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Marriage Equality and the Court: What Happened in Puerto Rico?

Puertorico

BY ARI EZRA WALDMAN

In a decision that willfully ignored the prevailing wisdom of most of the federal judiciary, a judge in Puerto Rico recently tossed a lawsuit challenging the island's ban on gays marrying. The judge did not expressly uphold the constitutionality of the ban; rather, he granted PR's motion to dismiss the lawsuit. Either way, the case is headed for appeal at the First Circuit Court of Appeals. This case adds a little texture to the Supreme Court's refusal to take seven marriage equality cases, bringing an end to marriage discrimination in much of the country. But do not expect Puerto Rico to derail our forward march.

2_circuitsPuerto Rico is not just an LGBT-friendly locale in the Caribbean; it's also a territory of the United States under the jurisdiction of the First Circuit. That court also includes Maine, New Hampshire, Massachusetts, and Rhode Island and, as such, it has not had the opportunity to weigh in on the constitutionality of a state ban on same-sex marriage since Windsor because, like the Second and Third Circuits, all its states are marriage equality states. That is, except for Puerto Rico.

Into this mix walked several Puerto Rican same-sex couples, represented by Lambda Legal, who want to get married and who have been watching from the sidelines as bans topple like dominoes in the states. After they filed their lawsuit, the state's response was to ask the judge to dismiss the lawsuit for, among other things, lack of jurisdiction.

A motion to dismiss is not unusual. In fact, motions to dismiss or motions for summary judgment are two tools used often to decide cases without having to go through the complexities, expense, and uncertainties of a trial. Even this particular argument wasn't rare. But although the motion may not have been unusual, the judge's decision was, at least in a post-Windsor world.

I summarize the court's ruling and explain why the judge was utterly and completely wrong, AFTER THE JUMP...

Continue reading "Marriage Equality and the Court: What Happened in Puerto Rico?" »


Lambda Legal Brings Challenge to Puerto Rico's Same-Sex Marriage Ban To First Circuit Court of Appeals

6a00d8341c730253ef01b7c6f833ff970b-800wiAs promised, Lambda Legal has filed an appeal of Federal Judge Perez-Gimenez’s ruling that upheld Puerto Rico’s ban on same-sex marriage. The case will now be heard by the First Circuit Court of Appeals in Boston. The Washington Blade reports:

“Puerto Rico has many loving, committed couples who need the dignity and respect of marriage as soon as possible, and we won’t stop fighting on their behalf,” said Omar Gonzalez-Pagan of Lambda Legal. Ada Conde Vidal and Ivonne Álvarez Vélez of San Juan filed the lawsuit in U.S. District Court in March. Four additional gay and lesbian couples along with Lambda Legal and Puerto Rico Para Tod@s, a Puerto Rican LGBT advocacy group, joined the case three months later. 

Puerto Rico's ban on same-sex marriage was enacted in 1999 after lawmakers amended the U.S. commonwealth’s civil code to ban recognition of same-sex marriages. The decision out of Puerto Rico contradicts the larger trend we have been witnessing whereby federal and appellate court judges have been striking down bans on same-sex marriage:

“The district’s court ruling is not only out of step with the rest of the country, it leaves Puerto Rico as the only jurisdiction within the First Circuit to ban marriage for same-sex couples,” said Gonzalez-Pagan. “During the past year reasoned rulings by district courts throughout the nation and the Courts of Appeals for the 4th, 7th, 9th and 10th Circuits, as well as the U.S. Supreme Court’s actions to let stand some of those rulings, clearly demonstrate that marriage bans, such as Puerto Rico’s, are unconstitutional.” 

Gov. Alejandro García Padilla, who is among the defendants in the case, publicly supports civil unions for gays and lesbians. He reiterated his opposition to marriage rights for same-sex couples last week after Pérez-Giménez announced his ruling. “The government should not be in the business of discriminating against its people,” said Gonzalez-Pagan. “It is disappointing that Puerto Rico continues to perpetuate the harms it causes to loving, committed Puerto Rican same-sex couples.”

Now that the issue of same-sex marriage in Puerto Rico is headed to the 1st Circuit, SCOTUS Blog considers the impact its decision will have on the larger issue of same-sex marriage in the United States:

6a00d8341c730253ef01b8d08243b2970c-800wiTwo years ago, the First Circuit said flatly that it was still required to follow the Supreme Court’s summary, one-sentence ruling in 1972, in the case of Baker v. Nelson.  That ruling, it said, is “binding precedent” which bars an argument that there is “a constitutional right to same-sex marriage.”  And, it noted, the Supreme Court has not overturned that ruling in more recent gay rights decisions.  The Baker decision said without elaboration that a plea for a right to marry a same-sex partner did not raise “a substantial federal question.”

The question now is whether the First Circuit will continue to adhere to that view, in the face of a broad wave of federal court decisions indicating that Baker v. Nelson no longer remained an obstacle to striking down state laws against same-sex marriage.   If the First Circuit holds fast, it could set up a split on this issue that could lead the Supreme Court to step into the same-sex marriage controversy in a way that it has so far avoided.

In his ruling on October 21 rejecting the couples’ challenge to Puerto Rico’s ban, U.S. District Judge Juan M. Perez-Gimenez said that he had no choice because of the 1972 precedent and because of the First Circuit’s comments about Baker v. Nelson‘s continued validity.  The Baker decision, he said, is still controlling, “even when other cases would seem to undermine the Supreme Court’s holdings….The Supreme Court is perfectly capable of stating its intention to overrule a prior case.”


Lambda Legal to Appeal 'Aberrant' Federal Court Ruling Dismissing Puerto Rico Marriage Lawsuit

Lambda Legal says it will appeal yesterday's ruling from the U.S. District Court of Puerto Rico dismissing a lawsuit challenging the territory's ban on same-sex marriage.

PuertoricoVia press release:

“The court’s ruling directly conflicts with the wave of recent decisions finding these marriage bans unconstitutional and perpetuates the discrimination and harm done to same-sex Puerto Rican couples and their families,” said Omar Gonzalez-Pagan, Staff Attorney for Lambda Legal. “It defies the unmistakable import of the Windsor decision and flies in the face of the blizzard of rulings of the last year, the reasoned rulings of the Courts of Appeals for the 4th, 7th, 9th and 10th Circuits, and the decision by the U.S. Supreme Court to let stand the rulings striking down five bans similar to Puerto Rico’s. One struggles to understand how this judge came to a different conclusion.”

“We will, of course, appeal this ruling to the 1st Circuit Court of Appeals,” Gonzalez-Pagan said. “All families in Puerto Rico need the protections of marriage.”

On March 25th, 2014, Ada Mercedes Conde Vidal and Ivonne Álvarez Vélez filed a lawsuit to compel Puerto Rico to recognize their marriage, which they entered into in Massachusetts. In June, Lambda Legal joined and amended that lawsuit to include four more plaintiff couples, two seeking recognition of marriages entered into in other jurisdictions and two who seek to marry in Puerto Rico, as well as an organizational plaintiff, Puerto Rico Para Tod@s.

"It is outrageous that loving committed LGBT couples and their families have been deprived of their civil rights and dignity,” said Pedro Julio Serrano, founder and president of Puerto Rico Para Tod@s. “We are hopeful that justice will prevail and that the equality promised by the Constitution will be upheld."

Other states in the 1st Circuit include Massachusetts, Maine, New Hampshire, and Rhode Island, all of which have marriage equality.


Judge Upholds Puerto Rico's Ban On Same-Sex Marriage: READ


Juan_Manuel_Perez_GimenezU.S. District Judge Perez Gimenez has issued a ruling upholding Puerto Rico's ban on same-sex marriage. Equality on Trial reports:

Citing Baker v. Nelson and the First Circuit Court of Appeals decision striking down Section 3 of the federal Defense of Marriage Act (DOMA) a judge in Puerto Rico has dismissed a challenge to its same-sex marriage ban.

In that DOMA case, Massachusetts v. HHS, the First Circuit had said that Baker v. Nelson is binding precedent on the issue of whether there’s a right to same-sex marriage; they then found that Baker didn’t prevent them from ruling on DOMA, which didn’t involve the states’ regulation of marriage.

The Puerto Rico case can be appealed to the First Circuit, which hasn’t had an opportunity to review challenges to same-sex marriage bans since all the states in that circuit allow same-sex marriage.

The suit challenging Puerto Rico's marriage ban was brought by a lesbian couple, Ada Conde Vidal and Ivonne Álvarez Velez, who sued to have their marriage performed in Massachussetts recognized by the commonwealth. As we previously reported, Conde decided to file the suit after realizing that she would be barred from making medical decisions on behalf of her ailing daughter. Puerto Rico's ban on same-sex marriage was enshrined into law in 1999 after lawmakers amended the U.S. commonwealth’s civil code to ban recognition of same-sex marriages.

Chris Johnson of The Washington Blade also points out that Judge Gimenez was appointed by President Jimmy Carter.

Read the decision, AFTER THE JUMP...

[h/t Chris Johnson]

Continue reading "Judge Upholds Puerto Rico's Ban On Same-Sex Marriage: READ" »


Lambda Legal Asks Court for Swift Ruling to End Discriminatory Marriage Ban in Puerto Rico: READ

Screenshot 2014-09-16 17.05.48

Lambda Legal is officially seeking a summary judgment from the District Court of Puerto Rico that would effectively put an end to the district’s same sex marriage ban. In June, Lambda Legal joined Puerto Rico Para Tod@s, an LGBT non-profit organization, in supporting the Conde v. Rius Armendariz class action lawsuit

Following a ceremony performed in Massachusetts Ivonne Álvarez Velez and Ada Conde Vidal became Puerto Rico’s first married lesbian couple. Since 1999, a Puerto Rican amendment to the commonwealth’s civil code has made it so that Puerto Rico does not recognize same sex marriages--even those performed in other jurisdictions. Conde, a lawyer by training, filed the suit after realizing that she would be barred from making medical decisions on behalf of her ailing daughter.

“If she dies, I want my marriage legally recognized,” Conde explained to the Washington Blade this past March. “If I am not recognized, I will not have any rights to request her estate.”

Conde and her partner are joined by four other gay and lesbian couples, two of whom are looking to actually be married within Puerto Rico, while the others seek to have their pre-existing marriages recognized.

“All families deserve to have their love and commitment recognized in Puerto Rico,” said Omar Gonzalez-Pagan Lambda Legal’s staff attorney working with Puerto Rico Para Tod@s. “They need the protections only marriage can provide as soon as possible, without discrimination.”

Read Conde v. Rius Armendariz's full legal brief, AFTER THE JUMP...

Continue reading "Lambda Legal Asks Court for Swift Ruling to End Discriminatory Marriage Ban in Puerto Rico: READ" »


Wednesday Speed Read: Heather Mizeur, Executive Order, Joe Biden, NOM, 9th Circuit, Hochberg

BY LISA KEEN / Keen News Service

MizeurMIZEUR COMES IN THIRD IN MARYLAND:

Six of 10 openly LGBT candidates won their primary races Tuesday; three lost; one race is still undetermined. Lesbian State Delegate Heather Mizeur was not one of the winners, but she made a strong showing in third place, just one point behind the state’s attorney general. Mizeur garnered 19 percent of the vote, putting her in third behind Attorney General Doug Gansler with 20 percent, according to the Maryland State Board of Elections. Some political observers think Mizeur “outshined her male opponents” during the campaign, said MSNBC’s Chuck Todd on the Daily Rundown Tuesday morning. But the primary winner, Lieutenant Governor Anthony Brown with 58 percent of the vote, had at least two advantages over Mizeur: He was running to become the state’s first African American governor in a state with a 30 percent African American population, and he won the endorsement of the statewide LGBT group Equality Maryland. For full election results, see related story.

EarnestNO DETAILS ON EXECUTIVE ORDER:

White House Press Secretary Josh Earnest said during his daily press briefing Tuesday that he does not know whether the executive order that President Obama will sign prohibiting discrimination based by federal contractors will include an exemption for religious entities. And just as he was asked about the timing of the announcement last week that the President would sign such an order, a White House intern standing in the briefing room fainted and Earnest ended the press conference.

BidenBIDEN BRUSHES OFF THE TRIGLODYTES:

Speaking at a reception he hosted for participants and supporters of the White House Forum on Global LGBT Human Rights, Vice President Joe Biden said LGBT people coming out to family and friends is driving enormous progress in attitudes of ordinary Americans. “They are the majority, and those other folks, they are the troglodytes," said Biden, according to a White House pool report.

JUDGE AWARDS NOM $50,000:

NomlogoA federal district court judge in Virginia Tuesday ordered the U.S. to pay the National Organization for Marriage $50,000 for over an accidental public release of tax documents with confidential information that should have been redacted. Judge James Cacheris had ruled June 3 that an Internal Revenue Service clerk had mistakenly released the information to a member of the public who then shared it with the Human Rights Campaign and others. While Cacheris said he did not see evidence the release was deliberate and politically motivated, he said the IRS bears some responsibility for the legal expenses NOM incurred as a result of that error. NOM can still sue to recoup attorneys fees.

NINTH CIRCUIT REJECTS EN BANC:

The Ninth Circuit U.S. Court of Appeals announced Tuesday it would not grant a request from one of its own judges for a full court review of a panel decision requiring heightened scrutiny of laws that disadvantage people based on sexual orientation. Ninth Circuit states now bound by that panel decision in SmithKline v. Abbott include Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

RodriguezPUERTO RICO NOMINEE CONFIRMED:

The Puerto Rico Senate on Monday confirmed the nomination of lesbian attorney Maite Oronoz Rodríguez to serve on the Puerto Rico Supreme Court. Rodríguez is director of legal affairs for the city of San Juan. The vote was 16 to 10.
 
HOCHBERG IN THE HOT SEAT:

The openly gay chairman of the Export-Import Bank will be in front of a House committee this morning. The bank, which provides billions of dollars in loans to companies producing exports, needs reauthorization by Congress on September 30, but newly elected House Majority Leader Kevin McCarthy is against it.

© copyright 2014 by Keen News Service. All rights reserved.


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