Relying mainly on two legal points that federal courts have repeatedly rejected over the past sixteen months, a federal trial judge in San Juan ruled Tuesday that Puerto Rico’s ban on same-sex marriage survives constitutional challenge. The combination of a one-line Supreme Court decision in 1972 and the Court’s full-scale ruling in June a year ago on the federal Defense of Marriage Act means that lower courts are required to leave the marriage question to the states (and to Puerto Rico), U.S. District Judge Juan M. Perez-Gimenez declared in a twenty-one-page opinion.

The decision was a clear break with the near-unanimous results of federal trial and appeals courts in the wake of the Justices’ ruling last year in United States v. Windsor — a ruling that said nothing directly about state power to deny marriage for gay and lesbian couples, but has been widely interpreted as if it had said a great deal. Since Windsor, only one other federal trial judge has upheld such a ban — in Louisiana.

Lawyers for the same-sex couples involved immediately made plans to appeal the Puerto Rico ruling to the U.S. Court of Appeals for the First Circuit, which has yet to rule on a challenge to a state’s power to prohibit gay and lesbian marriages. Such marriages are legal in the four states in that circuit: Maine, Massachusetts, New Hampshire, and Rhode Island.

Judge Perez-Gimenez focused the first part of his constitutional analysis on the Supreme Court’s summary ruling in Baker v. Nelson forty-two years ago. In that case, the Court dismissed a gay couple’s appeal seeking a right to marry because, it said, the case did not raise “a substantial federal question.” That left intact a Minnesota Supreme Court decision in favor of that state’s ban on same-sex unions.

The San Juan jurist said the Supreme Court has never overruled that decision, so it is still binding on lower federal courts — an argument that has failed in all of the recent rulings against such bans. But the judge also said that he was bound to follow the Baker precedent because the First Circuit, which has binding legal authority in Puerto Rico cases, had itself done just that two years ago.

In a Massachusetts case in which the First Circuit had struck down a key part of the Defense of Marriage Act, barring all federal marital benefits to same-sex couples already legally married under their state’s laws (the same result that the Supreme Court reached last year), the First Circuit had said that Baker v. Nelson was still a binding precedent, Judge Perez-Gimenez noted. That ruling, he added, tied his hands.

He went on to reject an argument that most recent federal decisions on same-sex marriage have accepted — that the Supreme Court’s later gay rights rulings in several cases have undermined the Baker precedent.

The Puerto Rico judge then turned to his interpretation of the Windsor decision on the federal marriage law. That decision, he wrote, “did not create a fundamental right to same-gender marriage nor did it establish that state opposite-gender marriage regulations are amenable to federal constitutional challenge.”

If anything, he added, “Windsor stands for the opposite proposition: it reaffirms the states’ authority over marriage, buttressing Baker‘s conclusion that marriage is simply not a federal question.”

Putting Windsor and Baker together “in tandem,” the judge declared, those rulings “emphasize the states’ historic and essential authority to define the marital relation free from federal intrusion.” He quoted language in the main Windsor opinion saying just that.

The judge acknowledged the long list of federal court rulings since Windsor striking down state same-sex marriage bans, but simply said he disagreed. He attributed those rulings to the “ingenuity and imagination” of the judges involved. Lower courts, he stressed, do not have the option of refusing to follow a Supreme Court precedent just because they have discovered “nebulous ‘doctrinal developments'” that supposedly undercut the Court’s prior rulings, as with Baker v. Nelson.

The judge closed his opinion with a verbal tribute to “traditional marriage” as “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, he added, “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.”

Recommended Citation: Lyle Denniston, Puerto Rico ban on same-sex marriage upheld, SCOTUSblog (Oct. 21, 2014, 10:21 PM), https://www.scotusblog.com/2014/10/puerto-rico-ban-on-same-sex-marriage-upheld/