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Same-sex marriage: new block?



The Constitution, which sets forth the principle of rule of law, defines what is unconstitutional, and guarantees freedom of speech and other liberties of a Constitutional republic, and also describes the impeachment power. (How many know of the Jewish roots of this document?) Hypocrisy threatens Constitutional government. Could Israel use a constitution like this? More to the point: would a Convention of States save it, or destroy it? (Example: civil asset forfeiture violates the Constitution.) Quick fixes like Regulation Freedom Amendments weaken it. Furthermore: the Constitution provides for removing, and punishing, a judge who commits treason in his rulings. Furthermore, opponents who engage in lawfare against an elected President risk breaking the Constitution.

Earlier this month, the U.S. Supreme Court let stand without comment several rulings by different Circuit Courts of Appeals. Result: same-sex marriage now is the law in up to 33 States. Everyone, including de facto President Barack Obama, assumed same-sex marriage would soon be the rule across the land. But a federal judge in Puerto Rico just threw up another roadblock. This could set up a “circuit split” to force the Court to rule even faster than it planned.

The latest ruling on same-sex marriage

Judge Juan Pérez-Giménez tried the case of Conde-Vidal et al. v. Garcia-Padilla et al. before the U.S. District Court for the Puerto Rico District. The case involved three same-sex couples who got married in other States (Puerto Rico is not a State, though some seek to make it one), two pairs of same-sex roommates sharing bed who want to marry in Puerto Rico, and the homosexual-rights group Puerto Rico for All. Puerto Rico law recognizes only marriage between one man and one women. These plaintiffs argued that breaks the U.S. Constitution. They cited the Fourteenth Amendment, and especially this clause:

No State shall make or enforce any law…denying to any person within its jurisdiction the equal protection of the laws.

The gavel: a symbol of judgment. Will same-sex marriage still fall before it?

The giant gavel at the Ohio Judicial Center in Columbus

They also cited the case of U.S. v. Windsor that ruled the Defense of Marriage Act invalid.

The Commonwealth of Puerto Rico argued the federal courts lack jurisdiction. They cited the 1972 case of Baker v. Nelson to support that case. That was the last time the Supreme Court even ruled directly on a same-sex marriage case. The court specifically threw out the notion. That Court did so on the ground of lack of subject-matter jurisdiction. Puerto Rico’s government also cited “the ancient understanding and traditional doctrine of marriage and family life.”

Puerto Rico moved to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. This rule says a plaintiff must “state a claim upon which relief can be granted.”

Two days ago the judge handed down a twenty-one page Opinion and Order. He carefully went through all the steps a plaintiff must pass to avoid dismissal. The plaintiffs, he said, have standing. The court has no reason to abstain. But the plaintiffs’ case fails on the constitutional ground. Why? Because the phrase “same-sex marriage” appears nowhere in the Constitution. Furthermore, the Baker case is still binding case law on point. The Supreme Court, said Judge Pérez-Giménez, never reversed the Baker case. That case held: the plaintiffs in that case never asserted a substantial federal question. This amounted to a dismissal for lack of subject-matter jurisdiction. And lack of subject-matter jurisdiction trumps any other consideration, as soon as a defendant discovers it.

The judge went further. The Windsor case held only that Congress may not define marriage for the States. It did not “create a fundamental right” to same-sex marriage.

Dale Carpenter at The Washington Post covered the story first. See also this piece in The Daily Signal.

Where the case goes from here

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No doubt the Conde-Vidal plaintiffs will appeal. That appeal will go to the First Circuit. The judge cited an earlier First Circuit ruling and the Baker case the First Circuit earlier cited. So the First Circuit will most likely uphold Judge Pérez-Giménez’ ruling.

That will split the circuits. The circuits were likely to split anyway. The Fifth Circuit has a case working its way through now. But this case might reach the Supreme Court first.

De facto President Obama insists the “equal protection clause does guarantee same-sex marriage in all fifty States.” Not according to Judge Pérez-Giménez. And maybe not according to this Court. When the Supreme Court refuses to review a case, they don’t make binding case law. A circuit split will certainly force them to rule. Then the country will see whether the Court will throw out an earlier binding precedent.

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Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.