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Challenge to Puerto Rico same-sex marriage ban dismissed

LGBT Legal Cases Marriage equality Marriage Equality Trials

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. (The judgment is here.)

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.

UPDATE: In a press release, a staff attorney for Lambda Legal said they will appeal: “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.””

Thanks to Equality Case Files for these filings

174 Comments

  • 1. ragefirewolf  |  October 21, 2014 at 4:18 pm

    Ummm, uh oh…

  • 2. franklinsewell  |  October 21, 2014 at 4:18 pm

    Anybody for a circuit split coming from the 1st Circuit?

  • 3. franklinsewell  |  October 21, 2014 at 4:25 pm

    This judge is characterizing the "right" in question as a "right to same-gender marriage," and not the broad right to choose one's own spouse regardless of gender.

  • 4. guitaristbl  |  October 21, 2014 at 4:25 pm

    WTF ?! Seriously now ? Appeal right now ! I mean we can't lose in the first ! I didn't even know the first has said that about Baker ! Anyway there was Windsor and denial of cert from SCOTUS till then, they have to change their minds !

  • 5. Zack12  |  October 21, 2014 at 4:26 pm

    Not going to happen. The 1st circuit is solidly liberal and isn't going to rule for a marriage ban.

  • 6. guitaristbl  |  October 21, 2014 at 4:39 pm

    This has to be the most bigoted opinion I have read honestly. It directly attacks every court that has ruled in favour of equality in a way only Brown would if he wrote an opinion. It's even worse in legal sense and bigotry than Feldman's and I did not think this was possible.
    I hope the 1st can fix this quickly !

    "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."

    WTF ? This man should have recused the minute he got the case on his hands ! This is a NOM speech not a judicial ruling !

  • 7. franklinsewell  |  October 21, 2014 at 4:42 pm

    You are so correct about this opinion, guitarist.

    I'm sure Lambda Legal will file an appeal to the 1st, post haste.

  • 8. DACiowan  |  October 21, 2014 at 4:46 pm

    Que pasa?! Send it up to Boston (the 1st Circuit) and get a ruling from this century, please.

  • 9. JayJonson  |  October 21, 2014 at 4:46 pm

    A great opportunity to have the First Circuit chime in on the side of equal rights. I hope they accept the appeal and rule on it quickly.

  • 10. guitaristbl  |  October 21, 2014 at 4:48 pm

    The fundumental unit of POLITICAL ORDER ? Seriously ? Going to Baker when much more experienced jurists have dismissed it, totally ignoring Romer, Lawrence, denial of cert etc and on top of that, as all this judicial jibber jabber we witnessed from Feldman was not enough, saying that marriage equality disrupts POLITICAL ORDER ? Like in what way ?! And then of course the usual slippery slopes with polygamy and incest to get away from the issue. Just who this judge thinks he is ? I hope the first does the right thing this time around because if two years ago they affirmed Baker as controlling precedent, I don't see much light at the end of the tunnel !

  • 11. sfbob  |  October 21, 2014 at 4:54 pm

    And in the unlikely event that the First Circuit didn't overturn the lower court ruling we'd have a circuit split. Lambda Legal should certainly appeal now (the briefs should be easy to write) and if necessary, a petition for cert should be kept on hand.

  • 12. guitaristbl  |  October 21, 2014 at 4:55 pm

    Is that so certain ? Two of the judges that said Baker is controlling in the DOMA case are still sitting as district judges and the third is senior. The only way out is to go en banc immediately.

  • 13. wes228  |  October 21, 2014 at 5:07 pm

    I told y'all it was premature to strike off the 1st Circuit. We'll be needing them now, and the 3rd Circuit too!

  • 14. Judge Upholds Puerto Rico&hellip  |  October 21, 2014 at 5:09 pm

    […] U.S. District Judge Perez Gimenez has issued a ruling upholding Puerto Rico’s ban on same-sex marriage. Equality on Trial reports: […]

  • 15. Scottie Thomaston  |  October 21, 2014 at 5:10 pm

    Updated to add there will be an appeal.

  • 16. debater7474  |  October 21, 2014 at 5:13 pm

    This is excellent news because now we get another circuit court to come in on our side. Same sex marriage opponents will be laughed out of court at the first circuit, and then we will have yet another circuit to add to our side's tally.

  • 17. ragefirewolf  |  October 21, 2014 at 5:21 pm

    Really, folks? My comment really deserved to be trashed? Thanks a lot.

    Without comment, no less.

    Let me elaborate on my earlier comment. THIS IS BAD. I'm sorry if you can't handle my comment just because it's not a fluffy feel-good happy comfort comment. THIS IS BAD. It's bad not because it relies on blind political logic, but that someone used Baker successfully to bring us a loss and did so thanks to First Circuit precedent. It's quite possible this will have to come before SCOTUS to be fixed and you better hope they take it and reverse it. I'm sorry if you all don't care about Puerto Rico as much as I do, but that's the facts.

  • 18. guitaristbl  |  October 21, 2014 at 5:21 pm

    Where does all this certainty come for the 1st circuit ruling in our favour here ? When two of the judges who said Baker is binding when it comes to state marriage bans two years ago still sitting as district judges (the chief judge – a clinton appointee and a reagan appointee), I can't say I am positive ! Even if the 3 Obama appointees are in favour, it all comes down to the only G.W. Bush appointee and his opinion on the issue. We may be heading for a 3-3 ruling if this goes en banc, and I suppose it has to since the DOMA decision from the 3 judge panel is clear that Baker is binding obviously.

  • 19. Ragavendran  |  October 21, 2014 at 5:21 pm

    A few key paragraphs that summarize the judge's Baker argument:

    "The plaintiffs would have this Court ignore Baker because of subsequent “doctrinal developments.” Specifically, the plaintiffs see the Supreme Court’s decisions in Romer, Lawrence, and Windsor as limiting Baker’s application, as most other courts to consider the issue have held. The Court cannot agree.

    For one thing, the First Circuit has spared us from the misapprehension that has plagued our sister courts. The First Circuit expressly acknowledged – a mere two years ago – that Baker remains binding precedent “unless repudiated by subsequent Supreme Court precedent.” This Court agrees, and even if this Court disagreed, the First Circuit’s decision would tie this Court’s hands no less surely than Baker ties the First Circuit’s hands.

    The plaintiffs’ reliance on Romer v. Evans and Lawrence v. Texas is misplaced. Romer invalidated a state law repealing and barring sexual-orientation discrimination protection. Lawrence involved the very different question of a state government’s authority to criminalize private, consensual sexual conduct. Neither case considered whether a state has the authority to define marriage.

    Windsor does not – cannot – change things. Windsor struck down Section 3 of DOMA which imposed a federal definition of marriage, as an impermissible federal intrusion on state power. The Windsor opinion did not create a fundamental right to samegender marriage nor did it establish that state opposite-gender marriage regulations are amenable to federal constitutional challenges. If anything, 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. (“[t]he definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the ‘[p]rotection of offspring, property interests, and the enforcement of marital responsibilities’”).

    Contrary to the plaintiffs’ contention, Windsor does not overturn Baker; rather, Windsor and Baker work in tandem to emphasize the States’ “historic and essential authority to define the marital relation” free from “federal intrusion.” It takes inexplicable contortions of the mind or perhaps even willful ignorance – this Court does not venture an answer here – to interpret Windsor’s endorsement of the state control of marriage as eliminating the state control of marriage.

    The plaintiffs contend, as well, that the Supreme Court’s recent denial of certiorari in three cases where Baker was expressly overruled is tantamount to declaring that Baker is no longer good law. The denial of certiorari is not affirmation. For now, if presumptions must be made about the unspoken proclivities of the Supreme Court, they ought to be governed by the prudent injunction that “a denial of certiorari on a novel issue will permit the state and federal courts to ‘serve as laboratories in which the issue receives further study before it is addressed by this Court.’” Lackey v. Texas, 514 U.S. 1045 (1995)(Stevens, J. respecting denial of certiorari)(citation omitted).

    Nor does the procedural outcome of Hollingsworth v. Perry, imply that the Supreme Court has overruled Baker. The plaintiffs creatively argue that when the Supreme Court dismissed Hollingsworth, its judgment had the effect of vacating the Ninth Circuit’s opinion and leaving the district court’s opinion intact. Because the district court’s opinion (which struck down California’s ban on same-gender marriage) was allowed to stand, the plaintiffs say the Supreme Court tacitly recognized that the right to same-gender marriage presents a federal question. The district court’s judgment remained intact, not because the Supreme Court approved of it — tacitly or otherwise — but because no party with standing had appealed the district court’s decision to the Supreme Court such that it would have jurisdiction to decide the dispute. Thus, nothing about the Hollingsworth decision renders Baker bad law.

    Lower courts, then, do not have the option of departing from disfavored precedent under a nebulous “doctrinal developments” test. Baker, which necessarily decided that a state law defining marriage as a union between a man and woman does not violate the Fourteenth Amendment, remains good law. Because no right to samegender marriage emanates from the Constitution, the Commonwealth of Puerto Rico should not be compelled to recognize such unions. Instead, Puerto Rico, acting through its legislature, remains free to shape its own marriage policy. In a system of limited constitutional self-government such as ours, this is the prudent outcome. The people and their elected representatives should debate the wisdom of redefining marriage. Judges should not."

  • 20. netoschultz  |  October 21, 2014 at 5:22 pm

    Can a panel of judges overturn another panel without a reason? The SCOTUS didn't say anything about Baker yet, so if it isnt an en banc ruling, i dont think we can win there

  • 21. wes228  |  October 21, 2014 at 5:23 pm

    "it takes inexplicable contortions of the mind or perhaps even willful ignorance — this Court does not venture an answer here — to interpret Windsor's endorsement of the state control of marriage as eliminating the state control of marriage." This caps a lengthy tirade about how Windsor was all about federal intrusion into marriage.

    Wowwwww. That is so arrogant it almost puts Scalia to shame! Oh and never mind that in EVERY instance where the Windsor decision mentions "state control of marriage" it is always presented with the qualification that that control "respect the constitutional rights of persons" ANDDD this exact language from Windsor:

    "…it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance."

    So WHERE does this judge get the impression that the Supreme Court was striking down DOMA purely on federalism grounds??

    Ugh…I just…can't…

  • 22. frigens  |  October 21, 2014 at 5:28 pm

    Totally amazed that there are still many judges who ignored (or willing to) the fact that Windsor was decided under Due process and Equal Protection clause, not Federalism case. Kennedy said the following out loud;

    "It is unnecessary, however, to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. A different constitutional principle does control… In doing so, the federal law violates basic Due Process and Equal Protection principles." accord Windsor

    Nonetheless Massachusetts v HHS that the court cited as binding precedent was decided before Windsor, First Circuit had only Romer and Lawrence and did not have Windsor as a guidance whether Hicks' exception has eroded Baser v Nelson or not. If First Circuit decides that case right now, it would not have said that. This court also mentioned that because it's mere two year when Massachusetts case was decided , it must be a good law, ignored the reality that SCOTUS has decided relevant case since then.

    He tried very hard but it probably wont be long until he get reversed. We will see if he will sign the injunction or recuse himself like judge Robert Jones in Nevada case.

  • 23. wes228  |  October 21, 2014 at 5:29 pm

    The ruling in Windsor was so heavily based in equal protection and equal dignity, without deciding the issue of federalism concerns (the ruling specifically says that FLAT OUT!!!), it is much easer to use Windsor as proof that Baker is effectively over-ruled. Now that the 1st Circuit has the Windsor ruling, they should be free to re-examine their Baker analysis just as every single other court (save Louisiana) has done.

    The state and federal governments are held to the same exact equal protection standards (Bolling v. Sharpe). So if it insults the equal dignity of gay couples for the federal government to not recognize their marriages, the same applies to the state governments. Simple as that.

  • 24. guitaristbl  |  October 21, 2014 at 5:31 pm

    Apparently it can't. It has to go en banc in my opinion. And it would go down to one judge there if we make the early assumption that all 3 Obama appointees favour ME, or else it's a 3-3 ruling (given that 2 judges sitting were in the DOMA majority that said Baker is controlling as this ill excuse of a judge says in this ruling).

  • 25. sfbob  |  October 21, 2014 at 5:31 pm

    Yes, three percent of the population NOT reproducing (as much) will lead to the fall of civilization. I'd ask which century the judge is living in but a better question would probably be which MILLENNIUM is he living in? The world is over-populated; the last thing we need to worry about is insufficient reproduction.

  • 26. wes228  |  October 21, 2014 at 5:33 pm

    Despite what the judge says, their Baker determinations really are dicta and I don't feel a panel should be held to that, especially since now that they actually have the Windsor decision they can re-evaluate Baker.

  • 27. guitaristbl  |  October 21, 2014 at 5:34 pm

    I won't believe that till I see it. The first is a small court, it is marginally more liberal and has already said that Baker is controlling. They have to overturn themselves here and I am not sure they will. This is a bad, bad development. We will have to see how they apply Windsor, if we get the chance and SCOTUS does not take a 6th circuit case in the meantime. I hope they expedite soon.
    For now I believe we are disadvantaged in the first, seriously disadvantaged.

  • 28. Ragavendran  |  October 21, 2014 at 5:35 pm

    And, from the Conclusion, where the judge puts in all his personal opinions regarding the merits of the issue, as he precluded himself from reaching them in the main body:

    "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. The question now is whether judicial “wisdom” may contrive methods by which those solid principles can be circumvented or even discarded.

    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? See Elizabeth Brake, Minimal Marriage: What Political Liberalism Implies for Marriage Law, 120 ETHICS 302, 303 (2010). 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.” (Docket No. 7 at 4.)

    Of course, it is all too easy to dismiss such concerns as absurd or of a kind with the cruel discrimination and ridicule that has been shown toward people attracted to members of their own sex. But the truth concealed in these concerns goes to the heart of our system of limited, consent-based government: those seeking sweeping change must render reasons justifying the change and articulate the principles that they claim will limit this newly fashioned right.

    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." Schuette v. Coalition to Defend Affirmative Action, 572 U.S. __, 134 S.Ct. 1623, 1637 (2014)(Op. of Kennedy, J.)."

  • 29. sfbob  |  October 21, 2014 at 5:35 pm

    We can certainly win. First of all this is a district court judge's ruling; the First Circuit has not said anything and is likely to view the import of Windsor very, very differently. Several courts of appeal have already ruled that doctrinal developments have rendered Baker irrelevant and I'm pretty certain at this point that the First Circuit will do the same.

  • 30. guitaristbl  |  October 21, 2014 at 5:36 pm

    I believe they should file for initial en banc. It's not worth risking having the two of the DOMA case on a panel again plus the Bush appointee for instance. Senior judges do not see in en banc hearings, do they ?

  • 31. Zack12  |  October 21, 2014 at 5:36 pm

    Why you so worried about this?
    A lot has happened since that ruling a few years ago and the 1st circuit now has the Windsor ruling in their pocket.

  • 32. Eric  |  October 21, 2014 at 5:36 pm

    When did Puerto Rico become a state? Baker had to do with states, not territories.

  • 33. jcmeiners  |  October 21, 2014 at 5:38 pm

    Isn't this like SmithKline overruling High Tech Gays? All it took was a panel because the doctrinal landscape had changed? I presume the same can be said here.

  • 34. guitaristbl  |  October 21, 2014 at 5:47 pm

    Because it's different to have a court that has not ruled on the issue before take such a view than having a court that has ruled that Baker is binding overturn that premise only on Windsor. The doctrinal developments cited by other courts include Romer and Lawrence, which the 1st had available when it decided 2 years ago that Baker is controlling. The only other essential thing that happened is Windsor. I can't see judges who held Baker as controlling 2 years ago change their opinions solely based on Windsor. As I said we can hope at best for a 4-2 opinion in our favour en banc, if the two judges that were on the DOMA decision decide that Baker is still controlling. And that would take that the 3 Obama appointees plus the G.W.Bush appointee rule that Baker is not controlling. It's going to be tough.

  • 35. RQO  |  October 21, 2014 at 5:48 pm

    Your comment is not trashed (IMO). People seem to vote their sentiment on the issue, not the fact the writer pointed it out. When I suggested Obama's 14th ammendment support for ME did have (given the timing) the practical effect (perhaps) of making D's candidacies in Red religious states more difficult, it got down-voted, and I was glad. Personally, I am overjoyed the President has continued to "evolve", and apparently has a clue as to what's been said in the 40+ court decisions.
    The trolls are largely gone. Your comments are always appreciated.

    PS – I think it will be reversed at the appellate level.

  • 36. tornado163  |  October 21, 2014 at 5:49 pm

    From my understanding, there's a lot of nuance to the 1st Circuit's decision. From the Gill decision "Baker does not resolve our own case but it does limit the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage." Even though Baker only considered an equal protection challenge, the Gill decision seems to knock out both equal protection and due process challenges. This was after Lawrence and Romer, but before Windsor. So the PR judge is bound by Gill unless Windsor changed things. Either the District Court judge had to consider if Windsor changed thing (the PR judge says no) or just declare that Baker is binding (which he did).

    Circuit court panels are bound by previous panels, unless there's been a new development. The 1st Circuit panel will either say they are bound by the earlier DOMA panel's precedent, or will overrule the DOMA panel based on Windsor. That's what the 9th Circuit did, SmithKline overruled an earlier panel's decision High Tech Gays (sexual orientation only gets rational basis) based on Windsor. Will that happen when 2 of the 6 judges wrote the DOMA decision stating that Baker is precedent?

    All that being said, I was disappointed, but not actively offended until the Conclusion section. There the judge went from a legalistic argument that Baker is binding precedent into a rant about how traditional marriage is great. That knocked out any possibility of this being a judge who wanted to fully consider the issue, but was technically bound by precedent.

    I also found it ironic that this decision quoted Judge Posner in support of Baker being binding, when even Posner himself says that Baker isn't binding. Go figure.

  • 37. Zack12  |  October 21, 2014 at 5:52 pm

    If folks want to see what the rulings from the 5th (and likely the 6th) circuit will look like, this ruling spells it out in spades.
    And of course, this judge like others fails to mention the fact DOMA was NOT struck down via the 10th amendment but the 5th amendment.
    What a truly vicious ruling.

  • 38. guitaristbl  |  October 21, 2014 at 5:56 pm

    Thanks for the analysis. I too am afraid that the 2 of the DOMA opinion may not be willing to change their minds solely on Windsor. As I said below, the plaintiffs should file for an initial en banc, it's our best shot here. And the 1st should expedite as soon as the appeal is filed.

  • 39. wes228  |  October 21, 2014 at 5:58 pm

    Initial en banc is rarely granted. I could see it if the 1st Circuit actually ruled on the marriage issue directly and now that needs to be reevaluated in light of what's going on everywhere else, but I don't think they'd go for that here.

  • 40. ragefirewolf  |  October 21, 2014 at 5:59 pm

    It really shouldn't upset me, but it does. I wish people had to register before voting.

    I'm not so certain about the First Circuit but I hope you're right…

  • 41. wes228  |  October 21, 2014 at 6:00 pm

    Ughh I'm still hoping for a win in the 6th!

  • 42. ragefirewolf  |  October 21, 2014 at 6:01 pm

    I believe you meant 14th Amendment and not 10th, yes?

  • 43. ragefirewolf  |  October 21, 2014 at 6:03 pm

    Also, thank you for the encouragement, RQO…it's very much appreciated. :-)

  • 44. guitaristbl  |  October 21, 2014 at 6:03 pm

    Well they kinda seemed pretty clear in the Gill ruling on the Baker thing from what I've read. It is true that the issue at stake there was not the same but the decisions went to that areas as well. And this district court decision – dismissal is basically targeting them, at least initially, as those that created that binding precedent of upholding the bans based on Baker. There is a good chance for initial en banc imo, especially if they take the district court's decision seriously enough.

  • 45. ragefirewolf  |  October 21, 2014 at 6:04 pm

    They need to hurry the F up!!!

  • 46. guitaristbl  |  October 21, 2014 at 6:06 pm

    Oh I doubt Sutton can write something so vicious and demeaning, no matter how bad he is.
    It will take an especially bigoted panel in the 5th as well to match the judicial slopiness and viciousness and animosity towards LGBT people and their families this ruling has. Suddenly Feldman's ruling seems like just a bad decision.

  • 47. wes228  |  October 21, 2014 at 6:08 pm

    In Puerto Rico, binding precedent is actually created by reversed and/or vacated court decisions and Supreme Court dissenting opinions, dontcha know? I mean, the judge wouldn't have cited all those reversed, vacated, and dissenting opinions otherwise…duhhh.

  • 48. wes228  |  October 21, 2014 at 6:08 pm

    I concur in that judgement.

  • 49. wes228  |  October 21, 2014 at 6:10 pm

    DOMA was not struck down via the 10th Amendment, but rather the 5th. The 14th Amendment applies to the states whereas the 5th Amendment applies to the federal government. While the Due Process Clause of the 5th Amendment requires the federal government to respect equal protection on the same terms as the 14th (Bolling v. Sharpe), a federal law cannot be struck down based on the 14th Amendment.

  • 50. RnL2008  |  October 21, 2014 at 6:17 pm

    Which is the problem when words like "GAY" or "SAME-SEX" marriage is used……we are NOT asking for a new right….we're asking for the same right to marry as opposite-sex couples have enjoyed!!!

  • 51. guitaristbl  |  October 21, 2014 at 6:24 pm

    Now come on, bring the dismissal of the lawsuit in South Dakota to top this. It went way too good these last two weeks, it now has to get worse I guess..

  • 52. jdw_karasu  |  October 21, 2014 at 6:26 pm

    This is the 1st:
    http://en.wikipedia.org/wiki/United_States_Court_

    4-2 Dem. We will win. In fact, if they're bored they might move fast on this.

  • 53. jdw_karasu  |  October 21, 2014 at 6:27 pm

    Exactly.

  • 54. guitaristbl  |  October 21, 2014 at 6:29 pm

    One Dem (chief judge) has already upheld Baker. That's a very simplistic analysis to make imo, based on ideological lines. Plus a senior judge may be appointed to the panel.

  • 55. wes228  |  October 21, 2014 at 6:30 pm

    I expect us to lose South Dakota.

    Ideally I'd like to see a win in the 6th, 11th, and Arkansas Supreme Court, then a loss in the 5th bringing us to the Supreme Court. By that point, we're looking at less than 10 states.

  • 56. guitaristbl  |  October 21, 2014 at 6:35 pm

    This loss along with a loss in SD will give officials in SC, KS, MT a reason to drag their feet even longer. It will also may tip Sutton again to the other direction (if he ever came towards the ME direction after all that's happened till August 6). It will also give something to Brown and his ilk to celebrate about and some donations to come. Nothing good comes out of this or the imminent loss in SD.

  • 57. Zack12  |  October 21, 2014 at 6:36 pm

    One judge held up Baker when Windsor wasn't in play.
    I'm sorry but save the doom and gloom for the 5th and 8th, not the 1st.

  • 58. wes228  |  October 21, 2014 at 6:37 pm

    I wouldn't put too much stock in a trial court's decision in Puerto Rico. And the 8th Circuit has its issues with the 2006 case.

    The Supreme Court has made it clear where they stand. We're in the endgame now.

  • 59. Ragavendran  |  October 21, 2014 at 6:38 pm

    Yeah, it's always a toss-up with Older judges. You have Barbara Crabb, who, like this judge, was a Carter appointee. And look how she ruled!

    (I deleted my comment to repost it with some parts emphasized in bold. After your reply, I couldn't edit it!)

  • 60. guitaristbl  |  October 21, 2014 at 6:38 pm

    Well you can't say I did not warn you on this one. I won't be acting in shock if the 1st upholds the bans (if it gets the chance to decide), that's for sure.

  • 61. guitaristbl  |  October 21, 2014 at 6:40 pm

    Well you may not but its exactly the kind of ruling state officials may have expected to have something to add to their briefs apart from dissents and Robincheux.
    As for SCOTUS again I'll take my cautious stand on this.

  • 62. jdw_karasu  |  October 21, 2014 at 6:40 pm

    My guess is that Lynch will be willing to change her mind. Windsor changed things, as we've seen all across the country. More than that, SCOTUS' recent lack of certs makes it clear where SCOTUS stands.

    Boudin won't be relevant unless he draws a straw on the panel.

    Torruella… who knows. We need to remember that he ruled to strike DOMA down. For a GOP judge to do that pre-Windsor was going out on a limb. I don't think he's as against us as say the lower court judge.

    The 1st is in the bag. If the other Circuits slow walk things enough, we'll get another positive ruling at a circuit level.

  • 63. guitaristbl  |  October 21, 2014 at 6:43 pm

    Let's hope you are correct about Lynch and Torruella. And moreover that the vicious rhetoric in the district court decision will also put them off.

  • 64. jdw_karasu  |  October 21, 2014 at 6:44 pm

    It's not just Windsor. It was the denial of all those certs. In addition, you have RBG trying to be as clear to the fence sitters as possible: no need to take up opinions that strike down bans because 5 of us agree with them… but if folks want to uphold bans, we'll hammer them.

    A Circuit panel has plenty of changes to go on now. The 1st will be happy to get in on the act if they have the time.

  • 65. wes228  |  October 21, 2014 at 6:45 pm

    Oh yes, no doubt the state defendants will be scurrying all over this one like the Louisiana case.

  • 66. jdw_karasu  |  October 21, 2014 at 6:48 pm

    Again… it was a 3-0 (including 2 GOP judges) to strike down DOMA. They split the baby. This is similar to how the 9th handled Perry: limit it to CA, and find a fine line to walk it up to SCOTUS.

    Pre-Windsor and Post-Windsor are different worlds. And post non-Certs are an entirely different world.

    We'll get a 3-0 or 2-1 ruling striking down PR's ban. PR won't ask for en banc, knowing the jig is up… but even if they do, it will be denied.

    People just want to find Sky Is Falling when ever a bump in the road hits. We're past those days.

  • 67. Zack12  |  October 21, 2014 at 6:56 pm

    Exactly, I can only imagine what the reactions will be if the 6th rules against us.
    The idea we weren't going to encounter bigoted judges was a pipe dream but just as the bigoted district court judges in Hawaii and Nevada were overturned, so will this judge.

  • 68. Zack12  |  October 21, 2014 at 6:58 pm

    If the 1st rules against us like some here think they will, then there is your circuit split for SCOTUS so we can get a final ruling once and for all.

  • 69. jdw_karasu  |  October 21, 2014 at 7:00 pm

    A Circuit panel can if the landscape has. They'll point to Windsor, and to the non-certs.

    Good lord… what do people think Judge Walker did in the Perry case? He was at the *district* level, and he blew off Baker because he believe the landscape changed even before Windsor.

  • 70. Zack12  |  October 21, 2014 at 7:02 pm

    Don't tell them that, they want to be negative and fear the worst.
    This is NOT the 5th or 8th circuits that are being discussed here.

  • 71. jdw_karasu  |  October 21, 2014 at 7:02 pm

    I doubt Sutton wants his name attached to something like that. If he did, he could have let his fellow GOP write the opinion already and simply concur.

  • 72. jdw_karasu  |  October 21, 2014 at 7:05 pm

    They won't. Just Chicken Little talk.

  • 73. Zack12  |  October 21, 2014 at 7:05 pm

    Indeed, Judge Cook is beyond the acceptable age to get onto SCOTUS so I'm sure she would have no qualms writing a vicious anti-gay option like this one.

  • 74. jdw_karasu  |  October 21, 2014 at 7:11 pm

    I remain mildly optimistic about the 6th. I think if Sutton wanted to rule against us, he would have already. After the non-certs, I'd add that I doubt he wants it to be his opinion that's overturned.

  • 75. weaverbear  |  October 21, 2014 at 7:12 pm

    Someone please correct me here if I am wrong, but this will be the first time that an appeal of a district court decision will happen in the 1st circuit, yes? Up until now the 1st has not had to weigh in, as all the states in the 1st came over to ME without it going to a federal court in each jurisdiction.

    As a result, there was no president set for the circuit as a whole in favor of ME that would cover PR (as there should be if (or rather when) this comes up in Guam or the Marianas Protectorate, as they're under the supervision of the 9th in their rulings in Latta & Sevcik.

    As for this ruling from the district judge in PR, he's older, born and raised in Rio Piedras with the bulk of his education from PR. Having spent time on the island myself, his personal attitudes don't surprise me. I will be surprised if this ruling survives the appeal to the 1st Circuit.

  • 76. Fledge01  |  October 21, 2014 at 7:24 pm

    Its not just what the 9th did, its what every court has done. Any Marriage Equality victory in federal court required the judge to assume Baker was no longer good law.

  • 77. jdw_karasu  |  October 21, 2014 at 7:32 pm

    For people wondering about the 1st back at the time of the DOMA cases, it was this:

    GOP: Boudin, Howard, Torruella
    DEM: Lynch, Thompson

    Lipez, a Dem, retired at the end of 2011 leaving one seat vacant.

    This was *not* a Liberal Court in 2012 when the DOMA case came down. More to the point, that's the needle that Lynch, both on the panel and as the Chief Justice, had to thread.

    Somehow, she got a pair of GOP judges to sign off on saying DOMA was unconstitutional. Was an agreement to explicitly punt on Marriage Equality via Baker part of what was needed to get a 3-0 unanimous opinion? Perhaps.

    What does the court look like now?

    DEM: Lynch, Thompson, Kayatta, Barron
    GOP: Howard, Torruella

    The court has flipped. That's what Lynch, or any of the Dems who get on the panel, have to work with now. They know that not only has the court flipped, but they have Windsor, the non-Certs, and RBG's Bat Signal on where SCOTUS stands to work with.

    It's quite likely that even if Lynch got on the panel, she's jump for joy to chance to get a second bite at the ME issue and wipe away the nuance of the DOMA rulings.

    We stand a better chance of picking off either the 5th or the 8th than we do of losing in the 1st, if timing wasn't an issue.

  • 78. jdw_karasu  |  October 21, 2014 at 7:34 pm

    It was 3 judges, 2 of them GOP and that one DEM, who struck down DOMA and punted on ME. With a different make up of the court:

    3-2 GOP –> 4-2 DEM

    Lynch handled the DOMA cases perfectly to get a 3-0 ruling. If given the chance on this one, she'll handle it perfectly to kill off the PR ban.

  • 79. Fledge01  |  October 21, 2014 at 7:42 pm

    The law has changed since they had the case. It doesn't take SCOTUS to overturn itself to for courts to derive new opinions about what they think the law is. SCOTUS ruling on this issue won't make it "official" nor does it make one perspective vs, another right or wrong. SCOTUS can get it wrong. Baker either is or isn't controlling as of now. SCOTUS will just add their opinion to the mix. And as of general principle of the law, lower courts defer to a SCOTUS opinion as if it were binding on them. Lower courts can always argue why things have changed and why they think SCOTUS would rule differently today and those lower courts can then rule against a previous SCOTUS ruling. That is exactly what I predict all the judges in the 1st will do. Things have changed since the 1st last ruled and SCOTUS's actions of denying cert is one of the new facts that those judges can use to justify why they are changing their opinion. Also, if I'm correct, they never really ruled that Baker was controlling, they just mentioned that it was. A statement that isn't a necessary part of deciding a case is just dictum and not very persuasive to any of the lower courts, and certainly not on itself.

  • 80. jdw_karasu  |  October 21, 2014 at 7:42 pm

    As far as what Lynch things of LGBT issues, here is an earlier ruling of her's seen through the eyes of a bigot going on a wildly entertaining bender:
    http://www.massresistance.org/docs/parker_lawsuit

    Yeah… those who have worries about Sandra Lynch need to put them to bed. She split the baby on DOMA to successfully thread a tricky needle given the make up of her Circuit at the time, which was also a needle that Circuits (see the 9th in Perry) and SCOTUS itself (both Windsor and punting on Perry) were fumbling around with rather than being firm and explicit.

    Barring a bunch of judges in the 1st suddenly retiring or otherwise leaving the bench, we have this one. Time to chill out.

    Beyond that… this ruling in PR is good. It shows just how nutty the other side is on reading the "law".

  • 81. jdw_karasu  |  October 21, 2014 at 7:46 pm

    You're correct on your first two paragraphs.

    Agree with your last sentence.

    On the first two sentences of your third paragraph… clearly he does not like Marriage Equality. He didn't have to write at the length he did, or as harshly as he did, unless the issue struck a core value of his in a wrong way. Not too hard to read between the lines on it.

  • 82. Fledge01  |  October 21, 2014 at 7:52 pm

    Ginsburg, when asked if its possible to take away marriage rights once they have been granted, said she couldn't comment on that. But watching the video, you see her smirk. She knows you can't take them away. I think that was telling of the fact that she was the brains behind the denial of cert a couple of weeks ago. That is also why she went out of her way in Minnesota last month to suggest that they may not take a case if there was no split. She was the champion behind this back-door way to make Marriage Equality in all fifty states an inevitable legal outcome. IMO all the appeals courts know this as well. I can see lower courts saying "I don't have the power to make Baker non-binding, I'm just a lowly lower court." Appeals courts know that they do have the responsibility to make that determination regarding Baker and SCOTUS is giving them the stern eye to make the right call so they don't have to.

    Marriage Equality is still a huge issue that drives elections and SCOTUS knows that half the country could loose respect for SCOTUS if they make that ruling. The Circuit Appeals courts know their job is to do the dirty work to make SCOTUS look good. They do this because making SCOTUS look good makes our democracy stronger.

  • 83. jdw_karasu  |  October 21, 2014 at 7:55 pm

    Sutton is too, especially for a GOP judge. If they were to win in 2016, it's almost certain they'll replace any retiring judges with new ones in the 45-55 age range, and probably not at the high end of that range. Alito is the only one they've appointed from RR to the present that was even 55. Stevens was 55, and Rehnquist was 48… so this is a long game they've played.

    They also know the demographics aren't great for them, so any chance they have in the White House they'll replace the old with a batch of new young ones. They were quite a bit ahead of the curve on that.

    Sutton will be 56 come the next election, and if a GOP judge wins, we know that no Dem is going to retire in those four years unless there's a health issue (which is possible). So Sutton will already have passed the current high end, and with every year will move further past it.

    Plus there's the Obamacare ruling where he failed to pass the loyalty test. :)

  • 84. Fledge01  |  October 21, 2014 at 7:59 pm

    The Baker thing was dictum. Precedent is never absolute if a judge has good reason to think the previous judges would rule differently today than they did before. Its legally easier for a circuit panel to make that call than it is for a district judge to make that call. That's why the PR ruling is not that big of a deal. As someone mentioned earlier, it gives us another opportunity for yet another circuit to rule in favor of Marriage Equality.

  • 85. jdw_karasu  |  October 21, 2014 at 8:03 pm

    I think RBG has been as clear as possible without coming right out and saying it. People who want to read the tea leaves can get it.

    I confess to being a bit surprised that SCOTUS didn't take up one of the cases simply because it would have let a ruling be made in early-to-mid 2015. That's a "safe" political spot. It's not the 2014 election, or the 2016 election. It would have put the issue to bed.

    Instead, by denial of the certs, it is a political issue right now. It's a rally the base moment in a number of states where things have gone against them, and gays are getting married. Or ones like in FL and GA where they feel the pressure.

    If SCOTUS stayed everything, took up the Utah case… then it would be a non-issue come the 2014 elections… save to rally some of our base in the old "There's still some fighting left to be done" fashion.

    So…

    I'm not quite in agreement with your last paragraph. Ask the folks in Utah what they think about SCOTUS. Or any of the states that had their bans killed off by SCOTUS denying cert. I think there might be some political damage.

  • 86. RnL2008  |  October 21, 2014 at 8:04 pm

    I agree…NOT going to be here at the 1st and once this appeal is heard, I believe the ruling will come down fast……..has Puerto Rico been paying ANY attention to the rulings from the other appeals courts? My guess just on the early read is NO, they haven't!!!

  • 87. Fledge01  |  October 21, 2014 at 8:08 pm

    What this judge misses, in his slippery slope gibberish, is that a judge is required to look at the case before them. Those other issues, like father daughter marriage are not before the court right now. There may or may not be valid rational reasons a state may use to block those marriages, but we don't have those sets of facts before us to speculate. The only facts we have are unrelated people of the same sex marrying. He should trust judges to make the correct call when it comes to those other issues, if that day should come, and not fear that his opinion today will somehow make it impossible for the law to compel a different outcome on those different facts. If we allow inter-racial marriage, then we must also allow an abstract ideas about milking cows to marry an abstract idea about irrational numbers. Where does it all stop?

  • 88. RnL2008  |  October 21, 2014 at 8:10 pm

    I agree…..things have definitely changed and when the 1st get's this case, I believe the question regarding Baker has long been answered….if we all remember this is the same reason given from the Judge in Nevada and the 9th overturned that ruling!!!

  • 89. Rick55845  |  October 21, 2014 at 8:12 pm

    Robicheaux

  • 90. StraightDave  |  October 21, 2014 at 8:14 pm

    Somehow the PR judge managed to miss Kennedy's "subject to constitutional guarantees". Just totally ignored its existence, or perhaps it was too subtle for him. I think he should take his own "inexplicable contortions of the mind or perhaps even willful ignorance" and hold them up to a mirror.

  • 91. MJ4  |  October 21, 2014 at 8:27 pm

    I think everyone needs to relax. Once again, no judge has ruled against marriage equality unless they were over 70 and/or Mormon. This judge (born in 1941) will be reversed in due course.

  • 92. Elihu_Bystander  |  October 21, 2014 at 8:52 pm

    Correct me if I am wrong, but this PR ruling is a grant of a motion by the defendants for dismissal. The ruling was a dismissal with prejudice.
    So the appeal will be that the court below erred in granting the motion to dismiss. If the appeal is granted in favor of the plaintiffs, the CA will simply remand the case back to the district court. Do I have that correct so far?
    And the case will proceed with the same judge who is in the words of weaverbear, “…older, born and raised in Rio Piedras with the bulk of his education from PR. Having spent time on the island myself, his personal attitudes don't surprise me.”

  • 93. Zack12  |  October 21, 2014 at 8:54 pm

    I'm not worried either.
    I really don't get why some flip out just because one or two bigoted judges rule against us.

  • 94. Elihu_Bystander  |  October 21, 2014 at 8:59 pm

    "…and or Mormon," may I add /Catholic

  • 95. Ragavendran  |  October 21, 2014 at 9:14 pm

    Arkansas Updates:
    (1) The reply brief was filed last Friday, completing the briefing.
    (2) The State Defendants do not oppose the motion to expedite calendaring oral argument. They too want a quick decision from the Arkansas Supreme Court.

  • 96. Ragavendran  |  October 21, 2014 at 9:17 pm

    Yes. Unless the judge retires, dies, or is otherwise unavailable, the case will be remanded back to him (if the dismissal is overturned by the First Circuit or the US Supreme Court). Since he has already made it clear how he would rule on the merits, he should recuse himself if assigned the case on remand. I don't know if the rules allow for the Plaintiffs to make a case for reassignment, and I'm not sure how such a motion would be received by the Chief Judge.

  • 97. Zack12  |  October 21, 2014 at 9:31 pm

    I imagine he would do what Judge Jones in Nevada did and recuse himself if it cames to that rather then give the order.

  • 98. Swifty819  |  October 21, 2014 at 9:48 pm

    The ninth circuit ruled in 1990 that Baker meant that gays were subject to rational basis. Then, a 3 judge panel in SK overturned because Windsor. They said that because of the development in SCOTUS, it was not necessary to go to en banc. The same applies here. Plus, as others have said, the makeup of the court is really different now.

  • 99. Ragavendran  |  October 21, 2014 at 10:01 pm

    Zack, this is a different situation. The judge in Nevada was bound to issue an order in our favor. If the case comes back to this judge on remand, it will be with instructions to continue proceedings (summary judgment or trial) and rule on the merits. He doesn't strike me as someone who'll recuse himself rather than uphold Puerto Rico's ban on the merits. When that happens and it goes up to the appellate level for the second time, and he is smacked down, then, like you say, he'll recuse himself rather than issue an injunction in our favor.

  • 100. Zack12  |  October 21, 2014 at 10:06 pm

    Ahh, got ya.
    From the sounds of it, this could go for a fair amount of time.

  • 101. Fortguy  |  October 21, 2014 at 10:13 pm

    Now we need a couple to file suit in the Virgin Islands to bring the 3rd Circuit into play.

  • 102. RnL2008  |  October 21, 2014 at 10:18 pm

    Does this Judge know that the United States is NOT a democracy, but a Democratic Republic?

    I mean we are NOT creating a NEW right, but fighting to be INCLUDED into an already EXISTING right…….and just because Gays and Lesbians win their right to marry DOESN'T change the right to marry for opposite-sex couples, nor will it mean couples will still procreate with or without getting married…….and to EVEN use the stupid argument of Father's marrying Daughters or polygamy is NOT even rational at this point…….and has this Judge EVER heard of the 14th Amendment?

    I want to know how ALL of the Justices who have ruled in favor of Marriage Equality got it WRONG, but this Judge and a minority few have gotten it right?

  • 103. Mike_Baltimore  |  October 21, 2014 at 11:22 pm

    So saith one of those who think the letter behind the judge's name entirely determines how they will rule – no further research necessary.

    As I've stated several times, the political and judicial philosophy of a judge is a starting point, but it is only that – a starting point. Otherwise, Senator Zell Miller (who was a registered Democrat) would not have been considered one of the most conservative Senators during the time he was in the Senate, and he would NOT have given a prime-time speech at the 2004 GOP convention, in support of shrub when he was nominated for a 2nd term for President.

    And Judge Posner, who is considered a very conservative judge when it comes to judicial philosophy, would not now be considered a 'good guy' for the opinion on ME he recently authored.

    Judge Jones III ran for Congress on the GOP platform, and was supported and sponsored by Senator Sanctorectum for the Federal bench (Middle District of Pennsylvania), but he ruled against the teaching of creationism by a different name in high school science, and ruled for ME in Pennsylvania.

    The letter behind a judge's name can be a very good starting point, but then a person needs to do a LOT more research to properly determine if a person is a 'good guy' or a 'bad guy'.

  • 104. Mike_Baltimore  |  October 21, 2014 at 11:44 pm

    SCOTUS, IMO, has already knocked down the 'Baker' decision when it denied the Requests for Cert of several District and Circuit decisions. If 'Baker' applied, why would SCOTUS have denied cert, allowed ME to go into effect in all those states (and others), and not take a case to LOUDLY state that the District and Appeals Courts erred when they took up an ME case? After all, if 'Baker' applied, then ALL the courts who have ruled in favor of ME have violated 'Baker' by allowing a case to proceed. SCOTUS apparently thought the courts ruled properly, thus 'Baker' does NOT apply, and is not SCOTUS precedent.

    Also, PR is mostly very observant Latin Rite Catholic (especially of the hierarchy), and the fastest increasing Xian belief system is virulently anti-ME Protestant fundamentalism. I wouldn't be very surprised if the judge held one or the other of those religious belief systems.

  • 105. Mike_Baltimore  |  October 21, 2014 at 11:56 pm

    All that needs to happen for the 1CA to decide that 'Baker' is not precedent is for SCOTUS to accept a case and overrule the 1CA, or to send the case back to the 1CA or District judge, and determine a new decision in light of new developments.

  • 106. Mike_Baltimore  |  October 22, 2014 at 12:56 am

    "Up until now the 1st has not had to weigh in, as all the states in the 1st came over to ME without it going to a federal court in each jurisdiction."

    Forgetting 'Gill et al. v. Office of Personnel Management, 682 F.3d 1 (1st Cir. 2012)'?

    A decision made by 1CA in 2012, and a request for certiorari held by SCOTUS until the day after Prop H8 and Windsor were decided, then the request for cert was denied.

  • 107. Rakihi  |  October 22, 2014 at 1:01 am

    This is a really cool timeline.
    http://www.pewforum.org/2014/10/20/same-sex-marri

  • 108. Mike_Baltimore  |  October 22, 2014 at 1:01 am

    Even my second step-father, who almost joined the JBS, was for ME.

    Using the political party as the sole determinate of whether a person is or is not friend or foe is a fallacious argument.

  • 109. Ragavendran  |  October 22, 2014 at 3:14 am

    Gill was a federal-DOMA lawsuit. I think the point made was that the rights to state recognition and licensing of marriage in the states of First Circuit were not won through federal courts. They were either legislated or passed by popular vote.

  • 110. Ragavendran  |  October 22, 2014 at 3:18 am

    I don't think that the First Circuit, at least on this forthcoming appeal, will be deciding on the constitutionality of the PR ban. They will simply decide whether the district court erred in dismissing the lawsuit, and if they decide that it did, they will reverse the dismissal and ask the district court to reach the merits and rule on the constitutionality first. Of course, they'll know it's going to come back to them again, no matter how the district court rules on the merits.

  • 111. guitaristbl  |  October 22, 2014 at 3:36 am

    The difference is we expect a negative ruling from the 6th. This came out of nowhere and personally I wasn't aware of the 1st's position on Baker. We'll see.

  • 112. FilbertB  |  October 22, 2014 at 5:11 am

    Love reading your comments

  • 113. ragefirewolf  |  October 22, 2014 at 5:37 am

    Raga, why are your comments green now? 😛

  • 114. ragefirewolf  |  October 22, 2014 at 5:44 am

    It is indeed… :)

  • 115. ragefirewolf  |  October 22, 2014 at 5:44 am

    Thank you, Filbert.

  • 116. ragefirewolf  |  October 22, 2014 at 5:45 am

    Thank you, Scottie.

  • 117. wes228  |  October 22, 2014 at 5:49 am

    I really hope not, especially since the District Court essentially ruled on the merits anyway. "This Court is bound by Supreme Court precedent, which is our sworn duty to uphold and honor, which absolutely prohibits us from ruling on the merits of this case. However, I will now proceed at length to explain to you why you would lose anyway."

  • 118. wes228  |  October 22, 2014 at 5:50 am

    Or won in the state courts (ahem Massachusetts).

    It's funny that 10 years ago we scored our first judicial victory at the Supreme Judicial Court of Massachusetts, and now the debate is returning to Boston!

  • 119. wes228  |  October 22, 2014 at 5:56 am

    Yup, in fact, they could have summarily reversed "in light of Baker v. Nelson."

    Unfortunately, a denial of cert can send clear messages through the tea leaves, but it doesn't set any precedent legally. It is not an instruction to other courts on how to rule.

  • 120. wes228  |  October 22, 2014 at 5:58 am

    Exactly…it goes back to Christian Legal Society v. Martinez…in the eyes of the law there is no difference between homosexuality as conduct and homosexuality as *status*. So therefore, you cannot argue that this is about the *act* of marrying someone of the same sex. It is about gay *people* wanting to get married. "A tax on wearing yarmulkes is a tax on Jews" and a ban on same-sex marriage is a ban on gay people from ever getting married.

    However, in Puerto Rico, it looks like dissenting, reversed, and vacated opinions rule the day.

  • 121. JayJonson  |  October 22, 2014 at 6:07 am

    I agree with jdw_karasu's comment above about the First Circuit. Like him or her, I believe that the First Circuit will do the right thing.

    The Gill decision was a unanimous First Circuit declaring Section 3 DOMA unconstitutional in the combined cases Gill v. Office of Personnel Management and Massachusetts v. United States. The decision, authored by Judge Michael Boudin, who was appointed to the bench by President George H. W. Bush, was the first time DOMA was declared unconstitutional by a federal appellate court. Chief Judge Sandra Lynch, who was appointed by Clinton, and Judge Juan Torruella, who was appointed by Reagan, joined in Boudin's decision. Boudin is no longer on the bench, but Lynch and Torruella are. (jdw_karasu's speculation that the ruling may have been very narrow in order to get a unanimous ruling is persuasive to me. The current composition of the First Circuit is more liberal now and Chief Judge Lynch may be eager to make a more expansive ruling now.)

    The ruling dealt narrowly with the question of federal recognition of same-sex marriage in states where such marriages are legal and with benefits for same-sex couples, not with the legality of same-sex marriage itself.

    The decision upheld the opinion of U.S. District Court Judge Joseph Tauro that the federal law defining marriage as consisting of only one man and one woman violates the equal protection clause of the Fifth Amendment. The Court rejected Tauro's holding that DOMA violated the Tenth Amendment, but it evoked the principles of federalism in reaching its decision.

    The Court declined to apply "heightened scrutiny" in testing the legislation, but it relied on recent decisions, such as Romer v. Evans, that acknowledged "the historic patterns of disadvantage suffered by the group adversely affected." In those decisions, the Supreme Court, Boudin wrote, "did not adopt some new category of suspect classification or employ rational basis review in its minimalist form; instead, the Court rested on the case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered."

    Applying this standard, which is sometimes described as "rational basis with teeth," the Court concluded: "[M]any Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest."

    The decision paid far greater credence than deserved to the argument that Congress was not motivated by hostility to homosexuals when it passed DOMA. It did, however, find that "Several of the reasons given [to justify the rational basis of the legislation] do not match the statute and several others are diminished by specific holdings in Supreme Court decisions more or less directly on point. If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress' will, this statute fails that test."

    Mary Bonauto of Gay & Lesbian Advocates & Defenders (GLAD) represented the plaintiffs in Gill and Massachusetts Attorney General's Office Civil Rights section chief Maura Healey represented the state of Massachusetts. They were joined in some arguments by DOJ Civil Division Chief Stuart Delery. (Healey is currently running for Massacusetts Attorney General and Delery is now an Associate Attorney General of the United States, one of the highest openly gay members of the Obama Administration.)

    Notwithstanding the federalism that informs the First Circuit decision in Gill, I cannot imagine a First Circuit panel agreeing after Windsor that there is no federal interest in the right to marry a person of the same sex. Nor can I imagine a panel signing on to the bigotry inherent in the Puerto Rican decision.

  • 122. StraightDave  |  October 22, 2014 at 6:16 am

    I would consider that non-opposition to be very encouraging. Since a cert denial is more or less a given these days, the only reason to speed things up would be to get rid of the ban. If AR wanted to hang on to it as long as possible they would not expedite. This isn't TX or MS and they may just want to put this all behind them. If the AR SC does the right thing, which I >50% expect, I don't see any further appeal.

  • 123. wes228  |  October 22, 2014 at 6:25 am

    Another ludicrous point by the District Court in Puerto Rico. How can you say that no federal question is implicated given Windsor? Windsor opened up a host of federal benefits to married same-sex couples, which same-sex couples in Puerto Rico now do not have access to.

    It's one thing to say that Windsor does not compel a state to allow same-sex couples to marry. But to say that there still exists no substantial question of federal law is absurd.

  • 124. ragefirewolf  |  October 22, 2014 at 6:37 am

    If Puerto Rico is not a state, and it isn't, then why is it being granted deference in terms of states' rights in the first place?

  • 125. JayJonson  |  October 22, 2014 at 6:38 am

    Yes, evoking Windsor at this stage is absurd. But what else can the poor judge do? He quite literally has pre-judged the case. He knows what conclusion to reach, but how to get there? He has to ignore the equal protection dimensions of Windsor and pretend the case was decided only on the basis of federalism, but that actually is not really conclusive. So he has to grasp at straws, and so he reaches out to poor bedraggled Baker. Even he knows that it is absurd, hence he reveals his own prejudices in the conclusion extolling traditional marriage and raising all the NOM talking points from incest to polygamy. It is a disgraceful performance.

  • 126. Randolph_Finder  |  October 22, 2014 at 6:44 am

    I read the "do not oppose" as we want this over fast as well, in fact we oppose the other side's request to actually have arguments in front of the Arkansas Supreme Court.

  • 127. F_Young  |  October 22, 2014 at 6:48 am

    "This Court is bound by Supreme Court precedent, which is our sworn duty to uphold and honor…"

    Did the court really say that? Do District Court judges actually swear to uphold Supreme Court precedent, or is the judge just making things up?

    (I can't access the judgment from this computer.)

  • 128. wes228  |  October 22, 2014 at 6:50 am

    Congress has allowed Puerto Rico to set up a territorial legislature that has many of the same powers as a state legislature. Unlike a state legislature however, Congress can override any Puerto Rican law, and could even abolish the territorial legislature entirely.

  • 129. ragefirewolf  |  October 22, 2014 at 7:07 am

    But does that matter in terms of federalism? Does that mean in terms of this lawsuit they would be considered a state? They are suing on behalf of the 14th Amendment, right?

  • 130. wes228  |  October 22, 2014 at 7:13 am

    Congress could pass a law requiring Puerto Rico to perform and recognize same-sex marriages (even though they couldn't for the states). No such law exists, however, and Congress has given the Puerto Rican legislature the same exact power as the states in defining and regulating domestic relations. So while Puerto Rico is not a state, its powers in this regard are the same as those of the states.

    The guarantees of liberty, due process, and equality as guaranteed by the 5th Amendment of the Constitution (which operate on the same exact terms as the 14th Amendment), has been held to apply to Puerto Rico via federal laws and court rulings, even though it is an unincorporated territory and the Constitution does not apply automatically to it.

  • 131. B_Z  |  October 22, 2014 at 7:31 am

    The district court ruling in Nevada was also a motion to dismiss. So the 1st Circuit could still do the same thing here that the 9th Circuit did there.

  • 132. hopalongcassidy  |  October 22, 2014 at 7:34 am

    Hardly a surprise from a medieval-minded halfbreed descendant of the Spanish Inquisition…

  • 133. guitaristbl  |  October 22, 2014 at 7:38 am

    After yesterday's fiasco (I suppose Brian Brown is still celebrating..), lets move on to daily news from the 6th : nothing today but there is an opinion by Sutton about two people convicted for a bank robbery or something. Sutton's opinion begins with the line "Quentin Sherer has a habit of robbing banks". From the first line you just know how he feels about the issue, he can't really hide his feelings. I wonder if he will be that ironic if he writes the anti – equality opinion as well.

    In general everything posted today seems to be written by sutton, I haven't seen an opinion from him in a long time. Interesting.

  • 134. ragefirewolf  |  October 22, 2014 at 8:05 am

    Wow. That is both racist and historically inaccurate. Quite the combo.

  • 135. ebohlman  |  October 22, 2014 at 8:23 am

    Perhaps people named Sutton shouldn't try to write witty things about robbing banks.

  • 136. Steve27516  |  October 22, 2014 at 9:03 am

    Eric, that's an important observation — perhaps even crucial.
    There was a discussion here on EoT about a week ago about Puerto Rico's status. Since Puerto Rico is not a state, I should think that "states' rights" don't apply. Baker said there was no "federal question" – but would it not be the case that all laws in Puerto Rico are potentially subject to review by the federal government? I think wes228 pointed out that the 14th Amendment applies to Puerto Rico residents only because the federal government chooses for that to be the case. By definition, any legal matter in Puerto Rico is a federal question. What do others make of this? wes228? Any thoughts?

  • 137. wes228  |  October 22, 2014 at 9:10 am

    Congress has passed a law allowing Puerto Rico to have a legislature that has the same exact rights as states to regulate domestic relations. So in this regard, Puerto Rico's status does not make much of a difference.

    If states have the right to ban gay people from marrying, then so does Puerto Rico.

  • 138. Steve27516  |  October 22, 2014 at 9:20 am

    OK; interesting.
    I care deeply about the Puerto Rico question as my dearest friend is Puerto Rican and I visit the island twice a year.
    Lest anybody take this district judge's rant as representative of the whole island, I'll point out that Puerto Rico has employment anti-discrimination laws protecting gays and lesbians – unlike many of the States.

  • 139. FredDorner  |  October 22, 2014 at 9:37 am

    Does the Baker precedent even apply to territories? I would think federal rulings like Windsor would be far more relevant.

  • 140. hopalongcassidy  |  October 22, 2014 at 9:50 am

    You deny facts? How odd.

  • 141. ragefirewolf  |  October 22, 2014 at 9:58 am

    No, you got the medieval-minded part right. Not sure what the ethnicity of the judge has to do with anything or how it makes you any better than someone calling you names based on your sexuality. Also, you need to read history if you think the Spanish Inquisition had anything to do with Spanish colonization of Puerto Rico.

  • 142. Randolph_Finder  |  October 22, 2014 at 10:10 am

    What, you mean Sutton has something else to do than write on Marriage Equality? :)

  • 143. Leo  |  October 22, 2014 at 10:10 am

    FWIW, here's what the different First Circuit judges thought of initial hearing en banc in the DOMA case. (I am not trying to draw any conclusions from this, but since many people, myself included, are wondering whether 1CA will take this case en banc, figured it might be helpful.)

    Lynch (Clinton appointee): Chief Judge then and now, NO to en banc, YES to strike DOMA
    Toruella (Reagan appointee): Circuit Judge then and now, YES to en banc, YES to strike DOMA
    Howard (G.W. Bush appointee): Circuit Judge then and now, NO to en banc
    Thompson (Obama appointee): Circuit Judge then and now, YES to en banc
    Kayatta (Obama appointee): new Circuit Judge
    Barron (Obama appointee): new Circuit Judge
    Boudin (G.H.W. Bush appointee): Senior Judge, NO to en banc, YES to strike DOMA
    Lipez (Clinton appointee): Senior Judge, YES to en banc

  • 144. hopalongcassidy  |  October 22, 2014 at 10:17 am

    I just call a spade a spade. I realize the pearl clutchers hate that sort of political incorrectness I am too fucking old and tired of bullshit to worry about someones feeewings, especially some insane catholic sermonizing asshole like that judge.

  • 145. ragefirewolf  |  October 22, 2014 at 10:23 am

    So he's a sermonizing asshole…I hardly disagree with you there…but I will call a racist pig a racist pig. Don't be one and we'll be cool.

  • 146. sfbob  |  October 22, 2014 at 10:29 am

    Sorry buddy I normally like what you have to say but in this case I can't even go there. The term "halfbreed" is simply racist and unacceptable. We're all human; "race" is a construct that means little to nothing other than as an excuse to demean. The judge deserves to be trashed on the quality of his arguments, NOT on the basis of his ethnic background.

  • 147. SeattleRobin  |  October 22, 2014 at 10:59 am

    Tornado, I had the same response you did to the opinion. I didn't like the reliance on Baker, but I thought he supported it as well as anyone could, especially since there's first circuit precedence. (Though there's an argument it was dictum only.) I didn't like how he construed Windsor, but he wasn't completely off his nut in how he did so. If the judge had left it at that it would have been okay.

    But then he lost all credibility when he used his conclusion to display his own personal bias, and his gays are icky stance leaked out all over the page.

  • 148. DeadHead  |  October 22, 2014 at 11:02 am

    Referring to people as "pearl clutchers" using phrases and terms such as "call a spade a spade" "halfbreed" is being racist and demeaning. But that's how a lot of older white men in this country so we shouldn't be surprised to find a few racists here in this forum. They have a hard time manning up to that and hate being called on it.

  • 149. wes228  |  October 22, 2014 at 11:04 am

    Are you serious??? First of all, it was dicta and it was dicta pre-Windsor. He could have done the same thing every other court (except Louisiana) did regarding Baker in light of Windsor.

    Also, you have to be brain damaged to think that Windsor was decided on federalism principles…because THE DECISION DIRECTLY SAYS THAT IT ISN'T!!! That it is based purely on equal protection grounds.

    And if he really believed Baker v. Nelson required him to dismiss the case, he would have done so. Instead, he continued to include a discussion on the merits as well. If there isn't a federal question (like Baker says), then the court doesn't have jurisdiction over the case meaning you're not supposed to talk about the merits!!!!

  • 150. ragefirewolf  |  October 22, 2014 at 11:10 am

    Yup. It saddens me that they cannot see the parallels our struggles.

  • 151. SeattleRobin  |  October 22, 2014 at 11:20 am

    The first part of the opinion includes a bit of history regarding the laws operating in Puerto Rico. (Though given the rest of the opinion, I'm not sure how slanted or not it was, but still interesting.)

  • 152. tornado163  |  October 22, 2014 at 11:20 am

    I agree that "pearl clutchers" and "halfbreed" are offensive, but "call a spade a spade" isn't. It's referring to a shovel and the phrase goes back hundreds of years without any racial overtones..

  • 153. wes228  |  October 22, 2014 at 11:23 am

    How is pearl clutcher racist? I think of old women in church getting their panties in a bunch over nonsense.

  • 154. Ragavendran  |  October 22, 2014 at 11:43 am

    Yes, but in Nevada, "Jones also analyzed the plaintiffs' other arguments "so that the Court of Appeals need not remand for further proceedings should it rule that Baker does not control…"" See Wikipedia: http://en.wikipedia.org/wiki/Sevcik_v._Sandoval

  • 155. Ragavendran  |  October 22, 2014 at 11:44 am

    Green? I'm sorry – I don't understand…

  • 156. wes228  |  October 22, 2014 at 11:49 am

    The judge in this case also did this without outright saying so. He did discuss the merits of the case at length.

  • 157. jdw_karasu  |  October 22, 2014 at 12:00 pm

    jdw = he

    :)

    I like your walk through the DOMA case. Considering the time frame and in hindsight, I don't think it was a terrible ruling for our side. I think Lynch was in a tight spot, but the trio worked together well enough to get a 3-0 striking down of DOMA out of a panel that included 2 GOP judges. That was a positive leading into Windsor at the higher court.

  • 158. jjcpelayojr  |  October 22, 2014 at 12:00 pm

    Baker is as controlling as the recent 4 Appellate cases that were recently denied cert that specifically targeted the federal question of marriage equality. Baker and the 4 cases were dismissed. If anything, the 4 recent cases should be controlling.

  • 159. jdw_karasu  |  October 22, 2014 at 12:02 pm

    No one is using it as a sole determinate. But if you want to count up the % of Dem judges who have voted against us and the % of GOP judges who have voted against us, we all know there gap is significant.

  • 160. Ragavendran  |  October 22, 2014 at 12:05 pm

    Nope, I disagree. He recounted the arguments made by plaintiffs and defendants, discussed the standard for ruling on the motion to dismiss, standing of the plaintiffs, and then the lengthy subsection was devoted completely to Baker v. Nelson. There was no separate discussion on the merits, for example, the level of scrutiny, rational bases, sexual orientation or gender based discrimination, fundamental right, nothing. All that he said about the merits was in his conclusion. And that's not much structured legal analysis.

    By contrast, the Nevada judge effectively laid down a detailed summary judgment analysis of the merits, claiming that:

    “Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion. However, material which is properly submitted as part of the complaint may be considered on a motion to dismiss.” Similarly, “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss” without converting the motion to dismiss into a motion for summary judgment. Moreover, under Federal Rule 7 of Evidence, a court may take judicial notice of “matters of public record.” Otherwise, if the district court considers materials outside of the pleadings, the motion to dismiss is converted into a motion for summary judgment."

    and

    "Although the Court finds that Baker precludes a large part of the present challenge, the Court will conduct a full equal protection analysis so that the Court of Appeals need not remand for further proceedings should it rule that Baker does not control or does not control as broadly as the Court finds."

    Such an in-depth analysis is absent in the Puerto Rico ruling. Also, at the very beginning of his opinion, the Nevada judge made it clear what he set out to do, procedurally:

    "The Court has heard oral argument on Governor Sandoval’s and Clerk–Recorder Glover’s separate motions to dismiss. The Coalition, Clerk–Recorder Glover, Governor Sandoval, and Plaintiffs have since filed cross motions for summary judgment. The Court decides all of these motions via the present Order."

    And if you look at the last page of the Nevada opinion, he did formally rule on the summary judgment motions as well: http://www.lambdalegal.org/sites/default/files/se

  • 161. ragefirewolf  |  October 22, 2014 at 12:12 pm

    The bar that has your name in it…it's a different color than mine and several others. I think the same goes for Rose – hers is green too.

  • 162. Dal_i_gredu  |  October 22, 2014 at 12:19 pm

    I think that their bars appear green to you because you are following them. They are not green in general.

  • 163. ragefirewolf  |  October 22, 2014 at 12:21 pm

    Ah ha! Very good. That would make sense because I am. Haha. Thanks.

  • 164. Ragavendran  |  October 22, 2014 at 12:28 pm

    Mystery solved! :)

  • 165. Ragavendran  |  October 22, 2014 at 12:32 pm

    Oops – My bad! That was a HUGE decision indeed – and it looks like we're coming full circle :)

  • 166. StraightDave  |  October 22, 2014 at 12:46 pm

    I guess the AG doesn't want to stand up in public and repeat silly arguments anymore. After everybody else got laughed out of court, he wants no part of that. Deeper and deeper into the South we burrow, only 200 miles from the Gulf of Mexico. Be afraid, MS. Be very afraid.

  • 167. Mike_Baltimore  |  October 22, 2014 at 1:19 pm

    ". . . this will be the first time that an appeal of a district court decision will happen in the 1st circuit, yes?"

    For 1CA to rule on Gill, someone had to appeal to the 1CA. No court can make a decision unless and until there is a case before it. 1CA DID make a decision, therefore someone appealed the case to 1CA.

    'weaverbear' made no mention of state or Federal appeal, just an appeal. If nobody had appealed Gill, then SCOTUS would not have received the case in the form of a request for cert. Thus there was an appeal (twice, in fact – once to the 1CA, and again to SCOTUS).

  • 168. Chuck_in_PA  |  October 22, 2014 at 1:27 pm

    I agree with you strongly, Rose. I always try to use Marriage Equality, and not Gay- or Same-Sex Marriage. Those terms are used by our opponents to change the argument to appear it is about something foreign.

  • 169. Mike_Baltimore  |  October 22, 2014 at 1:31 pm

    A 'gap' of what, 2 or 3 in almost 50 rulings?

    And not all 'D' judges have (or will) rule in our favor (even those appointed by President Obama) – South Carolina, for example.

  • 170. Ragavendran  |  October 22, 2014 at 1:37 pm

    Perhaps you're pulling the quote out of context of weaverbear's entire first paragraph? If you read the paragraph in full, you'll see that the question of the "1st weighing in" means a federal lawsuit. Also, if I ignore the rest of the paragraph and read only the portion of weaverbear's comment that you cited in your latest comment, weaverbear could also have been talking about any case that was ever filed in a district court, not necessarily a marriage-related case. So, I think that you have to read the whole paragraph to see the context. In support of my previous comment, I took "states came over to ME" as meaning in-state licensing and recognition of marriages as well, not just federal recognition of marriages performed in states where it was already legal.

  • 171. Elihu_Bystander  |  October 22, 2014 at 4:58 pm

    As I understand, Porto Rico is officially neither a territory nor a state. It has a special status called a commonwealth (not to be confused with the Commonwealth of Virginia etc.). Unique rules apply to Porto Rico.

  • 172. SeattleRobin  |  October 23, 2014 at 7:46 am

    Yes, I was serious. My point was that his opinion is probably the best that can be done given the facts, arguments, and legal history. If you leave out his conclusion, he at least sounds rational, though seriously out of touch.

    I'm not saying his ruling can't be easily picked apart, because any reader here can easily do so, let alone an experienced attorney or judge. But compared to Feldman's decision it at least had some meat on the bones. The whole point is that it's extremely difficult to write a winning opinion upholding a ban, and this is probably as good as it can get. Which won't be good enough in the long run.

    Then the judge proceeded to shoot himself in both feet with his biased, 19th century mindset conclusion.

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