The government of Puerto Rico on Friday ended its defense in federal court of the territory’s ban on same-sex marriage The change in position was announced by commonwealth officials in San Juan, and was confirmed in a legal brief filed in the U.S. Court of Appeals for the First Circuit. Five same-sex couples have a challenge to the ban pending there.
The ban had been upheld in October by a trial judge in Puerto Rico, one of the few decisions in favor of such a prohibition among the wave of court rulings over the past twenty-one months.
The appeal in the First Circuit Court is now in the briefing stage, and Friday was a deadline for the commonwealth’s brief.
With the end of that defense, all of the jurisdictions in the First Circuit will now allow same-sex marriage. Bans were overturned in Massachusetts by state court decision, in New Hampshire and Rhode Island by the state legislatures, and in Maine by a popular vote. As a result, the Puerto Rico case was to be the first to test the views of the First Circuit Court since the Supreme Court’s 2013 decision in United States v. Windsor, striking down a part of the federal Defense of Marriage Act and setting off the lengthy series of lower court rulings against state bans on gay and lesbian marriages.
In the commonwealth’s brief Friday in the First Circuit Court, its attorneys cited the string of decisions, argued that the same-sex marriage ban must be subjected to a more rigorous standard of constitutional analysis, and conceded that “the Commonwealth cannot responsibly advance before this court any interest sufficiently important or compelling to justify the differentiated treatment afforded so far” to the couples who challenged the ban.
The Puerto Rico government, it said, “has a strong interest in guaranteeing the equal protection of the law to all persons. This includes eliminating all forms of discrimination and unequal equal treatment within the Commonwealth’s borders.”
The commonwealth explicitly urged the First Circuit Court to overturn the trial judge’s decision turning aside the challenge.
Although the First Circuit Court has not yet had a chance to analyze the same-sex marriage question while other courts have been doing so, that appeals court had said in 2012 that it was still bound by a summary ruling by the Supreme Court in 1972 (Baker v. Nelson) saying that a claim to same-sex marriage rights did not raise “a substantial federal question.”
That comment by the First Circuit Court, and the Baker decision itself, were cited by the trial judge in Puerto Rico as part of his refusal to strike down the marriage ban in the territory. In its legal brief Friday, the commonwealth said that it had now concluded — especially since the Supreme Court has agreed to rule on the constitutional question — that Baker v. Nelson was no longer a bar to a decision in lower federal courts on that question.
The commonwealth’s new stance will mean that there is no controversy still before the First Circuit Court — unless that court were to allow some group opposing same-sex marriage to stand in for the commonwealth to continue a defense of the ban. That seems unlikely; other appeals courts have not allowed that where a state has switched positions and no longer supported a ban.
With the First Circuit test of the issue apparently now ending, there remain only three federal appeals courts that have yet to rule on the issue in recent months: the Fifth, Eighth and Eleventh Circuit Courts. Only one Circuit Court that has ruled on the issue — the Sixth — has upheld state bans. That is the decision the Supreme Court now has under review, with a hearing set for April 28.