Federal Court in Puerto Rico Dismisses Marriage Equality Case

U.S. District Judge Juan M. Perez-Gimenez ruled on October 21, 2014, that he was bound by a precedential decision of the U.S. Court of Appeals for the 1st Circuit to dismiss a lawsuit brought by Lambda Legal on behalf of Puerto Rican same-sex couples seeking either to marry or to have their out-of-state marriages recognized by the Commonwealth of Puerto Rico.  The judge based his ruling in Conde-Vidal v. Garcia-Padilla on the 1st Circuit’s 2012 decision striking down Section 3 of the federal Defense of Marriage Act, in which that court said that a 1971 decision by the Supreme Court to reject a constitutional challenge to Minnesota’s same-sex marriage ban was still binding law.  Judge Perez-Gimenez also asserted that the Supreme Court’s 2013 decision, U.S. v. Windsor, striking down that provision of DOMA in an appeal from the 2nd Circuit, did not affect this conclusion.

Lambda Legal promptly announced that it would appeal this “aberrant” ruling to the 1st Circuit Court of Appeals.

In light of the basis for his ruling, it was not necessary for the judge independently to evaluate the plaintiffs’ constitutional claims, but his opinion made clear that he believed that Puerto Rico has a right to determine who can marry and whose marriages are to be recognized as a matter of its own self-government.

When the Minnesota Supreme Court rejected a federal constitutional challenge to that state’s marriage ban in 1971, the law governing Supreme Court jurisdiction required the U.S. Supreme Court to consider and decide on the merits any appeal from such a ruling. The Supreme Court’s practice at that time was to dispose of those cases that the Justices considered to be sure losers by issuing a one-line decision, dismissing the appeal as not presenting a “substantial federal question.”  Such a ruling is considered to be a decision on the merits of the questions presented by the appeal, and is binding on lower federal courts unless it is either overruled by the Supreme Court or later Supreme Court decisions clearly render it no longer viable as a precedent.  The Court issued such a one-sentence ruling in Baker v. Nelson in 1972.  During the recent flurry of marriage equality cases, defenders of the existing marriage bans have usually cited Baker v. Nelson as blocking lower federal courts from deciding marriage equality cases.

Prior to U.S. v. Windsor, lower courts had frequently agreed with this defense, but after Windsor federal courts have almost uniformly rejected it, frequently by citing and quoting from Justice Antonin Scalia’s dissenting opinions in Windsor and the earlier case of Lawrence v. Texas (2003), in which the Court struck down the Texas homosexual sodomy law.  Scalia’s dissents asserted that the reasoning of the Court’s decisions in these cases would support claims for a right to same-sex marriage under the 14th Amendment.  In his Windsor dissent, he paraphrased a portion of the majority opinion to show how a lower court could write such a decision channeling the reasoning of the majority decision.

The four circuit court of appeals marriage equality decisions that were denied review by the Supreme Court on October 6 had all ruled that Baker v. Nelson was no longer a controlling precedent.  Although a Supreme Court denial of review is not a ruling on the merits of the lower court decision, these denials have been widely interpreted as tacit agreement with the lower courts’ dismissal of the Baker v. Nelson precedent.  If a majority of the Justices thought that Baker v. Nelson was still a binding precedent on lower courts, they could instead have summarily reversed the lower court rulings, citing Baker, or at least so one would have thought.  But clearly there was not a majority on the Supreme Court to take such an action, which would require votes from 5 of the Justices.  Most observers assume that the Court’s four conservatives did not vote to grant review for fear that a majority of the Court would affirm the marriage equality decisions, thus creating a national precedent, while the remaining members of the Court, including Justice Kennedy, saw no reason to take up the issue when there was not a current split between circuit courts on the issue.  This view was reaffirmed when the Court subsequently refused to stay new marriage equality rulings from the 9th Circuit and the state of Alaska.

But Judge Perez-Gimenez, as a district court judge in the 1st Circuit, is bound by 1st Circuit precedent.  Had he agreed with the plaintiffs’ arguments on the merits, he could easily have ruled that the 1st Circuit’s 2012 statement about Baker v. Nelson was no longer binding on him because of the subsequent decision in Windsor.  However, he lined up with two dissenting circuit court judges (from the 4th and 10th circuits) who have argued that Windsor did not necessarily overrule Baker.  For one thing, the majority opinion in Windsor did not discuss or explicitly overrule Baker.  For another, as the 1st Circuit observed in its DOMA case, the question whether DOMA’s federal definition of marriage violated the 5th Amendment Due Process Clause was different from the question whether state bans on same-sex marriage violate the 14th Amendment Due Process and Equal Protection Clauses, implicating questions of federalism that are not present in the challenges to state laws.

The Puerto Rico plaintiffs had argued that the 1st Circuit’s comments about Baker v. Nelson were merely “dicta,” that is commentary unnecessary to the decision of the case, and thus not binding on lower courts in the circuit.  Judge Perez-Gimenez rejected this contention, arguing that discussing was necessary to the 1st Circuit’s choice of a doctrinal basis to strike down the DOMA provision.  Even if the 1st Circuit’s comments were not binding as precedent, he contended that they would be a persuasive precedent that a district court would be wise to follow.

Dramatically illustrating the strong tide against which he was swimming in this regard, Judge Perez-Gimenez devoted almost an entire page of his opinion to citing all of the circuit and district court rulings going the other way, stating that “notwithstanding” this long list of cases, “this Court will apply Baker v. Nelson, as the Supreme Court has instructed it to do” in cases where the Supreme Court has stated that lower courts should follow Supreme Court precedents, no matter how old, which have not been overruled or disavowed by the Supreme Court.  He argued that none of the Supreme Court decisions usually cited by litigants and courts to the contrary actually overruled Baker.

Despite this basis for his ruling, Judge Perez-Gimenez decided to add some “dicta” of his own making clear that he would reject the plaintiffs’ claims on the merits were it open to him to do so.  “Recent affirmances of same-gender marriage seem to suffer from a peculiar inability to recall the principles embodied in existing marriage law,” he wrote.  Traditional marriage is ‘exclusively an opposite-sex institution . . . inextricably linked to procreation and biological kinship,'” he quoted from Justice Samuel Alito’s dissenting opinion in U.S. v. Windsor.  “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,” wrote Judge Perez-Gimenez.  Thus, the judge overlooked the thousands of children being raised by same-sex couples, whose fate had proven central to the 7th and 9th Circuit’s recent pro-marriage equality decisions.

Commenting on the recent spate of pro-marriage equality decisions, he wrote, “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?  It would seem so, if we follow the plaintiffs’ logic, that the fundamental right to marriage is based on ‘the constitutional liberty to select the partner of one’s choice.'”

The judge’s response to these concerns is to assert that they present policy questions to be decided in the political process, not by courts.  “For now,” he wrote, “one basic principle remains: the people, acting through their elected representatives, may legitimately regulate marriage by law.”  He rooted this principle in a recent Supreme Court decision that rejected a constitutional challenge to a popularly enacted state constitutional amendment banning affirmative action in Michigan, in which Justice Anthony Kennedy, a champion in the leading Supreme Court gay rights cases, wrote: “It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.”

Lambda Legal’s appeal will present the 1st Circuit with an unanticipated opportunity to weigh in on the same-sex marriage debate.  All of the states in that circuit – Maine, New Hampshire, Massachusetts and Rhode Island – are marriage equality jurisdictions, beginning with a Massachusetts Supreme Judicial Court decision in 2003 and continuing with legislative enactment of marriage equality laws by the other three states.  Although a 1st Circuit panel saidthat it viewed Baker v. Nelson as a binding precedent in 2012, it is possible that the court would reconsider that view in light of Windsor and the stream of rulings by other courts of appeals that have relied on Windsor in their determination that Baker is no longer binding.  If the 1st Circuit decides to stick with its previously-expressed view, this case could provide the vehicle to get the marriage equality issue up to the Supreme Court.  Of course, it is possible that a ruling from the 5th, 6th, 8th or 11th Circuit will get the question there sooner, if any of those circuits rule adversely on a marriage equality claim.  Appeals are now pending in all of those circuits except the 8th, where two states already have marriage equality and litigation is pending in the other five states.

Judge Perez-Jimenez was appointed to the district court by President Jimmy Carter in 1979.  Although Puerto Rico is not a state, its federal district court has the same status as district courts in the fifty states and the District of Columbia, and it is formally part of the 1st Circuit for purposes of appellate review.

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