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, 33 Cal. 4th 1055

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 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 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 Fam.

Code, § 297.5, added by Stats. 2003, ch. 421, § 4), and a local official—perhaps an officeholder in a locale where domestic partnership rights are unpopular— adopted a policy of refusing to recognize or accord to registered domestic partners the equal treatment mandated by statute, based solely upon the official’s view (unsupported by any judicial determination) that the statutory provisions granting such rights to registered domestic partners are unconstitutional because they improperly amend or repeal the provisions of the voter-enacted initiative measure commonly known as Proposition 22, the California Defense of Marriage Act (Fam.

Code, § 308.5) without a confirming vote of the electorate, in violation of

article II,

section 10, subdivision (

c) of the California Constitution. As these various examples demonstrate, although the present proceeding may be viewed by some as presenting primarily a question of the substantive legal rights of same-sex couples, in actuality the legal issue before us implicates the interest of all individuals in ensuring that public officials execute their official duties in a manner that respects the limits of the authority granted to them as officeholders.

In short, the legal question at issue—the scope of the authority entrusted to our public officials—involves the determination of a fundamental question that lies at the heart of our political system: the role of the rule of law in a society that justly prides itself on being “a government of laws, and not of men” (or women).

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 laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible”].) 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, sent a letter to Nancy Alfaro, identified in the letter as the San Francisco County Clerk, requesting that she “determine what changes should be made to the forms and documents used to apply for and issue marriage licenses in order to provide marriage licenses on a non-discriminatory basis, without regard to gender or sexual orientation.” The mayor stated in his letter that “[t]he Supreme Courts in other states have held that equal protection provisions in their state constitutions prohibit discrimination against gay men and lesbians with respect to the rights and obligations flowing from marriage,” and explained that it is his “belief that these decisions are persuasive and that the California Constitution similarly prohibits such discrimination.” The mayor indicated that the request to the county clerk was made “[p]ursuant to [his] sworn duty to uphold the California Constitution, including specifically its equal protection clause . . . .” 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 for Marriage License” and the “License and Certificate of Marriage” by eliminating the terms “bride,” “groom,” and “unmarried man and unmarried woman,” and by replacing them with the terms “first applicant,” “second applicant,” and “unmarried individuals.” The revised form also contained a new warning at the top of the form, advising applicants that “[b]y entering into marriage you may lose some or all of the rights, protections and benefits you enjoy as a domestic partner” and that “marriage of gay and lesbian couples may not be recognized as valid by any jurisdiction other than San Francisco, and may not be recognized as valid by any employer,” and encouraging same-sex couples “to seek legal advice regarding the effect of entering into marriage.” 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. On February 27, 2004, the Attorney General filed in this court a petition for an original writ of mandate, prohibition, certiorari, and/or other relief, and a request for an immediate stay.

The petition asserted that the actions of the city officials in issuing marriage licenses to same-sex couples and solemnizing and registering the marriages of such couples are unlawful, and that the problems and uncertainty created by the growing number of these marriages justify intervention by this court.

The petition pointed out that despite a directive issued by the state Registrar of Vital Statistics, the San Francisco County Recorder had not ceased the practice of registering marriage certificates submitted by same-sex couples on forms other than those approved by the State of California, and that officials of the federal Social Security Administration had raised questions regarding that agency’s processing of name-change applications resulting from California marriages—not confined to single-sex marriages—because of the uncertainty as to whether certain marriage certificates issued in California are valid under state law.

Noting that “[t]he Attorney General has the constitutional duty to see that the laws of the state are uniformly and adequately enforced” (see Cal. Const., art.

V, § 13), the petition maintained that the existing “conflict and uncertainty, and the potential for future ambiguity, instability, and inconsistent administration among various jurisdictions and levels of government, present a legal issue of statewide importance that warrants immediate intervention by this Court.” The petition requested that this court issue an order (1) directing the local officials to comply with the applicable statutes in issuing marriage licenses and certificates, (2) declaring invalid the same-sex marriage licenses and certificates that have been issued, and (3) directing the city to refund any fees collected in connection with such licenses and certificates.

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.” Although the Attorney General’s petition acknowledged that the court could grant the relief requested in the petition without reaching the substantive question of the constitutionality of the California statutes limiting marriage to a man and a woman, the petition urged that we also resolve the substantive constitutional issue at this time, arguing that “[a]s the issues presented are pure legal issues, and there is no need for the development of a factual record, these issues are ready for this Court’s review.” 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

article III,

section 3.5 of the California Constitution do not apply to local officials and that, in any event, under the supremacy clause of the United States Constitution, California Constitution

article HI,

section 3.5 could not properly be applied to preclude a local official from refusing to enforce a statute that the official believes violates the federal Constitution.

With regard to the question of the constitutionality of California’s statutory ban on same-sex marriages, the opposition maintained that “the issue is one best left to the lower courts in the first instance to undertake the extensive fact-finding that will be necessary.” 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 preclude the filing of a separate action in superior court raising a substantive constitutional challenge to the current marriage statutes.” 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 Family Code sections 300, 301, 308.5, and 355 in the absence of a judicial determination that such provisions are unconstitutional,” and that in addressing this issue, the return “should discuss not only the applicability and effect of

article III,

section 3.5 of the California Constitution” but also any other constitutional or statutory provisions or legal doctrines that bear on the question whether the city officials acted outside the scope of their authority in refusing to comply with the applicable statutes in the absence of a judicial determination that the statutes are unconstitutional. 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. n 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 Family Code and the Health and Safety Code.

The provisions regarding the validity of marriage are set forth in Family Code sections 300 to

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 425[] and

Part 4 (commencing with

Section 500).[] ” (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, but the city concedes that

section 300, both by its terms and its purpose, imposes such a limitation on marriages performed in California. 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 Family Code sections 350 to 360. These statutes provide that “before entering a marriage, ... the parties shall first obtain a marriage license from a county clerk” (Fam. Code, § 350), and the provisions state what information must be contained on the license (Fam.

Code, § 351) and place the responsibility on the county clerk to ensure that the statutory requirements for obtaining a marriage license are satisfied. (Fam. Code, § 354.) The statutes also specifically provide that the forms for (1) the application for a marriage license, (2) the marriage license, and (3) the certificate of registry of marriage that are to be used by the county clerk and provided to the applicants “shall be prescribed by the State Department of Health Services.” (Fam. Code, §§ 355, 359.) Provisions regarding the solemnization of marriage are set forth in Family Code sections 400 to 425.

These statutes contain a list of the numerous persons who may solemnize a marriage under California law (Fam. Code, § 400), and require the person solemnizing a marriage (1) to require the applicants to present the marriage license to him or her prior to solemnization (Fam. Code, § 421), (2) to sign and endorse upon or attach to the marriage license a statement, “in the form prescribed by the State Department of Health Services,” setting forth specified information (Fam.

Code, § 422), and (3) to return the marriage license, with the requisite endorsement, to the county recorder of the county in which the license was issued within 30 days after the marriage ceremony. (Fam. Code, § 423.) The Health and Safety Code contains numerous additional provisions prescribing in detail the procedures governing marriage licenses and marriage certificates as part of the state’s registration and maintenance of vital statistics. These statutes designate the California Director of Health Services as the State Registrar of Vital Statistics (Health & Saf.

Code, § 102175) and provide that “[e]ach live birth, fetal death, death, and marriage that occurs in this state shall be registered as provided in this part on the prescribed certificate forms. ...” (Health & Saf. Code, § 102100, italics added.) The statutes also specify that “[t]he State Registrar is charged with the execution of this

part in this state, and has supervisory power over local registrars, so that there shall be uniform compliance with all the requirements of this part” (Health & Saf. Code, § 102180, italics added), that “[t]he Attorney General will assist in the enforcement of this part upon request of the State Registrar” (Health & Saf. Code, § 102195), and that “[t]he State Registrar shall prescribe and furnish all record forms for use in carrying out the purpose of this part, . . . and no record forms or formats other than those prescribed shall be used.” (Health & Saf.

Code, § 102200, italics added.) The code also contains a specific provision pertaining to all of the official forms related to marriage, which expressly provides that “[t]he forms for the application for license to marry, the certificate of registry of marriage including the license to marry, and the marriage certificate shall be prescribed by the State Registrar.” (Health & Saf.

Code, § 103125, italics added.) 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” (Health & Saf. Code, § 102285), and that “[e]ach local registrar is hereby charged with the enforcement of this

part in his or her registration district under the supervision and direction of the State Registrar and shall make an immediate report to the State Registrar of any violation of this law coming to his or her knowledge.” (Health & Saf.

Code, § 102295, italics added.) The statutes also provide that “[t]he local registrar of marriages shall carefully examine each certificate before acceptance for registration and, if it is incomplete or unsatisfactory, he or she shall require any further information to be furnished as may be necessary to make the record satisfactory before acceptance for registration.” (Health & Saf.

Code, § 102310.) 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 first three sections of the form (Groom Personal Data, Bride Personal Data, and Affidavit) constitute the application for license to marry.

The personal data sections are filled out by the court clerk, using information and/or documents provided by the applicants. The bride and groom must both sign the application (see lines 23 [entitled Signature of Groom], 24 [entitled Signature of Bride]) after the personal data sections have been completed. The fourth

section of the form (lines 25A-25F) constitutes the license to marry. This

section is to be completed by the clerk.” (1 Kirkland et al., Cal.

Family Law: Practices and Procedure (2d ed. 2003) Validity of Marriage, Forms, § 10.100[1], p. 10-80, fns. omitted.) 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. in 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, there can be no question but that marriage is a matter of “statewide concern” rather than a “municipal affair” (see Cal. Const., art. XI, §§ 4, 5, 6; see, e.g., California Fed. Savings & Loan Assn. v.

City of Los Angeles (1991) 54 Cal.3d 1, 17 [283 Cal.Rptr. 569, 812 P.2d 916]), and that state statutes dealing with marriage prevail over any conflicting local charter provision, ordinance, or practice. 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 [201 R 120] [“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 [225 P. 36] [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 [166 P. 843] [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.) Furthermore, if the county clerk or the county recorder acted in this case in contravention of the applicable statutes solely at the behest of the mayor and not on the basis of the official’s own determination that the statutes are unconstitutional, such official also would appear to have acted improperly by abdicating the statutory responsibility imposed directly on him or her as a state officer. (See, e.g., California Radioactive Materials Management Forum v. Department of Health Services (1993) 15 Cal.App.4th 841, 874 [19 Cal.

Rptr. 2d 357], disapproved on another point in Carmel Valley Fire Protection Dist. v.

State of California (2001) 25 Cal.4th 287, 305, fe. 5 [105 Cal.Rptr.2d 636, 20 P.3d 533] [“An executive or administrative officer can no more abdicate responsibility for executing the laws than the Legislature can be permitted to usurp it”].) 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 established by the state marriage statutes are satisfied, the county clerk and the county recorder each has the respective mandatory duty to issue a marriage license and record a certificate of registry of marriage; in that circumstance, the officials have no discretion to withhold a marriage license or refuse to record a marriage certificate.

By the same token, when the statutory requirements have not been met, the county clerk and the county recorder are not granted any discretion under the statutes to issue a marriage license or register a certificate of registry of marriage. As we stated recently in Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916 [129 Cal.Rptr.2d 811, 62 P.3d 54]: “ ‘A ministerial act is

an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act’s propriety or impropriety, when a given state of facts exists.’ ” 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.

A In the initial petitions filed in this matter, petitioners relied primarily on the provisions of

article III,

section 3.5 of the California Constitution (hereafter generally referred to as

article III,

section 3.5) in maintaining that the challenged actions of the local officials were improper.

Article IU,

section 3.5 provides in full: “An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power: fi[] (

a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of its being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional. [][] (

b) To declare a statute unconstitutional, [f] (

c) To declare a statute unenforceable, or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations.”

Article III,

section 3.5 does not define the term “administrative agency” as used in this constitutional provision. Petitioners maintain that in light of the purpose of the provision, the term “administrative agency” should be interpreted to include local executive officials, particularly local officials who are acting as state officers in carrying out a function prescribed by state statute.

Article III,

section 3.5 was proposed by the Legislature and placed before the voters as Proposition 5 at the June 6, 1978 election, and was adopted by the electorate. The ballot argument in favor of Proposition 5, contained in the election brochure distributed to voters prior to the election, stated in part: “Every statute is enacted only after a long and exhaustive process, involving as many as four open legislative committee meetings where members of the public can express their views.

If the agencies question the constitutionality of a measure, they can present testimony at the public hearing during legislative consideration. Committee action is followed by full consideration by both houses of the Legislature. [1] Before the Governor signs or vetoes a bill, he receives analyses from the agencies which will be called upon to implement its provisions.

If the Legislature has passed the bill over the objections of the agency, the Governor is not likely to ignore valid apprehensions of his department, as he is Chief Executive of the State and is responsible for most of its administrative functions, [f] Once the law has been enacted, however, it does not make sense for an administrative agency to refuse to carry out its legal responsibilities because the agency’s members have decided the law is invalid. Yet, administrative agencies are so doing with increasing frequency.

These agencies are all part of the Executive Branch of government, charged with the duty of enforcing the law. [f] The Courts, however, constitute the proper forum for determination of the validity of State statutes.

There is no justification for forcing private parties to go to Court in order to require agencies of government to perform the duties they have sworn to perform. [<J[] Proposition 5 would prohibit the State agency from refusing to act under such circumstances, unless an appellate court has ruled the statute is invalid. []Q We urge you to support this Proposition 5 in order to insure that appointed officials do not refuse to carry out their duties by usurping the authority of the Legislature and the Courts.

Your passage of Proposition 5 will help preserve the concept of the separation of powers so wisely adopted by our founding fathers.” (Ballot Pamp. Primary Elec. (June 6, 1978) argument in favor of Prop. 5, p. 26.) Petitioners maintain that the rationale set forth in this ballot argument applies to local executive officials as well as state administrative agencies, and thus that the term “administrative agency” as used in the provision properly should be construed to apply to local executive officials. The city vigorously contests petitioners’ suggested

interpretation of

article III,

section 3.5, maintaining that this provision is addressed only to state, not local, administrative agencies, and that in any event the local officials here at issue are not an “administrative agency” within the meaning of

article III,

section 3.5. The city concedes there may be some anomaly in

article III,

section 3.5’s application only to state administrative agencies and not to local executive officials, but insists such an anomaly “would not be license to rewrite

Section 3.5 and give it a meaning nobody had in mind when it was passed.” The city argues that “[t]he voters were responding to a specific problem [involving state administrative agencies] when they enacted

Section 3.5, and they chose specific means to address that problem. In the end, if some in hindsight question the wisdom of that choice, the answer lies in amending California’s Constitution, not judicially rewriting it.” In sum, the city asserts that the existing terms of

article III,

section 3.5 cannot properly be interpreted to include local executive officials. Although one Court of Appeal decision contains language directly supporting petitioners’ argument that

article III,

section 3.5’s reference to administrative agencies properly is interpreted to include local executive officials such as county clerks (Billig v. Voges (1990) 223 Cal.App.3d 962, 969 [273 Cal.Rptr. 91] (Billig)), the city maintains that the question of the proper scope of

article III,

section 3.5 never was raised in Billig, and further that the pertinent language in Billig clearly is dictum. Accordingly, the city argues, the appellate court’s decision in Billig cannot properly be viewed as resolving the issue whether

article III,

section 3.5 applies to local officials. 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

article III,

section 3.5, because we conclude that prior to the adoption of

article III,

section 3.5, it already was established under California law—as in the overwhelming majority of other states (see, post, at pp. 1104-1107—that a local executive official, charged with a ministerial duty, generally lacks authority to determine that a statute is unconstitutional and on that basis refuse to apply the statute. Because the adoption of

article III,

section 3.5 plainly did not grant or expand the authority of local executive officials to determine that a statute is unconstitutional and to act in contravention of the statute’s terms on the basis of such a determination, we conclude that the city officials do not possess this authority and that the actions challenged in the present case were unauthorized and invalid. B We begin with a few basic legal principles that were well established prior to the adoption of

article III,

section 3.5 in 1978. 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 [294 P. 3]].) 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 [322 P.2d 449]; California State Restaurant Assn. v.

Whitlow (1976) 58 Cal.App.3d 340, 346-347 [129 Cal.Rptr. 824] [“[administrative 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 to follow the law (including the Constitution) includes the implied or inherent authority to refuse to follow an applicable statute whenever the official personally believes the statute to be unconstitutional, even though there has been no judicial determination of the statute’s unconstitutionality and despite the existence of the rule that a duly enacted statute is presumed to be constitutional. As we shall see, the California authorities that were in place prior to the adoption of

article III,

section 3.5, do not support the city’s position. C Although in this case we need not determine the scope of

article III,

section 3.5, the historical background that led to the proposal and adoption of that constitutional provision in 1978 nonetheless provides a useful starting point for our analysis. As this court explained in Reese v. Kizer (1988) 46 Cal.3d 996, 1002 [251 Cal.Rptr. 299, 760 P.2d 495], “[a]rticle HI,

section 3.5, . . . was placed on the ballot by a unanimous vote of the Legislature in apparent response to this court’s decision in Southern Pac. Transportation v. Public Utilities Com. (1976) 18 Cal.3d 308 [134 Cal.Rptr. 189] [hereafter Southern Pacific], in which the majority held that the Public Utilities Commission had the power to declare a state statute unconstitutional.” Accordingly, the decision in Southern Pacific is an appropriate place to begin. In Southern Pacific, the plaintiff railroad company sought review of two decisions of the Public Utilities Commission (PUC) in which the PUC held that

section 1202.3 of the Public Utilities Code, a statute enacted in 1971, was unconstitutional.

Section 1202.3 was one of a number of statutes in the Public Utilities Code dealing with railroad crossings. With respect to private or farm railroad crossings, Public Utilities Code section 7537 (1) granted “the owner of adjoining lands the right to private ox farm crossings necessary or convenient for egress or ingress” (Southern Pacific, supra, 18 Cal.3d at p. 311), (2) provided that the railroad must maintain the crossings, and (3) granted the PUC the authority to fix and assess the cost of such crossings. With respect to railroad crossings on public or publicly used roads, Public Utilities Code

section 1202 gave the PUC the exclusive power “to regulate public or publicly used road or highway crossings, including locating, maintaining, protecting, and closing them” (Southern Pacific, supra, 18 Cal.3d at p. 312), and further granted the PUC the authority to allocate costs among the railroad and the affected public entities responsible for maintaining the public or publicly used road, including any costs involved in closing a crossing. Public Utilities Code

section 1202.3, the statute at issue in Southern Pacific, provided, in turn, that in any proceeding under Public Utilities Code

section 1202 “involving a publicly used road or highway not on a publicly maintained road system,” the PUC could apportion costs to the public entity if the PUC found “(

a) express dedication and acceptance of the road or (

b) a judicial determination of implied dedication.” (Southern Pacific, supra, 18 Cal.3d at p. 312.) If neither condition was found,

section 1202.3 provided that the PUC “shall order the crossing abolished by physical closing.”

Section 1202.3 further provided that “the railroad shall in no event be required to bear improvement costs ‘in excess of what it would be required to bear in connection with the improvement of a public street or highway crossing.’ ” (Southern Pacific, supra, 18 Cal.3d at pp. 312-313.) In Southern Pacific, the PUC concluded in an administrative proceeding that Public Utilities Code

section 1202.3 was unconstitutional because it unlawfully delegated the state’s police power to private litigants by granting private litigants absolute discretion to require the closing of a railroad crossing merely by commencing a proceeding under Public Utilities Code

section 1202. The PUC’s conclusion was based in part on its determination that under

section 1202.3, once the PUC found that there had been neither an express dedication and acceptance of the publicly used road, nor a judicial determination of an implied dedication of the road, the PUC had no alternative but to order the crossing closed and to require the railroad to pay for the closing. (Southern Pacific, supra, 18 Cal.3d at p. 313.) On review, this court unanimously disagreed with the PUC’s constitutional determination. Observing that Public Utilities Code

section 1202.3 provided, in its introductory phrase, that the statute applied “in any proceeding under

Section 1202,” the court in Southern Pacific reasoned that “the Legislature has declared that

section 1202.3 is an exception to the former

section and that the provisions for cost allocation and closing crossings in the latter

section are only applicable when the commission would otherwise have ordered improvement of a crossing pursuant to the former section. The standard for compelling crossing improvement implicit in

section 1202 is obviously public convenience and necessity, including safety concerns [citations], and this standard must be read into

section 1202.3. [f] Thus, before the commission may close a crossing under

section 1202.3, it must not only find public use and lack of requisite dedication, but also find that necessity and convenience preclude continued use of the crossing in its existing condition. Such findings—rather than mere commencement of a proceeding under

section 1202—[are] the basis for closing a crossing under

section 1202.3. [f] The function of the private litigant within the statutory framework is merely to call the commission’s attention to the need for improving or closing a crossing and perhaps to urge action on the commission.” (Southern Pacific, supra, 18 Cal.3d at p. 314, italics added.) As noted, in Southern Pacific all of the justices of this court agreed that the PUC had erred in concluding that Public Utilities Code

section 1202.3 was unconstitutional. Although the briefs filed in this court in Southern Pacific did not raise any question regarding the authority of the PUC to determine the constitutionality of

section 1202.3, and the majority in Southern Pacific did not address that question in the text of the opinion, Justice Mosk authored a vigorous concurring and dissenting opinion in Southern Pacific, arguing strongly that neither the PUC nor any other administrative agency “may declare a duly enacted statute unconstitutional,” and that “it is incongruous for the will of the people of the state, reflected by their elected legislators, to be thwarted by a governmental body which exists only to implement that will.” (Southern Pacific, supra, 18 Cal.3d at p. 315 (cone. & dis. opn. of Mosk, J.).) 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 [2 Cal.Rptr. 737] (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”) 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 (cone. & dis. opn. of Mosk, J.)) in State of California v.

Superior Court (1974) 12 Cal.3d 237, 250-251 [115 Cal.Rptr. 497, 524 P.2d 1281] (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 responded to Justice Mosk’s concurring and dissenting opinion in a lengthy footnote. (See Southern Pacific, supra, 18 Cal.3d 308, 311-312, fn. 2.) The initial portion of the footnote contains some broad language that could be read to support the conclusion that the duty of any administrative agency or public official to obey the Constitution affords such agency or official the authority to determine the constitutional validity of statutes the agency or official is charged with enforcing.

The majority in Southern Pacific, however, ultimately rested its holding that the PUC had the authority to determine the constitutional validity of statutes on the circumstance that the California Constitution grants broad judicial or quasi-judicial power to the PUC.

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 statute that the agency is required to enforce. In Walker, the plaintiffs were retail liquor dealers who had been charged in an administrative proceeding before the Department of Alcoholic Beverage Control with violating the fair trade provisions of the California Alcoholic Beverage Control Act.

While the administrative proceeding was pending, the plaintiffs filed a declaratory judgment action in superior court against the administrative officials, seeking a declaration that the fair trade provisions of the Alcoholic Beverage Control Act were unconstitutional, and an order enjoining the officials from enforcing those provisions. The trial court in Walker granted

summary judgment in favor of the defendants, relying upon the circumstance that the same constitutional issue had been raised in the pending administrative proceeding and upon the trial court’s conclusion “that it is more expeditious and proper that the Department rule on the question before the court is required to rule on it.” (178 Cal.App.2d at p. 70.) 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.’ (Cal.

Const., art.

XX, § 22.)” (178 Cal.App.2d at p. 73.) The court in Walker then observed: “The department and the Appeals Board are thus constitutional agencies upon which limited judicial powers have been conferred. [Citations.]” (Ibid., italics added.) 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 [273 P.2d 579], 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.) Accordingly, in concluding that the administrative agency in that case had the authority to determine, at least in the first instance, the question whether the fair trade statutes were unconstitutional, the court in Walker specifically relied upon the circumstance that the Alcoholic Beverage Control Appeals Board had been granted the authority by the California Constitution to exercise limited judicial power.

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 [136 Cal.Rptr. 187].) Accordingly, these decisions recognize that, under California law, the determination whether a statute is unconstitutional and need not be obeyed is an exercise of judicial power and thus is reserved to those officials or entities that have been granted such power by the California Constitution. Given the foregoing decisions and their reasoning, it appears evident that under California law as it existed prior to the adoption of

article in,

section 3.5 of the California Constitution, a local executive official, such as a county clerk or county recorder, possessed no authority to determine the constitutionality of a statute that the official had a ministerial duty to enforce.

If, in the absence of a grant of judicial authority from the California Constitution, an administrative agency that was required by law to reach its decisions only after conducting court-like quasi-judicial proceedings did not generally possess the authority to pass on the constitutionality of a statute that the agency was required to enforce, it follows even more so that a local executive official who is charged simply with the ministerial duty of enforcing a statute, and who generally acts without any quasi-judicial authority or procedure whatsoever, did not possess such authority.

As indicated above, we are unaware of any California case that suggests such a public official has been granted judicial or quasi-judicial power by the California Constitution. The city, in arguing that

article III,

section 3.5 does not apply to local officials, relies upon the statement in Strumsky v. San Diego County Employees Ret. Assn. (1974) 11 Cal.3d 28, 36 [112 Cal.Rptr. 805], that the separation of powers clause in

article III “is inapplicable to the government below the state level.” The city might well argue that this language in Strumsky also renders inapposite the line of California cases (Southern Pacific, supra, 18 Cal.3d 308; State of California v. Superior Court (Veta), supra, 12 Cal.3d 237; and Walker, supra, 178 Cal.App.2d 67) that we have just discussed. The city fails to recognize, however, that the decision in Strumsky emphatically did not hold that under the California Constitution local executive officials are free to exercise judicial power.

On the contrary, in Strumsky this court expressly overruled a line of earlier California decisions that had held (for purposes of determining the appropriate standard of judicial review of a decision of a local administrative agency) that such an agency could exercise judicial power; the opinion in Strumsky concluded instead that a local administrative agency has no authority under the California Constitution to exercise judicial power. (Strumsky, supra, 11 Cal.3d at pp. 36-44.) In light of this holding in Strumsky, it appears clear that a local executive official who makes decisions—without the benefit of even a quasi-judicial proceeding—has no authority to exercise judicial power, such as by determining the constitutionality of applicable statutory provisions.

Accordingly, we conclude that at the time

article III,

section 3.5 was adopted, it was clear under California law that a local executive official did not have the authority to determine that a statute is unconstitutional or to refuse to enforce a statute in the absence of a judicial determination that the statute is unconstitutional. The adoption of

article III,

section 3.5, of course, effectively overruled the majority’s holding in Southern Pacific and largely embraced the reasoning set forth in Justice Mosk’s concurring and dissenting opinion, amending the California Constitution to provide that “[a]n administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power . . . [t]o . . . refuse to enforce a statute on the basis of its being unconstitutional unless an appellate court has made a determination that such 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

article III,

section 3.5 has on the authority of local executive officials, because it is abundantly clear that this constitutional amendment did not expand the authority of such officials so as to permit them to refuse to enforce a statute solely on the basis of their view that the statute is unconstitutional. Accordingly, we conclude that under California law a local executive official generally lacks such authority.

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) 111 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 bringing the constitutional question of the validity of the bond, contract, or expenditure of public funds before the court for resolution.

The city maintains that these decisions demonstrate that the general rule in California always has been that every public official is free to determine the constitutional validity of the statutory provisions, that he or she has a ministerial duty to enforce or execute, and free to refuse to perform the ministerial act if he or she in good faith believes the statute to be unconstitutional. The city argues that the line of decisions we have analyzed above—holding, prior to the adoption of

article III,

section 3.5, that only administrative agencies constitutionally authorized to exercise judicial power have the authority to determine the constitutional validity of statutes—involved a limited exception applicable only to administrative agencies. We believe the city’s argument misconceives the state of the law prior to the adoption of

article III,

section 3.5. As we have discussed above, the general rule established by California decisions at the time Southern Pacific, supra, 18 Cal.3d 308, was decided was that, among administrative agencies, only one that had been granted judicial power under the California Constitution possessed the authority to determine the constitutionality of a statute it was charged with enforcing and to decline to apply the statute if the agency determined it was unconstitutional.

As already explained, if a nonconstitutional administrative agency that rendered its decisions after an extensive quasi-judicial procedure—in which the arguments for and against constitutionality could be fully presented and considered in a quasi-judicial fashion—■ lacked authority to determine constitutional issues, it clearly would be anomalous to permit an ordinary executive official (who carries out his or her official action without the benefit of any sort of quasi-judicial procedures) to determine the constitutionality of a statute and to refuse to apply it based simply upon the official’s own good faith belief that the statute is unconstitutional.

Thus, the general rule in California—and, as we shall discuss below, in most jurisdictions—was (and continues to be) that an executive official does not possess such authority. 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 funds—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, Government Code

section 820.6 explicitly provides that “[i]f a public employee acts in good faith, without malice, and under the apparent authority of an enactment that is unconstitutional, invalid or inapplicable, he is not liable for an injury caused thereby except to the extent that he would have been liable had the enactment been constitutional, valid and applicable.” Thus, the officials clearly would not have incurred liability under California law simply for following the current marriage statutes and declining to issue marriage licenses or register marriage certificates in contravention of those statutes.

Second, under federal law, a local public official generally is immunized from liability for official acts so long as the official’s conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known” (Harlow v. Fitzgerald (1982) 457 U.S. 800, 818 [73 L.Ed.2d 396, 102 S.Ct. 2727], italics added; see Anderson v.

Creighton (1987) 483 U.S. 635, 639 [97 L.Ed.2d 523, 107 S.Ct. 3034]), and, as we discuss below (see, post, pp. 1102-1104), in this instance there simply is no plausible argument that the city officials would have violated “clearly established” constitutional rights by continuing to enforce California’s current marriage statutes in the absence of a judicial determination that the statutes are unconstitutional. (Cf. LSO, Ltd. v.

Stroh (9th Cir. 2000) 205 F.3d 1146, 1160 [finding state officials were not entitled to qualified immunity when “no reasonable official could have believed” that application of the statute at issue was constitutional in light of prior controlling judicial decisions].) 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 Government Code

section 825 the officials would be entitled to have their public employer provide a defense and pay any judgment entered in such an action, whether the action was based on a state law claim or a claim under the federal civil rights statutes. (See Williams v. Horvath (1976) 16 Cal.3d 834, 842-848 [129 Cal.Rptr. 453, 548 P.2d 1125].) Accordingly, there is no merit to the city’s contention that the actions of the city officials that are challenged here can be defended as necessary to avoid the incurring of personal liability on the part of such officials.

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.) As we have just seen, the line of public finance cases relied upon by the city may be viewed as an example of just such a limited exception, and there are a number of other California decisions in which a constitutional challenge to a statute or other legislative enactment has been brought before a court for judicial resolution by virtue of a public entity’s refusal to comply with the statute, under circumstances in which the public entity had a personal stake or interest in the constitutional issue and the public entity’s action was the most practicable or reasonable method of obtaining a judicial determination of the validity of the statute. (See, e.g., County of Riverside v.

Superior Court (2003) 30 Cal.4th 278 [132 Cal.Rptr.2d 713, 66 P.3d 718] [impingement on county’s home rule authority]; Star-Kist Foods, Inc. v.

County of Los Angeles (1986) 42 Cal.3d 1, 5-10 [227 Cal.Rptr. 391, 719 P.2d 987] [impingement on county’s taxing authority].) 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. 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, 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 oat

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