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No same-sex marriages in Puerto Rico — yet

Ruling that the Constitution’s Fourteenth Amendment does not apply to Puerto Rico, a federal trial judge in San Juan has refused to strike down that commonwealth’s ban on same-sex marriage.  The Supreme Court’s decision last June in Obergefell v. Hodges was based on that amendment alone, and a series of century-old Supreme Court rulings put the island outside of that provision, U.S. District Judge Juan M. Perez-Gimenez declared in a ten-page opinion released on Tuesday.

That decision put the judge in direct conflict with a ruling by the U.S. Court of Appeals for the First Circuit last July 8 saying that the Puerto Rico’s ban is unconstitutional under Obergefell.  The First Circuit had been urged by both sides in that case — same-sex couples on one side and the governor and other commonwealth officials on the other side — to nullify the ban.

The First Circuit said it was wiping out a decision by Judge Perez-Gimenez last October, upholding the ban, but for  different reasons than he used on Tuesday after the case had been sent back to him by the First Circuit.

The San Juan judge did not dispute that the Supreme Court had settled the meaning of two clauses of the Fourteenth Amendment — the Due Process and Equal Protection Clauses — as they applied to same-sex marriages.  But he said the decision only applied to state governments, and Puerto Rico does not have that status.

He relied on a series of decisions by the Supreme Court in the early twentieth century, interpreting which specific parts of the Constitution would apply in territories that the U.S. had acquired.  Those cases are known collectively as “the Insular Cases.”  Puerto Rico was treated then as, and remains, an “unincorporated territory” not reached by the Fourteenth Amendment, he concluded.

Puerto Rico, now as then, is subject to “the plenary powers of Congress” under the Constitution’s provision spelling out the power to write laws to govern U.S. territories, the judge wrote.

If same-sex marriage is to be mandated in Puerto Rico, the ruling declared, it must come in one of these four ways: (1) “further judicial expression by the Supreme Court”; (2) “further judicial expression by the Supreme Court of Puerto Rico”; (3) “incorporation through legislation enacted by Congress, in the exercise of the powers conferred by the Territorial Clause”; or (4) “by virtue of any act or statute adopted by the Puerto Rico legislature that amends or repeals Article 68” (the existing ban).

The case was filed almost two years ago by two same-sex couples who seek to marry, three same-sex couples who were married in a state or in Canada and want official recognition of that legal status in Puerto Rico, and a gay rights advocacy group, Puerto Rico Para Tod@s.

Lawyers for the challenge would have the option, not of pursuing the avenues suggested by the judge, but by appealing to the First Circuit to once again overturn the San Juan judge.  Their plans have not yet been announced.

The Supreme Court will have an opportunity, if it is interested, to spell out further what the early twentieth-century Insular Cases mean.  It has pending (but has not yet granted review in) a case testing, under the Insular Cases precedents, whether people born in the U.S. territory of American Samoa have a right to “birthright U.S. citizenship” under the Fourteenth Amendment.  The case is Tuaua v. United States.  The federal government’s response to that petition is now due on April 1.

The government opposed citizenship for those born in Samoa now treated as “nationals,” when the case was in lower courts, and the U.S. Court of Appeals for the District of Columbia Circuit agreed with that argument.  Some members of Congress are now urging the government to change position in the Supreme Court.

The last time the Supreme Court interpreted the scope of the Insular Cases in a major decision was in the 2008 ruling in Boumediene v. Bush, giving detainees at the U.S. military prison at Guantanamo Bay, Cuba, a constitutional right to challenge in U.S. courts their further detention.

Recommended Citation: Lyle Denniston, No same-sex marriages in Puerto Rico — yet, SCOTUSblog (Mar. 9, 2016, 6:03 PM),