Why a US judge ruled that Puerto Rico's gay marriage ban is legal

Bucking a tidal wave of federal court rulings striking down state bans on gay marriage, a US judge in Puerto Rico has upheld the Caribbean island’s marriage law defining the institution as a union of one man and one woman. 

US District Judge Juan Perez-Gimenez ruled that existing legal precedents set by the US Supreme Court and the Boston-based First US Circuit Court of Appeals required him to uphold Puerto Rico’s traditional definition of marriage.

He is only the second federal judge to rule in favor of an existing marriage law in the face of a year-long blitz of more than 90 lawsuits challenging same-sex marriage bans nationwide. A judge in Louisiana upheld that state’s marriage law last month.

The Puerto Rico decision, issued on Tuesday, presents a blistering critique of the scores of other federal judges across the country who have ruled that the US Constitution protects a right of same-sex couples to wed.

Judge Perez-Gimenez criticized his colleagues for basing their groundbreaking decisions on the Supreme Court’s June 2013 ruling in US v. Windsor, striking down the federal Defense of Marriage Act.

In that case, the court ruled that DOMA represented an impermissible intrusion by the federal government into an area reserved to the states – the regulation of marriage.

Since New York had conferred full marital status upon a same-sex couple, the court said, the federal government could not seek to demean that status by denying federal benefits being made available to opposite-sex married couples in New York.

“The Windsor opinion did not create a fundamental right to same-gender marriage nor did it establish that state opposite-gender marriage regulations are amendable to federal constitutional challenges,” the judge wrote in a 21-page opinion.

“If anything, Windsor stands for the opposite proposition,” he said. “It reaffirms the states’ authority over marriage, buttressing [a 1971 case’s] conclusion that marriage is simply not a federal question.”

“It takes inexplicable contortions of the mind or perhaps even willful ignorance … to interpret Windsor’s endorsement of the state control of marriage as eliminating the state control of marriage,” he said.

The judge said he was required to follow a binding decision issued two years ago by a federal appeals court in Boston that recognized a 1971 decision by the high court not to hear a gay couple’s lawsuit seeking a right to marry under Minnesota law. In declining to hear that case, the Supreme Court let stand a decision by the Minnesota Supreme Court dismissing the lawsuit. The court said it was dismissing the petition “for lack of a federal question.”

The decision meant that it was largely up to the states to decide how to regulate marriage.

The US Supreme Court has never explicitly reversed its position, although many judges – including some appeals court judges – have opined that the Minnesota case is no longer binding precedent because of more recent “doctrinal developments” at the high court.

Perez-Gimenez stressed that Puerto Rico is part of the First Circuit and is thus bound by the First Circuit’s conclusion that the 1971 precedent still applies. 

The judge also said he was not persuaded by the Supreme Court’s actions on Oct. 6, when it declined to take up any of the pending petitions from five states seeking to defend the traditional definition of marriage in state laws and constitutional amendments. The high court’s inaction let stand lower court rulings striking down those same-sex marriage bans.

Many analysts believe the move suggests the court is leaning toward issuing a nationwide ruling upholding constitutional protections requiring same-sex marriages.

Perez-Gimenez said the high court move “speaks more to the fact that there is not, as of yet, a split among the few circuit courts to consider this issue.” 

The judge said that, unlike many of his colleagues on the federal bench, he would remain bound by legal precedents established by the Supreme Court and First Circuit.

“The Supreme Court is perfectly capable of stating its intention to overrule a prior case,” he said. “But absent an express statement saying as much, lower courts must do as precedent requires.”

Under existing precedents, he said, the challenge to Puerto Rico’s marriage law must fail.

“Because no right to same-sex marriage emanates from the Constitution, the Commonwealth of Puerto Rico should not be compelled to recognize such unions,” he wrote. “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,” Perez-Gimenez said. “The people and their elected representatives should debate the wisdom of defining marriage. Judges should not.”

The judge said that traditional marriage was “the fundamental unit of the political order.” He said that ultimately “the very survival of the political order depends upon the procreative potential embodied in traditional marriage.”

The judge added: “The question now is whether judicial ‘wisdom’ may contrive methods by which those solid principles can be circumvented or even discarded.”

He questioned whether establishing a constitutional right to select the spouse of one’s choice could open the door to polygamy, incestuous marriages, and minimal marriages of convenience. 

“Those seeking sweeping change must render reasons justifying the change and articulate the principles that they claim will limit this newly fashioned right,” he said.

Omar Gonzalez-Pagan, a lawyer with the gay rights group Lambda Legal, said he would file an appeal with the First Circuit in Boston.

“The court’s ruling directly conflicts with the wave of recent decisions finding these marriage bans unconstitutional and perpetuates discrimination and harm done to same-sex Puerto Rican couples and their families,” he said in statement.

In a statement, Tony Perkins, president of the conservative Family Research Council, praised the decision.

“Judge Perez-Gimenez serves as a model of judicial restraint in the face of an epidemic of federal judges legislating from the bench on the issue of marriage,” he said.

The case is Ada Conde-Vidal v. Alejandro Garcia-Padilla (14-1253).