In an unusual turnabout, the Commonwealth of Puerto Rico, respondent in Lambda Legal’s appeal of the anti-marriage equality ruling in Conde-Vidal v. Garcia-Padilla, 2014 WL 5361987 (D. P.R., Oct. 21, 2014), is urging the 1st Circuit Court of Appeals to reverse the district court’s ruling that dismissed the challenge to the Commonwealth’s ban on licensing or recognizing same-sex marriages.
Lambda Legal sued on behalf of several same-sex couples seeking either to marry in Puerto Rico or to have their marriages from other jurisdictions recognized there. U.S. District Judge Juan M. Perez-Gimenez granted the government’s motion to dismiss the case, holding that the complaint did not state a claim because of the Supreme Court’s ruling in Baker v. Nelson, 409 U.S. 810 (1972), which reject an appeal from an adverse ruling by the Minnesota Supreme Court, that the issue of same-sex marriage did not present a “substantial federal question.” Judge Perez-Gimenez found that the Supreme Court had never overruled this decision, and as a lower federal court judge he was bound by it, rejecting the argument that subsequent rulings by the Supreme Court had rendered Baker a nullity. Nonetheless, he also proceeded to find that the state had a rational basis to distinguish between same-sex and different-sex couples, relying on arguments that have been repeatedly rejected by several dozen other federal courts (including four circuit courts of appeal) over the past two years. Plaintiffs appealed to the 1st Circuit, and Puerto Rico’s responsive brief was due to be filed on March 20.
The brief filed over the names of Solicitor General Margarita Mercado-Echegaray and Assistant Solicitor General Andres Gonzalez-Berdecia observed that the Supreme Court’s decision in January to grant petitions for certiorari seeking review of the 6th Circuit’s decision in DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), as well as the Supreme Court’s refusal to stay marriage equality rulings in response to every stay petition filed since October 6, 2014 (including a stay petition filed by Alabama after the Court had granted the cert. petition), meant that clearly Baker v. Nelson was no longer controlling on the district court. If same-sex marriage does not present a substantial federal question, then the Court would not have granted cert. to review the 6th Circuit’s decision, which was premised in part on Michigan’s contention that Baker v. Nelson bound the lower federal courts to deny marriage equality claims. Although Puerto Rico had won its motion to dismiss by advancing Baker v. Nelson as a determinative precedent, that argument is no longer available before the 1st Circuit in light of these subsequent developments.
Furthermore, wrote Puerto Rico’s lawyers, they agree with the plaintiffs’ contention that denying the right to marriage to same-sex couples implicates a fundamental right. If it is open to the court to proceed to the merits, then some form of heightened or even strict scrutiny would apply. Although an equal protection claim in the 1st Circuit was accorded only rational basis review in that circuit’s pre-Windsor cases, it was possible that heightened scrutiny might be applied to such a claim as well. Under either theory, the lawyers conceded, the ban on same-sex marriage was no longer defensible.
“It is not usual for the Executive Branch of the Commonwealth of Puerto Rico to refuse to defend the constitutionality of legally-enacted statues,” they wrote. “It is even less usual to adopt a somewhat different position at the appellate level than the one espoused before the lower court. But this is not a usual case and neither the law nor common sense requires us to treat it as such. In a constitutional democracy there are some rights that have been reserved to the People directly and which no government may infringe, regardless of individual or personal views on the matter. ‘Our obligation [like this Court’s] is to define the liberty of all, not to mandate our own moral code.’ Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992). Article 68 of the Civil Code of Puerto Rico excludes LGBT couples from the legal entitlements and rights attendant to civil marriage. Thus, the Commonwealth of Puerto Rico acknowledges that the statute in controversy raises substantial constitutional questions anent the constitutional guarantees of equal protection of the laws and substantive due process.”
They continued: “Because Puerto Rico’s marriage ban impermissibly burdens Plaintiffs’ right to the equal protection of the laws and the fundamental right to marry, we have decided to cease defending its constitutionality based on an independent assessment about its validity under the current state of the law. . . If History has taught us anything, it is that ‘times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invokes its principles in their own search for greater freedom.’ Lawrence, 579 U.S. at 579. This case represents but another attempt from a politically disadvantaged group of our society to be included within the full scope of the legal and constitutional protections that most of us take for granted. Plaintiffs seek no preferential treatment; only equality. The Executive Branch of the Commonwealth recognizes the LGBT community’s right to equality under the law.”
It is unclear from the brief whether the government is asking the 1st Circuit to issue a final ruling on the merits, or merely to reverse the motion to dismiss and remand the case for further proceedings in the district court. However, if the 1st Circuit were just to reverse the dismissal order, it is likely that the Supreme Court will have issued its ruling, anticipated to come by the end of June, before the district court would get around to issuing a ruling on a subsequent motion for summary judgment by the plaintiffs. In any event, if the appeal before them is unopposed, it might be appropriate for the 1st Circuit to dispense with oral argument, reverse the district court without an opinion, and remand the matter to the district court for further proceedings.
In the meantime, however, it was clear that there was not unanimous support in Puerto Rico for the government’s action, as some local legislators called for action to defend the statutory marriage ban before the 1st Circuit. Although the defendants-appellees will not defend the statute, it is possible that the legislature will authorize some kind of attempted intervention to present a defense. It seems clear that relying on Baker v. Nelson is no longer viable; even Supreme Court Justice Clarence Thomas, no supporter of same-sex marriage, opined in his dissent from the denial of a stay in the Alabama case that the topic presents an important constitutional question, so the dismissive 1972 statement no longer applies. But the never-say-die opponents of marriage equality continue to insist, as the 6th Circuit majority held, that the question of “defining” marriage should be left to the political process, and that an institution whose heterosexual definition dates back millennia cannot have suddenly become unconstitutional, and they will undoubtedly attempt to put such arguments before the 1st Circuit – even though that Circuit has essentially rejected them in its ruling striking down Section 3 of DOMA, Commonwealth of Massachusetts v. U.S. Dep’t of Health & Human Services, 682 F.3d 1 (1st Cir. 2012), cert. denied, 133 S. Ct. 2884, 133 S. Ct. 2887 (June 27, 2013).