Lockyer

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 *1067 statute exceeds his or her authority when, without any court having determined that the statute is unconstitutional, the official deliberately declines to enforce the statute because he or she determines or is of the opinion that the statute is unconstitutional.

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…

I concur in the judgment, except insofar as it declares void some 4,000 marriages performed in reliance on the gender-neutral marriage licenses 1 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…

I agree with the majority that San Francisco officials violated the Family Code by licensing marriages between persons of the same sex. Accordingly, I concur in the decision to order those officials to comply with the existing marriage statutes unless and until they are determined to be unconstitutional. Because constitutional challenges are pending in the lower courts, to order city officials not to license additional same-sex marriages in the meantime is an appropriate way to preserve the status quo pending the outcome of that litigation. That, however, is the extent of my agreement with the majority.

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., Fam. Code, § 300) violate the state and federal Constitutions. The same-sex couples challenging those statutes claim the state has,…

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 *1121 under these circumstances have, on a number of occasions, decided the underlying constitutional questions. In the present case, the majority declines to decide the constitutional validity of Family Code section 300, prohibiting same-sex marriage, but instead concludes that a writ of mandate against San Francisco’s (the city’s) local officials is justified because they exceeded their ministerial authority. As elaborated below, I agree that under these somewhat unusual circumstances, local officials’ disobedience of the statute justifies this court’s issuance of a writ of mandate…

Law Offices of Peter D. Lepiscopo and Peter D. Lepiscopo, San Diego, CA, 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 and 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, San Francisco, CA, for Respondents.

Alma Marie Triche-Winston and…