Ada Conde Vidal and Ivonne Alvarez Velez, two women, were married in Massachusetts. They then moved to Puerto Rico, where they became Puerto Rico’s first married lesbian couple. However, their “marriage” is not recognized in Puerto Rico. That is because, since 1999, an amendment to Puerto Rico’s civil code declared that Puerto Rico does not recognize same sex “marriages.” This includes those “marriages” performed in other jurisdictions. Ms. Conde, a lawyer by training, filed a lawsuit against the Commonwealth seeking to put an end to the same-sex “marriage” ban. She said that she would be barred from making medical decisions regarding an ailing daughter. (Of course, whether she is married to a man or woman, or not, has no bearing on medical decisions regarding her daughter, but I digress.) Last March, Ms. Conde said in an interview with the Washington Blade, described on its website as “celebrating 45 years as America’s gay news source,” “If [my daughter] dies, I want my marriage legally recognized. If I am not recognized, I will not have any rights to request her estate.” (Sounds a bit crass, but you know how some lawyers can be.)
On October 21, 2014, Federal District Court Judge Juan M. Perez-Gimenez, a Carter appointee, issued his ruling in which he upheld Puerto Rico’s ban on same-sex marriage and dismissed the legal challenge by Ms. Conde and Ms. Alvarez, and three other “couples.” Lawyers for the plaintiffs immediately made plans to appeal the judge’s ruling to the U.S. Court of Appeals for the First Circuit, which has yet to rule on a challenge to a state’s power to prohibit same-sex “marriages.” In his opinion, Judge Perez-Gimenez wrote the following in pertinent part:
The plaintiffs have brought this challenge alleging a violation of the federal constitution, so the first place to begin is with the text of the Constitution. The text of the Constitution, however, does not directly guarantee a right to same-gender marriage, for “when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States.” [Citations omitted.] Without the direct guidance of the Constitution, the next source of authority is relevant Supreme Court precedent interpreting the Constitution. On the question of same-gender marriage, the Supreme Court has issued a decision that directly binds this Court. The petitioners in Baker v. Nelson were two men who had been denied a license to marry each other. They argued that Minnesota’s statutory definition of marriage as an opposite-gender relationship violated due process and equal protection – just as the plaintiffs argue here. The Minnesota Supreme Court rejected the petitioners’ claim, determining that the right to marry without regard to gender was not a fundamental right and that it was neither irrational nor invidious discrimination to define marriage as requiring an opposite-gender union. [Citation omitted.] . . . A clear majority of courts have struck down statutes that affirm opposite-gender marriage only. In their ingenuity and imagination they have constructed a seemingly comprehensive legal structure for this new form of marriage. And yet what is lacking and unaccounted for remains: are laws barring polygamy, or, say the marriage of fathers and daughters, now of doubtful validity? Is “minimal marriage”, where “individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties” the blueprint for their design? [Citation omitted.] It would seem so, if we follow the plaintiffs’ logic, that the fundamental right to marriage is based on “the constitutional liberty to select the partner of one’s choice.” For now, one basic principle remains: the people, acting through their elected representatives, may legitimately regulate marriage by law. This principle is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues. It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds . . . Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people. [Citation omitted.] . . . For the foregoing reasons, we hereby GRANT the defendants’ motion to dismiss. The plaintiffs’ federal law claims are DISMISSED WITH PREJUDICE.
Emphasis added. In response to Judge Perez-Giminez’ opinion, Alliance Defending Freedom Litigation Counsel Caleb Dalton stated the following:
The people of Puerto Rico – and the people of every U.S. state and territory – should be free to affirm marriage as the union of a man and a woman. The district court in this case was right to conclude, as the U.S. Supreme Court recognized in its Windsor decision last year and in its previous Baker decision, that marriage law is the business of the states. Echoing last month’s decision from a Louisiana federal district court that affirmed the states’ authority over the definition of marriage, the court said that “[i]t takes inexplicable contortions of the mind or perhaps even willful ignorance.to interpret Windsor‘s endorsement of the state control of marriage as eliminating the state control of marriage.”
Indeed it does. I am reminded of Supreme Court Justice Sonia Sotomayor who stated in a speech, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” It seems to me that Judge Perez-Giminez, a wise Latino, could be even better suited for our nation’s Supreme Court.