The Constitution Rules. (Not Valid in Puerto Rico.)
A federal judge in Puerto Rico ruled Tuesday that the Supreme Court’s decision in favor of gay marriage doesn't apply on the island, which is a commonwealth with a unique constitutional status. The ruling will eventually be reversed on appeal. But its effect is meaningful nonetheless, because it functions as a double protest: against the high court's support for gay marriage and against the unresolved constitutional status of the island.
The ruling of the federal district judge, Juan Pérez-Giménez, is an artifact in its own right. For purposes of the federal judicial system, Puerto Rico is treated as part of the U.S. That’s why Pérez-Giménez is in office there as an ordinary Article III federal judge, nominated by Jimmy Carter and confirmed by the Senate.
Ordinarily, federal judges follow the Supreme Court’s precedents automatically. The Constitution is the supreme law of the land, and the court’s interpretations of it are binding on the lower courts.
Puerto Rico is different -- not because lower courts don’t have to listen to the Supreme Court, but because according to the justices, the Constitution doesn’t apply there with full force.
The issue goes all the way back to the U.S. acquisition of Puerto Rico in the Spanish-American War. After William McKinley’s decision to acquire the island, the Supreme Court found itself addressing the issue of the rights of the island’s residents. The problem was usually addressed under the heading of a question: Does the Constitution follow the flag?
In a group of decisions known collectively as the Insular Cases, most famously the 1901 case of Downes v. Bidwell, the Supreme Court answered the question with a resounding “Kind of.” It held that some, but not all, of the rights in the Bill of Rights applied in Puerto Rico -- and it declined to say exactly which ones.
In dissent, Justice John Marshall Harlan, who also famously dissented in Plessy v. Ferguson, the "separate but equal" case, derided the idea that the U.S. would recognize anything less than full liberty for Puerto Ricans. Falling short of this, he argued, turned the U.S. into an empire governing colonists, not a republic of self-governing citizens.
To be sure, Harlan was a product of his time. He didn’t believe Puerto Ricans were inherently equal any more than he thought that blacks were racially equal to whites when he dissented in the Plessy case. Rather, Harlan thought that because the American public wouldn’t consent to treating Puerto Ricans as equals or granting them citizenship, the U.S. shouldn’t hold the island as an imperial possession. Insisting on equal rights for Puerto Ricans was a way of arguing that the U.S. should let Puerto Rico go.
The court’s compromise granting Puerto Ricans some but not all constitutional rights was designed to allow Puerto Rico to become a possession without quite admitting that this made the U.S. an empire and Congress a legislative dictatorship there. The popularity of the war, and of McKinley after it, was a major factor. It was about this decision that the humor columnist Finley Peter Dunne wrote: “no matther whether th’ constitution follows th’ flag or not, th’ supreme coort follows th’ iliction returns.”
This history explains the district judge's ruling, but doesn't justify it. As a legal matter, he is simply wrong.
Last year, in Obergefell v. Hodges, the Supreme Court recognized that the right to same-sex marriage is protected by the due process and equal protection clauses of the Fourteenth Amendment. This is not one of the amendments that Puerto Rico gets to ignore, as Joshua Block of the ACLU immediately pointed out on Twitter. The district court’s decision will therefore be struck down whenever the U.S. Court of Appeals for the First Circuit gets around to it, probably soon.
Pérez-Giménez's decision is already being seen as a protest against gay marriage, and maybe it was intended to be. Even if so, his argument is less far-fetched than Alabama Chief Justice Roy Moore’s long and unjustified resistance to the Supreme Court’s gay marriage ruling. Moore was insisting on states’ rights to interpret the Constitution against the Supreme Court, a view definitively repudiated by the Supreme Court in the 1958 case of Cooper v. Aaron.
In any case, Pérez-Giménez’s main target is Puerto Rico’s unique and indefensible constitutional status. He was making a point: It still isn’t automatic that every constitutional right applies in Puerto Rico. That’s bizarre, constitutionally speaking. Either Puerto Rico should be independent and have its own constitution, or the whole U.S. Constitution should apply there. The 1901 compromise makes no sense.
This district judge picked the wrong topic over which to make a stand -- but there's a good point hiding behind that bad ruling.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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Noah Feldman at firstname.lastname@example.org
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