Federal Judge Upholds Ban on Same-Sex Marriage in Puerto Rico

For only the second time out of about three dozen cases, a federal judge has upheld a law banning same-sex marriage. Judge Juan Perez-Gimenez dismissed a challenge to that law in Puerto Rico in an angry ruling that strongly criticizes other judges, in which he quoted a solo dissent from the Windsor case to make his argument.

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.

But the other courts who have ruled on this haven’t ignored that claimed justification for the government to recognize traditional marriage, they’ve listened to the states try to make a case for it and found them wanting. It isn’t the value of marriage that anyone doubts, it’s that giant gap in the reasoning. Yes, marriage is a wonderful thing and important for the country, but if allowing gay people to get married has no effect on straight marriages, the argument is completely irrelevant and offers no rational basis for banning gay marriages. Court after court has heard the states’ attorneys flail around trying to fill in that massive gap in logic and found the arguments laughable (and they are). But this judge didn’t bother to hear such arguments, much less address them, because he dismissed the case without ruling on the merits.

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  • eric

    ultimately the very survival of the political order depends upon the procreative potential embodied in traditional marriage.

    Histrionics aside, the point is that allowing gays to marry doesn’t prevent straight married couples from having kids.

  • John Pieret

    The shame of it is that this and the case in Louisiana just get the bigots hopes up and prolongs (though I don’t think by much) the inevitable implementation of gay marriage everywhere.

  • http://www.facebook.com/den.wilson d.c.wilson

    WTF does “procreative potential” even mean? Do they honestly think straight people are going to stop procreating (ie, have sex) if gay people are allowed to get married?

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    And ultimately the very survival of the political order depends upon the procreative potential embodied in traditional marriage.

    Pah! I’m not even married, and I’m full of procreative potential. Ladies…

  • dhall

    Therefore, straight people without “procreative potential” should not marry either. lest they cause the extinction of the political order. Whatever that is, in this context.

  • Pierce R. Butler

    . . . inextricably linked to procreation and biological kinship…

    If Puerto Rico were a state, it would be the southeasternmost state – but even there, I’d bet there are some marriages with neither partner pregnant, and not between cousins, siblings, or parents/offspring.

  • Chiroptera

    Here is an article from the Washington Post in case anyone wants some more details.

    The Puerto Rico court is in the First Circuit (according to Wikipedia). I’m assuming that the First Circuit hasn’t yet ruled? I don’t recall. I’m assuming not, since I would assume that a District Court judge wouldn’t dare try to over rule a higher court. (But I may be naive.)

  • http://Reallyawakeguy.blogspot.com somnus

    Ummm… What’s the point of citing a dissenting opinion (I.e., the argument that failed to decide the case) of another case as the justification for a ruling? Isn’t that argument, by definition, not the governing legal precedent?

  • tomh

    @ #7

    The First Circuit hasn’t ruled on the issue, since all states in the First Circuit allow SSM.

  • scienceavenger

    Every assertion he makes is baseless and obviously false:

    Marriage stopped being about procreation and biological kinship decades ago, if ever it was in the first place.

    The fundamental unit of the political order is the individual. Couples do not enter the voting booth together.

    The political order will chug merrily along, making democratic decisions and babies, whether anyone gets married or not.

    Seriously, how does someone with a triple digit IQ and an education spout such nonsense without his tongue leaping out of his mouth out of an instinct for survival?

  • John Pieret

    I’m assuming that the First Circuit hasn’t yet ruled?

    No, it hasn’t because it hasn’t had a chance. The rest of the 1st Circuit is made up of the New England states of Maine, New Hampshire, Massachusetts, and Rhode Island, all early adopters of SSM except R.I. (which only has about 1 million people and is surrounded by SSM states). R.I. adopted SSM in 2013. I don’t know why the 1st Circuit got Puerto Rico.

    Anyway, now the 1st can join the party.

  • whheydt

    Looks like this judge heard about other courts citing Scalia’s dissent and didn’t bother to check what parts of it were cited, nor the context in which the citations were used.

  • John Pieret

    somnus @ 8:

    What’s the point of citing a dissenting opinion (I.e., the argument that failed to decide the case) of another case as the justification for a ruling? Isn’t that argument, by definition, not the governing legal precedent?

    Citing a dissenting opinion is not all that rare, especially if the law has moved on and the majority decision is about to be or likely will be overturned. For example, Justice Kennedy, in Lawrence v. Texas, cited Justice Stevens’ dissent in Bowers v. Hardwick extensively. It is less often done in lower courts but, especially when the dissenter being cited is considered a particularly good judge, a dissent can be cited more for its legal reasoning than for the outcome.

  • http://dailydouq.wordpress.com dailydouq

    Since everyone knows having kids can be a real bother we have to force that on everyone to have future generations of consumers. SSM couples that don’t produce children are undermining the profits of the rich. So let’s just force everyone to do their duty and stop those slackers who don’t. Brilliant – judge! Plenty of straight couples will do their duty and SSM isn’t going to deter them, so get off this beaten horse.

  • eric

    I wonder if this might change some GOP minds on whether PR should be a state or not. IIRC, that party has been pretty against it in the past (because they are afraid PR congresscritters, senators, and electors will go Democrat).

  • vmanis1

    There is a spectacular gap in logic in the learned judge’s ruling. Baker was denied cert in 1972 `for want of a substantial federal question’. The judge appears not to have noticed that earlier this month, SCOTUS denied cert on decisions (on exactly the same question) that went the other way in the Fourth, Seventh, and Tenth Circuits. Those more knowledgeable than I can explain the precedential effect of denial of cert versus an explicit decision, but there can be no argument that these most recent denials must override the earliers ones.

    I would imagine Judge Perez-Gimenez must not care much about the very strong likelihood of being overridden on appeal.

  • John Pieret

    explain the precedential effect of denial of cert versus an explicit decision

    A denial of cert, since it can be for any reason at all, has no precedental effect at all (though lower courts can sometimes read SCOTUS’ tea leaves in them). Baker wasn’t a denial of cert, however. It came to SCOTUS through one of the few routes of appeals where SCOTUS was required to hear it. What the court did in Baker was to dismiss the appeal “for want of a substantial federal question,” which is a different animal, that does have precedental effect.

    There is an out, however, where a court finds that there are “doctrinal developments” in subsequent SCOTUS cases that call the correctness of the earlier decision into question. There are arguments over whether lower courts can use the doctrinal developments route to ignore a precedent or only SCOTUS can. The lack of a substantial Federal question argument (essentially the argument that states have the right to determine marriage laws) is not crazy but I think it is ultimately doomed by Loving v. Virginia.

  • sailor1031

    I’m betting Judge Perez-Gimenez is a conservative catholic just like the Alito he quotes. However law defines marriage that definition must be extended to all persons in a jurisdiction. It’s called the “equal protection clause of the fourteenth amendment to the United States constitution” and, strangely, trumps state and even Puerto Rico law. Odd that a judge wouldn’t know that.

  • roggg

    There’s no gap in the logic. Teh gay so unbelievably awesome in the minds of conservatives, that the only thing keeping people straight at all is the prospect of marriage. Once they can get gay married, all heterosexual relationships will dissolve immediately.

    At least I assume that’s the reasoning.