What is the effect of requiring all 4,000 same-sex couples to be named and served as parties in a class action?

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, 17 Cal. Rptr.3d at p. 270, 95 P.3d at p. 496.) 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, 70 S.Ct. 652, 94 L.Ed. 865.) 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, 17 Cal. Rptr.3d at p. 269, 95 P.3d at p. 495.) Of course, 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, 70 S.Ct. 652.) 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, 17 Cal.Rptr.3d at p. 270, 95 P.3d at p. 496.) 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

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whose rights it is adjudicating, it would not proceed in absentia.

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