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Federal Judge in Puerto Rico Upholds Same-Sex Marriage Ban

It's not all sunshine, smiles, and drinks with little umbrellas in them in Puerto Rico today. Yesterday, a federal district judge upheld the territory's ban on same-sex marriage, placing Puerto Rico in threadbare company with Louisiana as the only two jurisdictions whose federal courts upheld a state or territorial same-sex marriage ban.

Unlike the Louisiana court, however, Judge Juan M. Perez-Gimenez dismissed on "procedural" grounds.

Baker v. Nelson, Back Again

Under a statute that goes back to at least 1902, Puerto Rico doesn't recognize marriages between same-sex partners -- or even "transsexuals" -- performed in states where same-sex marriages are legal.

Perez-Gimenez based his dismissal solely on the U.S. Supreme Court's denial of a cert. petition in Baker v. Nelson, a case from 1971. Baker was a summary dismissal of a cert. petition brought by two Minnesota men denied a license to marry each other. More than 40 years ago, the Supreme Court said only that the case didn't present a "substantial federal question."

In every other federal same-sex marriage case (including Louisiana's), the parties defending the same-sex marriage bans cite to Baker for the proposition that the Supreme Court has already determined that same-sex marriage isn't an issue. And every time, courts dismiss Baker as a relic of an earlier time when laws forbidding certain kinds of conduct on morality grounds were permissible. Subsequent cases -- Romer v. Evans, Lawrence v. Texas, and U.S. v. Windsor -- demonstrate that same-sex marriage and laws discriminating against homosexuals do raise a "substantial federal question."

But that wasn't good enough for Perez-Gimenez, who felt bound by Baker absent explicitly explicit guidance to the contrary: "After all," he wrote, "the Supreme Court is perfectly capable of stating its intention to overrule a prior case. But absent an express statement saying as much, lower courts must do as precedent requires." Brushing aside other courts that didn't agree -- a page's worth of citations (which, in itself, should give one pause) -- the court dismissed the claim for lack of a "substantial federal question."

Developments, Schmevelopments

The court didn't find arguments about "doctrinal developments" very persuasive, relying on a First Circuit opinion holding that Baker was still good law in spite of Romer and Lawrence. Notably, however, the First Circuit said so because neither of those two cases was about the constitutionality of same-sex marriage specifically -- and Windsor hadn't been decided yet. How's that for a "doctrinal development"?

But even so, Perez-Gimenez said that Windsor changed nothing: "If anything, 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." Nice can-kicking, there.

In his conclusion, Perez-Gimenez reaffirmed that, hey, all he's doing is adhering to precedent, which is what district courts do, right? But then he jumps on his soapbox: "A clear majority of courts have struck down statutes that affirm opposite-gender marriage only. In their ingenuity and imagination they have constructed a seemingly comprehensive legal structure for this new form of marriage. And yet what is lacking and unaccounted for remains: are laws barring polygamy, or, say the marriage of fathers and daughters, now of doubtful validity?"

Checkmate, I guess.

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