Judge upholds Puerto Rico ban on same-sex marriage…

Ivonne_Alvarez_Velez_Pedro_Julio_Serrano_and_Ada_Conde_Vidal_insert_courtesy_Pedro-Julio_SerranoBy Chris Johnson | Washington Blade

A federal judge on Tuesday bucked the recent trend of pro-gay marriage court rulings and upheld Puerto Rico’s ban on gay nuptials.

In a 21-page decision, U.S. District Judge Juan Perez-Gimenez, a Carter appointee, ruled 40-year-old precedent from the U.S. Supreme Court dictates that courts must uphold laws against same-sex marriage.

“Because no right to same-gender marriage emanates from the Constitution, the Commonwealth of Puerto Rico should not be compelled to recognize such unions,” Perez-Gimenez writes. “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.”

Same-sex marriage is illegal in Puerto Rico as a result of a law signed by then-Gov. Pedro Rosselló in 1999 defining marriage as “a civil contract whereby a man and a woman mutually agree to become husband and wife.”

Perez-Gimenez points to Baker v. Nelson, a 1972 case seeking marriage equality that the Supreme Court refused to hear for want of federal question, as precedent for upholding Puerto Rico’s marriage ban.

The multitude of other judges who’ve struck down bans on same-sex marriage have pointed to more recent decisions, such as the ruling against the Defense of Marriage Act, as reason to believe precedent has changed since that time.

But Perez-Gimenez writes these decisions aren’t sufficient “to imply that Baker is no longer binding authority.”

Criticizing other courts that have struck down bans on same-sex marriage, Perez-Gimenez says marriage should be restricted to one man, one woman because that definition “is the fundamental unit of the political order.” At one point, the judge invokes incest as a possible outcome if decisions against these laws continue.

“A clear majority of courts have struck down statutes that affirm opposite-gender marriage only,” Perez-Gimenez writes. “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?”

The lawsuit was filed by Lambda Legal on behalf of three same-gender couples who live in Puerto Rico seeking recognition of their marriages from another jurisdiction; two same-gender couples who seek the right to marry in Puerto Rico; and Puerto Rico Para Todos, a LGBT group in the Commonwealth.

Puerto Rico lies within the jurisdiction of the U.S. First Circuit Court of Appeals. Should the plaintiffs decide to appeal the decision, that’s the court that would consider the case. Although the appeals court hasn’t considered a marriage lawsuit since the Supreme Court’s decision against the Defense of Marriage Act last year, it determined that DOMA was unconstitutional based on a low standard of rational basis review.

Omar Gonzalez-Pagan, staff attorney for Lambda Legal, told the Washington Blade his organization will “of course” appeal the ruling to the First Circuit, saying the decision defies logic.

“The court’s ruling directly conflicts with the wave of recent decisions finding these marriage bans unconstitutional and perpetuates the discrimination and harm done to same-sex Puerto Rican couples and their families,” Gonzalez-Pagan said. “It defies the unmistakable import of the Windsor decision and flies in the face of the blizzard of rulings of the last year, the reasoned rulings of the Courts of Appeals for the 4th, 7th, 9th and 10th Circuits, and the decision by the U.S. Supreme Court let stand the rulings striking down five bans similar to Puerto Rico’s. One struggles to understand how this judge came to a different conclusion.”

After the Supreme Court refused to review decision in favor of marriage equality, plaintiffs in the case sought a declaratory judgment from Perez-Gimenez this week in favor of same-sex marriage.

Pedro Julio Serrano of Puerto Rico Para Tod@s said he was offended by the ruling because he feels it doesn’t represent the views of people within the Commonwealth.

“I am outraged that Judge Pérez Giménez that he compared marriage equality to incest,” Serrano said. “His prejudice is shameful. The nefariousness and offensiveness of Judge Pérez Giménez does not represent the sentiment of the people of Puerto Rico. We are a sympathetic and inclusive people.”

New York City Council Speaker Melissa Mark-Viverito, who is from Puerto Rico, also criticized the ruling.

“Today’s court decision upholding the ban on marriage equality in Puerto Rico is tremendously disappointing, mean spirited and an injustice for everyone who believes all people must be treated equally,” she said in a statement. “As a Puerto Rican, I know we are sensible, humane, inclusive and respectful people. We love our LGBT brothers and sisters and we stand with them in the struggle for equality and justice.”

Serrano also pledged to take up the case with the First Circuit, saying the outcome will be different with the appeals court.

“We will win in appeal,” Serrano said. “Equality is inevitable and unstoppable. Puerto Rico will be for everyone.”

Michael K. Lavers contributed to this article.

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