Box Turtle Bulletin

Federal Court Uphold’s Puerto Rico’s Ban on Same-Sex Marriage

Federal District Judge Juan Pérez-Giménez has dismissed a lawsuit challenging Puerto Rico’s civil code which limits marriage to opposite-sex couples.Pérez-Giménez, a Carter appointee, dismissed the lawsuit “with prejudice,” meaning that the plaintiffs may not refile the case. He pointed to Baker v. Nelson as “a decision that directly binds this Court”:

The plaintiffs have brought this challenge alleging a violation of the federal constitution, so the first place to begin is with the text of the Constitution. The text of the Constitution, however, does not directly guarantee a right to same-gender marriage, for “when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States.” See Windsor, 133 S.Ct. at 2691—92, (citing Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383-384 (1930)).

Without the direct guidance of the Constitution, the next source of authority is relevant Supreme Court precedent interpreting the Constitution. On the question of same-gender marriage, the Supreme Court has issued a decision that directly binds this Court. The petitioners in Baker v. Nelson were two men who had been denied a license to marry each other. They argued that Minnesota’s statutory definition of marriage as an opposite-gender relationship violated due process and equal protection – just as the plaintiffs argue here. The Minnesota Supreme Court rejected the petitioners’ claim, determining that the right to marry without regard to gender was not a fundamental right and that it was neither irrational nor invidious discrimination to define marriage as requiring an opposite-gender union. …The Supreme Court considered both claims and unanimously dismissed the petitioners’ appeal “for want of [a] substantial federal question.”

It’s rather astonishing to see Judge Pérez-Giménez cite Windsor as arguing that the Federal Constitution is silent on the rights of same-sex couples when that very decision swept away Section 3 of the Defense of Marriage Act on due process and equal protection grounds. One wonders whether Pérez-Giménez actually bothered to read through all of Windsor when he wrote this rather cranky paragraph:

The Windsor opinion did not create a fundamental right to same-gender marriage nor did it establish that state opposite-gender marriage regulations are amenable to federal constitutional challenges. If anything, Windsor stands for the opposite proposition: it reaffirms the States’ authority over marriage, buttressing Baker’s conclusion that marriage is simply not a federal question. … Contrary to the plaintiffs’ contention, Windsor does not overturn Baker; rather, Windsor and Baker work in tandem to emphasize the States’ “historic and essential authority to define the marital relation” free from “federal intrusion.” Windsor, 133 S.Ct. at 2692. It takes inexplicable contortions of the mind or perhaps even willful ignorance – this Court does not venture an answer here – to interpret Windsor’s endorsement of the state control of marriage as eliminating the state control of marriage.

He also lashed out at the dozens of other courts which struck down elsewhere in a conclusion that could have easily been written by the Family “Research” Council:

Recent affirmances of same-gender marriage seem to suffer from a peculiar inability to recall the principles embodied in existing marriage law. Traditional marriage is “exclusively [an] opposite-sex institution … inextricably linked to procreation and biological kinship,” Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting). Traditional marriage is the fundamental unit of the political order. And ultimately the very survival of the political order depends upon the procreative potential embodied in traditional marriage.

Those are the well-tested, well-proven principles on which we have relied for centuries. The question now is whether judicial “wisdom” may contrive methods by which those solid principles can be circumvented or even discarded.

A clear majority of courts have struck down statutes that affirm opposite-gender marriage only. In their ingenuity and imagination they have constructed a seemingly comprehensive legal structure for this new form of marriage. And yet what is lacking and unaccounted for remains: are laws barring polygamy, or, say the marriage of fathers and daughters, now of doubtful validity? Is “minimal marriage”, where “individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties” the blueprint for their design? …

Of course, it is all too easy to dismiss such concerns as absurd or of a kind with the cruel discrimination and ridicule that has been shown toward people attracted to members of their own sex. But the truth concealed in these concerns goes to the heart of our system of limited, consent-based government: those seeking sweeping change must render reasons justifying the change and articulate the principles that they claim will limit this newly fashioned right.

Lambda Legal has already announced that they will appeal the decision to the First Circuit Court of Appeals. All of the states in the First Circuit (Maine, Massachusetts, New Hampshire and Rhode Island) already have marriage equality, either through the ballot box, legislative action, or state court rulings.