Ángel Luis Casiano.
Ada Conde and Ivonne Álvarez are household names within Puerto Rico’s LGBT community. As a civil rights attorney for many years, it was no surprise when Conde married her partner in Massachusetts, in the wake of same-sex marriage legalization there 10 years ago.
The couple, however, live in Puerto Rico, which does not recognize their union as valid. Determined to change that, in March of this year the couple launched a legal challenge against the Commonwealth of Puerto Rico’s same-sex marriage ban. Three months later, Lambda Legal came on board and several plaintiffs were added. Their case was a robust challenge to the Commonwealth’s ban and the government’s response was highly anticipated.
A few hours before the deadline, the commonwealth moved to dismiss the case. The filing was essentially a rehash of the arguments set forth by conservative-leaning state governments throughout the nation. “Marriage is the province of the states”; “judges should not make law”; the usual.
One baffling aspect of the commonwealth’s response was its assertion that the plaintiffs, who by now included five same-sex couples, lacked standing to sue because they were not harmed by the ban. Perhaps such assertion was the reason why the commonwealth’s response was deemed to be little more than a token defense.
Then came October 6, when the United States Supreme Court announced its refusal to review decisions favoring marriage equality hailing from the Fourth, Seventh, and Tenth Circuits. Things looked even brighter on October 16, when Juan Pérez-Giménez, a federal judge appointed by President Jimmy Carter, rejected the petition to intervene sought by an association of Christian chaplains, concluding that the applicants lacked standing, since the commonwealth does not require them to perform any specific marriages. Three days later, the commonwealth’s secretary of justice stated it was “very likely” the plaintiffs would prevail, in light of the “national trend.”
Despite said national trend, the judge dismissed the entire case with prejudice. In his October 21 ruling, Pérez-Giménez did not waste the opportunity to equate same-sex relationships to incest and accused dozens of prior federal court decisions — at both the district and appellate levels — of being naive and “imaginative.”
The opinion has been condemned across the nation as being insulting and improper (it even goes on to cite Justice Samuel’s Alito’s dissent in last year’s Supreme Court DOMA case as if it were binding precedent). But the involvement of the federal judiciary has also reignited the debate regarding Puerto Rico’s political relationship with the United States.
Puerto Rico’s political landscape is not defined by the Republican/ Democrat dichotomy of the 50 states. Affiliations are determined by the type of political relationship with the United States government each party represents. The governing Partido Popular Democrático defends the current status, which dates back to 1952. Although voters ousted the pro-statehood Partido Nuevo Progresista in the November 2012 election, they also voted against maintaining the current political status. On the same ballot, given the choice among statehood, independence, or associated sovereign state, more than 61 percent of voters chose statehood. Although the independence option received just over five percent of the vote in 2012, last week’s decision has given its supporters fresh ammunition to make their case.
There is little doubt that Pérez-Gimenez’s decision will be reversed by the Boston-based First Circuit Court of Appeals, under whose jurisdiction his court falls. There is also little doubt that, were it not for the presence of the federal court in Puerto Rico, the privacy and reproductive rights we take for granted today would not exist. And we should not forget that the federal court has also been instrumental in addressing chronic local maladies such as police brutality, political discrimination, and even price discrimination on staple food items such as milk. The LGBT community’s struggles to achieve equality should not be exploited for political gain, especially by those who can’t break the single-digits come election time.
The arrival of marriage equality in Puerto Rico will constitute the most dramatic change in individual rights since Roe v. Wade. Once the issue is settled on constitutional grounds, there will be no turning back. The district court’s decision is destined to become an inconsequential oddity. It is just a matter of time. Puerto Rico has waited since 1952 to solve our political status; we can certainly wait a few more months for the right to marry.
Ángel Luis Casiano is a San Juan attorney.