Almost Equal Isn’t Equal

A federal judge has supported Puerto Rico’s gay marriage ban. Never mind for the moment how you feel about a ban on gay marriage. The point is that a U.S. federal court has made a decision about Puerto Rico’s laws, and the reason for their decision is that the U.S. Constitution doesn’t “automatically” apply in Puerto Rico.

Puerto Rico has a law making same-sex marriage illegal. U.S. District Court Judge Juan Pérez-Giménez upheld that law when it was challenged, but then the Supreme Court determined that same-sex marriage bans at the State level were unconstitutional. Puerto Rico’s law was once again challenged, and Judge Pérez-Giménez has once again ruled in favor of the ban.

Here’s his thinking. “One might be tempted,” he says, “to assume that the constant reference made to the ‘States’ in Obergefell includes the Commonwealth of Puerto Rico.”

However, Puerto Rico is not a State. It doesn’t have the same rights that States do. “The Constitution applies in full in incorporated Territories surely destined for statehood,” says the judge, “but only in part in unincorporated Territories.”

In his 2014 decision, the judge said that “Because no right to same gender marriage emanates from the Constitution, the Commonwealth of Puerto Rico should not be compelled to recognize such unions. Instead, Puerto Rico, acting through its legislature, remains free to shape its own marriage policy.”

The Supreme Court made much the same argument in US v. Windsor in 2013, saying that the federal Defense of Marriage Act was an intrusion by the federal government into rules about marriage, a subject not covered by the U.S. Constitution. The Constitution says that issues not covered in the U.S. Constitution are left up to the individual States, so the Defense of Marriage Act was a breach of States’ rights.

The more recent Supreme Court decision (Obergefell) said that marriage is a fundamental right, and that under the 14th Amendment (equal protection) it cannot be denied to anyone. But Judge Pérez-Giménez said that “the 14th amendment is not applicable to Puerto Rico insofar as Puerto Rico is not a federated state within the terms of said amendment.”

No matter how you feel about same-sex marriage, this judicial decision reminds us that Puerto Rico is not a State, and therefore is not covered by the U.S. Constitution in the same way that States are. Residents of Puerto Rico do not have the same rights that residents of the States are guaranteed.

Is this right? Should the United States have second-class citizens who don’t have the same rights and protections as those who live in other parts of the nation?

We don’t think so.

For decades, people have tried to get additional rights for Puerto Rico, but it is clear that Puerto Rico still does not have the same rights as the States. Once Puerto Rico is a State, the Island will have the same rights as other States, and the people of Puerto Rico will have the full rights of U.S. citizens.

It’s time.

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