In an unusual turnabout, the Commonwealth of Puerto Rico, which to date had been defending its ban on licensing or recognizing same-sex marriages in response to a suit brought by Lambda Legal, is now urging the First Circuit Court of Appeals to reverse a district court ruling that dismissed the challenge.
Lambda Legal sued on behalf of several same-sex couples seeking either to marry in Puerto Rico or to have their marriages from other jurisdictions recognized. On October 21, US District Judge Juan M. Perez-Gimenez granted the government’s motion to dismiss the case, finding that a Supreme Court ruling from 1972 rejecting a Minnesota marriage equality appeal because it did not present a “substantial federal question” remained binding precedent. The vast majority of recent federal marriage rulings have concluded that subsequent high court rulings superseded the 1972 precedent.
Perez-Gimenez also concluded the commonwealth had a rational basis for distinguishing between same-sex and different-sex couples, relying on arguments that have been routinely been rejected over the past two years, including by four circuit courts of appeal.
Plaintiffs appealed to the First Circuit, and Puerto Rico’s response was due on March 20. Its brief, filed by the commonwealth’s solicitor general, observed that the Supreme Court’s refusal to stay any marriage equality ruling since October 6 and its January decision to hear an appeal of an adverse ruling from the Sixth Circuit Court of Appeals –– in marriage cases from Ohio, Michigan, Tennessee, and Kentucky –– make clear that the 1972 precedent no longer controls.
Puerto Rico’s lawyers further wrote that they agree with the plaintiffs’ contention that denying same-sex couples of the right to marriage implicates a fundamental right, which means that the commonwealth’s ban must be held to some form of heightened or even strict judicial scrutiny. And, though the first Circuit applied the most deferential standard –– rational basis review –– to sexual orientation discrimination claims prior to the 2013 Defense of Marriage act ruling by the Supreme Court, it might now employ heightened scrutiny in this case. Under either theory, the lawyers conceded, the ban on same-sex marriage was no longer defensible.
“It is not usual for the Executive Branch of the Commonwealth of Puerto Rico to refuse to defend the constitutionality of legally-enacted statues,” the commonwealth attorney’s wrote. “It is even less usual to adopt a somewhat different position at the appellate level than the one espoused before the lower court.”
However, they continued, “Because Puerto Rico’s marriage ban impermissibly burdens Plaintiffs’ right to the equal protection of the laws and the fundamental right to marry, we have decided to cease defending its constitutionality based on an independent assessment about its validity under the current state of the law.”
Then, quoting from the 2003 Supreme Court sodomy ruling in Lawrence v. Texas, the attorneys wrote, “If History has taught us anything, it is that ‘times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invokes its principles in their own search for greater freedom.’
It is unclear from the brief whether the government is asking the First Circuit to issue a final ruling on the merits or merely to reverse the motion to dismiss and remand the case for further proceedings in the district court. If the First Circuit reverses the dismissal order, it is likely that the Supreme Court will have issued its ruling, anticipated to come by the end of June, before the district court would get around to issuing a ruling on a subsequent motion for summary judgment from the plaintiffs.
It remains possible that the Legislature will authorize some kind of attempted intervention to present a defense of the marriage ban. Some never-say-die opponents of marriage equality in Puerto Rico continue to insist, as the Sixth Circuit majority held, that the question of “defining” marriage should be left to the political process and that an institution whose heterosexual definition has long been custom cannot have suddenly become unconstitutional. These opponents will undoubtedly attempt to put such arguments before the First Circuit –– even though that circuit essentially rejected them in its 2012 ruling striking down DOMA’s ban on federal recognition of legal same-sex marriages.