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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Tuesday, October 21, 2014

Puerto Rico SSM Ban Upheld

When same sex marriage cases are discussed, repeatedly we hear of "states" and D.C., plus perhaps in some cases (given DADT especially) the military and other federal agencies. But, I repeatedly -- including from the usually on the ball on this issue Chris Geidner -- don't hear about federal territories. I myself was reminded once that the 1st and 3rd circuits include Puerto Rico and the Virgin Islands, so are not free from worrying about this issue giving state and D.C. action. I reminded someone this this very day. And, what happens? A federal judge out of Puerto Rico (1CA) upholds its ban! A Carter nominee at that.  Told ya so!  

The ruling spends the key middle portion arguing, with an appeal to a 1CA DOMA case in particular, that Baker v. Nelson is still binding. When the 6CA decides to finally announce their rulings -- and wouldn't be charming if we have a two-fer here -- if Judge Sutton is the deciding vote on the side of inequality that odds are that he will too.  He has a harder job of it being on the appellate bench.  Won't belabor the point on how I and others find Baker non-binding. The 1CA ruled before Windsor, but let me note that it is not beyond reasonable (if far from compelling) to read it to apply here too.*  It was a fairly conservative opinion.  If pressed, wouldn't bet the farm that the circuit will join the other four.  Would also note that Puerto Rico is not really a great fit for the New England 1CA. 

The 1CA overread the doctrinal breadth of the Baker summary affirmance to my eyes and makes it broadly about "same sex marriage" though (cf. footnote) in its holding mixed federalism concerns along with a test that "did not adopt some new category of suspect classification or employ rational basis review in its minimalist form" as applied to sexual orientation. Wikipedia, which already has reference to the ruling, tells me that a referendum blocking civil unions and domestic partnerships did not pass.  This helps the government's case -- as compared to a majority of places, the matter is up to simple legislative process that can be replaced I assume by a simple vote tomorrow in the legislature.  Still, the 1CA rule very well might not justify various types of denial of protections of benefits less than marriage. This underlines Baker v. Nelson, especially as applied in the current day with current realities, is of limited concern. 

But, the district judge here doesn't really just rest on Baker v. Nelson. The last third of his opinion makes the reading in fact look almost pretextual. He talks about "traditional" marriage, quoting Alito's dissent in Windsor. How the "very survival" rests on the procreative aspect. Give me a break. That would call into question even Griswold. The "ingenuity and imagination" of the four appellate courts that ruled the other way is cited and polygamy/incest raised.  We hear talk of "minimal marriage" (new one!)  and the Schuette case (involving something concededly allowed) is cited to support the political process.

Its a tour de force of backward b.s. It's "DISMISSED WITH PREJUDICE" grant is not just legal language. It's a substantive description.  Think it is fair for a district judge here to hold the line. But, he couldn't rest with that. He stacked the deck and embarrassed himself.


* I can be convinced that this gives the judge too much credit, especially when he cites the first portion of the opinion and notes state control of marriage "led" the USSC to decide as it did. This papers over the equal protection portion of the opinion. Guess the one group loathe to cite Scalia (though he cites Alito) are those who want to uphold SSM bans.

And more: SCOTUSBlog is on the case.  It's summary cites the "tribute" given to "traditional marriage" (good use of quotes; again ... coverture? what?) and underlines my stack the deck conclusion:
If anything, he added, “Windsor stands for the opposite proposition:  it reaffirms the states’ authority over marriage, buttressing Baker‘s conclusion that marriage is simply not a federal question.”
Putting Windsor and Baker together “in tandem,” the judge declared, those rulings “emphasize the states’ historic and essential authority to define the marital relation free from federal intrusion.”  He quoted language in the main Windsor opinion saying just that.
Except that it underlines that there are constitutional limits here, something the Court found repeatedly as well. Marriage is a federal question. There is a difference between there being no substantial federal question and a win on the merits, especially with the help of the fairly recent 1CA ruling's direct language regarding Baker.

The  judge here, along with his "tribute," did the evenhanded conservative a disservice.  He placed a thumb on the scales. If you want the USSC or at least the 1CA to decide the issue, fine, but really. Again, if this is taken to its logical conclusion, Griswold would fall -- it struck down a state regulation of the contours of the marital relation.  It is "simply" hyperbole.

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