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Thursday, March 10, 2016

Judge upholds gay marriage ban in Puerto Rico by deciding Constitutional rights to equal protection apply only to states, not a commonwealth

Baker et al. v. Nelson, United States Reports, Volume 409, Cases Adjudged in the Supreme Court, October Term, 1972, Oct. 10, 1972 'dismissed for want of a substantial federal question.'

PHOTO: The OSU library's printed and bound copy from 1972 of the first U.S. Supreme Court decision on gay marriage in a case initiated by a University of Minnesota law student Jack Baker: Baker et al. v. Nelson, Oct. 10, 1972, "United States Reports, Volume 409, Cases Adjudged in the Supreme Court, October Term, 1972," U.S. Government Printing Office, 1974, p. 810. (See previous posts Gay marriage decision by SCOTUS resolves 1972 Baker v Nelson case (6/27/15), Arthur Leonard CA Prop 8 appeal still citing Jack Baker gay marriage case (8/3/12), Book by Michael McConnell on his marriage to Jack Baker that led to the first Supreme Court case on gay marriage (12/29/15) and My notes on autobiography by Michael McConnell with Jack Baker gay marriage activism (2/14/16))

Legal battles over the rights granted to all citizens by the U.S. Constitution have always fascinated me ever since I saw the first U.S. Supreme Court ruling on gay marriage in 1972. I have witnessed how social justice will eventually prevail, even though it can take decades to be granted the U.S.

Having followed the battle over gay marriage since 1972, it shouldn't have surprised me, but it did, to read that U.S. District Judge Juan M. Perez-Gimenez in Puerto Rico decided that the rights granted by the U.S. Constitution to all citizens, for equal protection under the law, does not apply in Puerto Rico because it is a commonwealth of the U.S. instead of it being one of the States. The implication of this ruling is that Puerto Rico laws could choose to also discriminate based on race or gender. A law professor's blog had the following comments on the case:

"More significantly, Judge Perez-Gimenez claimed that because Puerto Rico is neither a "state" nor an "incorporated territory," but rather an "unincorporated territory" with extensive self-government rights under a federal statute making it a "commonwealth," . . . the 14th Amendment provides expressly that "no state" may deprive a person of due process or equal protection, and that because Puerto Rico is not a state, the 14th Amendment doesn't apply . . ."
(Quoted from Art Leonard, "Federal Judge in Puerto Rico Claims Obergefell v. Hodges Does Not Apply There," posted Mar. 9, 2016)

I sometimes wonder if I will live long enough to see the day when gay marriage is a non-issue in America. Social Security Administrators told me that their standard calculations expect me to live approximately another two decades and so there is hope!