While purporting not to decide the merits, the judge made plain his merits conclusions about constitutional arguments for same-sex marriage in a concluding section:
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.
In addition to the threat same-sex marriage may pose to “the fundamental unit of the political order,” Judge Perez-Giminez went on to raise the specter of a constitutional right to polygamous and incestuous marriages.
The decision does two important things, in addition to denying marriage to same-sex couples in Puerto Rico. First, it puts the First Circuit back in play in the national litigation, although every state in the circuit already recognizes same-sex marriage. A panel of that court suggested that Baker did indeed bar same-sex marriage constitutional claims in its decision striking down the Defense of Marriage Act in 2012. According to Perez-Giminez, “the First Circuit has spared us from the misapprehension that has plagued our sister courts” over whether federal courts can entertain same-sex marriage claims. It will be interesting to see whether the First Circuit itself thinks it is bound by the statements about Baker in its 2012 decision or whether it concludes they were dicta.
Second, the 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.