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Puerto Rico Urges Reversal of Anti-Marriage Equality Ruling

Posted on: March 23rd, 2015 by Art Leonard No Comments

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).

Federal Court in Puerto Rico Dismisses Marriage Equality Case

Posted on: October 22nd, 2014 by Art Leonard No Comments

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.