WASHINGTON — Puerto Rico's marriage ban remains valid and the law of the territory, a federal judge ruled on Tuesday.
[Update: On Wednesday, however, the governor of Puerto Rico said in a statement that he will continue to follow the U.S. Supreme Court and First Circuit Court of Appeals rulings that such marriage bans are unconstitutional.]
Because Puerto Rico is an unincorporated territory, the Supreme Court's ruling on same-sex couples' marriage rights does not automatically apply there, U.S. District Court Judge Juan Pérez-Giménez ruled in a 10-page decision on Tuesday.
The judge had previously upheld the marriage ban in Puerto Rico in October 2014, before the U.S. Supreme Court struck down marriage bans nationwide in Obergefell v. Hodges.
After the Supreme Court's ruling in Obergefell, both the plaintiffs and territory's defendants agreed that the ban was now unconstitutional. So did the 1st Circuit Court of Appeals, to whom the plaintiffs had appealed Pérez-Giménez's ruling.
The 1st Circuit vacated the district court ruling upholding the ban and sent it back to the district court "for further consideration in light of Obergefell v. Hodges" in a July 8, 2015, order. Going further still, the court noted, "We agree with the parties' joint position that the ban is unconstitutional."
Back at the district court, the parties filed a joint motion for an entry of judgment on July 16, 2015, noting, "in light of Obergefell v. Hodges and the judgment of the Court of Appeals for the First Circuit, the parties hereby jointly move this Court to enter the enclosed proposed judgment in favor of Plaintiffs."
Without any further briefing on the matter, Pérez-Giménez denied that request on Monday.
How did this happen? Well, the judge concluded that the rights at issue in the Obergefell case do not automatically apply to Puerto Rico:
Under a series of cases from 1901 called the Insular Cases, the Supreme Court discussed the treatment of different territories:
Puerto Rico, the judge wrote, remains an unincorporated territory:
In such unincorporated territories like Puerto Rico, the Constitution does not apply "in full" there, the judge wrote:
As such, the judge lays out four ways in which he concluded marriage equality can come to Puerto Rico:
Shortly after the opinion was released, however, ACLU attorney Joshua Block noted a 1976 Supreme Court decision stating that, despite ambiguity overall regarding how and when the U.S. Constitution applies to Puerto Rico, "It is clear now, however, that the protections accorded by either the Due Process Clause of the Fifth Amendment or the Due Process and Equal Protection Clauses of the Fourteenth Amendment apply to residents of Puerto Rico."
Omar Gonzalez-Pagan, staff attorney for Lambda Legal, which is representing the plaintiffs, called the ruling"aberrant and fundamentally flawed" and "incongruent with the constitutional principles applicable to all persons in the United States, whether they live in a state or territory and whether they are straight or gay."
Echoing Block's comment, he added, "The U.S. Supreme Court has unequivocally stated that the constitutional promises of liberty and equality apply with equal force to residents of Puerto Rico, and the U.S. Court of Appeals for the First Circuit was clear when it stated that Puerto Rico’s marriage ban was unconstitutional."
An appeal of the judge's decision back to the 1st Circuit Court of Appeals is expected.