On the Case: Issue 8

The Constitutionality of laws prohibiting same-sex marriage in Puerto Rico.

In this eight edition of On the Case, Professor Michael Quinlan, Dean of the School of Law, Sydney discusses a recent United States’ decision which considered whether the marriage laws of Puerto Rico¹, which provide for the recognition of marriages between one man and one woman, were unconstitutional.²

The Facts

The Puerto Rico Civil Code³ defines marriage as “originating in a civil contract whereby a man and a woman mutually agree to become husband and wife” and it excludes from recognition “[a]ny marriage between persons of the same sex or transsexuals contracted in other jurisdictions.”⁴

Three same-sex couples who had married in another State of the United States of America but lived in Puerto Rico, two same sex couples who wished to marry in Puerto Rico and a nonprofit advocacy organization, Puerto Rico Para Todas, challenged the law on the basis that it offended the United States’ Constitution (the Constitution).⁵

The Arguments

The plaintiffs argued that Puerto Rico’s laws violated Equal Protection and Due Process⁶ by discriminating on the basis of sexual orientation and gender and violating the “fundamental right to freely choose one’s spouse” which they asserted was guaranteed by the Constitution. In the plaintiffs’ view, Puerto Rico’s laws deprived “gay and lesbian couples of the intrinsic societal value and individual dignity attached to the term “marriage”.”⁷

The defendants argued that the plaintiffs’ case should be dismissed because, as the Constitution was silent on marriage, Puerto Rico was free to formulate its own policy on marriage⁸ and that “[t]he ancient understanding and traditional doctrine of marriage and family life expressed by Article 68 offends neither Equal Protection nor Due Process.”

Decision

Judge Perez-Gimenez traced the history of the marriage laws of Puerto Rico from the period of its adherence to the Spanish Civil Code until today and noted that, whilst the applicable law had changed on several occasions, the law had constantly identified marriage as between “a man and a woman.”⁹ In his view, this background excluded animus towards same sex attracted people as a principle motivation for those laws.¹⁰

Whilst Judge Perez-Gimenez noted that a majority of United States' Courts had struck down statutes which did not recognise marriage between two person of the same sex¹¹ he considered that he was bound by the decision in Baker v Nelson.¹² In that case, two men who had been refused a marriage license to marry in Minnesota argued, as in this case, that Minnesota law violated Equal Protection and Due Process. The United States Supreme Court unanimously dismissed that claim “for want of [a] substantial federal question.”¹³ In reaching his decision, Judge Perez-Gimenez emphasised the value of precedent noting that:

[T]he role of precedent in our system of adjudication is not simply a matter of binding all succeeding generations to the decision that is first in time. Instead, stare decisis¹⁴ embodies continuity, certainty, but also limitation: there are some principles of logic and law that cannot be forgotten.¹⁵

He also expressed the view that traditional marriage was founded on “well-tested, well proven principles” which had been relied upon “for centuries.”¹⁶ In his opinion:

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,”¹⁷ Traditional marriage is the fundamental unit of the political order. And ultimately the very survival of the political order depends upon the procreative potential embodied in traditional marriage.¹⁸

In the judge’s opinion, recognising marriage between persons of the same sex was a “sweeping change” which required reasons justifying the change and an articulation of the principles which would limit, what he described as, “this newly fashioned right.”¹⁹ In his view, there was no comprehensive legal framework for the recognition of marriage between two persons of the same sex to the exclusion of recognition for marriages between more than two partners or between blood relatives.²⁰ In his view, the logic of the plaintiffs’ argument, that a fundamental right to marriage existed based on “the constitutional liberty to select the partner of one’s choice”, would support the adoption of a new conception of marriage in which “individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of partners.”²¹

Why This Case is Worth Knowing About?

Like the Puerto Rico Civil Code²² Australian law recognises marriage as being available to one man and one woman²³ and expressly excludes, from recognition as “marriage”, marriages between persons of the same sex which take place in other jurisdictions.²⁴ A number of prominent Australians support reform of this position.²⁵ The High Court of Australia²⁶ confirmed last year that the Constitutional power of the Commonwealth Parliament extended to enabling it to redefine marriage within very broad parameters.²⁷ In a case where all parties before the Court supported the view that the “marriage” power in the Australian Constitution could embrace same sex marriages, the High Court found that “marriage” in the Australian Constitution was a “juridical concept” which was not confined to marriage between one man and one woman but referred to:

a consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations.²⁸

In reaching this conclusion the High Court took the unusual step of fully defining the scope of a Constitutional power which it is normally loathe to do and it did so in a case where it was arguably not necessary for it to do so to resolve the issues raised by the parties.²⁹ Applying this case, the Federal Parliament has the Constitutional power to amend the definition of “marriage” in the Marriage Act to incorporate same sex marriage, polygamous marriage and other forms of marriage within this juridical concept of “marriage.”

Whilst the Constitutional issues are quite different in the United States and in Australia, the question of whether "marriage" has an immutable substantive meaning, a meaning which should be altered only after very careful reflection and the development of clear logically coherent boundaries or is merely a juridical concept capable of having a meaning which can and should change without the necessary foundation of coherent, logical boundaries is an issue common between the jurisdictions. Judge Perez-Gimenez has raised a number of issues which might inform the debate in both jurisdictions.

¹ Puerto Rica is a territory of the United States of America
²Ade Conde-Vidal et al v Alejandro Garcia-Padilla et at) United States District Court District of Puerto Rico, Civil No. 14-1253 (PG) (Conde-Vidal)
³ Article 68. By way of parallel in Australia, s5 of the Marriage Act 1961 (Cth) (the Marriage Act) provides that “marriage according to the law of Australia is the union between a man and a woman to the exclusion of all others voluntarily entered into for life”
⁴ P.R .Laws Ann. Tit. 31, S 221. Again by way of parallel, in Australia, s88EA of the Marriage Act provides that: “A union solemnised in a foreign country between: a man and another man; or a woman and another woman: must not be recognised as a marriage in Australia.”
⁵ In particular Section One of the Fourteenth Amendment (“[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”) (Equal Protection and Due Process)
⁶Conde-Vidal 3
⁷Conde-Vidal 2
⁸ Relying on the Supreme Court’s decision in Baker v Nelson 409 US 810 (1972) (Baker v Nelson)
⁹Conde-Vidal 6-7
¹⁰Conde-Vidal 7
¹¹Conde-Vidal 20 and see the list of cases set out at 11.
¹²Conde-Vidal 11,19 noting that the First Circuit had confirmed that Baker v Nelson remained binding in Massachusetts v US Dept. of Health and Human Services 682 F.3d 1., 8 (1st Cir. 2012) (Massachusetts) and finding that it was also bound to follow Massachusetts (Conde-Vidal 13)
¹³Baker v Nelson 810 as quoted in Conde-Vidal 9
¹⁴ The common law principle of precedent
¹⁵Conde-Vidal 19
¹⁶Conde-Vidal 20
¹⁷United States v Windsor, 570 U.S., 133 S. Ct.2675 (2013) at 2718 (Alito, J., dissenting).
¹⁸Conde-Vidal 20
¹⁹Conde-Vidal 21
²⁰Conde-Vidal 20
²¹Conde-Vidal 20 quoting from Elizabeth Brake, “Minimal Marriage: What Political Liberalism Implies for Marriage Law”, 120 Ethics302, 303 (2010).
²² Article 68.
²³Marriage Act s5
²⁴Marriage Act s88EA
²⁵ Including the Leader of the Opposition, the Honorable Bill Shorten MP who recently addressed a conference of the Australian Christian Lobby on the topic.
²⁶ The highest court in Australia
²⁷The Commonwealth v Australian Capital Territory [2013] HCA 55 (Commonwealth v ACT); see On The Case Issue 2
²⁸Commonwealth v ACT [33]
²⁹ Anne Twomey identifies some of the issues with the approach taken by the High Court in “Same-Sex marriage and Constitutional Interpretation” (2014) 88 ALJ 613