Puerto Rico: Another Judge Cites SCOTUS Dissent to Combat LGBT Marriage Equality


In the second case of a federal judge ruling against marriage equality (and upholding a same sex marriage ban), a federal judge ruled against the LGBT community this week in the case challenging Puerto Rico's ban on same sex marriage. Just as Judge Martin Feldman cited the dissent in Windsor to justify his legally suspect opinion in Louisiana last month, Judge Juan Pérez-Giménez's ruling appears to be more of a hyperbolic rant based in animus and mockery than an actual federal judiciary decision.
 
In the ruling, Judge Pérez-Giménez states in part:
Because no right to same-gender marriage emanates from the Constitution, the Commonwealth of Puerto Rico should not be compelled to recognize such unions. Instead, Puerto Rico, acting through its legislature, remains free to shape its own marriage policy. In a system of limited constitutional self-government such as ours, this is the prudent outcome. The people and their elected representatives should debate the wisdom of redefining marriage. Judges should not.
In his ruling, Judge Pérez-Giménez relies heavily on Baker v. Nelson - a similar 1972 case that found same sex couples have no federal standing or case to make in attempting to seek a marriage license. Citing the precedent seems extremely suspect since (as even Supreme Court Justice Ruth Bader Ginsburg has noted) the ruling is no longer relevant or authoritative. Speaking on the precedent in 2013, Justice Ginsburg stated, "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."
 
Perhaps more troubling than his citing of irrelevant precedent is Judge Pérez-Giménez's reliance on the dissent in Windsor to justify his rationale - a move that places his entire case in questionable legal territory ripe for appeal and overturning. Supreme Court dissents are just that - dissenting opinions on why a justice or justices did not vote with the majority (precedent-setting) decision. Dissents hold no legal precedent or power and should not be cited by lower court rulings as legal reasoning.
 
Nonetheless, Judge Pérez-Giménez stated in the closing paragraphs of his decision:
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.
Then again, Judge Pérez-Giménez appears to have started with an opinion-based decision and worked backwards from there attempting to find legal precedent to justify his anti-gay animus. At times in his decision, however, that animus still peeks through loud and clear.
 
After accusing other judges (both liberal and conservative alike) who have found in favor of marriage equality "inexplicable contortions of the mind or perhaps even willful ignorance," Judge Pérez-Giménez stated, “this Court reaches its decision by embracing precedent may prove disappointing . . . there are some principles of logic and law that cannot be forgotten.” He continued later using the NOM-approved schtick of comparing apples and oranges to oppose LGBT rights arguing “laws barring polygamy, or, say the marriage of fathers and daughters” are “now of doubtful validity.”
 
Puerto Rico rests in the United States Court of Appeals for the First Circuit - a circuit widely considered to be fairly progressive-minded. It's also composed of Massachusetts, New Hampshire, Rhode Island, and Maine - all states that already enjoy marriage equality. If and when the Puerto Rico decision is appealed to the First Circuit, most legal experts agree that this decision will be overturned (once again maintaining a unanimous federal circuit level agreement on marriage equality offering no conflicting opinions the Supreme Court would be likely to step in to arbitrate).

About Tim Peacock:

For virtually his entire life, Tim has been writing. Over the years he's dabbled in mainstream fiction, science fiction, dystopian fiction, and personal essays. The one consistent thread through his entire writing career has been blogging - he's been doing it since 1997 in one form or another. In addition to writing Tim has frequently worked and volunteered as a civil rights advocate including on campus LGBT advocacy as well as interning with the Colorado Civil Rights Division.

You can find Tim online at his personal website. He additionally guest contributes at Blue Nation Review. You can find him on LinkedIn as well as on Twitter as @timsimms


Hitching Post Fact Check: No Religious Discrimination


A handy graphic popped up today summarizing the lie(s) being perpetrated by the anti-gay right and propagated by conservative media who couldn't be bothered with five minutes of fact-checking prior to publication. Courtesy of JoeMyGod:


Previously:
About Tim Peacock:

For virtually his entire life, Tim has been writing. Over the years he's dabbled in mainstream fiction, science fiction, dystopian fiction, and personal essays. The one consistent thread through his entire writing career has been blogging - he's been doing it since 1997 in one form or another. In addition to writing Tim has frequently worked and volunteered as a civil rights advocate including on campus LGBT advocacy as well as interning with the Colorado Civil Rights Division.

You can find Tim online at his personal website. He additionally guest contributes at Blue Nation Review. You can find him on LinkedIn as well as on Twitter as @timsimms


Wanna Buy a Judge?

By Sheila Kennedy

[Originally published at SheilaKennedy.net on October 21,2014]

Talking Points Memo recently ran an article about mysterious campaign contributions to a candidate for Judge in Missouri:
A month ago, Missouri GOP prosecutor Brian Stumpe had less than $100 on hand in his campaign to unseat Cole County Circuit Court Judge Patricia Joyce, according to the St. Louis Post-Dispatch. Now, just a few weeks later, he has received $100,000 — all of it funneled into his campaign by a national group, the Republican State Leadership Committee, which has spent a total of $200,000 so far in this race for a single state judgeship.
The article went on to speculate about the source of the money and the reasons for this effort to dress a favored candidate in judicial robes.
 
Whatever those reasons, and irrespective of the identity of the donors in this particular case, this is a perfect illustration of why we ought not elect judges.
 
There was a reason the Founders did not provide for electing the federal judiciary: judges were supposed to be responsive to the Constitution and the rule of law–not to the electorate. Congress and the Executive branch were intended to respond to the political will (within limits); the judiciary, however, was supposed to ensure that those other branches did not violate the Constitution in their eagerness to pander to popular passions.
 
An independent judiciary was seen as essential to justice.
 
There is also the matter of perception. When litigants walk into a courtroom and face a judge who’s won office using partisan campaign contributions, especially in cases with political implications or cases involving politically “connected” adversaries, they can be forgiven for worrying that the judge will be less than dispassionate.
 
No judge can be completely apolitical; humans have points of view and those worldviews come with them when they are elevated to the bench. But when we can’t trust that the administration of justice is as unbiased as our imperfect efforts can make it, we don’t just undermine respect for a particular judge, we erode respect for the rule of law.
 
There are a lot of unsavory aspects to our current political environment, but the ability to purchase a judge has to rank up there among the worst.
 


Sheila Kennedy is a former high school English teacher, former lawyer, former Republican, former Executive Director of Indiana's ACLU, former columnist for the Indianapolis Star, and former young person. She is currently an (increasingly cranky) old person, a Professor of Law and Public Policy at Indiana University Purdue University in Indianapolis, and Director of IUPUI's Center for Civic Literacy. She writes for the Indianapolis Business Journal, PA Times, and the Indiana Word, and blogs at www.sheilakennedy.net. For those who are interested in more detail, links to an abbreviated CV and academic publications can be found on her blog, along with links to her books..

Obama on Marriage Equality: It's Guaranteed By The Equal Protection Clause


In an interview with the New York Times, President Obama 'came out' in admitting what the best Supreme Court decision of his tenure was. Unsurprisingly - especially since LGBT rights will probably be known historically as one of this administration's greatest achievements - Obama cited the Supreme Court's inaction on the seven marriage ban petitions recently as the boldest and most important court move. The New York Times said in part:
I asked him to name the best Supreme Court decision of his tenure. When the Court upheld the constitutionality of the Affordable Care Act, in 2012? When it struck down the Defense of Marriage Act, a year later? Neither, it turned out. 
“In some ways, the decision that was just handed down to not do anything about what states are doing on same-sex marriage may end up being as consequential—from my perspective, a positive sense—as anything that’s been done,” the President said. “Because I think it really signals that although the Court was not quite ready—it didn’t have sufficient votes to follow Loving v. Virginia and go ahead and indicate an equal-protection right across the board—it was a consequential and powerful signal of the changes that have taken place in society and that the law is having to catch up.” In the Loving decision, from 1967, the Court held that states could no longer ban racial intermarriage. 
In other words, Obama’s favorite decision was one in which the Court allowed the political process to go forward, one state at a time. Not long ago, the President described his foreign-policy doctrine as one that “avoids errors. You hit singles, you hit doubles.” On same-sex marriage, the Supreme Court had hit a single, or maybe a double, and that was fine with him. 
Obama opposed marriage equality until May of 2012. He told me that he now believes the Constitution requires all states to allow same-sex marriage, an argument that his Administration has not yet made before the Supreme Court. “Ultimately, I think the Equal Protection Clause does guarantee same-sex marriage in all fifty states,” he said. “But, as you know, courts have always been strategic. There have been times where the stars were aligned and the Court, like a thunderbolt, issues a ruling like Brown v. Board of Education, but that’s pretty rare. And, given the direction of society, for the Court to have allowed the process to play out the way it has may make the shift less controversial and more lasting.
Though Obama is thoroughly informed on Constitutional law (having served as president of the Harvard Law Review as well as teaching at the University of Chicago law school for over a decade), he seemed to hedge his bet in guessing the reasoning behind the high court's punt.

As many legal experts (and even Justice Ginsburg) have noted, the decision to punt on the cases stems not from a lack of votes or willingness to make a decision on the cases so much as a lack of need for intervention by the high court. As it stands, no conflicting decisions exist at the circuit court level that would require the high court's intervention.
 
That doesn't detract from the fact that Obama's evolution on LGBT rights - marriage in particular - will secure his place on the right side of history.

About Tim Peacock:

For virtually his entire life, Tim has been writing. Over the years he's dabbled in mainstream fiction, science fiction, dystopian fiction, and personal essays. The one consistent thread through his entire writing career has been blogging - he's been doing it since 1997 in one form or another. In addition to writing Tim has frequently worked and volunteered as a civil rights advocate including on campus LGBT advocacy as well as interning with the Colorado Civil Rights Division.

You can find Tim online at his personal website. He additionally guest contributes at Blue Nation Review. You can find him on LinkedIn as well as on Twitter as @timsimms