What Judge Pérez Giménez' Decision May Actually Mean

*Disclaimer: The following article contains quoting directly from the original texts, both in wording and language.*  

Late Tuesday night, the people of Puerto Rico were rocked with Judge Juan M. Pérez Giménez’ order about the Supreme Court’s decision towards recognizing homosexual marriage; he has decided that the order does not apply to the island. Before you get your pitchforks out and start organizing a mob, let’s analyze exactly what he’s saying and why he may be saying it. His decision may be a way of putting pressure on a long overdue issue in Puerto Rico.

Back in June 2015, in Obergefell v Hodges, 576 U.S. ___ (2015), the Supreme Court of the United States recognized homosexual marriage as a constitutionally protected right, on par with heterosexual marriage. Their decision was based on the Fourteenth Amendment of the Constitution, which clearly states the following, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.” Without paying much attention to the wording, the people celebrated a milestone in society that summer. Yet, the wording is exactly what takes us to the problem we have upon us.

Here is where it gets tricky, as you can see in that first line it declares that no state can deprive the people of privileges, yet Puerto Rico is not a state. While to the common Joe the wording may be insignificant, in the law, each word is picked out to convey the exact message that is desired. One can’t simply decide that state can be substituted for territory; state means state, and only state, which Puerto Rico is clearly not.

Taking it to the present day, Judge Pérez Giménez is currently presiding the case of Conde-Vidal v García Padilla. Ada Conde Vidal is a Puerto Rican, human rights lawyer that, along with other plaintiffs, have sued the state against article 68 of the Civil Code of Puerto Rico, which states that marriage must be between a man and a woman. The article states the following:

El matrimonio es una institución civil que procede de un contrato civil en virtud del cual un hombre y una mujer se obligan mutuamente a ser esposo y esposa, y a cumplir el uno con el otro los deberes que la ley les impone. Será valido solamente cuando se celebre solemnice con arreglo a las prescripciones de aquella y solo podrá disolverse antes de la muerte de cualquier de los dos cónyugues, en los casos expresamente previstos en este código.”  (Translated to: "Marriage is a civil institution that proceeds a civil contract in virtue in which a man and a woman are mutually obligated to be husband and wife, and to meet with each other's suites that the law imposes on them. It will be valid only when it is held solemnized in accordance with the requirements of that and can only be dissolved before the death of any of the two spouses, in the cases expressly provided in the code.")

Conde Vidal and her fellow plaintiffs have been in a battle for a derogation of this article as unconstitutional for the last two years. According to Judge Pérez Giménez’ decision, their request is “a determination of Article 68 and any other Puerto Rican law that: (i) prohibits same-sex marriage; (ii) denies same-sex couples, and (iii) refuses to recognize same-sex marriages validity performedunder the laws of another jurisdiction, violate the Fourteenth Amendment to the Constitution of the United States.”

You might be asking yourself, why wasn’t the case solved by the Supreme Court’s ruling? The case was being considered by the First Circuit of Appeals in Boston, yet it was returned after 12 days of the historic Supreme Court decision back to the Puerto Rican courts, where it landed on Judge Pérez Giménez’ desk.

Now we’ve come back full circle to Judge Pérez Giménez' 10 page decision, a document that this author urges you to read. The judge does not contend that Obergell is wrongly decided, but that it does not apply to Puerto Rico because, as a territory, we do not get the full protection of rights recognized under the Fourteenth Amendment. He clearly states, “notwithstanding, the incorporation of fundamental rights to Puerto Rico through the Fourteenth Amendment, unlike the States, is not automatic.” By which he means that unlike the states, federal ruling does not automatically apply to a territory such as ourselves. He continues by stating, “ thus, for the reasons that follow the court concludes that absent an express decision from the Supreme Court of the United States, the Supreme Court of Puerto Rico, Congress, or the Puerto Rico Legislature, the fundamental right claimed by the plaintiff in this case has not been incorporated to Puerto Rico.” Now here is where it gets good, he’s saying that even if we are US citizens, since the place where we live and love is a territory and not a state, the Supreme Court’s decision to overrule state law on homosexual marriage does not apply to us, because we are not a state!

Not only does his decision affect our people due to homosexual marriage, but now there is an added pressure to the Supreme Court to decide on Puerto Rico’s status. This manner must be handled delicately because if the Supreme Court decides to rule in favor of Judge Pérez Giménez’ view, they are stating that Puerto Rico is not, and may never be, a state. Not being a state is obvious, but if they do impose that this does not apply to us because we are not a state, then any time of decision that over rules a state law does not apply to Puerto Rico. This means that laws, such as the death penalty, will be under local discretion. Yet, if they rule against Judge Pérez Giménez’ decision, then they are implicating that we have to comply with the requirements and duties of state, and that we pretty much are a title-less state. The opinion opens up a very complicated can of worms.

Regardless of the decision taken by the Supreme Court concerning Judge Pérez Giménez’ ruling, it will go down in history books and may change Puerto Rico’s status forever.

 

 

Código Civil, 1930, art. 68.

Ada Conde Vidal, Et Al., v Alejandro Garcia-Padilla, Et Al., Civil No. 14-1253,

Obergell v Hodges 576 U.S. __ (2015)

U.S. Constitution. Art. XIV, Sec. 1.

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