In 2004, Seattle's Mayor signed an executive order directing all City departments to recognize same-sex marriages entered into by its employees in other states or countries for the purpose of granting employee benefits. The executive order can be found here:
http://seattle.gov/mayor/executive_orders/cityrecognitionofvalidmarriagelicenses.pdf
In response, the California-based Pacific Justice Institute (http://www.pacificjustice.org/) filed suit, claiming that the Mayor's actions violated Washington's Defense of Marriage Act. In pertinent part, the act (R.C.W. 26.04.010) provides as follows:
"Marriage is a civil contract between a male and a female who have each attained the age of eighteen years, and who are otherwise capable."
The trial court rejected the challenge. PJI filed an appeal, but then put their appeal on hold pending the Washington Supreme Court's ruling on the constitutionality of Washington's Defense of Marriage Act. After the Washington Supreme Court upheld the constitutionality of the Act, PJI revived its appeal, which was recently argued before the Washington Court of Appeals.
You can find the Mayor's public defense of the executive order's constitutionality here: http://www.seattle.gov/mayor/issues/gay_qa.htm. The first part of his defense--that the Defense of Marriage Act is unconstitutional--has been rejected by the Washington Supreme Court (although the Washington Supreme Court did not reach its constitutionality under the Federal constitution, only the state one). But the second part of his defense would still seem to hold: that nothing in the Act purports to preempt a city law such as the executive order.
It seems like a no-brainer of a case, but I have not been able to get my hands on any briefs in the case. Any thoughts on the issue?
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It strikes me that challenging the Seattle Mayor's executive order is problematic on a standing doctrine. What exactly is the harm? Moreover, challenging an executive order on its face cannot usually be done in court, but instead must be a challenge to an implentation of an executive order that the challenger declares to be contrary to law. So in this case, are they going to challenge the "recognition" by the city of an actual couple? And if so, I ask again, where is the standing?
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