Issue
In Lockyer v. City and County of San Francisco (— Cal.Rptr. 3d —, 2004 WL 1794627, Cal., Aug. 12, 2004), the California Supreme Court considered the issue of “whether a local executive official who is charged with the ministerial duty of enforcing a state 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.”
Facts
Based on his belief that marriage statutes that limit marriage to a union between a man and a woman are unconstitutional, Gavin Newsom, the Mayor of the City and County of San Francisco, sent a letter to the San Francisco County Clerk asking that she determine what changes should be made to marriage licenses to allow same-sex marriages. The County Clerk accordingly designed a “gender-neutral” marriage application and license. She then began issuing marriage licenses to same-sex couples and the county recorder registered them.
Supreme Court Decision
The Family Code, section 300, defines marriage as “a personal relation arising out of a civil contract between a man and a woman.” Thus, current California statutory law limits marriage to couples comprised of a man and a woman. The State Registrar of Vital Statistics, as authorized by statute, has prescribed a form which serves as the application for a license to marry, the license itself, and the certificate of marriage. County clerks and recorders are responsible for issuing and registering the form prescribed by the Registrar.
The general rule is that, in the absence of a judicial determination that a statute is unconstitutional, a local public official who is charged with the ministerial duty of enforcing a statute does not have the authority to refuse to enforce the statute merely on the basis of his or her view that the statute is unconstitutional. The duties of the county clerk and recorder to follow the statutorily based, comprehensive marriage procedures and to use the designated forms are ministerial rather than discretionary. Thus, the local officials who changed the form and issued marriage licenses to same-sex couples in contravention of section 300 and the state-wide marriage procedures exceeded their authority, because they refused to perform the ministerial duty of enforcing the appropriate statutes.
In reaching its decision, the Supreme Court acknowledged that there are exceptions to the general rule; however, those exceptions do not apply here. For example, in public finance cases courts have recognized that public officials may refuse to apply a statute as a means of obtaining a timely judicial determination of the legality of a bond or public expenditure. Also, public officials have been allowed to refuse to enforce a statute if they face personal liability for violating “clearly established” constitutional rights. Here, however, refusing to issue marriage licenses to same-sex couples, as required by statutory law and established procedures, would not have violated a “clearly established” constitutional right. While some states have held statutes that limit marriage to a union between a man and a woman unconstitutional, there are no cases that have held California’s statute unconstitutional under either the California or federal constitutions.
The Court noted that practical considerations support the general rule – most local officials lack the legal expertise necessary to make constitutional determinations; before declaring a statute unconstitutional, local officials would not provide adequate due process to those supporting the constitutionality of the statute; enforcing statutes would become haphazard, chaotic and confusing, with thousands of public officials deciding whether or not to carry out ministerial duties; and the confusion would continue pending lengthy litigation.
The Court, thus, concluded that, in the absence of a judicial determination that California’s statutory provisions limiting marriage to a union between a man and a woman 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.” The Court ordered the county clerk and recorder to (1) identify the same-sex couples who were married, (2) notify them that their marriages are void and that the records will be corrected accordingly, (3) provide them with the opportunity to demonstrate that their marriages are not same-sex marriages, (4) offer to refund, upon request, marriage-related fees, and (5) make appropriate corrections to all relevant records.
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