A federal judge in Puerto Rico has defied the U.S. Supreme Court’s establishment of “same-sex marriage,” refusing to strike down the commonwealth’s ban.
The San Juan judge, Juan M. Perez-Gimenez, said the U.S. Supreme “had settled the meaning of two clauses of the Fourteenth Amendment – the Due Process and Equal Protection Clauses – as they applied to same-sex marriages,” reported Lyle Denniston for SCOTUSblog.com.
“But he said the decision only applied to state governments, and Puerto Rico does not have that status.”
Denniston explained the judge found in previous cases Puerto Rico had been treated as an “unincorporated territory” not under the authority of the 14th Amendment.
The finding, which is just the latest rejection of the U.S. Supreme Court’s marriage decision, put the judge in conflict with the U.S. Court of Appeals for the First Circuit, which struck down same-sex marriage in Puerto Rico.
Perez-Gimenez previously made the same ruling, then the First Circuit acted, but the case ended up before Perez-Gimenez again, and he upheld the ban on different grounds.
“Puerto Rico, now as then, is subject to ‘the plenary powers of Congress’ under the Constitution’s provision spelling out the power to write laws to govern U.S. territories, the judge wrote,” Denniston said.
“If same-sex marriage is to be mandated in Puerto Rico, the ruling declared, it must come in one of these four ways: (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 Article 68’ (the existing ban).”
The decision comes in a case brought by same-sex duos and a homosexual advocacy organization.
Denniston reported the plaintiffs could send the case up to the First Circuit again if they choose.
The judge began his decision with: “For, certainly, no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co-ordinate states of the union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guarant[ee] of that reverent morality which is the source of all beneficent progress in social and political improvement.”
He ruled: “The court concludes that the fundamental right to marry, as recognized by the Supreme Court in Obergefell, has not been incorporated to the juridical reality of Puerto Rico. Thus, the court declines to hold that the marriage ban codified in Article 68 of the Civil Code violates the Due Process and the Equal Protection Clauses of the Fourteenth Amendment by denying same-sex couples in Puerto Rico the right to marry or to have marriages validly performed in another jurisdiction given full recognition.”
The judge said one might “be tempted to assume that the constant reference made to the ‘states’ in Obergefell includes the Commonwealth of Puerto Rico.”
“Yet, it is not the role of this court to venture into such an interpretation.”
Breitbart News described the Supreme Court’s action as “perhaps the most contested Supreme Court decision in U.S. history and one of the most egregious cases of radical judicial activism.”
The report said: “In an unprecedented show of disapproval, all four dissenting U.S. Supreme Court justices rendered independent dissenting opinions for the case, employing some of the fiercest rhetoric imaginable to register their disgust with the sloppy jurisprudence underlying the majority ruling.
“In his 27-page dissent, Chief Justice John Roberts lamented the court’s usurpation of democratic process by legislating its own view of marriage. ‘Under the Constitution,’ he noted, ‘judges have power to say what the law is, not what it should be.’ The majority decision, he declared, is ‘indefensible as a matter of constitutional law.'”
WND has reported on the growing movement to refuse to recognize the decision legal experts have described as unconnected to the Constitution.
WND just days ago reported an endorsement by the American Family Association of an Alabama Supreme Court order that strongly affirmed its own rejection of the U.S. Supreme Court’s decision.
“Late last week the Alabama Supreme Court told the U.S. Supreme Court that they, in fact, were the ones who were wrong and that the Alabama Marriage Protection Amendment is valid. The American Family Association of Pennsylvania (AFA of PA) applauds that decision,” the group said.
WND reported last Friday the ruling from Alabama’s Supreme Court criticized the U.S. Supreme Court’s creation of same-sex marriage as “lawless” and left undisturbed its 2015 determination that the state’s Sanctity of Marriage Amendment and Marriage Protection Act are constitutional and binding.
Alabama Chief Justice Roy Moore wrote in an order Friday that his court “dismisses all pending motions and petitions and issues the certificate of judgment in this case.”
“That action does not disturb the existing March orders in this case or the court’s holding therein that the Sanctity of Marriage Amendment, art. I, § 36.03, Ala. Const. 1901, and the Alabama Marriage Protection Act, § 30-1-9, Ala. Code 1975, are constitutional. Therefore, and for the reasons stated below, I concur with the order.”
Diane Gramley, president of the AFA of PA, noted that 81 percent of Alabama voters said they wanted natural marriage protected in their constitution, recognizing “the dangers posed by so-called same-sex marriage and took steps to protect the foundation block of a civilized society.”
“The U.S. Supreme Court had no jurisdiction to redefine marriage in either Alabama or the other states that had passed Marriage Protection Amendments or Defense of Marriage Acts, such as Pennsylvania. They overstepped their constitutional authority,” she said.
The organization pointed out that the U.S. Constitution and the Alabama Constitution provide that the legislature, not the courts, makes law.
She said the marriage decision “by five attorneys on the U.S. Supreme Court last June was illegitimate.”
“They had no constitutional authority to hand down that decision and, additionally, two of those five – [Ruth] Ginsburg and [Elena] Kagan – had officiated at same-sex ‘marriage’ ceremonies and should have recused themselves, but refused to,” Gramley said.
“The AFA of PA is in hopes other states will see the light and recognize the Supreme Court’s unlawful ruling for what it is.”
WND reported Ginsburg has performed same-sex ceremonies and made public statements in advocacy. Justice Elena Kagan also has performed same-sex weddings and promoted “gay” rights at Harvard’s law school while she was at its helm.
The Foundation for Moral Law asked the justices to excuse themselves from the case, but they refused to acknowledge the request. The foundation argued that Canon 3A(6) of the Code of Conduct for United States Judges provides: “A judge should not make public comment on the merits of a matter pending or impending in any court.” 28 U.S.C. sec 455(a) mandates that a justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
In his order Friday, Chief Justice Roy Moore called the Obergefell decision completely without constitutional authority, a usurpation of state sovereignty and an effort to impose the will of “five lawyers,” as Chief Justice Roberts dubbed the majority, on the American people.
“Indeed, the Obergefell majority even presumes to override the Federal Rules of Civil Procedure, which limit the applicability of injunctions to parties, their agents, and those acting in concert with them,” he wrote in a scathing opinion attached to the order,” Moore said.
Moore wrote that the U.S. Supreme Court marriage ruling is “like Dred Scott and Roe v. Wade that preceded it, is an immoral, unconstitutional, and tyrannical opinion.”
‘Not a judgment’
Same-sex marriage was mandated in 2015 by the bare 5-4 U.S. Supreme Court majority of Anthony Kennedy, Ginsburg, Stephen Breyer, Sonia Sotomayor and Kagan. John Roberts, Clarence Thomas, Samuel Alito and the late Antonin Scalia opposed it.
Critics of the decision have pointed to a Wisconsin case over slavery as precedent.
In that historic case, the Wisconsin Supreme Court refused to follow the U.S. Supreme Court opinion in Dred Scott, which “said that blacks were not entitled to full protection as citizens.”
The U.S. Supreme Court overturned the Wisconsin court, but the state, in an “act of defiance,” never filed the mandates that required people to return fugitive slaves to their owners.
A justice writing for the Wisconsin said, “I believe most sincerely and solemnly that the last hope of free, representative and responsible government rests upon the state sovereignties and fidelity of state officers to their double allegiance, to the state and federal government; and so believe, I cannot hesitate in performing a clear, an indispensable duty.”
The court also declared the federal law unconstitutional.
The Wisconsin court said, “Here is a distinct recognition of the power and duty of state judges, not to be bound by all the acts of Congress, or by the judgments and decrees of the supreme federal court, or by their interpretation of the constitution and acts of congress, but by ‘this constitution’ ‘and the laws made in pursuance thereof.'”
Simply put, the Wisconsin court said a Supreme Court opinion that wasn’t founded in the Constitution was not a judgment.
Biblical and historic definition
Among the critics of the U.S. Supreme Court’s marriage decision is Rabbi Jonathan Cahn, author of the New York Times bestseller “The Harbinger” and the inspiration behind the “Isaiah 9:10 Judgment” movie, who challenged the Supreme Court’s assumption that it has the authority to redefine marriage.
At a prayer event in Washington, he said: “The justices of the Supreme Court took up their seats [in a hearing] on whether they should strike down the biblical and historic definition of marriage. That the event should even take place is a sign this is America of [George] Washington’s warning … a nation at war against its own foundation.”
Washington warned the smiles of heaven can never be expected on a nation “that disregards the eternal rules of order and right which heaven itself hath ordained.”
“Justices, can you judge the ways of God? There is another court and there is another judge, where all men and all judges will give account,” he warned.
“If a nation’s high court should pass judgment on the Almighty, should you then be surprised God will pass judgment on the court and that nation? We are doing that which Israel did on the altars of Baal,” he said.
See Jonathan’s Cahn’s message at Washington: Man of Prayer event at the Capitol.
The United States Conference of Catholic Bishops called “same-sex marriage” an “intrinsic evil.”
And officials from several counties in Tennessee have adopted statements opposing the Supreme Court.
WND also reported when dozens of top legal scholars from the likes of Washington & Lee, Boston College, Kansas State, Notre Dame, University of Texas, Villanova, Vanderbilt, Hillsdale, University of Nebraska, Catholic University and Regent University issued a statement encouraging all state and federal officials to treat the Supreme Court’s recent creation of “same-sex marriage” as “anti-constitutional and illegitimate.”
“It cannot … be taken to have settled the law of the United States,” said the statement from the American Principles Project.
“We call on all federal and state officeholders: To refuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case. To recognize the authority of states to define marriage, and the right of federal and state officeholders to act in accordance with those definitions. To pledge full and mutual legal and political assistance to anyone who refuses to follow Obergefell for constitutionally protected reasons. To open forthwith a broad and honest conversation on the means by which Americans may constitutionally resist and overturn the judicial usurpations evidence in Obergefell.”