Family Relations

Excerpts – Judge Upholds “Principles of Logic and Law” in Backing Natural Marriage in Puerto Rico

U. S. District Court Judge Juan M. Pérez-Giménez issued a ruling on October 21 upholding Puerto Rico’s law defining marriage:

Marriage is a civil institution that emanates from a civil contract by virtue of which a man and a woman are mutually obligated to be husband and wife . . .”

Pérez-Giménez, a Jimmy Carter appointee, was the second District Court judge to stand against the tide of judges who have asserted a constitutional right to “marry” someone of the same sex in the months since the June 2013 ruling of the Supreme Court in United States v. Windsor. (Windsor struck down the portion of the federal Defense of Marriage Act, or “DOMA” which defined marriage for all purposes of federal law as the union of one man and one woman.) Judge Martin L. C. Feldman upheld the Louisiana marriage law on September 3.

The fundamental basis of the opinion by Judge Pérez-Giménez was a simple one, but one that most of the other courts addressing this issue have sidestepped—namely, that there is already binding Supreme Court precedent on whether the U.S. Constitution requires states to permit “marriages” of same-sex couples, and the answer is, “No.”

Following are some excerpts from the strong decision (some citations omitted):

The plaintiffs have brought this challenge alleging a violation of the federal constitution, so the first place to begin is with the text of the Constitution. The text of the Constitution, however, does not directly guarantee a right to same-gender marriage . . .

Without the direct guidance of the Constitution, the next source of authority is relevant Supreme Court precedent interpreting the Constitution. On the question of same-gender marriage, the Supreme Court has issued a decision that directly binds this Court.

The petitioners in Baker v. Nelson [1972] were two men who had been denied a license to marry each other. They argued that Minnesota’s statutory definition of marriage as an opposite-gender relationship violated due process and equal protection – just as the plaintiffs argue here. The Minnesota Supreme Court rejected the petitioners’ claim . . .

The petitioners’ appealed … The Supreme Court considered both claims and unanimously dismissed the petitioners’ appeal “for want of [a] substantial federal question.”

… The dismissal was a decision on the merits, and it bound all lower courts with regard to the issues presented and necessarily decided, Mandel v. Bradley, … (1977) . . .

This Court is bound by decisions of the Supreme Court that are directly on point; only the Supreme Court may exercise “the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., … (1989). This is true even where other cases would seem to undermine the Supreme Court’s prior holdings. Agostini v. Felton, … (1997)(“We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent…”). After all, 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.

… The Supreme Court, of course, is free to overrule itself as it wishes. But unless and until it does, lower courts are bound by the Supreme Court’s summary decisions “‘until such time as the Court informs [them] that [they] are not.’” Hicks v. Miranda, … (1975) … .

The First Circuit expressly acknowledged – a mere two years ago – that Baker remains binding precedent “unless repudiated by subsequent Supreme Court precedent.” Massachusetts v. U.S. Dept. of Health and Human Services, … (1st Cir. 2012). According to the First Circuit, Baker prevents the adoption of arguments that “presume or rest on a constitutional right to same-sex marriage.”

. . .

Windsor does not – cannot – change things. Windsor struck down Section 3 of DOMA which imposed a federal definition of marriage, as an impermissible federal intrusion on state power. The Supreme Court’s understanding of the marital relation as “a virtually exclusive province of the States,” (quoting Sosna v. Iowa, … (1975)), led the Supreme Court to conclude that Congress exceeded its power when it refused to recognize state-sanctioned marriages.

The Windsor opinion did not create a fundamental right to same-gender marriage nor did it establish that state opposite-gender marriage regulations are amenable to federal constitutional challenges. 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. Contrary to the plaintiffs’ contention, Windsor does not overturn Baker; rather, Windsor and Baker work in tandem to emphasize the States’ “historic and essential authority to define the marital relation” free from “federal intrusion.” It takes inexplicable contortions of the mind or perhaps even willful ignorance – this Court does not venture an answer here – to interpret Windsor’s endorsement of the state control of marriage as eliminating the state control of marriage.

. . .

Lower courts, then, do not have the option of departing from disfavored precedent under a nebulous “doctrinal developments” test. See National Foreign Trade Council v. Natsios, … (1st Cir. 1999) (“[D]ebate about the continuing viability of a Supreme Court opinion does not, of course, excuse the lower federal courts from applying that opinion.”); see also, Scheiber v. Dolby Labs., Inc., … (7th Cir. 2002) (“[W]e have no authority to overrule a Supreme Court decision no matter how dubious its reasoning strikes us, or even how out of touch with the Supreme Court’s current thinking the decision seems.”)(Op. of Posner, J.).

. . .


That this Court reaches its decision by embracing precedent may prove disappointing. But the role of precedent in our system of adjudication is not simply a matter of binding all succeeding generations to the decision that is first in time. Instead, stare decisis embodies continuity, certainly, but also limitation: there are some principles of logic and law that cannot be forgotten.

Recent affirmances of same-gender marriage seem to suffer from a peculiar inability to recall the principles embodied in existing marriage law. Traditional marriage is “exclusively [an] opposite-sex institution … inextricably linked to procreation and biological kinship,” Windsor, … (Alito, J., dissenting). Traditional marriage is the fundamental unit of the political order. And ultimately the very survival of the political order depends upon the procreative potential embodied in traditional marriage.

Those are the well-tested, well-proven principles on which we have relied for centuries. The question now is whether judicial “wisdom” may contrive methods by which those solid principles can be circumvented or even discarded.

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? Is “minimal marriage”, where “individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties” the blueprint for their design? See Elizabeth Brake, Minimal Marriage: What Political Liberalism Implies for Marriage Law, 120 ETHICS 302, 303 (2010). It would seem so, if we follow the plaintiffs’ logic, that the fundamental right to marriage is based on “the constitutional liberty to select the partner of one’s choice.”

Of course, it is all too easy to dismiss such concerns as absurd or of a kind with the cruel discrimination and ridicule that has been shown toward people attracted to members of their own sex. But the truth concealed in these concerns goes to the heart of our system of limited, consent-based government: those seeking sweeping change must render reasons justifying the change and articulate the principles that they claim will limit this newly fashioned right.

For now, one basic principle remains: the people, acting through their elected representatives, may legitimately regulate marriage by law. This principle

is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues. It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds … Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.

Schuette v. Coalition to Defend Affirmative Action, … (2014)(Op. of Kennedy, J.).

For the foregoing reasons, we hereby GRANT the defendants’ motion to dismiss. The plaintiffs’ federal law claims are DISMISSED WITH PREJUDICE.


San Juan, Puerto Rico, this 21st day of October, 2014.




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