandated ministerial duty absent a judicial determination that the statute is unconstitutional, under the federal supremacy clause (
To begin with, the principal cases upon which the city relies—Ex Parte Young (1908) 209 U.S. 123 [52 L.Ed. 714, 28 S.Ct. 441] and LSO, Ltd. v. Stroh, supra, 205 F.3d 1146—are readily distinguishable from the present case. Those cases stand only for the proposition that the circumstance that a state official is acting pursuant to the provisions of an applicable state statute does not necessarily shield the official (or the public entity on whose behalf the official acts) either from an injunction or a monetary judgment issued by a federal court, where the federal court subsequently determines that the state statute violates the federal Constitution.37 The city has not cited any case holding that the federal Constitution prohibits a state from defining the authority of a state‘s executive officials in a manner that requires such officials to comply with a clearly applicable statute unless and until such a statute is judicially determined to be unconstitutional, nor any case holding that the federal Constitution compels a state to permit every executive official, state or local, to refuse to enforce an applicable statutory provision whenever the official personally believes the statute violates the federal Constitution.
Furthermore, numerous pronouncements by the United States Supreme Court directly refute the city‘s contention that the supremacy clause or any other provision of the federal Constitution embodies such a principle. To begin with, the high court‘s position on the proper role of federal executive officials with regard to constitutional determinations is instructive. In Davies Warehouse Co. v. Bowles (1944) 321 U.S. 144, 152-153 [88 L.Ed. 635, 64 S.Ct. 474], for example, in response to the plaintiff‘s contention that under one proposed reading of the applicable statute “the [federal Price] Administrator [an executive official] would have to decide whether the state regulation is constitutional before he should recognize it,” the United States Supreme
Furthermore, there are several earlier United States Supreme Court cases that even more directly refute the city‘s contention. Smith v. Indiana (1903) 191 U.S. 138 [48 L.Ed. 125, 24 S.Ct. 51] was a case, arising from the Indiana state courts, in which a county auditor had refused to grant a statutorily authorized exemption to a taxpayer because the auditor believed the exemption violated the federal Constitution. A mandate action was filed against the auditor, and the state courts permitted the auditor to raise and litigate the asserted unconstitutionality of the statute as a defense in the mandate action, ultimately determining that the exemption was constitutionally permissible and directing the auditor to grant the exemption. The auditor appealed the state court decision upholding the constitutionality of the state statute to the United States Supreme Court.
In its opinion in Smith, the high court observed that “there are many authorities to the effect that a ministerial officer, charged by law with the duty of enforcing a certain statute, cannot refuse to perform his plain duty thereunder upon the ground that in his opinion it is repugnant to the Constitution” (Smith v. Indiana, supra, 191 U.S. at p. 148), but it recognized that a state court has “the power . . . to assume jurisdiction [in such] a case if [it] choose[s] to do so.” (Ibid.) At the same time, however, the court in Smith stated explicitly that “the power of a public officer to question the constitutionality of a statute as an excuse for refusing to enforce it . . . is a purely
In light of the foregoing high court decisions, we conclude that the California rule set forth above does not conflict with any federal constitutional requirement.
VI
The city contends, however, that even if we conclude that its officials lacked the authority to refuse to enforce the marriage statutes, we still cannot issue the writ of mandate sought by petitioners without first determining whether California‘s current marriage statutes are constitutional, in light of the general proposition that courts will not issue a writ of mandate to require a public official to perform an unconstitutional act. As the Florida Supreme Court explained in a similar context, however, “[i]t is no answer to say that the courts will not require a ministerial officer to perform an unconstitutional act. That aspect of the case is not before us. We must first determine the power of the ministerial officer to refuse to perform a statutory duty because in his opinion the law is unconstitutional. When we decide that, we do not get to the question of the constitutionality of the act, and it will not be decided.” (State v. State Board of Equalizers, supra, 94 So. 681, 684.) Accordingly, because we have concluded that the city officials have no authority to refuse to apply the current marriage statutes in the absence of a judicial determination that these statutes are unconstitutional, we conclude that the requested writ of mandate should issue.
Finally, we must determine the appropriate scope of the relief to be ordered. As a general matter, the nature of the relief warranted in a mandate action is dependent upon the circumstances of the particular case, and a court is not necessarily limited by the prayer sought in the mandate petition but may grant the relief it deems appropriate. (See Johnson v. Fontana County F.P. Dist. (1940) 15 Cal.2d 380, 391-392 [101 P.2d 1092]; George M. v. Superior Court (1988) 201 Cal.App.3d 755, 760 [247 Cal.Rptr. 330]; Sacramento City Police Dept. v. Superior Court (1984) 156 Cal.App.3d 1193, 1197, fn. 5 [203 Cal.Rptr. 169].)
In the present case, we are faced with an unusual, perhaps unprecedented, set of circumstances. Here, local public officials have purported to authorize, perform, and register literally thousands of marriages in direct violation of explicit state statutes. The Attorney General, as well as a number of local taxpayers, have filed these original mandate proceedings in this court to halt the local officials’ unauthorized conduct and to compel these officials to correct or undo the numerous unlawful actions they have taken in the immediate past. As explained above, we have determined that the city officials exceeded their authority in issuing marriage licenses to, solemnizing marriages of, and registering marriage certificates on behalf of, same-sex couples. Under these circumstances, we conclude that it is appropriate in this mandate proceeding not only to order the city officials to comply with the applicable statutes in the future, but also to direct the officials to take all necessary steps to remedy the continuing effect of their past unlawful actions, including correction of all relevant official records and notification of affected individuals of the invalidity of the officials’ actions.
In light of the clear terms of
The city and several amici curiae representing same-sex couples who obtained marriage licenses from city officials—and had certificates of registry of marriage registered by such officials—raise a number of objections to our determining that the same-sex marriages that have been performed in California are void and of no legal effect, but we conclude that none of these objections is meritorious.
First, the city and amici curiae contend that the Attorney General and the petitioners in Lewis lack standing to challenge the validity of the same-sex marriages that already have been performed, relying upon the provisions of
The city and amici curiae further contend that it would violate the due process rights of the same-sex couples who obtained marriage licenses, and had their marriage certificates registered by the local officials, for this court to determine the validity of same-sex marriages without giving the couples notice and an opportunity to be heard. To begin with, there may be some question whether an individual who, through the deliberate unauthorized conduct of a public official, obtains a license, permit, or other status that clearly is not authorized by state law, possesses a constitutionally protected properly should be ordered in this mandate action to correct, and undo the potentially disruptive consequences of, the unauthorized actions of the city officials.
The city and amici curiae next maintain that even if this court properly may address the validity of the existing same-sex marriages in this proceeding, under California law such marriages cannot be held void (or voidable, for that matter), because there is no California statute that explicitly provides that a marriage between two persons of the same sex or gender is void (or voidable). As we have seen, however,
The city and amici curiae also rely upon
Finally, the city urges this court to postpone the determination of the validity of the same-sex marriages that already have been performed and registered until a court rules on the substantive constitutional challenges to the California marriage statutes that are now pending in superior court. From a practical perspective, we believe it would not be prudent or wise to leave the validity of these marriages in limbo for what might be a substantial period of time given the potential confusion (for third parties, such as employers, insurers, or other governmental entities, as well as for the affected couples) that such an uncertain status inevitably would entail.40
In any event, we believe such a delay in decision is unwarranted on more fundamental grounds. As we have explained, because
Accordingly, to remedy the effects of the city officials’ unauthorized actions, we shall direct the county clerk and the county recorder of the City and County of San Francisco to take the following corrective actions under the supervision of the California Director of Health Services, who, by statute, has general supervisory authority over the marriage license and marriage certificate process. (See, ante, pp. 1077-1078.) The county clerk and the county recorder are directed to (1) identify all same-sex couples to whom the officials issued marriage licenses, solemnized marriage ceremonies, or registered marriage certificates, (2) notify these couples that this court has determined that same-sex marriages that have been performed in California are void from their inception and a legal nullity, and that these officials have been directed to correct their records to reflect the invalidity of these marriage licenses and marriages, (3) provide these couples an opportunity to
VIII
As anyone familiar with the docket of the United States Supreme Court, of this court, or of virtually any appellate court in this nation is aware, many statutes currently in force may give rise to constitutional challenges, and not infrequently the constitutional questions presented involve issues upon which reasonable persons, including reasonable jurists, may disagree. If every public official who is under a statutory duty to perform a ministerial act were free to refuse to perform that act based solely on the official‘s view that the underlying statute is unconstitutional, any semblance of a uniform rule of law quickly would disappear, and constant and widespread judicial intervention would be required to permit the ordinary mechanisms of government to function. This, of course, is not the system of law with which we are familiar. Under long-established principles, a statute, once enacted, is presumed to be constitutional until it has been judicially determined to be unconstitutional.
An executive official, of course, is free to criticize existing statutes, to advocate their amendment or repeal, and to voice an opinion as to their constitutionality or unconstitutionality. As we have explained, however, an executive official who is charged with the ministerial duty of enforcing a statute generally has an obligation to execute that duty in the absence of a judicial determination that the statute is unconstitutional, regardless of the official‘s personal view of the constitutionality of the statute.
In this case, the city has suggested that a contrary rule—one under which a public official charged with a ministerial duty would be free to make up his or her own mind whether a statute is constitutional and whether it must be obeyed—is necessary to protect the rights of minorities. But history demonstrates that members of minority groups, as well as individuals who are unpopular or powerless, have the most to lose when the rule of law is abandoned—even for what appears, to the person departing from the law, to be a just end.42 As observed at the outset of this opinion, granting every
IX
For the reasons discussed above, a writ of mandate shall issue compelling respondents to comply with the requirements and limitations of the current marriage statutes in performing their ministerial duties under such statutes, and directing the county clerk and the county recorder of the City and County of San Francisco to take the following corrective actions under the supervision of the California Director of Health Services: (1) identify all same-sex couples to whom the officials issued marriage licenses, solemnized marriage ceremonies, or registered marriage certificates, (2) notify these couples that this court has determined that same-sex marriages that have been performed in California are void from their inception and a legal nullity, and that these officials have been directed to correct their records to reflect the invalidity of these marriage licenses and marriages, (3) provide these couples an opportunity to demonstrate that their marriages are not same-sex marriages and thus that the official records of their marriage licenses and marriages should not be revised, (4) offer to refund, upon request, all marriage-related fees paid by or on behalf of same-sex couples, and (5) make appropriate corrections to all relevant records.
As the prevailing parties, petitioners shall recover their costs.
Baxter, J., Chin, J., Brown, J., and Moreno, J., concurred.
MORENO, J.—I concur. The majority opinion addresses primarily the limitations on the power of local officials to disobey statutes that may be, but have not yet been judicially established to be, unconstitutional. I write separately to focus on the related but distinct question of what courts should do when confronted with such disobedience on the part of local officials. As the majority opinion suggests, a court should not invariably refuse to decide constitutional questions arising from local governments’ or local officials’ refusal to obey purportedly unconstitutional statutes. Indeed, California courts “More: Oh? And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat? This country‘s planted thick with laws from coast to coast—man‘s laws, not God‘s—and if you cut them down—and you‘re just the man to do it—d‘you really think you could stand upright in the winds that would blow then? Yes, I‘d give the Devil benefit of law, for my own safety‘s sake.” (Bolt, A Man for All Seasons (1962) p. 66.)
At the outset, I review the requirements for obtaining a writ of mandate. To obtain writ relief a petitioner must show: “‘(1) A clear, present and usually ministerial duty on the part of the respondent...; and (2) a clear, present and beneficial right in the petitioner to the performance of that duty....‘” (Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 539-540 [28 Cal.Rptr.2d 617, 869 P.2d 1142].) Also required is “the lack of any plain, speedy and adequate remedy in the usual course of law....” (Flora Crane Service, Inc. v. Ross (1964) 61 Cal.2d 199, 203 [37 Cal.Rptr. 425, 390 P.2d 193].) Although the writ of mandate generally must issue if the above requirements are clearly met (see May v. Board of Directors (1949) 34 Cal.2d 125, 133-134 [208 P.2d 661]), the writ of mandate is an equitable remedy that will not issue if it is contrary to “promoting the ends of justice.” (McDaniel v. City etc. of San Francisco (1968) 259 Cal.App.2d 356, 361 [66 Cal.Rptr. 384]; see also Bartholomae Oil Corp. v. Superior Court (1941) 18 Cal.2d 726, 730 [117 P.2d 674].)
The local officials in the present case have a clear ministerial duty to issue marriage licenses in conformance with state statute and have violated that duty. The Attorney General, and for that matter the petitioners in Lewis v. Alfaro, have a substantial right to ensure that marriage licenses conform to the statute. (See Bd. of Soc. Welfare v. County of L.A. (1945) 27 Cal.2d 98, 100-101 [162 P.2d 627].) But when a court is asked to grant a writ of mandate to enforce a statute over which hangs a substantial cloud of unconstitutionality, the above-stated principles dictate that a court at least has the discretion to refuse to issue the writ until the underlying constitutional question has been decided.
How should courts exercise that discretion? In California, generally speaking, courts faced with local governments’ or local officials’ refusal to obey assertedly unconstitutional statutes have decided the constitutional question before determining whether a writ or other requested relief should issue. (See, e.g., County of Riverside v. Superior Court (2003) 30 Cal.4th 278 [132 Cal.Rptr.2d 713, 66 P.3d 718] [county refused to obey as unconstitutional a state statute mandating binding arbitration for local agencies that reach
As the majority states, “the classic understanding of the separation of powers doctrine [is] that the legislative power is the power to enact statutes, the executive power is the power to execute or enforce statutes, and the judicial power is the power to interpret statutes and to determine their constitutionality.” (Maj. opn., ante, at p. 1068.) But “the separation of powers doctrine does not create an absolute or rigid division of functions.” (Ibid.) As the above cases suggest, local officials sometimes exercise their authority to preliminarily determine that a statute that directly affects the local government‘s functioning is unconstitutional and, in some circumstances, refuse to obey that statute as a means of bringing the constitutional challenge. This preliminary determination is the exercise of an executive function. Local officials and agencies do not “arrogate to [the local executive] core functions of [the judicial] branch” in violation of the separation of powers (Carmel Valley Fire Protection Dist. v. State of California (2001) 25 Cal.4th 287, 297 [105 Cal.Rptr.2d 636, 20 P.3d 533]), but rather raise constitutional issues for the courts to ultimately decide.
In my view, there are at least three types of situations in which a local government‘s disobedience of a statute would be reasonable. In these situations, courts asked to grant a writ of mandate to compel the local agency to obey the statute should therefore address the underlying constitutional issue rather than simply conclude the local governmental entity exceeded its
A second category of “disobedience” cases involves a local official or governmental entity disobeying a statute when there is a substantial question as to its constitutionality and the statute governs matters integral to a locality‘s limited power of self-governance. In these cases, a local entity or official is directly affected by the statute and in a unique position to challenge it. As the above cases illustrate, local entities and officials have challenged statutes to determine the validity of a bond, or the payment of a government salary for a position unconstitutionally created, or an exemption to a local tax that assertedly violates the commerce clause, or a statute that intrudes on local matters of city or county employee compensation. It is noteworthy that in virtually all the above cases, the local agency‘s or official‘s refusal to obey an assertedly unconstitutional statute had the effect of preserving the status quo, pending judicial resolution of the matter, thereby minimizing interference with the judicial function.
Perhaps in some of these cases localities could have proceeded by obtaining declaratory relief as to a statute‘s unconstitutionality, rather than by disobeying the statute. In other cases, an actual controversy necessary for declaratory relief may have been lacking. In any case, the fact that the local government agency did not proceed by means of declaratory relief provided no insurmountable obstacle to a court‘s deciding the underlying constitutional issue raised by the agency‘s disobedience. (See, e.g., County of Riverside v. Superior Court, supra, 30 Cal.4th 278, 283.)1 Of course, if a court determines that interim relief to compel a government agency to obey a statute is appropriate, it may grant such relief before the constitutional question is ultimately adjudicated.
A third possible category of cases in which city officials might legitimately disobey statutes of doubtful constitutionality are those in which the question of a statute‘s constitutionality is substantial, and irreparable harm may result to individuals to which the local government agency has some protective
The present case is quite different from the above situations. First, as the majority demonstrates, the unconstitutionality of
Nor does the present case fit the third category of cases, in which a city refuses to enforce a law so as to protect its citizens from irreparable harm. The only harm caused here is a delay in the ability of same-sex couples to get married while the constitutional issue is being adjudicated. But that delay will occur whether or not we grant a writ of mandate against the city in this case. Put another way, local officials have no real power to marry same-sex couples, given the statutory prohibition against doing so. What was within their power, prior to our issuance of a stay, was to issue licenses of indeterminate legal status. The exercise of the court‘s mandate power to preclude local officials from continuing this course of action, and voiding the licenses already issued, brings no irreparable harm to the individuals who have received or might receive such licenses.
In sum, the city advances no plausible reason why it had to disobey the statute in question. Even so, it might have been appropriate to have delayed the issuance of a writ of mandate against it until the underlying constitutional question had been adjudicated if, for example, the city had issued a single “test case” same-sex marriage license. But it went far beyond a test case. It issued thousands of these marriage licenses. As such, the city went well beyond making a preliminary determination of the statute‘s unconstitutionality or performing an act that would bring the constitutional issue to the
I reiterate what is clear in the majority opinion. Our holding in this case in no way expresses or implies a view on the underlying issue of the constitutionality of a statute prohibiting same-sex marriage. That issue will be addressed in the context of litigation in which the issue is properly raised. (See Goodridge v. Department of Pub. Health (2003) 440 Mass. 309 [798 N.E.2d 941].)
KENNARD, J., Concurring and Dissenting.—I concur in the judgment, except insofar as it declares void some 4,000 marriages performed in reliance on the gender-neutral marriage licenses1 issued in the City and County of San Francisco. Although I agree with the majority that San Francisco public officials exceeded their authority when they issued those licenses, and that the licenses themselves are therefore invalid, I would refrain from determining here, in a proceeding from which the persons whose marriages are at issue have been excluded, the validity of the marriages solemnized under those licenses. That determination should be made after the constitutionality of California laws restricting marriage to opposite-sex couples has been authoritatively resolved through judicial proceedings now pending in the courts of California.
I
Like the majority, I conclude that officials in the City and County of San Francisco exceeded their authority when they issued gender-neutral marriage licenses to same-sex couples, and I agree with the majority that those officials may not justify their actions on the ground that state laws restricting marriage to opposite-sex couples violate the state or the federal Constitution. The cases discussed by the majority demonstrate, in my view, that a public official may refuse to enforce a statute on constitutional grounds only in these situations:
when the statute‘s unconstitutionality is obvious beyond dispute in light of unambiguous constitutional language or controlling judicial decisions; - when refraining from enforcement is necessary to preserve the status quo and to prevent irreparable harm pending judicial determination of a legitimate and substantial constitutional question about the statute‘s validity;
- when enforcing the statute could put the public official at risk for substantial personal liability; or
- when refraining from enforcement is the only practical means to obtain a judicial determination of the constitutional question. (See Field, The Effect of an Unconstitutional Statute (1935, reprint ed. 1971) p. 119 et seq.; Note, Right of Ministerial Officer to Raise Defense of Unconstitutionality in Mandamus Proceeding (1931) 15 Minn. L.Rev. 340; Rapacz, Protection of Officers Who Act Under Unconstitutional Statutes (1927) 11 Minn. L.Rev. 585; Note, Who Can Set Up Unconstitutionality—Whether Public Official Has Sufficient Interest (1920) 34 Harv. L.Rev. 86.)
Because none of these situations is present here, as I explain below, the public officials acted wrongly in refusing to enforce the opposite-sex restriction in California‘s marriage laws.
A. Indisputably Unconstitutional Law
In restricting marriages to couples consisting of one woman and one man, California‘s marriage laws are not plainly or obviously unconstitutional under either the state or the federal Constitution. Neither Constitution expressly prohibits limiting marriage to opposite-sex couples, and neither Constitution expressly grants any person a right to marry someone of the same sex. Nor does any judicial decision establish beyond reasonable dispute that restricting marriage to heterosexual couples violates any provision of the California Constitution or the United States Constitution.
Indeed, there is a decision of the United States Supreme Court, binding on all other courts and public officials, that a state law restricting marriage to opposite-sex couples does not violate the federal Constitution‘s guarantees of equal protection and due process of law. After the Minnesota Supreme Court held that Minnesota laws preventing marriages between persons of the same sex did not violate the equal protection or due process clauses of the United States Constitution (Baker v. Nelson (1971) 291 Minn. 310 [191 N.W.2d 185]), the decision was appealed to the United States Supreme Court, as federal law then permitted (see 28 U.S.C. former § 1257(2), 62 Stat. 929 as amended by 84 Stat. 590). The high court later dismissed that appeal “for want of substantial federal question.” (Baker v. Nelson (1972) 409 U.S. 810 [34 L.Ed.2d 65, 93 S.Ct. 37].)
As the United States Supreme Court has explained, a dismissal on the ground that an appeal presents no substantial federal question is a decision on
The binding force of a summary decision on the merits continues until the high court instructs otherwise. (Hicks v. Miranda, supra, 422 U.S. at p. 344.) That court may release lower courts from the binding effect of one of its decisions on the merits either by expressly overruling that decision or through “doctrinal developments” that are necessarily incompatible with that decision. (Id. at p. 344.) The United States Supreme Court has not expressly overruled Baker v. Nelson, supra, 409 U.S. 810, nor do any of its later decisions contain doctrinal developments that are necessarily incompatible with that decision.
The San Francisco public officials have argued that the United States Supreme Court‘s decision in Lawrence v. Texas (2003) 539 U.S. 558 [156 L.Ed.2d 508, 123 S.Ct. 2472], holding unconstitutional a state law “making it a crime for two persons of the same sex to engage in certain intimate sexual conduct” (id. at p. 562), amounts to a doctrinal development that releases courts and public officials from any obligation to obey the high court‘s decision in Baker v. Nelson, supra, 409 U.S. 810. Although Lawrence represents a significant shift in the high court‘s view of constitutional protections for same-sex relationships, the majority in Lawrence carefully pointed out that “there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter” (Lawrence v. Texas, supra, at p. 568) and that the case “d[id] not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter” (id. at p. 578). Because there is a long history in this country of defining marriage as a relation between one man and one woman, and because marriage laws do involve formal government recognition of relationships, the high court‘s decision in Lawrence did not undermine the authority of Baker v. Nelson to such a degree that a lower federal or state court, much less a public official, could disregard it. Until the United States Supreme Court says otherwise, which it has not yet done, Baker v. Nelson defines federal constitutional law on the question whether a state may deny same-sex couples the right to marry.
B. Preserving the Status Quo to Prevent Serious Harm
Nor was this a situation in which a public official, by temporarily refraining from enforcing a state law, merely preserved the status quo to prevent potentially irreparable harm pending judicial determination of a legitimate and substantial constitutional question about the law‘s validity. By issuing licenses authorizing same-sex marriages, the San Francisco public officials did not preserve a status quo, but instead they altered the status quo in that California law has always prohibited same-sex marriage.
In 1977, the Legislature amended
C. Public Officials’ Personal Liability
This was not a situation in which public officials had reason to fear they might be held personally liable in damages for enforcing a constitutionally
Nor was there any reasonable basis for local officials to anticipate personal liability under the California Constitution or California civil rights laws for denying marriage licenses to same-sex couples.
D. Necessity of Nonenforcement to Obtain Judicial Resolution
Finally, this is not a situation in which a public official‘s nonenforcement of a law was the only practical way to obtain a judicial determination of that law‘s constitutionality. Just as the constitutionality of California‘s prohibition against interracial marriage was properly challenged by a mixed-race couple who were denied a marriage license (Perez v. Sharp (1948) 32 Cal.2d 711 [198 P.2d 17]), the constitutionality of California‘s prohibition against same-sex marriage could have been readily challenged at any time through a lawsuit brought by a same-sex couple who had been denied a marriage
E. Policy Grounds for General Rule Prohibiting Nonenforcement on Constitutional Grounds
As the majority points out (maj. opn., ante, at pp. 1067-1068, 1108–1109), confusion and chaos would ensue if local public officials in each of California‘s 58 counties could separately and independently decide not to enforce long-established laws with which they disagreed, based on idiosyncratic readings of broadly worded constitutional provisions. To ensure uniformity and consistency in the statewide application and enforcement of duly enacted and presumptively valid statutes, the authority of public officials to decline enforcement of state laws, in the absence of a judicial determination of invalidity, based on the officials’ own constitutional determinations, is and must be carefully and narrowly limited. I agree with the majority that San Francisco public officials exceeded those limits when they declined to enforce state marriage laws by issuing gender-neutral marriage licenses to same-sex couples.
II
Although I agree with the majority that San Francisco officials exceeded their authority when they issued gender-neutral marriage licenses to same-sex couples, I do not agree with all the reasoning that the majority offers in support of that conclusion. In particular, I do not agree that a “line of decisions” had established, before the 1978 enactment of section 3.5 of article III of the California Constitution, that “only administrative agencies constitutionally authorized to exercise judicial power have the authority to determine the constitutional validity of statutes.” (Maj. opn., ante, at p. 1096.)
The majority does not identify any pre-1978 decision holding that a nonconstitutional administrative agency, during quasi-judicial administrative proceedings, lacked authority to determine a statute‘s constitutionality. The majority asserts that this court so held in State of California v. Superior Court (Veta) (1974) 12 Cal.3d 237. (Maj. opn., ante, at p. 1092.) But this court there decided only that the doctrine of exhaustion of administrative remedies did not apply to a constitutional challenge to the statute from which the administrative agency derived its authority. (State of California v. Superior Court (Veta), supra, at p. 251.) In concluding that a litigant was not required during quasi-judicial administrative proceedings to make a constitutional challenge to the statute that created the agency, this court explained that “[i]t would be heroic indeed to compel a party to appear before an administrative body to challenge its very existence and to expect a dispassionate hearing before its
I also see no need for, and do not join, the majority‘s observations on topics far removed from the issue presented here, such as the powers of the President of the United States (maj. opn., ante, at p. 1098, fn. 26) and the existence of certain legal defenses to war crimes charges (id. at p. 1101, fn. 30). These issues are not before this court.
III
Because I agree with the majority that San Francisco‘s public officials exceeded their authority when they issued gender-neutral marriage licenses to same-sex couples, I concur in the judgment insofar as it requires those officials to comply with state marriage laws, to identify the same-sex couples to whom gender-neutral marriage licenses were issued, to notify those couples that their marriage licenses are invalid, to offer refunds of marriage license fees collected, and to make appropriate corrections to all relevant records. But I would not require notification that the marriages themselves “are void from their inception and a legal nullity.” (Maj. opn., ante, at p. 1118.)
Although a marriage license is a requirement for a valid marriage (
When a court has declared a law unconstitutional, questions about the effect of that determination on prior actions, events, and transactions “are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an
Although the United States Supreme Court has determined that there is no right to same-sex marriage under the federal Constitution (Baker v. Nelson, supra, 409 U.S. 810), courts in other states construing their own state Constitutions in recent years have reached differing conclusions on this question. (Compare Goodridge v. Dept. of Public Health (2003) 440 Mass. 309 [798 N.E.2d 941] [denying marriage licenses to same-sex couples violates Massachusetts Constitution] with Standhardt v. Sup. Ct. (2003) 206 Ariz. 276 [77 P.3d 451] [no right to same-sex marriage under Arizona Constitution].) Recognizing the difficulty and seriousness of the constitutional question, which is now presented in pending superior court actions, this court has declined to address it in this case. Until that constitutional issue has been finally resolved under the California Constitution, it is premature and unwise to assert, as the majority essentially does, that the thousands of same-sex weddings performed in San Francisco were empty and meaningless ceremonies in the eyes of the law.
For many, marriage is the most significant and most highly treasured experience in a lifetime. Individuals in loving same-sex relationships have waited years, sometimes several decades, for a chance to wed, yearning to obtain the public validation that only marriage can give. In recognition of that, this court should proceed most cautiously in resolving the ultimate question of the validity of the same-sex marriages performed in San Francisco, even though those marriages were performed under licenses issued by San Francisco public officials without proper authority and in violation of state law. Because the licenses were issued without proper authorization, and in the absence of a judicial determination that the state laws prohibiting same-sex marriage are unconstitutional, employers and other third parties would be under no legal obligation to recognize the validity of any of the same-sex marriages at issue here. Should the pending lawsuits ultimately be resolved by a determination that the opposite-sex marriage restriction is
WERDEGAR, J., Concurring and Dissenting.—I agree with the majority that San Francisco officials violated the
I
I do not join in the majority‘s decision to address the validity of the marriages already performed and to declare them void. My concern here is not for the future of same-sex marriage. That question is not before us and, like the majority, I intimate no view on it. My concern, rather, is for basic fairness in judicial process. The superior court is presently considering whether the state statutes that limit marriage to “a man and a woman” (e.g.,
The majority asserts that “it would not be prudent or wise to leave the validity of these marriages in limbo for what might be a substantial period of
The majority‘s decision to declare the existing marriages void is unfair for the additional reason that the affected couples have not been joined as parties or given notice and an opportunity to appear. On March 12, 2004, we denied all petitions to intervene filed by affected couples. That ruling made sense at the time it was announced because our prior order of March 11, 2004, which specified the issues to be briefed and argued, did not identify the validity of the existing marriages as an issue. Only on April 14, 2004, after having denied the petitions to intervene, did the court identify and solicit briefing on the issue of the marriages’ validity. To declare marriages void after denying requests by the purported spouses to appear in court as parties and be heard on the matter is hard to justify, to say the least.2
The majority counters that “the legal arguments of such couples with regard to the question of the validity of the existing same-sex marriages have been heard and fully considered.” (Maj. opn., ante, at p. 1116.) But this is a claim a court may not in good conscience make unless it has given, to the persons whose rights it is purporting to adjudicate, notice and the opportunity to appear. This is the irreducible minimum of due process, even in cases involving numerous parties. (See Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 314-315 [94 L.Ed. 865, 70 S.Ct. 652].) Amicus curiae briefs, which any member of the public may ask to file and which the court has no obligation to read, cannot seriously be thought to satisfy these requirements. The majority writes that “requiring each of the thousands of same-sex couples to be named and served as parties in the present action, would add nothing of substance to this proceeding.” (Maj. opn., ante, at p. 1115.) Of
Aware of this problem, the majority offers a specious imitation of due process by ordering the city to notify the same-sex couples that this court has decided their marriages are void, and to “provide these couples an opportunity to demonstrate that their marriages are not same-sex marriages” before canceling their marriage records. (Maj. opn., ante, at pp. 1118-1119; see also id., at p. 1117.) This procedure may prevent the city from mistakenly deleting the records of heterosexual marriages, but it cannot benefit any same-sex couple. Notice after the fact that one‘s rights have been adjudicated is not due process.
The majority attempts to justify the procedural shortcuts it is taking by invoking the rule that “‘[a] marriage prohibited as... illegal and declared to be “void” or “void from the beginning” is a legal nullity and its validity may be asserted or shown in any proceeding in which the fact of marriage may be material.‘” (Estate of Gregorson (1911) 160 Cal. 21, 26 [116 P. 60], quoted in maj. opn., ante, at p. 1114, italics omitted.) But that rule, until today, has permitted persons other than spouses to challenge the validity of a marriage only as and when necessary to resolve another issue in the case, for example, the legitimacy of an heir‘s claim to property or an assertion of marital privilege. In essence, the Gregorson rule simply recognizes that a litigant whose claim or defense depends on the validity or invalidity of a marriage may introduce evidence to prove the point.3 We have never held that this type of collateral attack on a marriage has any binding effect on nonparties to the
II
I also do not join in the majority‘s unnecessary, wide-ranging comments on the respective powers of the judicial and executive branches of government.
The ostensible occasion for the majority‘s comments—a threat to the rule of law (maj. opn., ante, at pp. 1068, 1119-1120)—seems an extravagant characterization of recent events. On March 11, 2004, when we assumed jurisdiction and issued an interim order directing San Francisco officials to cease licensing same-sex marriages, those officials immediately stopped. Apparently the only reason they had not stopped earlier is that the lower courts had denied similar applications for interim relief. While city officials evidently understood their oaths of office as commanding obedience to the Constitution rather than to the marriage statutes they believed to be unconstitutional, those officials never so much as hinted that they would not respect the authority of the courts to decide the matter. Indeed, not only did our interim order meet with immediate, unreserved compliance by city officials, but the same order apparently sufficed to recall to duty any other public officials who might privately have been thinking to follow San Francisco‘s lead. In the meantime, not one of California‘s 58 counties or over 400 municipalities has licensed a same-sex marriage.
Under these circumstances, I see no justification for asserting a broad claim of power over the executive branch. Make no mistake, the majority does assert such a claim by holding that executive officers must follow statutory rather than constitutional law until a court gives them permission in advance to do otherwise. For the judiciary to assert such power over the executive branch is fundamentally misguided. As the high court has explained, “[i]n the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others.” (United States v. Nixon (1974) 418 U.S. 683, 703 [41 L.Ed.2d 1039, 94 S.Ct. 3090], italics added.) To recognize that an executive officer has the practical freedom to act based on an interpretation of the Constitution that may ultimately prove to be wrong
Furthermore, a rule requiring an executive officer to seek a court‘s permission before declining to comply with an apparently unconstitutional statute is fundamentally at odds with the separation of powers and, in many cases, unenforceable. The executive branch is necessarily active, managing events as they occur. The judicial branch is necessarily reactive, waiting until invited to serve as neutral referee. The executive branch does not await the courts’ pleasure. A rule to the contrary, though perhaps enforceable against local officials in some cases, will be impossible to enforce against executive officers who exercise a greater share of the state‘s power, such as a Governor or an Attorney General. By happy tradition in this country, executive officers have generally acquiesced in the judicial branch‘s traditional claim of final authority to resolve constitutional disputes. (Marbury v. Madison (1803) 5 U.S. 137, 176 [2 L.Ed. 60]; see also United States v. Nixon, supra, 418 U.S. 683, 703.) But a court can never afford to forget that the judiciary “may truly be said to have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” (Hamilton, The Federalist No. 78 (Willis ed. 1982) p. 394.) Accordingly, we are ill advised to announce categorical rules that will not stand the test of harder cases.
The majority acknowledges that “legislators and executive officials may take into account constitutional considerations in making discretionary decisions within their authorized sphere of action—such as whether to enact or veto proposed legislation or exercise prosecutorial discretion.” (Maj. opn., ante, at p. 1068.) But the majority views executive officers exercising “ministerial” functions as statutory automatons, denied even the scope to obey their oaths of office to follow the Constitution. (Ibid.) Contrary to the majority, I do not find the purported distinction between discretionary and ministerial functions helpful in this context. Were not state officials performing ministerial functions when, strictly enforcing state segregation laws in the years following Brown v. Board of Education (1954) 347 U.S. 483 [98 L.Ed. 873, 74 S.Ct. 686], they refused to admit African-American pupils to all-White schools until the courts had applied Brown‘s decision about a Kansas school system to each state‘s law? We formerly believed that school officials’ oaths of office to obey the Constitution had sufficient gravity in such cases to permit them to obey the higher law, even before the courts had
The majority‘s strong view of judicial power over the executive branch leads it to suggest, albeit without actually so holding, that a state may properly condition on advance judicial approval its executive officers’ duty to obey even the federal Constitution. The majority writes, for example, that “[t]he city has not cited any case holding that the federal Constitution prohibits a state from defining the authority of a state‘s executive officials in a manner that requires such officials to comply with a clearly applicable statute unless and until such a statute is judicially determined to be unconstitutional” (maj. opn., ante, at p. 1110), and that “‘the power of a public officer to question the constitutionality of a statute as an excuse for refusing to enforce it... is a purely local question’ [citation]—that is, purely a question of state (not federal) law” (id., at pp. 1111-1112, quoting Smith v. Indiana (1903) 191 U.S. 138, 148 [48 L.Ed. 125, 24 S.Ct. 51], italics in maj. opn.).4
Given that respondent city officials have complied with our interim order to cease issuing same-sex marriage licenses, and that the constitutionality of the existing marriage statutes is presently under review, I consider the majority‘s determination to speculate about the limits of a state official‘s duty to obey
We, as a court, should not claim more power than we need to do our job effectively. In particular, strong claims of judicial power over the executive branch are best left unmade and, if they must be made, are best reserved for cases presenting a real threat to the separation of powers—a threat that provides manifest necessity for the claim, a genuine test of the claim‘s validity, and a suitable incentive for caution in its articulation. None of these conditions, all of which are necessary to ensure sound decisions in hard cases, is present here.
III
In conclusion, I agree with the majority‘s decision to order city officials not to license additional same-sex marriages pending resolution of the constitutional challenges to the existing marriage statutes. To say more at this time is neither necessary nor wise.
The appellate court explained in Billig that the city clerk‘s duty “is limited to the ministerial function of ascertaining whether the procedural requirements for submitting a petition have been met” (Billig, supra, 223 Cal.App.3d at pp. 968-969), and found that Elections Code section 4052 “involves purely procedural requirements for submitting a referendum petition. Therefore a city clerk who refuses to accept a petition for noncompliance with the statute is only performing a ministerial function involving no exercise of discretion.” (Billig, at p. 969.)
Stating that the city clerk lacked discretion not to enforce the statutory provision, the Court of Appeal discussed
Although the italicized language in Billig supports petitioners’ position with regard to the scope of
Because the provisions of
In Baker v. State of Vermont, supra, 744 A.2d 864, the court summarized its conclusion under the “common benefits” clause of the
In Baehr v. Lewin, supra, 852 P.2d 44, the Hawaii Supreme Court held that the trial court in that case had erred in granting judgment on the pleadings against three same-sex couples who had sued for declaratory and injunctive relief after being denied marriage licenses, concluding that the plaintiffs were entitled to go forward with their action and that, under the equal protection clause of the
In addition to relying upon Goodridge, Baker, and Baehr, the city points to a passage in the dissenting opinion of Justice Scalia in Lawrence v. Texas (2003) 539 U.S. 558 [156 L.Ed.2d 508, 123 S.Ct. 2472], in which he expressed the view that the reasoning of the majority opinion in Lawrence—holding a Texas sodomy statute unconstitutional—would lead to the conclusion that a statute precluding same-sex marriages also would be unconstitutional. (Lawrence v. Texas, supra, 539 U.S. at pp. 604-605 (dis. opn. of Scalia, J.).) The majority opinion in Lawrence, however, expressly stated that “[t]he present case . . . does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” (Lawrence, supra, 539 U.S. at p. 578). In light of this very specific disclaimer in the majority opinion in Lawrence, we conclude that the city cannot plausibly claim that the Lawrence decision clearly establishes that a state statute limiting marriage to a man and a woman is unconstitutional under the federal Constitution. (See also Standhardt v. Super. Ct. (Ariz.Ct.App. 2003) 77 P.3d 451, 454-460, 464-465 [post-Lawrence case rejecting claim that Lawrence indicates the federal Constitution guarantees the right to same-sex marriage].)
A number of the out-of-state cases discuss a separate line of cases that address the issue whether a public official or public entity has “standing” to bring a court action—for example, a declaratory judgment action—challenging the constitutionality of a statute the official or entity is obligated to comply with or enforce. (See, e.g., Fuchs v. Robbins, supra, 818 So.2d 460, 463-464; Bd. of Sup‘rs of Linn Cty. v. Dept. of Revenue, supra, 263 N.W.2d 227, 233-234; see also City of Kenosha (1967) 35 Wis.2d 317 [151 N.W.2d 36, 42-43].) Although the standing issue involves some of the same considerations that are applicable to the issue we face here, from a separation of powers perspective, conduct by an executive official that simply asks a court to determine the constitutionality of a statute would appear to raise much less concern than an executive official‘s unilateral refusal to enforce a statute based on the official‘s opinion that the statute is unconstitutional.