Saturday, April 09, 2016
I like to be in America!
The state of same-sex marriage in Puerto Rico is essentially settled.
It was a tangled tale. U.S. District Court Judge Juan Pérez-Giménez was one of the few Federal court judges who ruled that there was no constitutional right to same-sex marriage, as opposed to more than 60 that found such a constitutional right.
All such doubts were ended with the Supreme Court's decision in Obergefell. But Judge Pérez-Giménez was not willing to give up.
Shortly after Obergefell, all parties to the action agreed that the Commonwealth's ban on same-sex marriage was unconstitutional and, in effect, asked the First Circuit Court of Appeal to dismiss the appeal. The First Circuit agreed, vacated the judgment, and remanded. Normally, that is merely a procedural matter where the lower court enters a judgment for the prevailing party and everyone goes home.
But Judge Pérez-Giménez is made of sterner stuff. Instead, he raised some principles, known as the “Insular Cases,” whereby not all parts of the Bill of Rights, applied to the states by the Fourteenth Amendment, are applied to “unincorporated territories,” such as Puerto Rico. Worse, Judge Pérez-Giménez refused to enter a judgment, either way, that could be appealed. The arcane details of the Insular Cases need not be addressed. The reaction of the First Circuit tells the tale:
final judgment an order in favor of the plaintiffs was entered and Puerto Rico was in America again.
Federal Judges like Juan Pérez-Giménez are appointed for life and can't be removed for being jackasses, but that has still got to leave a mark.
It was a tangled tale. U.S. District Court Judge Juan Pérez-Giménez was one of the few Federal court judges who ruled that there was no constitutional right to same-sex marriage, as opposed to more than 60 that found such a constitutional right.
All such doubts were ended with the Supreme Court's decision in Obergefell. But Judge Pérez-Giménez was not willing to give up.
Shortly after Obergefell, all parties to the action agreed that the Commonwealth's ban on same-sex marriage was unconstitutional and, in effect, asked the First Circuit Court of Appeal to dismiss the appeal. The First Circuit agreed, vacated the judgment, and remanded. Normally, that is merely a procedural matter where the lower court enters a judgment for the prevailing party and everyone goes home.
But Judge Pérez-Giménez is made of sterner stuff. Instead, he raised some principles, known as the “Insular Cases,” whereby not all parts of the Bill of Rights, applied to the states by the Fourteenth Amendment, are applied to “unincorporated territories,” such as Puerto Rico. Worse, Judge Pérez-Giménez refused to enter a judgment, either way, that could be appealed. The arcane details of the Insular Cases need not be addressed. The reaction of the First Circuit tells the tale:
The district court's ruling errs in so many respects that it is hard to know where to begin. The constitutional rights at issue here are the rights to due process and equal protection, as protected by both the Fourteenth and Fifth Amendments to the United States Constitution. Those rights have already been incorporated as to Puerto Rico. And even if they had not, then the district court would have been able to decide whether they should be. …Within hours of the First Circuit's decision, the case was reassigned,
In ruling that the ban is not unconstitutional because the applicable constitutional right does not apply in Puerto Rico, the district court both misconstrued that right and directly contradicted our mandate. And it compounded its error (and signaled a lack of confidence in its actions), by failing to enter a final judgment to enable an appeal in ordinary course.
Error of this type is not so easily insulated from review. This court may employ mandamus jurisdiction when a district court has misconstrued or otherwise failed to effectuate a mandate issued by this court. …
Accordingly, ... the petition for writ of mandamus is granted, … the case is remitted to be assigned randomly by the clerk to a different judge to enter judgment in favor of the Petitioners promptly, and to conduct any further proceedings necessary in this action. [Citations omitted]
Federal Judges like Juan Pérez-Giménez are appointed for life and can't be removed for being jackasses, but that has still got to leave a mark.
Wednesday, March 09, 2016
Surprise, Surprise!
I'm sorry the blog has been moribund of late, due to recent changes in my life.
I'm going to try to make it more regular.
Now here is something somewhat interesting. The Kentucky Legislature has met for the first time since the Supreme Court decision in Obergerfell v. Hodges and, of course, since Kim Davis made herself into a “martyr” for no good reason.
So, the Kentucky Legislature has a bill pending (SB 5) that basically bows to Davis' martyrbation by removal from marriage licenses/certificates forms any “authorization statement” by the county clerk, signatures by a county clerk or deputy clerk, and a very confusing change concerning the statement that the marriage certificate was recorded.
The somewhat interesting thing is that the original bill mandated two separate forms, one for heterosexual couples, where the couple is identified by "bride" or "groom," and one for same-sex couples, identified as "first party" or "second party."
Kentucky State Senator Morgan McGarvey suggested an amendment to the bill to eliminate the two different forms. He discussed the amendment at a recent county clerk’s meeting before the vast majority of Kentucky’s clerks, As McGarvey explained his amendment: “My own reasoning is simple. One form is easier to handle, less expensive and puts everyone on equal footing.” Davis was there and McGarvey explains what happened:
I'm going to try to make it more regular.
Now here is something somewhat interesting. The Kentucky Legislature has met for the first time since the Supreme Court decision in Obergerfell v. Hodges and, of course, since Kim Davis made herself into a “martyr” for no good reason.
So, the Kentucky Legislature has a bill pending (SB 5) that basically bows to Davis' martyrbation by removal from marriage licenses/certificates forms any “authorization statement” by the county clerk, signatures by a county clerk or deputy clerk, and a very confusing change concerning the statement that the marriage certificate was recorded.
The somewhat interesting thing is that the original bill mandated two separate forms, one for heterosexual couples, where the couple is identified by "bride" or "groom," and one for same-sex couples, identified as "first party" or "second party."
Kentucky State Senator Morgan McGarvey suggested an amendment to the bill to eliminate the two different forms. He discussed the amendment at a recent county clerk’s meeting before the vast majority of Kentucky’s clerks, As McGarvey explained his amendment: “My own reasoning is simple. One form is easier to handle, less expensive and puts everyone on equal footing.” Davis was there and McGarvey explains what happened:
“After passing out sample forms and answering a multitude of questions and hypothetical scenarios, Kentucky’s clerks seemed to agree that one form is how we should proceed.Well, well, well … Davis is finally concerned about the taxpayers of Rowan County. Small progress, I guess.
“Then Mrs Davis stood up to speak. We had never met and I had no idea what to expect.
“To my pleasure, and admittedly my surprise, Mrs Davis agreed with my amendment and my approach.
“In front of a room full of her colleagues she emotionally acknowledged her role in causing this debate but whole-heartedly endorsed my amendment. “As Mrs Davis told the other clerks, they should support my amendment because using two forms just invites problems.
