In an absolutely bizarre ruling a federal judge has ruled that Obergefell does not apply to Puerto Rico:
In Vidal v. Garcia-Padilla, (D PR, March 8, 2016), a Puerto Rico federal district court held that the recognition of same-sex marriage in Obergefell v. Hodges does not bind Puerto Rico until further action by the Supreme Court or Congress. Relying on the so-called Insular Cases decided by the Supreme Court in the early 20th century, the court said “jurisprudence, tradition and logic teach us that Puerto Rico is not treated as the functional equivalent of a State for purposes of the Fourteenth Amendment….” The court concluded:
It is in light of the particular condition of Puerto Rico in relation to the Federal Constitution, with due consideration of the underlying cultural, social and political currents that have shaped over five centuries of Puerto Rican history, that the court examines the effect of Obergefell in the instant case. The court’s analysis, therefore, does not end with the incorporation of the fundamental right to same-sex marriage in the States. Generally, the question of whether a constitutional guarantee applies to Puerto Rico is subject to determination by Supreme Court of the United States.
This is…so incredibly and obviously wrong. Thankfully, Puerto Rico’s governor has said he’ll abide by Obergefell:
On Wednesday, however, the governor of Puerto Rico said in a statement that he will continue to follow the U.S. Supreme Court and First Circuit Court of Appeals rulings that such marriage bans are unconstitutional.
Ok, awesome. But still, what the fuck?
The judge who made the ruling was Judge Juan M. Pérez-Giménez. I thought that name sounded familiar so I ran a search for it in all my blogs. This is the same judge who issued a huge outlier ruling back in 2014 that Puerto Rico’s gay marriage ban was constitutional. And the way he did it was just strange (which, in this case, is a nice, euphemistic way of saying “shady and stupid”).
In Pérez-Giménez’s ruling at the time he cited was Baker v. Nelson from 1972. One of the rules the SCOTUS has in place to guide lower courts on narrowly applying summary dispositions like Baker is that “subsequent developments by the Court on the relevant doctrines may cast doubt on the continuing validity of a summary judgment.” Which is exactly what had already happened by 2014:
In recent years, most judges faced with claims like those in Baker have concluded that subsequent developments render Baker no longer authoritative. As U.S. Supreme Court Associate Justice Ruth Bader Ginsburg summarized at oral argument in 2013: “The Supreme Court hadn’t even decided that gender-based classifications get any kind of heightened scrutiny. And the same-sex intimate conduct was considered criminal in many states in 1971, so I don’t think we can extract much in Baker v. Nelson.” Since the Windsor decision in June 2013, no U.S. Court of Appeals has held Baker to be controlling on the subject of same-sex marriage.
Pérez-Giménez acknowledges this fact with a lengthy citation to other court decisions holding that Baker is no longer binding on lower courts. The list of cases that disagree with him is so long that it takes up nearly an entire page of his opinion.
In fact, if you really want to talk about precedent, Baker was cited by the defenders of the Defense of Marriage Act (section 3 was ruled unconstitutional in 2013, which paved the way for a string of decisions striking down gay marriage bans) and California’s Proposition 8 (also ruled unconstitutional). When the 9th Circuit ruled on Prop 8, even though the panel was split in its ruling, they all agreed that Baker did not apply. To reach past all those more recent rulings, of which Pérez-Giménez was unquestionably aware, to dredge up Baker is strange. (If you really want a great write up on Baker v. Nelson, this is the best one around)
Even more strange is the fact that Pérez-Giménez cited the dissenting opinion from United States v. Windsor as supportive of his ruling:
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.
Ian Millhiser at TPM addressed this as perfectly as I can imagine:
Notice the citation in this passage. Judge Pérez-Giménez relies on a quote from Justice Samuel Alito’s dissenting opinion in United States v. Windsor. Dissenting opinions are, by definition, not the law because they reflect the views of the judges or justices who were unable to persuade a majority of their colleagues. Alito, in fact, was unable to persuade any of his fellow justices to join his opinion in full, although Justice Clarence Thomas did join parts of it.
Recognizing that dissenting opinions are not the law is not exactly high-level legal scholarship. What’s more, Windsor has been used by the Circuit Courts in striking down gay marriage bans (which is why Judge Pérez-Giménez had to cite the dissent, not the ruling).
So yeah, this is the guy who just said that the SCOTUS ruling doesn’t apply to Puerto Rico. Thank FSM it seems the people in charge aren’t going to let Pérez-Giménez bait them into doing something incredibly foolish.