Puerto Rico gay marriage ruling sets up a potential federal conflict

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Puerto Rico capitol building.

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Puerto Rico capitol building.

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(RNS) "Ultimately the very survival of the political order depends upon the procreative potential embodied in traditional marriage," U.S. District Judge Juan Perez-Gimenez ruled. "Those are the well-tested, well-proven principles on which we have relied for centuries."

  • Frank

    Perfectly stated Judge Perez-Gimenez!

  • Chilidog

    The Judge’s opinion has a number of fatal defects in it.

    The 1st circuit court will reverse and remand the case back to the judge with specific instructions on where he is wrong.

  • Baker is dead. Deceased. As Justice Ginsburg explained in oral argument during the Proposition 8 case; At the time of Baker, “the Supreme Court hadn’t even decided that gender-based classifications get any kind of heightened scrutiny. And the same-sex intimate conduct was considered criminal in many states in 1971, so I don’t think we can extract much in Baker v. Nelson.” It’s a given that substantial doctrinal changes affect precedent. That is why Justice Scalia opined that Lawrence v. Texas opened the door to same-sex marriage. Of course the Court has also decided United States v. Windsor. Baker is quite dead. http://www.slowlyboiledfrog.com/2014/10/why-is-right-celebrating-something-that.html

    Having said that, this decision reads like National Organization for Marriage rhetoric. Some of it is really quite bizarre. The judge cites dissenting opinions in Windsor. Uh, those don’t establish precedent since they were unable to convince the other justices of the Court that those should craft law. Law was created in the majority decision which overturned much of DOMA.

  • They are not going to remand. They are simply going to reverse and put Puerto Rico in conformity with the rest of the circuit. The First Circuit, based in Boston, is an extremely liberal court.

  • Larry

    Well said David. You are absolutely correct on this. It will not make it past the Appellate Court stage.

    The anti-gay crowd gets to breathe a brief sigh of relief that SCOTUS still isn’t going to be touching the 14th Amendment issues of marriage equality bans.

  • Ed

    The finding in Baker vs. Nelson should be mentioned. The Court held that its decision in Loving v. Virginia did not apply because “in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.” Says it quite nicely.

  • Larry

    Baker is bad law premised at a time when a lot of the Court’s assumptions have been rendered obsolete by a number of cases coming after it and a generation of difference in thinking about the subject. .

    Unlike 1972:
    -SCOTUS declared gays a class with heightened scrutiny (Romer v. Evans 1996)
    -Being gay is no longer a potentially criminal act (Lawrence v. Texas 2003)
    -Being gay no longer meant one could be judicially declared unfit to raise children
    -Gay marriage has been recognized as legal and valid in the majority of the country
    -“The procreation argument” for the basis of marriage was obsolete long before Baker (Griswold v. Ct 1960)
    -Being gay is no longer a bar to military service or a crime for those who serve
    -People were still stupid enough to believe you could torture or rape a gay person to heterosexuality.

    So no, Ed, using Baker vs. Nelson was not even close to appropriate. The case will be reversed at the Appellate level and the Territory is going to avoid bringing it up to SCOTUS.

  • ronald

    I got to hand it those Catholics. They may be wrong about how Salvation works (good works are a waste of time), but they aren’t taking any nonsense from the Gay Mafia.

    Viva Puerto Rico!

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  • Bishop

    Viva La Isla con los fundamentos de martrimonio de un hombre y una mujer. Praise the Lord for the fundamental of one men and one women marriages. Victory for Puerto Rico…

  • Lennita Ozier

    I am currently writing an argumentative essay on the subject of Gay marriage even being considered as a legal argument. The thing that stands out in my mind like a sore thumb is the very simple fact that marriage is an institution designed by God establishing a covenant between a man and woman to be protected, blessed, and held together within the confines of adhering to God’s will for the institution of marriage. Now weather or not a person believes in God or adheres to his laws is simply ones own choice. It’s conflicting when people are adamant about entering into a covenant in which they have no intention on adhering to. Freedom of choice is the standard in which we all are able to abide in, here in the United States. I see people that are gay come to church services and flaunt their sexual manner in the appearance of dress and flamboyant expression of speech and action. When the response of the congregation is rebuke toward the open display of rebellion against God’s law there is a huge issue of personal offense being offered by the rebelling person in an attempt to make the church accept or condone the contrary behavior. I guess the real question I would propose would be “Why would the Church denounce teachings concerning gay life styles when it doesn’t denounce teachings against sin such as harlotry, polygamy, rape, incest, molestation, or any other such sexually immoral sin.” Tolerance and compromise have caused this nation to bend it’s law until the law is of no effect and is in direct opposition of it’s intent. I did not write this because I am a gay basher. I simply do not understand the perverseness of making what was intended to expose sin, condone sin.

  • Larry

    “very simple fact that marriage is an institution designed by God ”

    Your argument was DOA right out of the gate. We live in a nation whose laws are not dependent on anyone’s notion of “what God designs”. Religious freedom means laws must have a rational and secular purpose if they are to be valid. Nobody ever has to give a flying crap what you think God’s law is or have to live their lives in accordance with it.

    Since you do not have a rational or secular purpose for banning gay marriage, your argument must be ignored out of hand if you are trying to discuss how our laws need to be.

    There is a reason why the judge in PR didn’t bother with nonsense about God’s role in marriage. He knew that was a stinker from a legal POV. Instead he relied on obsolete law. Ignoring more than 30 years of changes in the law to pretend it is still 1972. This is why the case will be reversed when it goes to appeal.

  • gocart mozart

    Marriage is an institution designed by the state establishing a legal contract between two people.

    Fixed for you.

  • Josh M

    I’m coming at this from a different side than Lennita. Even though I agree with her in principle, I think she has to understand that in our secular post-Christian country this type of argument doesn’t work in our legal system.

    I come at this through a completely secular point of view. The biggest issue with same-sex marriage is fairly simple: their most used and most influential argument of “equal rights” is just plain FALSE. The argument goes like this. Straight people have a right to get married, and gay people do not have the right to get married. This really is the only way to interpret the “equal rights” claim; since equality by definition is a comparisons between 2 or more objects, things, proposition, views, etc. So “equal rights” in this sense is comparing straight people with gay people and the rights, or lack of rights, that either side have. When making this comparison it is of absolute importance to actually describe what the marriage right is. The right to marry is actually quite simple: A man has the right to marry any qualified woman (and a woman has the right to marry any qualified man). The word “qualify” might sound odd, but it fairly simple. Qualified in the sense of our laws, if anyone who is un-married and older than I certain age, i.e. the law says that you can’t get married to someone who is currently married to someone else and you can’t marry, let’s say, someone who is 11 years old. Even if there is a ceremony and a state issued certificate of marriage, if either of these is true, the marriage becomes void.

    It should be clear that this definition of marriage is not discriminatory. The definition makes no distinction between a straight man and a gay man. Both men have the SAME rights. The straight man has the right to marry a qualified woman, and the gay man has the right to marry a qualified woman. The law is NOT unequal ; they both have the SAME rights.

    The common counter-argument to this is “gay men don’t WANT to marry a woman.” Which is a point that I concede; but so what? Preference plays no role in deciding if a law is equal. As an example: I know someone (a straight male) who does not want the get married. He thinks marriage is just a sham and actually is the cause for most failed relationships. He truly does not want to get married. Question: does he still have the right to get married? Of course he does. Because preference is not a deciding factor in the equality in this law. We can rephrase to something like this: “Gay people have the right to get married, just as straight people do, but due to their own preferences, they willingly chose to not exercise their right to get married.”

    What they want is the right to marry someone of their same sex. But, no one has that right. Not gay people, but also not straight people. A gay man cannot marry a man. A straight man cannot marry a man. The law is EQUAL with respect to both parties. What the proponents of same-sex marriage want is not equal rights (they already have that), they want NEW rights. They want a right that no one has, and no one ever had.

    Now what does this new argument (establishment of a new right) cause to happen? They can’t claim that this is a constitutional right that they have. Why? Because their argument is that it should be a constitutional right. Out of one side of their mouth they want to claim that they currently have the right to same-sex marriage (which is why marriage bans are unconstitutional), but with the other breathe they are saying that there should be a new right that gives them the right to same-sex marriage.

    The law as it stands now (marriage between a man and woman) is EQUAL. Everyone (gay, straight, man, woman, black, white, short, tall) all have the same marriage right. Please don’t confuse the preference of a right with the equality of said right.

  • Larry

    Josh, you are merely begging the question. You don’t actually get to a point or give any support for your premises.

    You fail to answer 2 simple questions:

    Why does marriage have to be between a man and a woman?

    Why should it be defined so narrowly and to the point where no other options are considered legally?

    Its pretty clear none of the word salad you threw up there has any bearing on your real motivations here.

    Your take on the law is best exemplified in this rather acidic quote by Anatole France:
    “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”