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Changes following the U.S. Supreme Court legalizing of same-
sex marriage (aka gay marriage) across the U.S. in its ruling of
the Obergefell v. Hodges case from Kentucky, Michigan, Ohio,
and Tennessee.

Part 72:
2014 to 2017:
Gay Marriage Comes to Puerto Rico.

Kentucky Ordered to Pay Plaintiffs'
lawyers' fees in marriage lawsuit.

gay marriage
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We use the term "gay marriage."to represent the marriage of two persons of
the same sex. We prefer "Same-sex marriage," a more inclusive term that
includes spouses with a bisexual sexual orientation, but it would make this web
site harder to find because most search engines cannot handle synonyms.
"LGBT" refers to lesbians, gays, bisexuals, transgender persons and transsexuals.
"LGB" refers to lesbians, gays, and bisexuals.

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This topic is continued from the previous essay

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2014 to 2016: Same-sex marriage arrives in Puerto Rico, after a struggle:

In the past, Puerto Rico's marriage act had restricted marriage to only opposite-sex couples. This was challenged in a 2014 lawsuit before a Puerto Rico federal court. Five same-sex couples sought marriage equality. Three couples wanted to be able to marry in the Territory. Two couples were already legally married in a U.S. state or in Canada and wanted their marriage recognized in Puerto Rico. 8

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On 2014-OCT-21, U.S. District Court Judge Juan Pérez-Giménez issued his ruling in the case. He upheld the territory's ban on gay marriages. He referred to a 1972 decision by the U.S. Supreme Court. Over four decades previously, in
Baker v. Nelson, the High Court had upheld marriage as being restricted to opposite-sex couples. Judge Pérez-Giménez wrote:

"Baker, which ... decided that a state law defining marriage as a union between a man and woman does not violate the Fourteenth Amendment [to the U.S. Constitution], remains good law."

However, the 14th Amendment to the U.S. Constitution requires federal, state, and local governments in the U.S. to treat its citizens equally.

By late 2014, many state and federal courts on the U.S. mainland had held that doctrinal developments since 1972 -- particularly the 2013 decision by the U.S. Supreme Court in United States v. Windsor -- had found Baker v. Nelson to now be an unreliable case to use as a precedent. However, Judge Pérez-Giménez wrote:

Windsor does not -- cannot -- change things. ... [That case] reaffirms the States’ authority over marriage, buttressing Baker’s conclusion that marriage is simply not a federal question."

Quoting Justice Samuel Alito’s dissenting opinion in Windsor, he concluded:

"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'."

Justice Alito was correct in that traditional marriage during biblical times did involve one man and one or more women. Also, with the exception of Utah, marriages before 2004 in the U.S. were restricted to one woman and one man. However, after 2014-MAY, marriages in Massachusetts could be solemnized by any two qualified adults, irrespective of gender.

About 8 months after the District Court's decision, on 2015-JUN-26, the U.S. Supreme Court issued its ruling in Obergefell v. Hodges that legalized gay marriages across the U.S. The government of the territory accepted the High Court's ruling as being applicable in Puerto Rico. Same-sex couples became able to marry freely.

However, marriage equality in Puerto Rico was challenged in a new lawsuit before the same federal District Court. On 2016-MAR-08, Judge Pérez-Giménez issued a ten-page decision. He ruled that because Puerto Rico is an unincorporated territory, the High Court's decisions do not necessarily apply there. He rejected Obergefell and upheld the wording of the marriage law in the territory that existed at the time of the Supreme Court's ruling. That law allows only opposite-sex couples to marry.

He ruled that gay marriage can only be legalized in the territory after:

  1. "further judicial expression by the Supreme Court;"
  2. "further judicial expression by the Supreme Court of Puerto Rico;"
  3. "incorporation through legislation enacted by Congress, in the exercise of the powers conferred by the Territorial Clause; " or
  4. "by virtue of any act or statute adopted by the Puerto Rico legislature that amends or repeals [the existing ban in] Article 68." 8

The District Court's ruling was appealed to the First U.S. Court of Appeals as Case 16-1313, That court handles cases from Puerto Rico and four mainland states. 5 They issued their ruling on 2016-APR-07, saying:

"The district court's ruling errs in so many respects that it is hard to know where to begin. The constitutional rights at issue here are the rights to due process and equal protection, as protected by both the Fourteenth and Fifth Amendments to the United States Constitution. ... Those rights have already been incorporated as to Puerto Rico. ... And even if they had not, then the district court would have been able to decide whether they should be. ..."

"In ruling that the ban is not unconstitutional because the applicable constitutional right does not apply in Puerto Rico, the district court both misconstrued that right and directly contradicted our mandate. And it compounded its error (and signaled a lack of confidence in its actions), by failing to enter a final judgment to enable an appeal in ordinary course."

They returned the case to the district court and ordered that it be:

"... assigned randomly by the clerk to a different judge to enter judgment in favor of the Petitioners promptly, and to conduct any further proceedings necessary in this case." 5,6

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Lyle Denniston, writing for SCOTUSblog, said:

"Among the other errors that the First Circuit had found in the trial judge’s ruling was that he had not issued a final judgment in the case that would have allowed the same-sex couples to file a regular, new appeal to the First Circuit.  'Error of this type,' the Circuit Court said in its unsigned ('per curiam') opinion, is not so easily insulated' from review in the higher court, because the mandamus remedy was available.  That is what the couples had invoked in returning to the court in Boston to secure their right to marry or their right to have their marriages recognized in Puerto Rico if performed elsewhere."

Update: "Reacting quickly to the First Circuit Court’s order, the clerk in San Juan used the court’s random assignment system to turn the case over to District Judge Gustavo A. Gelpi, Jr.  He is a former solicitor general of Puerto Rico.  He had also served as a law clerk to the judge from whom he now takes over the same-sex marriage case." 7

Update: Judge Gelpi on Thursday [APR-07] ruled in a two-page order that the Puerto Rico ban on same-sex marriage is unconstitutional. He scheduled a conference with lawyers for next Monday [APR-11] to discuss how to make the new marriage-equality right a legal reality in the Commonwealth.

Webmaster's comment:

I have never heard of a federal District Court reacting so quickly!

Vox.com commented:

"... this new opinion makes it absolutely official: Marriage equality is the law of the land in Puerto Rico. Period." 6

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2016 & 2017: Court orders state of Kentucky to pay plaintiffs' lawyers fees in civil rights case:

Kim Davis remains the clerk at Rowan County, KY. During mid-2015, she ignored the U.S. Supreme Court's ruling in the lawsuit Obergefell v. Hodges which legalized gay marriages across the U.S. She refused -- and continues to refuse -- to authorize marriage licenses to same-sex couples with her signature. This is because of her sincere religious belief that God has strictly restricted marriage to couples composed of one woman and one man. She was later briefly jailed for contempt of court because she continued to refuse. A compromise was worked out in which the marriage licences in Kentucky were no longer printed with the name of the county clerk who issued them. However, three personal lawsuits were subsequently filed by same-sex couples to whom she had denied licenses. They claimed that she had violated their civil rights.

On 2016-AUG-18, U.S. District Court Judge David Bunning dismissed the lawsuits. He noted that during 2016-JAN, Kentucky Governor Matt Bevin signed an order that ended the need for county clerks to personally authorize marriage licenses with their signature. Judge Bunning wrote:

"In light of these proceedings, and in view of the fact that the marriage licenses continue to be issued without incident, there no longer remains a case or controversy before the Court." 9

Kim Davis was defended in court by lawyers from Liberty Counsel. It is an international, non-profit, legal defense group whose lawyers have supported many conservative Christians who have asserted that the U.S. Constitution's guarantees of freedom of religious beliefs extend also to actions based on those beliefs even if they actively discriminate against others. Whether, and to what degree, the Constitution guarantees religiously motivated actions in addition to religious beliefs is a hotly debated topic.

Liberty Counsel's founder and chairperson, Mat Staver, said:

"Kim Davis has won! We celebrate this victory for her and for every American. This victory is not just for Kim Davis. It is a victory for everyone who wants to remain true to their deeply-held religious beliefs regarding marriage while faithfully serving the public."

It might be argued that, after the High Courts ruling that legalized same-sex marriages, Davis was responsibility to issue marriage licenses to all qualified couples who paid for them. Thus, by refusing to do this for a group of same-sex couples, she was not "faithfully serving the public."

Staver also said that the personal lawsuits were:

"... never really ... about a marriage license [sic] -- Rowan County has issued the licenses -- it is about forcing their will on a Christian woman through contempt-of-court charges, jail, and monetary sanctions."

Her lawyers noted that when some of the plaintiffs travelled from their homes in Kentucky to the clerk's office in Rowan County in mid-2015, they passed through or around other counties where they could have purchased licenses from a different county clerk with little or no difficulty.

Davis' lawyers had filed a motion to dismiss the case. It said in part:

"This case is not about whom a person may marry under Kentucky law, whether Kentucky must license the marriage of a same-sex couple, or even whether plaintiffs could obtain a Kentucky marriage license when they wanted one. Nor is this case about a county clerk who wanted to relitigate the Supreme Court’s decision in Obergefell v. Hodges, or to prevent Plaintiffs or any other same-sex couple from receiving a marriage license in Kentucky.

Rather, this case has always been about Plaintiff’s attempt to force an ‘all or nothing’ choice between same-sex marriage on the one hand, and religious liberty on the other, with no regard whatsoever for any reasonable accommodation. Now that Kentucky has moved on, after its highest officials changed the law to vindicate Davis’ religious liberty rights and provide her requested accommodation, even while ensuring no Kentuckian was denied a valid marriage license, plaintiffs want to punish Davis for resisting an act that would have violated her deeply held religion convictions and conscience.

Under well-established precedent, Davis is immune from plaintiffs’ damages claims – by Eleventh Amendment sovereign immunity in her official capacity as a state official, and by qualified immunity in her individual capacity." 9

The federal judge ordered the State of Kentucky to pay $222,695 in fees to the plaintiffs' lawyers.

William Sharp, the Legal Director of the American Civil Liberties Union of Kentucky, issued a statement saying:

"It is unfortunate that Kentucky taxpayers will likely bear the financial burden of the unlawful actions and litigation strategies of an elected official, but those same voters are free to take that information into account at the ballot box." 10

Kim Davis' term expires in 2018. She may decide to run for re-election.

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This topic continues in the next essay with a video
interview on gay marriage with President-elect Donald Trump

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "American Values Atlas: 2015 LGBT Trends," Public Religion Research Institute, 2015-OCT-07, at: http://publicreligion.org/
  2. "Marriage," Gallup, 2015, at: http://www.gallup.com/
  3. "In U.S., 87% Approve of Black-White Marriage, vs. 4% in 1958," Gallup, 2013-JUL-25, at: http://www.gallup.com/poll/
  4. Peter Montgomery, "... Global LGBT recap.," Religion Dispatches, 2016-APR-08, at: http://religiondispatches.org/
  5. Chris Geidner, "Federal Appeals Court: Yes, Puerto Rico’s Same-Sex Marriage Ban Is Unconstitutional," BuzzFeed, 2016-APR-07, at: https://www.buzzfeed.com/
  6. German Lopez, "An appeals court just blasted a judge who tried to stop same-sex marriages in Puerto Rico," Vox, 2016-APR-07, at: http://www.vox.com/ This essay includes the Court of Appeals.
  7. Lyle Denniston, "Same-sex marriage right reaches Puerto Rico," SCOTUSblog, 2016-APR-07, at: http://www.scotusblog.com/
  8. Lyle Denniston, "No same-sex marriages in Puerto Rico — yet ," SCOTUSblog, 2016-MAR-09, at: http://www.scotusblog.com/
  9. "Homosexuals Still Trying to Punish Marriage-Defending Clerk Kim Davis," Liberty Headlines, 2017-JUL-14, at: http://www.libertyheadlines.com/
  10. Andrew Wolfson, "Kentucky taxpayers on hook for clerk Kim Davis' fight against gay marriage", The (Louisville) Courier-Journal , 2017-JUL-21, at: http://www.courier-journal.com/

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How you may have arrived here:

Copyright © 2015 & 2016 by Ontario Consultants on Religious Tolerance.
First posted: 2015-NOV-25
Latest update: 2017-NOV-28
Author: B.A. Robinson
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