Yesterday federal district judge Juan M. Pérez-Giménez (a Carter appointee) issued a strong ruling rejecting a challenge to Puerto Rico’s marriage laws. I have no illusion that this ruling will turn the tide, but it’s nonetheless noteworthy.

The core of Judge Pérez-Giménez’s ruling is that the Supreme Court’s 1972 dismissal, “for want of a substantial federal question,” of the appeal in Baker v. Nelson operates as a decision on the merits that forecloses the lower courts from holding that there is a federal constitutional right to marry a person of the same sex. That conclusion, Judge Pérez-Giménez explains, is correct as a matter of basic principle and is required by recent First Circuit precedent, as the First Circuit, in the course of striking down DOMA two years ago, recognized that Baker remains binding precedent and forecloses arguments that “presume or rest on a constitutional right to same-sex marriage.”

Further, writes Judge Pérez-Giménez:

Windsor does not overturn Baker; rather, Windsor and Baker work in tandem to emphasize the States’ “historic and essential authority to define the marital relation” free from “federal intrusion.” It takes inexplicable contortions of the mind or perhaps even willful ignorance – this Court does not venture an answer here – to interpret Windsor’s endorsement of the state control of marriage as eliminating the state control of marriage.

And here’s a lengthy excerpt from Judge Pérez-Giménez’s powerful conclusion:

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,” Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting). 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.
Those are the well-tested, well-proven principles on which we have relied for centuries. The question now is whether judicial “wisdom” may contrive methods by which those solid principles can be circumvented or even discarded.
A clear majority of courts have struck down statutes that affirm opposite-gender marriage only. In their ingenuity and imagination they have constructed a seemingly comprehensive legal structure for this new form of marriage. And yet what is lacking and unaccounted for remains: are laws barring polygamy, or, say the marriage of fathers and daughters, now of doubtful validity? Is “minimal marriage”, where “individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties” the blueprint for their design? It would seem so, if we follow the plaintiffs’ logic, that the fundamental right to marriage is based on “the constitutional liberty to select the partner of one’s choice.”
Of course, it is all too easy to dismiss such concerns as absurd or of a kind with the cruel discrimination and ridicule that has been shown toward people attracted to members of their own sex. But the truth concealed in these concerns goes to the heart of our system of limited, consent-based government: those seeking sweeping change must render reasons justifying the change and articulate the principles that they claim will limit this newly fashioned right.
For now, one basic principle remains: the people, acting through their elected representatives, may legitimately regulate marriage by law. This principle
“is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues. It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds . . . Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.”
Schuette v. Coalition to Defend Affirmative Action (2014) (Op. of Kennedy, J.). [Emphasis added; some citations omitted.]