Puerto Rico’s ban has been upheld:
U.S. District Judge Juan M. Pérez-Giménez said in his decision that by dismissing an appeal in Baker vs. Nelson, a 1971 case in which two men sought to marry in Minnesota, the Supreme Court bound all lower courts to assume bans on same-sex marriage do not violate the Constitution. The high court could choose to overrule itself but has not, he said.
Lyle Denniston provides important context:
The San Juan jurist said the Supreme Court has never overruled that decision, so it is still binding on lower federal courts — an argument that has failed in all of the recent rulings against such bans. But the judge also said that he was bound to follow the Baker precedent because the First Circuit, which has binding legal authority in Puerto Rico cases, had itself done just that two years ago.
In a Massachusetts case in which the First Circuit had struck down a key part of the Defense of Marriage Act, barring all federal marital benefits to same-sex couples already legally married under their state’s laws (the same result that the Supreme Court reached last year), the First Circuit had said that Baker v. Nelson was still a binding precedent, Judge Perez-Gimenez noted. That ruling, he added, tied his hands.
Dale Carpenter explains the significance of the ruling:
[T]he issue of Baker‘s effect is actively being considered in other circuits. Most immediately, the Sixth Circuit is already considering a case that turns in part on whether Baker controls. In the Eighth Circuit, a motion to dismiss a same-sex marriage challenge was argued in a South Dakota district court last Friday. (The challenge was brought by my former student Joshua Newville.) And the Fifth Circuit will soon schedule argument in Texas’s appeal from a district court decision striking down that state’s limitation on marriage.
No matter whether it’s decided on Baker grounds or on substantive grounds, a decision denying same-sex marriage at the appellate court level would create the circuit split on same-sex marriage that awaits resolution by the Supreme Court.
Ian Millhiser expects the Puerto Rico decision will be reversed:
[W]hile Pérez-Giménez clearly holds very passionate views on the question of whether same-sex couples are entitled to the same rights as everyone else, his views are unlikely to persuade many of his fellow judges. It’s even possible that his opinion could ultimately wind up bolstering the case for marriage equality. That’s because his decision will appeal to the United States Court of Appeals for the First Circuit, a court dominated by Democratic appointees (although, it is worth noting that Pérez-Giménez was appointed to the bench by President Jimmy Carter). All four of the states that comprise the First Circuit — Maine, Massachusetts, New Hampshire and Rhode Island — are already marriage equality states, so a decision out of a federal court in Puerto Rico is the only path to bring a marriage equality case before this circuit.
Given the makeup of the First Circuit, the overwhelming consensus among federal judges in favor of marriage equality, and the belligerent tone of Pérez-Giménez’s opinion, it is unlikely that his decision will be upheld on appeal.
The Dish 