Will Puerto Rico take marriage to the Supreme Court?

A federal judge in Puerto Rico last week affirmed an existing marriage law after dozens of others have gone the opposite way in the past year. Puerto Rico is part of the 1st U.S. Circuit Court of Appeals, seated in Boston. U.S. District Judge Juan M. Pérez-Giménez, an appointee of President Jimmy Carter, wrote a 21-page opinion that relied on basic principles and legal precedent, points other courts have rejected.

He looked to a 1972 U.S. Supreme Court ruling called Baker v. Nelson. The Baker case involved a gay couple’s attempt to get a marriage license from the state of Minnesota. The state Supreme Court upheld marriage as between a man and a woman. The couple appealed to the U.S. Supreme Court, but the court dismissed the case, saying did not raise a substantial federal question. That case is precedent and still stands. It wasn’t reversed by the Supreme Court’s U.S. v. Windsor decision last summer, and the 1st Circuit upheld it as controlling precedent just two years ago.

The judge also said Windsor, which overturned the federal Defense of Marriage Act, has been wrongly used to knock down voter preference for traditional marriage. That ruling left the statesto decide the marriage question. No fundamental right to other kinds of marital arrangements came from that case.

Pérez-Giménez acknowledged a clear majority of courts of late have struck down state marriage laws, but he called those rulings, “nebulous doctrinal developments.” Those judges have used “ingenuity and imagination” to construct a new form of marriage, he said. He also asked where it would end, this redefining of the “fundamental unit of political order,” that is, the procreative potential of man and woman. Nobody has answered that question. How can we bar polygamy, or marriage between fathers and daughters, if we permit this redefinition to go through?

Perez-Giminez used phrases like “inexplicable contortions of the mind” and “willful ignorance” to describe this sudden realization that homosexual unions are protected by the Constitution. He even wrote that those affirmations of same-gender marriages mean a “peculiar inability to recall the principles embodied in existing marriage law.”

In short, he said, those other decisions requiring states to issue marriage licenses to same-sex couples are contrived. Pérez-Giménez is the second federal judge to rule recently in favor of the right of a state to define marriage. The other one is from Louisiana. And there’s a third, a state judge from Tennessee. They all broke up a line of rulings againstmarriage as defined by voters and by history. The U.S. Supreme Court usually takes up cases when there is a disagreement among the federal circuit courts, so this opinion out of Puerto Rico helps move that day closer. But first, the 1st Circuit must rule on marriage. Four of its states—Maine, Massachusetts, New Hampshire, and Rhode Island—issue marriage licenses to same-sex couples and did so without being forced into it by the federal courts.