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A Crazy Puerto Rican Gay Marriage Suit May Kill the Insular Cases

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By Casey C. Sullivan, Esq. on March 10, 2016 2:57 PM

Marriage equality is the law of the land. That much is settled. Despite this, a recent, very unexpected ruling from a federal judge in Puerto Rico, found otherwise -- holding that the rights guaranteed by the Fourteenth Amendment and last summer's gay marriage decision, Obergefell v. Hodges, don't apply to the la isla del encanto.

Don't worry, gay marriage advocates, the ruling will be overturned. But, it might force courts to seriously address the Insular Cases, a group of truly awful Supreme Court decisions that denied many of the protections of the Bill of Rights to U.S. territories like Puerto Rico.

Judge Juan M. Perez-Gimenez's Strange Stand

Let's start with the marriage stuff. Last June, the Supreme Court ruled that marriage is a fundamental right, one that cannot be denied to gays and lesbians. That right came from the Constitution's guarantee of both due process and equal protection. Those rights are incorporated against the states through the Fourteenth Amendment. So, shortly after the Supreme Court ruled, the First Circuit, which has appellate jurisdiction over Puerto Rico, determined that the island's same-sex marriage ban was unconstitutional.

That ruling was remanded to Juan M. Perez-Gimenez, chief judge of the District of Puerto Rico. Instead of simply applying the court's ruling and striking down the law, Perez-Gimenez reacted... unexpectedly. Obergefell and the right to marry that it recognized simply don't apply in Puerto Rico, Perez-Gimenez ruled.

Obergefell incorporated the right to marriage against the states, the court acknowledged. But since Puerto Rico is not a state, Perez-Gimenez could not find that marriage rights applied to it, "absent an express decision from the Supreme Court of the United States, the Supreme Court of Puerto Rico," or legislative action. (The First Circuit isn't good enough, we guess.)

In case you're assuming that Perez-Gimenez's opposition to marriage equality was wholly academic, we should note that he begins his opinion by quoting Supreme Court precedent, from 1886, on the "wholesome and necessary" nature of "the holy estate of [same-sex] matrimony" as the foundation of civilization and "reverent morality." Talk about dicta.

A Possible End to the Insular Cases?

Perez-Gimenez's ruling relies entirely on the Insular Cases. In a series of Supreme Court opinions from 1901, the Court held that constitutional rights do not automatically apply to the residents of U.S. territories, such as Puerto Rico and Guam, even when those residents are U.S. citizens.

The Insular Cases -- there are six, nine, or 22, depending on who you ask -- created a split system of rights. Travel to San Jose, California, and you could enjoy all the benefits of the U.S. Constitution. Travel back to San Juan, Puerto Rico, and many of those rights could be denied.

To put it simply, when asked "does the Constitution follow the flag?" the Supreme Court answered, "no."

Perez-Gimenez's gay marriage ruling -- should it make it to the High Court -- along with a case over Samoan birthright citizenship, could give the Court a chance to right what most believe is a great historical wrong.

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