FURTHER UPDATED Friday 3:10 p.m. Judge Gelpi on Thursday ruled in a two-page order that the Puerto Rico ban on same-sex marriage is unconstitutional. He scheduled a conference with lawyers for next Monday to discuss how to make the new marriage-equality right a legal reality in the commonwealth.
UPDATED Thursday 10:24 p.m. Reacting quickly to the First Circuit Court’s order, the clerk in San Juan used the court’s random assignment system to turn the case over to District Judge Gustavo A. Gelpi, Jr. He is a former solicitor general of Puerto Rico. He had also served as a law clerk to the judge from whom he now takes over the same-sex marriage case.
Stripping a federal trial judge of authority to decide anything further about same-sex marriage in Puerto Rico, a federal appeals court ruled on Thursday that the Supreme Court’s decision in favor of such unions applies fully in the commonwealth. In denying that right last month, the San Juan judge’s ruling “errs in so many respects that it is hard to know where to begin,” the U.S. Court of Appeals for the First Circuit said.
The First Circuit issued a specific order to enforce its own earlier ruling that Puerto Rico’s ban on same-sex marriages was unconstitutional under the Supreme Court’s decision last June in Obergefell v. Hodges. The order wipes out the contrary decision March 8 by U.S. District Judge Juan M. Perez-Gimenez.
The San Juan judge had ruled that the Constitution’s Fourteenth Amendment — the basis of the Obergefell decision establishing marriage equality — does not apply in Puerto Rico. The First Circuit, based in Boston but with authority to decide appeals from Puerto Rico, said the Supreme Court in 1976 had already made clear that the rights of due process and equal protection under that amendment do reach Puerto Rico.
Even if those rights had not been extended to the commonwealth, the First Circuit said, Judge Perez-Giminez “would have been able to decide whether they should be.”
Citing its own ruling last July 8 that the Puerto Rico’s ban was invalid, the First Circuit returned the case to the clerk of the district court in San Juan with orders to turn the case over “to a different judge,” who is to enter a ruling in favor of the couples who sued over the issue and to conduct any other proceedings necessary in the case.
Among the other errors that the First Circuit had found in the trial judge’s ruling was that he had not issued a final judgment in the case that would have allowed the same-sex couples to file a regular, new appeal to the First Circuit. “Error of this type,” the Circuit Court said in its unsigned (“per curiam”) opinion, “is not so easily insulated” from review in the higher court, because the mandamus remedy was available. That is what the couples had invoked in returning to the court in Boston to secure their right to marry or their right to have their marriages recognized in Puerto Rico if performed elsewhere.