Ranting Federal Judge Upholds Puerto Rico Marriage Ban

Other than one federal district court judge in Alabama, every federal court to rule on the constitutionality of state bans on same sex marriage has struck such bans down.  Now, in a somewhat unhinged opinion that attacks judges who have found that the 14th Amendment protects LGBT citizens, a federal judge in Puerto Rico has upheld that commonwealth's gay marriage ban.  Like Justices Thomas and Scalia, Judge Juan Perez-Gimenez seemingly believes that his personal views over ride the U.S. Constitution.  The next stop for the case will be the U.S. Court of Appeals for the 1st Circuit where it is thought the district court ruling faces a high probability of being reversed.  Think Progress looks at the ruling itself.  Here are highlights:

In an opinion that frequently crosses the line from visible rage to outright belligerence towards his judicial colleagues, a federal judge in Puerto Rico became one of just two federal judges to deny equal marriage rights to same-sex couples on Tuesday. Judge Juan Pérez-Giménez’s opinion accuses the overwhelming majority of federal judges who have sided with marriage equality of “inexplicable contortions of the mind or perhaps even willful ignorance.” At one point he appears to mock his colleagues, claiming that while the supposed fact that “this Court reaches its decision by embracing precedent may prove disappointing . . . there are some principles of logic and law that cannot be forgotten.” At another point, he claims that, if gay couples enjoy the same rights as straight couples, that will lead to a world where “laws barring polygamy, or, say the marriage of fathers and daughters” are “now of doubtful validity.”

The concluding section of Judge Pérez-Giménez’s opinion reads less like a judicial opinion than it does like a press release from the anti-gay National Organization for Marriage:

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, 133 S. Ct. at 2718 (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.

Notice the citation in this passage. Judge Pérez-Giménez relies on a quote from Justice Samuel Alito’s dissenting opinion in United States v. Windsor. Dissenting opinions are, by definition, not the law because they reflect the views of the judges or justices who were unable to persuade a majority of their colleagues.

Few judges believe, however, that Baker v. Nelson has any bearing on whether federal courts may consider marriage equality cases today. Indeed, Pérez-Giménez acknowledges this fact with a lengthy citation to other court decisions holding that Baker is no longer binding on lower courts. The list of cases that disagree with him is so long that it takes up nearly an entire page of his opinion.

So, while Pérez-Giménez clearly holds very passionate views on the question of whether same-sex couples are entitled to the same rights as everyone else, his views are unlikely to persuade many of his fellow judges. It’s even possible that his opinion could ultimately wind up bolstering the case for marriage equality. That’s because his decision will appeal to the United States Court of Appeals for the First Circuit, a court dominated by Democratic appointees (although, it is worth noting that Pérez-Giménez was appointed to the bench by President Jimmy Carter). All four of the states that comprise the First Circuit — Maine, Massachusetts, New Hampshire and Rhode Island — are already marriage equality states, so a decision out of a federal court in Puerto Rico is the only path to bring a marriage equality case before this circuit.

Given the makeup of the First Circuit, the overwhelming consensus among federal judges in favor of marriage equality, and the belligerent tone of Pérez-Giménez’s opinion, it is unlikely that his decision will be upheld on appeal.

 It bears repeating that NONE of the Courts of Appeal that have ruled to date have found Baker v. Nelson to have any remaining precedent al relevance, particularly in light of the 2013 ruling in United States v. Windsor.

U. S. Supreme Court Fails to Identify Gay Marriage Case to Be Considered

There had been an expectation that the U.S. Supreme Court would identify today which, if any, of the gay marriage/DOMA appeals that have landed on its doorstep.  The expectation turned into additional waiting as the Court remained silent on these cases and those following the case will be waiting with baited breath to see if the Court will show its hand on Monday.   In some ways I can understand the Court's hesitation: no matter what it does, factions within America will be unhappy.  The Christofascists will rant against judicial tyranny if the Court upholds gay marriage and/or strikes down DOMA.  On a longer term, however, if the Court does not uphold a constitutional right to same sex marriage, they risk being viewed by history as being akin to the Justices who ruled against blacks in the infamous ruling in  Dred Scott v. Sandford, 60 U.S. 393 (1857), also known as the Dred Scott Decision.   For those who do not recall their American history, in the Dred Scott Decision, the Court held that the federal government had no power to regulate slavery in the territories, and that people of African descent (both slave and free) were not protected by the United States Constitution and were not U.S. citizens.   In short, with the younger generations being supportive of gay marriage  by significant majorities, it is virtually guaranteed that over time any Justice ruling against marriage equality will be viewed by history as a bigoted monster.  One has to wonder whether this is the type of legacy far right blow hards like Antonin Scalia to be how they are remembered by posterity.  A piece in SCOTUS Blog looks at this dilemma facing the justices.  Here are highlights:

These are the most significant cases these nine Justices have ever considered, and probably that they will ever decide.

I have never before seen cases that I believed would be discussed two hundred years from now. Bush v. Gore and Obamacare were relative pipsqueaks. The government’s assertion of the power to prohibit a loving couple to marry, or to refuse to recognize such a marriage, is profound. So is the opposite claim that five Justices can read the federal Constitution to strip the people of the power to enact the laws governing such a foundational social institution.

The cases present a profound test of the Justices’ judgment. The plaintiffs’ claims are rooted in the fact that these laws rest on an irrational and invidious hatred, enshrined in law. On the other hand, that describes some moral judgments. The Constitution does not forbid every inequality, and the people must correct some injustices (even some grave ones) themselves, legislatively.

The striking feature of these cases – not present in any others I have ever seen – is that that they would have been decided by the Justices’ predecessors one way and would be decided by the Justices’ successors another way.

The painful but sometimes unspoken truth is that seminal Supreme Court rulings sometimes reflect the era in which they were decided. In 2012, it is ridiculous to believe that the government could ban inter-racial marriage. But that was the law in much of the country for most of its history. In fact, it was a serious argument, and there were a number of similar laws on the books, when the Court declared them unconstitutional in 1967 in Loving v. Virginia. Society moved over the course of our history, and so did the Court’s understanding of the Constitution.

[T]he arc of history tilts towards equality and justice, and our society is rapidly but unevenly coming to the judgment that same-sex marriage is just and right. The claims presented by this case would just as inevitably prevail (probably by a wide margin) in the Supreme Court twenty years from now. By then, it will be broadly (if not uniformly) accepted that discrimination against homosexuals related to marriage is invidious and irrational. Our attitudes are shifting that fast.

Given the inevitability of same-sex marriage, if the Court rules against those claiming a right to have such unions recognized, it will later be judged to be “on the wrong side of history.”.

But the verdict of history cannot decide the legal questions presented by these cases. The cases arrive today, in this moment, before our cultural transition has completed. In a sense, it is a shame that there is such pressure to hear the cases now; the judgment for the rest of the nation’s history would certainly favor these claims. But if they do decide to grant review, the Justices cannot merely choose to embrace the past or the future. They will have to make a judgment now.

One option that the Court could decide to pursue is to hear none of the cases.  This would by default restore same sex marriage to California via the 9th Circuit's ruling and and leave the 1st and 2nd Circuit rulings against DOMA standing, although this latter option would leave potential chaos on a number of issues impacted by DOMA.   I'm sure that perhaps four of the Justices may not care if they are viewed as horrible individuals by history.  The question becomes whether five Justices do want to be viewed as having been on the right side of history.