In an astonishing departure from established precedents, U.S. District Judge Juan M. Perez-Gimenez of the U.S. District Court in Puerto Rico, who had dismissed a marriage equality lawsuit on October 21, 2014, has issued a new decision on March 8, 2016, Vidal v. Garcia-Padilla, 2016 U.S. Dist. LEXIS 29651, asserting that the U.S. Supreme Court’s ruling on June 26, 2015 in Obergefell v. Hodges, 135 S. Ct. 2584, that the 14th Amendment of the U.S. Constitution protects the right of same-sex couples to marry in the United States, does not necessarily apply to Puerto Rico.
Lambda Legal represents the plaintiffs in that marriage equality case. Lambda appealed the court’s 2014 ruling to the 1st Circuit Court of Appeals, which has jurisdiction over federal cases arising in Puerto Rico. That court held up ruling on the appeal until after the Supreme Court ruled in Obergefell. On July 8, 2015, the 1st Circuit vacated Judge Perez-Gimenez’s decision and sent the case back to the district court “for further consideration in light of Obergefell v. Hodges.” In its brief order, the 1st Circuit also stated that it “agrees with the parties’ joint position that the ban [on same-sex marriage] is unconstitutional.” A week later, the parties filed a “Joint Motion for Entry of Judgment” with the district court, asking for a declaration that Puerto Rico’s statutory ban on same-sex marriage is unconstitutional, and an injunction ordering the commonwealth government not to enforce the ban.
In a footnote to his opinion, Judge Perez-Gimenez observed that Governor Alejandro Garcia Padilla had signed an Executive Order “just hours after the Supreme Court’s decision in Obergefell” directing Puerto Rico government officials to comply with that ruling, an action that provoked some members of the Puerto Rico legislature to file a lawsuit in the local courts challenging his action. That case has apparently gone nowhere, and the government of Puerto Rico has been issuing marriage licenses to same-sex couples and recognizing their marriages performed elsewhere.
Perez-Gimenez explained that in Obergefell the Supreme Court invoked the 14th Amendment’s Due Process and Equal Protection Clauses to hold that the same-sex marriage bans in the four states within the jurisdiction of the 6th Circuit Court of Appeals (Michigan, Ohio, Kentucky and Tennessee) were unconstitutional because they deprived same-sex couples of a fundamental right to marry, thus abridging their liberty and denying equal protection of the laws. He also noted that some lower federal courts have acknowledged that Obergefell v. Hodges was technically ruling on the state constitutions and laws of those four states, and thus had not automatically mooted cases pending in the 5th, 8th and 11th Circuit Courts of Appeals involving same-sex marriage bans in other states, although those courts quickly issued rulings applying Obergefell as a precedent to the marriage equality cases arising from states under their jurisdiction.
More significantly, Judge Perez-Gimenez claimed that because Puerto Rico is neither a “state” nor an “incorporated territory,” but rather an “unincorporated territory” with extensive self-government rights under a federal statute making it a “commonwealth,” there is some question whether the Supreme Court’s ruling in Obergefell is a binding precedent in Puerto Rico. He pointed out, that the 14th Amendment provides expressly that “no state” may deprive a person of due process or equal protection, and that because Puerto Rico is not a state, the 14th Amendment’s applicability is not clear. He cited a variety of older Supreme Court decisions making the general point that all provisions of the U.S. Constitution do not necessarily apply to Puerto Rico in all circumstances.
What he neglected to cite, however, was a case pointed out by Joshua Block, an ACLU attorney who spoke with Chris Geidner of BuzzFeed.com shortly after Perez-Gimenez issue his ruling: a 1976 Supreme Court decision, Examining Board of Engineers v. Flores de Otero, 426 U.S. 572 (1976), in which the Court stated, in an opinion by Justice Harry Blackmun, “The Court’s decisions respecting the rights of the inhabitants of Puerto Rico have been neither unambiguous nor exactly uniform. The nature of this country’s relationship to Puerto Rico was vigorously debated within the Court as well as within the Congress. It is clear now, however, that the protections accorded either by the Due Process Clause of the Fifth Amendment or the Due Process and Equal Protection Clauses of the Fourteenth Amendment apply to residents of Puerto Rico.”
In that case, the Court was considering the constitutionality of a local Puerto Rican statute imposing a citizenship requirement before somebody could be licensed to practice as a civil engineer. The Court held that the requirement violated equal protection, based on its precedents interpreting both the 5th and 14th Amendments, under which the Court imposes “strict scrutiny” on federal or state laws that discriminate based on alienage. That is, the government must have a compelling justification before it can deny a right or benefit to somebody because they are not a U.S. citizen. In a prior case, Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974), the Court had specifically held that the due process requirements of the 5th and 14th Amendment also applied to Puerto Rico, limiting the right of the government to restrict the rights of property-owners.
Thus, Judge Perez-Gimenez’s insistence that the Supreme Court’s holding concerning the rights of same-sex couples under the 14th Amendment does not apply to persons present in Puerto Rico appears contrary to a Supreme Court precedent.
Nonetheless, Perez-Gimenez, without acknowledging these Supreme Court decisions, held that “the right to same-sex marriage in Puerto Rico requires: (a) further judicial expression by the U.S. Supreme Court; or (b) the Supreme Court of Puerto Rico; (c) incorporation through legislation enacted by Congress, in the exercise of the powers conferred by the Territorial Clause; or (d) by virtue of any act or statute adopted by the Puerto Rico Legislature that amends or repeals Article 68 [the local law banning same-sex marriage].”
Had there been any doubt that the Obergefell ruling applies to Puerto Rico, the 1st Circuit would have expressed that doubt as part of its consideration of the appeal from Perez-Gimenez’s prior ruling in the case. Instead, that court expressly stated its agreement with the joint position stated by the parties in that case that the Puerto Rico ban was unconstitutional. Lambda Legal will promptly appeal this ruling to the 1st Circuit. In the meantime, presumably the governor’s executive order remains in effect.Tags: 14th Amendment, 5th Amendment, application of 14th Amendment in Puerto Rico, Due Process, equal protection, Examining Board v. Flores de Otero, gay marriage in Puerto Rico, Lambda Legal, marriage equality in Puerto Rico, Puerto Rico Governor Alejandro Garcia-Padilla, same-sex marriage in Puerto Rico, U.S. Court of Appeals for the 1st Circuit, U.S. District Court for Puerto Rico, U.S. District Judge Juan M. Perez-Gimenez, U.S. Supreme Court, Vidal v. Garcia-Padilla