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, without sufficient justification, denied the fundamental right to marry (e.g., Zablocki v. Redhail (1978) 434 U.S. 374, 383 [54 L.Ed.2d 618, 98 S.Ct. 673]; Loving v. Virginia (1967) 388 U.S. 1, 12 [18 L.Ed.2d 1010, 87 S.Ct. 1817]; Perez v. Sharp (1948) 32 Cal.2d 711, 714-715 [198 P.2d 17]) to a class of persons defined by gender or sexual orientation. Should the relevant statutes be held unconstitutional, the relief to which the purportedly married couples would be entitled would normally include recognition of their marriages. By analogy, interracial marriages that were void under antimiscegeny statutes at the time they were solemnized were nevertheless recognized as valid after the high court rejected those laws in Loving v. Virginia. (E.g., Dick v. Reaves (Okla. 1967) 1967 OK 158 [434 P.2d 295, 298].) By postponing a mling on this issue, we could preserve the status quo pending the outcome of the constitutional litigation. Instead, by declaring the marriages “void and of no legal effect from their inception” (maj. opn., ante, at p. 1113), the majority permanently deprives future courts of the ability to award foil relief in the event the existing statutes are held unconstitutional. This premature decision can in no sense be thought to represent fair judicial process.
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 *1134time 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.” (Maj. opn., ante, at p. 1117.) Nowhere in the opinion, however, does the majority note that any same-sex couple has filed a lawsuit seeking the legal benefits of their purported marriage. Nor is the absence of such lawsuits surprising, since any reasonable court would stay such actions pending the outcome of the ongoing constitutional litigation.1
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 *1135course, the same argument can be made in many class actions with respect to the absent members of the class, but due process still gives each class member the right to notice and the opportunity to appear. (Mullane v. Central Hanover Tr. Co., supra, 339 U.S. at pp. 314-315.) Here, notice has been given to none of the 4,000 affected couples; and even the 11 same-sex couples who affirmatively sought to intervene were denied the opportunity to appear. (Maj. opn., ante, at p. 1116.) What the majority has done, in effect, is to give petitioners the benefit of an action against a defendant class of same-sex couples free of the burden of procedural due process. If the majority truly desired to hear the views of the same-sex couples whose rights it is adjudicating, it would not proceed in absentia.
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 *1136action. A court’s refusal in the course of a criminal trial to recognize a claim of marital privilege, for example, does not compel the State Office of Vital Records to destroy a record of the marriage. The majority asserts that the question of the existing marriages’ validity or invalidity is material because it is “central to the scope of the remedy that may and should be ordered in this case.” (Maj. opn., ante, at p. 1114, italics added.) But this is just another way of saying the question is material because the Attorney General has asked us to decide it. With this reasoning, the majority assumes the conclusion and converts the Gregorson rule into a pretext for denying fundamental fairness.
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 *1137does not mean the mle of law has collapsed. So long as the courts remain open to hear legal challenges to executive conduct, so long as the courts have power to enjoin such conduct pending final determination of its legality, and so long as the other branches acknowledge the courts’ role as “ ‘ultimate interpreter of the Constitution’ ” (id., at p. 704, quoting Baker v. Carr (1962) 369 U.S. 186, 211 [7 L.Ed.2d 663, 82 S.Ct. 691]) in matters properly within their jurisdiction, no genuine threat to the mle of law exists. San Francisco’s compliance with our interim order eloquently demonstrates this.
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 mle 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 rales 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 *1138spoken state by state. (Southern Pac. Transportation Co. v. Public Utilities Com. (1976) 18 Cal.3d 308, 311, fn. 2 [3d par.] [134 Cal.Rptr. 189, 556 P.2d 289].) So, too, did the United States Supreme Court. (Cooper v. Aaron (1958) 358 U.S. 1, 18-20.) Today, in contrast, the majority equivocates on this point (see maj. opn., ante, at pp. 1102-1104) and writes that “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’ ” (id., at p. 1100, quoting Southern Pac. Transportation Co. v. Public Utilities Com., supra, at p. 319 (cone. & dis. opn. of Mosk, J.)). But as history demonstrates, however convenient the majority’s view may be in dealing with subordinate officers within a governmental hierarchy, that view is not entirely correct.
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 *1139the federal Constitution unnecessary and regrettable. A court should not trifle with the doctrine invoked by recalcitrant state officials, in the years following Brown v. Board of Education, supra, 347 U.S. 483, to rationalize their delay in complying with the Fourteenth Amendment. The high court definitively repudiated this erroneous doctrine in Cooper v. Aaron, supra, 358 U.S. 1, 18: “No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.” The United States Constitution, itself, immediately commands the unqualified obedience of state officials in article VI, section 3, which declares that “all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution . . . .” (Italics added; see also Cooper v. Aaron, supra, 358 U.S. at pp. 19-20.)
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.
m.
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 majority does note that “officials of the federal Social Security Administration had raised questions regarding that agency’s processing of name-change applications resulting from California marriages” (maj. opn., ante, at p. 1072), but this is unlikely to be a serious problem because San Francisco used a nonstandard, easily recognizable form for licensing same-sex marriages (id., at pp. 1070-1071, 1079).
Compare Code of Civil Procedure section 389, subdivision (a): “A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if . . . (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest. . . .”
For example, Estate of Elliott (1913) 165 Cal. 339, 343 [132 P. 439] (decedent’s daughter may challenge purported marriage of decedent to person seeking appointment as administrator); Estate of Stark (1941) 48 Cal.App.2d 209, 215-216 [119 P.2d 961] (heirs may challenge marriage of decedent’s parents to show that other purported heirs were illegitimate and, thus, lack standing to contest the will); People v. Little (1940) 41 Cal.App.2d 797, 800-801 (the People in a criminal case may challenge defendant’s marriage to an alleged coconspirator in order to avoid the rule that spouses cannot commit the crime of conspiracy); People v. MacDonald (1938) 24 Cal.App.2d 702, 704-705 [76 P.2d 121] (the People in a criminal case may challenge defendant’s marriage to a witness in order to defeat a claim of spousal privilege); People v. Glab (1936) 13 Cal.App.2d 528, 535 [57 P.2d 588] (same).
In Smith v. Indiana, supra, 191 U.S. 138, the high court held only that it would not necessarily recognize a state official’s standing to challenge a state law on federal grounds. (See id., at pp. 148-150.) Even on this narrow point, Smith has not been consistently followed. (See Board of Education v. Allen (1968) 392 U.S. 236, 241, fn. 5 [20 L.Ed.2d 1060, 88 S.Ct. 1923] [local school officials permitted to challenge under the federal Constitution a state statute requiring them to purchase and loan textbooks to parochial school pupils]; Coleman v. Miller (1939) 307 U.S. 433, 438 & fn. 3 [83 L.Ed. 1385, 59 S.Ct. 972] [state legislators permitted to challenge under the federal Constitution state’s procedures for recording votes on constitutional amendments]; cf. id., at p. 466 (separate opn. of Frankfurter, J., citing Smith); Akron Board of Ed. v. State Board of Ed. of Ohio (6th Cir. 1974) 490 F.2d 1285, 1290-1291, cert. den. sub nom. State Board of Education of Ohio v. Akron Board of Education (1974) 417 U.S. 932 [41 L.Ed.2d 236, 94 S.Ct. 2644] [local school officials permitted to challenge under the federal Constitution state officials’ decision to transfer White students from desegregated schools to all-White schools]; cf. Akron Board of Ed. v. State Board of Ed. of Ohio, supra, 490 F.2d at p. 1296 (cone. & dis. opn. of Pratt, J., citing Smith).)