Washington Appeals Court Rejects Challenge to Seattle Executive Order

Leonard Link: Washington Appeals Court Rejects Challenge to Seattle Executive Order

Washington Appeals Court Rejects Challenge to Seattle Executive Order
In March 2004, the mayor of Seattle, Washington, Gregory Nickels, issued an executive order titled "City Recognition of Valid Marriage Licenses," which ordered that "all City Departments recognize the same sex marriages of City employees in the same manner as they currently recognize opposite sex marriages of City employees for purposes of granting employee benefits and other benefits ordinarily received in the course of employment."
Nickels’ order was a pragmatic reaction to the fact that beginning in the summer of 2003 it was a relatively simple matter for same-sex couples in Seattle to take a quick trip north to Vancouver and get married, as the British Columbia Court of Appeals had ordered the province to issue marriage licenses to same-sex couples. Once validly married same-sex couples began asking to have their marriages recognized for city benefits purposes, the city had to have a policy.
But Nickels’ policy did not sit well with some city residents opposed to same sex marriage, living in a state that had passed a Defense of Marriage Act that provided that marriage in the state of Washington could only occur between and man and a woman. So a lawsuit was filed challenging the policy. King County Superior Court Judge Bruce W. Hilyer granted the city’s motion to dismiss the case, and the plaintiffs appealed.
On September 17, a unanimous three-judge panel of the Washington Court of Appeals affirmed Judge Hilyer’s decision, in an opinion written by Judge Ronald E. Cox.
The plaintiffs made two different legal arguments. First, they argued that the city could not recognize foreign same-sex marriages, because the issue of marriage itself is preempted as a matter of state law. Rejecting this argument, the court observed that under the home rule provisions of the Washington Constitution, major cities like Seattle are authorized to adopt city charters for their governance providing broad legislative and executive powers to the city government, and these powers included the establishment and regulation of benefits for city employees.
The court pointed out that the Washington State Supreme Court has previously addressed this question in a slightly different set of circumstances when it rejected a challenge to the city of Vancouver’s decision to establish a domestic partnership benefit plan for its employees. In that case, the state’s highest court decisively rejected the argument that the city was preempted from recognizing same-sex partnerships, holding that it was within the authority of the city to set the terms of employment for its workers in order to attract qualified applicants.
The plaintiffs’ potentially stronger argument was to attack the Seattle executive order based on the state’s Defense of Marriage Act, which was upheld against constitutional challenge last year when the Washington Supreme Court rejected a same-sex marriage lawsuit by a vote of 5-4. In this case, the plaintiff argued that Mayor Nickels’ order "gives legal effect to same-sex marriage, which is expressly prohibited by the legislature."
Judge Cox pointed out that in the Vancouver benefits case, the state Supreme Court had specifically rejected the argument that providing partner benefits to city employees violated the state’s Defense of Marriage Act. "The court noted that extending benefits to domestic partners does not transform the relationship into a legal marriage," wrote Cox. "Here, the executive order extending benefits to city employees in same-sex marriages in the same manner as other city employees determines who is eligible for employee benefits. Nowhere does the order purport to give legal effect to same-sex marriages." The court saw no conflict between the mayor’s order and any provision of state law.
The plaintiffs had tried to rely on a recent ruling by the Michigan Court of Appeals, which held that providing domestic partner benefits to public employees in that state violated the state’s anti-gay marriage amendment. But Cox noted that the Michigan amendment went much further than Washington’s DOMA, since it provided that different-sex marriage "shall be the only agreement recognized as a marriage or similar union for any purpose," whereas the Washington enactment merely defined marriage without expressly prohibiting the state from extending other forms of recognition to same-sex partners.
"We recognize that the executive order contains language to which [the plaintiff] objects and on which much of the arguments are based," Cox commented, pointing to the "Whereas" clauses that come at the beginning of the executive order and proclaim support for marriage equality regardless of sexual orientation, but he accepted the city’s argument characterizing this language as "aspirational views that do not affect the operative portions of the order that define who is entitled to employee benefits." Despite all the pro-gay rhetoric, as a practical matter all that the order does is to extend domestic partnership benefits to those city employees whose proof of partnership consists of a marriage contracted in another jurisdiction. As Seattle already had a domestic partnership benefits program in place, this just meant there was one more way to document one’s partnership for benefits purposes.
Theoretically, the plaintiffs could attempt to appeal this ruling to the state supreme court, but the appeals court shows convincingly that the high court’s prior decision on domestic partnership benefits in the city of Vancouver effectively rejects the main arguments that the plaintiffs made in this case.