By Tim Peacock
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).