Case 3:14-cv-01253 Document 1 Filed 03/25/14 Page 1 of 16

UNITED STATES DISTRICT COURT OF PUERTO RICO

ADA MERCEDES CONDE VIDAL IVONNE ALVAREZ VELEZ
Plantiffs,
v.
ANA RIUS ARMENDARIZ, in her official capacity as Secretary of the Health Department of the Commonwealth of Puerto Rico
WANDA LLOVET DiAl, in her official capacity as Director of the Commonwealth of Puerto Rico Registrar of Vital Records

CASE NO.:
DECLARATORY JUDGMENT INJUNCTIVE RELIEF DEPRIVATION OF CIVIL CIVIL RIGHTS

COMPLAINT TO THE HONORABLE COURT:
COMES NOW the Plaintiffs by themselves and very respectfully ALLEGE, STATE and PRAY the following:
INTRODUCTION 1. We, the Plaintiffs are a married committed same sex couple seeking a declaration that our exclusion from the institution of civil marriage violates the Fourteenth Amendment of the Constitution of the United States because we are a couple legally married in another jurisdiction, being unconstitutional for the Defendants to deny recognition of our marriage validly entered in other jurisdictions for same sex couples. 2. The Supreme Court of the United Sates has stated that the "freedom to marry has long been recognized as one of the vital personal rights essential to the orderly
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pursuit of happiness by free men." Loving v. Virginia, 388 U.S. 1, 12 (1967).

Consistently marriage has been reaffirmed that is "the most important relation in life,"

Zablocki v. Rehail, 434 U.S. 374, 384 (1978), and that the right to marry is "one of the

liberties protected by the Due Process Clause". Cleveland Bd. of Educ. V. LaFleur, 414

U.S. 632, 639 (1974). The result has been that the "[c)hoices about marriage" are

"sheltered by the Fourteenth Amendment against the State's unwarranted usurpation

disregard or disrespect." M. L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (internal quotations

marks omitted). "Our obligation is to define the liberty of all, not to mandate our own

moral code." Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850

(1992).

3.

Even though the "fundamental importance" of marriage "for all individuals",

Zablocki, 434 U.S. at 384, the Commonwealth of Puerto Rico imposes restrictions that

prevent gay and lesbian individual not only from marrying but also denies all recognition

to any valid legally marriage of other jurisdictions of the United States of America as is

the Plaintiffs marriage:

"Marriage is a civil institution, originating in a civil contract whereby a man and a

woman mutually agree to become husband and wife and to discharge toward each

other the duties imposed by law. It is valid only when contracted and solemnized in

accordance with the provisions of law, and it may be dissolved before the death of

either spouse only in the cases expressly provided for in this title. Any marriage

between persons of the same sex or transsexuals contracted in other jurisdictions shall

not be valid or given juridical recognition in Puerto Rico". Article 68, Civil Code of

Puerto Rico, 31 L.P.R.A. §221. This unequal treatment of gay and lesbian individuals

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denies them the due process and equal protections rights guaranteed by the Fourteenth Amendment of the United States Constitution. 4. For these reasons, Plaintiffs ask this Honorable Court to enjoin, preliminarily and permanently, enforcement of all statutes and constitutional provisions that exclude gay and lesbian individuals from access to civil marriage and that treat lawful same sex marriages from other states as null and void in Puerto Rico. Plaintiffs also ask that this Court declare Article 68 of the Civil Code of Puerto Rico, 31 L.P.R.A. §221 to be unconstitutional.
JURISDICTION AND VENUE 5. This case raises questions under the Constitution of the United States and 42 U.S.C. §1983, and thus, this Court has jurisdiction over all claims for relief pursuant to 28 U.S.C. §1331. 6. Venue is proper in this Court pursuant 28 U.S.C. §1391(b) because all Defendants reside in the District of Puerto Rico. Venue is also proper in this Court because the events giving rise to Plaintiff's claims occurred in this district.
NATURE OF DISPUTE 7. This action, brought pursuant to 42 U.S.C. §1983, seeks (1) a declaration that Article 68 of the Civil Code of Puerto Rico, 31 L.P.R.A. §221 that is the provision that expressly deny gay and lesbian individuals the opportunity to marry civilly and enter into the same officially-sanctioned family relationship with their loved ones as heterosexual individuals" are unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution; and (2) a preliminary
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and permanent injunction preventing Defendants from enforcing these provisions against Plaintiffs. 8. We, the Plaintiffs Conde and Alvarez are lesbian individuals in a committed relationship that has lasted nearly 14 years. We were legally and lawfully married in The Commonwealth of Massachusetts on August 2,2004 and we seek to have our marriage recognized by the Commonwealth of Puerto Rico. We wish to enjoy the same social privileges and contractual rights that are conferred by the Commonwealth on individuals in opposite-sex marriages and not to be treated as we are being treated as second class citizens differentiated, alienated and discriminated in comparison to other United States citizens. Puerto Rico law precluding recognition of lawful same-sex marriages deny us those rights in violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the United States Constitution. 9. To enforce the rights afforded by the United States Constitution, we the Plaintiffs bring this suit pursuant 42 U.S.C. §1983 for declaratory and injunctive relief barring enforcement of Article 68 of the Civil Code of Puerto Rico, supra. We the Plaintiffs also seek to recover all costs and expenses incurred in this action and any other relief that this Court may order and deem appropriate.
THE PARTIES 10. I, Ada Mercedes Conde Vidal and Plaintiff, reside in San Juan, Commonwealth of Puerto Rico. 11. I, Ivonne Alvarez Velez and Plaintiff, reside in San Juan, Commonwealth of Puerto Rico.
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12. Defendant Ana Rius Armendariz (URius") is the Commonwealth of Puerto Rico Secretary of the Health Department and is sued in her official capacity as the person responsible of supervising and managing the Demographic Registry and the Commonwealth of Puerto Rico Registrar of Vital Records Ms. Wanda Llovet Diaz, also a Defendant pursuant the Commonwealth of Puerto Rico Demographic Registry Law of April 22, 1931 who is the responsible for ensuring compliance with the Commonwealth's laws relating to marriage in general. 13. Defendant Wanda Llovet Diaz (ULIovet") is sued in her official capacity as the Commonwealth of Puerto Rico Registrar of Vital Records and/or of (as also known) the Demographic Registry of the Commonwealth of Puerto Rico. Defendant Llovet is responsible for ensuring compliance with the Commonwealth's laws relating to marriage in general pursuant the Registry Law of 1931 (supra) and, more specifically, is responsible for enforcement of the specific provisions at issue in this Complaint, namely those laws that limit marriage to opposite sex couples and that refuse to honor the benefits of same sex marriages lawfully entered into in other states. Defendant Llovet's duties include, without limitation, directing and supervising the system of vital records in the Commonwealth of Puerto Rico. Defendant Llovet also serves as custodian of official records and directs, supervises and controls de actions of all persons relating to the operation of the Commonwealth system of maintaining vital records. Defendant Llovet's responsibilities also include providing forms for marriage licenses, marriage certificates and application for marriage licenses used in the Commonwealth of Puerto Rico, compiles, publishes and make available to the public in conjunction with her direct supervisor, Rius, also Defendant, aggregate data on the number of marriages, data that
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includes the age, sex and race of married couples and other information. Defendant Llovet is also responsible in her official capacity for publishing and furnishing to all the Registry offices the marriage forms that require applicants to list a "Bride" and a "Groom". Defendant Llovet is a person under 42 U.S.C. §1983 and was acting under the color of state law at all times germane to this Complaint. On account of her responsibilities, Defendant Llovet has a "special relationship" to the laws that prevent gay and lesbian individuals from marrying and legally in the Commonwealth of Puerto Rico and the denial of recognition of marriages validly entered in other jurisdictions for same sex couples. 14. Defendants Rius and Llovet and those subject to their supervision, direction, and control, are responsible for the enforcement of Article 68 of the Civil Code of the Commonwealth of Puerto Rico (supra). The relief requested in this action is sought against each Defendant, as well as against each Defendant's officers, employees, agents and against all persons acting in cooperation with Defendant(s) under their supervision, at their direction, or under their control.
FACTS 15. It is a fact well known for which this Honorable Court can take judicial notice that Gay and Lesbian individuals have suffered a long and painful history of societal and government sponsored discrimination. Even though their sexual orientation bears no relation to their ability to contribute to society, homosexuals - men and woman alike has been singled out for discriminatory treatment. 16. We as Plaintiffs thru our lives as lesbian as all other homosexuals have faced unconstitutional criminal penalties for private sexual conduct between consenting
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adults, harassment, hate crimes, discrimination in employment and deprived for parenting as a couple as also being deprived of becoming a proud adoptive parent of a child and as in many other areas. We have even been the subject of laws stripping rights afforded to all other citizens as in this case of being marriage in our own territory. 17. Ironically, even though the Constitution of the Commonwealth of Puerto Rico prohibits discrimination because of sex1 and recognizes that all "men are equal under the Law", that was approved in 1952, since 1930 pursuant Article 68 of the Civil Code of the Commonwealth of Puerto Rico as amended by Law 94, of March 19, 1999, samesex couples are deprived of being married defining marriage as a civil contract whereby "a man and a woman" agree to become husband and wife, being denied marriage licenses on account of their sex and its modality of sexual orientation and gender and since 1999 marriages being denied recognition of marriages validly entered in other jurisdictions for same sex couples. This definition and the denial of recognition of marriages validly entered in other States of the United States of America by the Commonwealth of Puerto Rico "places same-sex couples in an unstable position," "demeans" same-sex couples, "humiliates tens of thousands of children now being raised by same-sex couples," and "instructs all [State} officials and indeed all persons with whom same-sex interact, including their own children, that their [relationship] is less worthy that the [relationships] of others." United States v. Windsor, 133 S.Ct, 2675, 2694-96 (2013). 18. The Commonwealth of Puerto Rico statutory provision has created a legal system in which civil marriage is restricted solely and exclusively to opposite-sex

1 Section II, Article 1

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couples, and in which gay and lesbian individuals are denied the right to enter into a civil marriage. 19. The Commonwealth of Puerto Rico statutory provision also deprive same sex couples of federal marital privileges and benefits that, upon information and belief are available to same sex couples who marry under state laws authorizing such benefits but that are not available to Plaintiffs and other same sex couples in Puerto Rico such as (a) marital, disability and survivor's benefits under the federal social security system; (b) federal Medicaid benefits as many others. 20. The Commonwealth of Puerto Rico also fails to honor the laws and determinations of seventeen (17) other states and the District of Columbia that allow same-sex marriage, by providing that lawful marriages from those jurisdictions - as Plaintiff's Massachusetts marriage - "shall not be valid or given juridical recognition in Puerto Rico". By refusing to acknowledge lawful same sex marriages from other states, Puerto Rico "ensures that. .. those unions will be treated as second-class marriages for purposes of [the Commonwealth of Puerto Rico] law." Windsor, 133 S.Ct. at 2693-94. 21. The Commonwealth of Puerto Rico law thereby "undermine[] both the public and private significance of state-sanctioned same-sex marriages' for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of [the Commonwealth of Puerto Rico's] recognition.". Id. At 2694. They "impose a disadvantage, a separate status, and so a stigma upon "same sex couples whose legal marriages are disregarded by the State and "humiliate[] thens of thousands of children now being raised by same sex couples.". Id. At 2693-94.
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22. The unmistakable purpose and effect of the Commonwealth of Puerto Rico's far reaching restrictions is to enshrine in the Civil Code that gay men and lesbians are "unequal to everyone else," Romer v. Evans, 517 U.S. 620, 635 (1996), that their committed relationships are ineligible for the designation "marriage," and that they are unworthy of being treated with "dignity and integrity.". Windsor, 133 S.CT. at 2694. 23. We the Plaintiffs have lived all our lives in the Commonwealth of Puerto Rico since we were born and have been a couple since 2000. I, Ada Mercedes Conde Vidal, am an attorney at law admitted in the Puerto Rico State Bar and proudly in this United States District Court of Puerto Rico as main practice the Bankruptcy Law. I, Ivonne Alvarez Velez, am an accountant and finance advisor, that during my lifetime I have occupied high ranking managing position in known corporations. 23. I, Plaintiff Conde, am the mother of a daughter that when my committed relationship with Plaintiff Ivonne started my daughter was 13 years old. My daughter is a cardiac patient that since when 8 years old had her first open heart surgery. Being with my wife Alvarez, my daughter had to have a second open heart surgery and because of the lack of recognition of my relationship, I could not delegate to Ms. Alvarez the taking even though simple decisions or determinations regarding her health. This also included simple decisions and/or determinations regarding her education. 24. Even though we the Plaintiffs are married in a same sex couple marriage validly entered in Massachusetts we had to spend money to execute living wills in order to provide for our health care in case of medical emergency for each other that otherwise is not necessary for heterosexual couples in the Commonwealth of Puerto Rico.
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25. As per Puerto Rico inheritance law, if a person dies without descendants and ascendants, the spouse inherits. Plaintiff Ivonne Alvarez does not has descendants and ascendants and due to the deprivation of the Commonwealth of Puerto Rico of recognizing the same sex couple marriage validly entered in Massachusetts with her wife Ada Mercedes Conde Vidal, her state will be transferred to the Commonwealth of Puerto Rico. The only way that Plaintiff Alvarez can transfer the estate at the time of her death to Plaintiff Conde is to execute a will that is very costly when heterosexual couples does not have to execute. 26. Also we the Plaintiffs cannot file Commonwealth of Puerto Rico income tax returns as a married couple. This has cost us thousands of dollars in additional taxes during the time we have been together as same sex couple marriage validly entered in Massachusetts and because also we are unable to marry lawfully in Puerto Rico. 27. Our inability to marry or to have our relationship recognized by the Commonwealth of Puerto Rico with the dignity and respect accorded to married opposite sex couples has caused us significant hardship, including, but not limited to, the deprivation or fights guaranteed by the Fourteenth Amendment of the United States Constitution and severe humiliation, emotional distress, pain, suffering, psychological harm and stigma. Each day that we as Plaintiffs are denied the freedom to marry, or have our Massachusetts marriage recognized in the Commonwealth of Puerto Rico, we have suffered irreparable harm as a direct result of Defendants' violation of our constitutional rights. 28. If the Court does not enjoin Article 68 of the Civil Code of Puerto Rico, Defendants will continue to enforce this unconstitutional law against Plaintiffs, thereby
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depriving them of their constitutional rights under the Fourteenth Amendment to the United States Constitution. The declaratory and injunctive relief sought by Plaintiffs, on the other hand, will require the Commonwealth of Puerto Rico to revise official state law and procedures governing marriage and will require Defendants to recognize us the Plaintiffs Conde and Alvarez as a lawfully married couple within the Commonwealth of Puerto Rico.
CLAIMS FOR RELIEF COUNT ONE: DUE PROCESS 29. Plaintiffs incorporate here by reference paragraphs 1 through 29, supra, as if fully set forth herein.
30. The Article 68 of the Civil Code of Puerto Rico, 31 L.P.R.A. 221 violates fundamental liberties that are protected by the Due Process Clause of the Fourteenth Amendment, both on their face and as applied to Plaintiffs. 31. This law impinges on fundamental liberties by denying gay and lesbian individuals the opportunity to marry civilly and enter into the same officially sanctioned family relationship with their loved ones as opposite-sex individuals. By denying those individuals the same "marriage" deSignation afforded to opposite-sex couples, and by refusing to recognize their lawful marriages from other States, the Commonwealth of Puerto Rico is stigmatizing gay men and lesbians, as well as their children and families, and denying them the same dignity, respect, and stature afforded officially recognized opposite-sex family relationships. 32. Puerto Rico's statutory and constitutional laws thus deprive Plaintiffs of their liberty without due process of law in violation of the Fourteenth Amendment to the
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United States Constitution. COUNT TWO: EQUAL PROTECTION
33. Plaintiffs incorporate here by reference paragraphs 1 through 32, supra, as if fully set forth herein. 34. Article 68 of the Civil Code of the Commonwealth of Puerto Rico, 31 L.P.R.A. 221 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, both on their face and as applied to Plaintiffs. 35. This law restricts civil marriage to individuals of the opposite sex; gay and lesbian individuals are unable to marry. Thus, Puerto Rico law treats similarly-situated people differently by providing civil marriage to opposite-sex couples, but not to same-sex couples. Moreover, opposite-sex couples who marry in other States and live in Puerto Rico enjoy all of the legal benefits of marriage, whereas same-sex couples, such as Plaintiffs Conde and Alvarez, who marry lawfully in other jurisdiction are expressly precluded from enjoying the panoply of rights associated with marriage. Gay men and lesbians are, therefore, unequal in the eyes of Commonwealth of Puerto Rico law, and their families are denied the same respect as officially sanctioned families of oppositesex individuals. 36. By purposefully denying civil marriage to gay and lesbian individuals, Puerto Rico's ban on same-sex marriage discriminates on the basis of sex, sexual orientation and gender. Gay and lesbian individuals are unable to enter into marriages available through the Commonwealth of Puerto Rico to opposite-sex couples solely because of their sexual orientation, sex and/or gender.
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37. The disadvantage this law imposes upon gay men and lesbians is the result of disapproval or animus against a politically unpopular group. But the United States Constitution's guarantee of equality under the Fourteenth Amendment "must at the very least mean that a bare (legislative) desire to harm a politically unpopular group cannot justify disparate treatment of that group." Windsor, 133 S. Ct. at 2693. Accordingly, this law violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by casting gays and lesbians into disfavored legal status and categorizing them as "second-class citizens." 38. This law also violates the Equal Protection Clause because they discriminate on the basis of sex. Under these laws, a man who wishes to marry a man may not do so because he is a man, and a woman may not marry a woman because she is a woman. Thus, the laws limit civil marriage on the basis of sex. 39. Puerto Rico's statutory law directly and substantially interferes with Plaintiffs' fundamental right to marry. The right to marry is protected by the Fourteenth Amendment as a vital personal right that is integral to an individual's identity, autonomy, dignity, and intimate associations. Puerto Rico's law restricting civil marriage to opposite-sex couples impinges on the fundamental right of gay and lesbian individuals to marry without serving any legitimate governmental interest, let alone any important or compelling interest to which they are narrowly-tailored. 40. Whether under a strict or heightened scrutiny analysis, or under a more lenient rational-basis analysis, this provision of Puerto Rico law does not bear any relation to a legitimate governmental purpose and, thus, violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
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COUNT THREE: VIOLATION OF 42 U.S.C. § 1983
41. Plaintiffs incorporate here by reference paragraphs 1 through 40, supra, as if fully set forth herein. 42. Insofar as they are enforcing the terms of Article 68 of the Civil Code of the Commonwealth of Puerto Rico, 31 L.P.R.A. §221. Defendants, acting under the color of state law are depriving, and will continue to deprive, Plaintiffs of numerous rights secured by the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution in violation of 42 U.S.C. § 1983.
IRREPARABLE INJURY
43. Plaintiffs incorporate here by reference paragraphs 1 through 42, supra, as if fully set forth herein. 44. Plaintiffs are severely and irreparably injured by the challenged Commonwealth of Puerto Rico law that violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. By way of example only, Plaintiffs' injury as a result of this discriminatory law includes the deprivation of rights guaranteed by the Fourteenth Amendment and the severe humiliation, emotional distress, pain, suffering, psychological harm, and stigma caused by the inability to marry and have society accord their unions and their families the same respect and dignity enjoyed by opposite-sex unions and families. 45. Because Plaintiffs cannot marry under Puerto Rico law, nor have our out-ofPuerto Rico marriage recognized by the Commonwealth, we cannot, for example, currently receive social security benefits, naval disability benefits, Medicaid benefits, Veteran Administration benefits, immigration law benefits and favorable treatment on
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income and estate taxes prescribed by Puerto Rico law. We also cannot currently claim benefits under various state and federal laws that apply only to married couples because they cannot marry under Puerto Rico law. Plaintiffs' injuries will be redressed only if this Court declares this provision unconstitutional and enjoins Defendants from enforcing it. 46. An actual and judicially cognizable controversy exists between Plaintiffs and Defendants regarding whether the law violates the Due Process and Equal Protection clauses of the Fourteenth Amendment. Defendants are presently enforcing these Puerto Rico law to the detriment of Plaintiffs.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for judgment as follows:
1. Plaintiffs respectfully request that this Court, pursuant to 28 U.S.C. § 2201, construe Article 68 of the Civil Code of Puerto Rico, 31 L.P.R.A. §221 and enter a declaratory judgment stating that this provision and any other Puerto Rico law that bars same-sex marriage or prohibits Puerto Rico's recognition of otherwise-lawful same-sex marriages from other jurisdictions violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. 2. Plaintiffs respectfully request that this Court enter a preliminary and a permanent injunction enjoining enforcement or application of Article 68 of the Civil Code of the Commonwealth of Puerto Rico, 31 L.P.R.A. §221 and any other Puerto Rico law that bars same-sex marriage or prohibits Puerto Rico's recognition of otherwise-lawful same-sex marriages from other jurisdictions.
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Case 3:14-cv-01253 Document 1 Filed 03/25/14 Page 16 of 16 3. Plaintiffs respectfully request costs of suit under 42 U.S.C. § 1988, and all further relief to which they may be justly entitled. RESPECTFULLY SUBMITTED. In San Juan, Puerto Rico this 25th day of March, 20~4,-----....
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-~;'-;- :Ivarez Velez Plaintiffs PO Box 13268 San Juan PR 00908-3268 Tel: 787-721-0401 Fax: 787-977-8072 condelawpr@gmail.com
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 Case 3:14-cv-01253-PG Document 57 Filed 10/21/14 Page 1 of 21

UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO

ADA CONDE-VIDAL, ET AL., Plaintiffs, v.
ALEJANDRO GARCIA-PADILLA, ET AL. Defendants.

Civil No. 14-1253 (PG)

OPINION AND ORDER

Article 68 of the Puerto Rico Civil Code defines marriage as “originating in a civil contract whereby a man and woman mutually agree to become husband and wife” and it refuses recognition of “[a]ny marriage between persons of the same sex or transsexuals contracted in other jurisdictions.” P.R. LAWS ANN. tit. 31, § 221. This case challenges the constitutionality of Puerto Rico’s codification of opposite-gender marriage.
I. BACKGROUND The plaintiffs’ case. The plaintiffs include three same-gender couples who live in Puerto Rico and are validly married under the law of another state; two same-gender couples who seek the right to marry in Puerto Rico; and Puerto Rico Para Todos, a Lesbian, Gay, Bisexual, Transvestite, and Transsexual (LGBTT) nonprofit advocacy organization. As the plaintiffs see it, the liberty guaranteed by the

Constitution includes a fundamental right to freely choose one’s

spouse and Article 68 of the Puerto Rico Civil Code unlawfully

circumscribes this fundamental right and violates Equal Protection and

Due Process.

Because the Equal Protection Clause prohibits

discrimination on the basis of sexual orientation and gender, Puerto

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Civil No. 14-1253 (PG)

Page 2

Rico would no more be permitted to deny access to marriage than it

would be to permit, say, racial discrimination in public employment.

And because the substantive component of the Due Process Clause

protects fundamental rights from government intrusion, including

issues of personal and marital privacy, see, e.g., Lawrence v. Texas,

539 U.S. 558 (2003), the Commonwealth must articulate a compelling

governmental interest that justifies its marriage laws — a burden

that, according to the plaintiffs, simply cannot be met. The

plaintiffs contend that recent developments at the Supreme Court,

United States v. Windsor, 570 U.S. ___, 133 S.Ct. 2675 (2013), endorse

their understanding of Equal Protection and Due Process.

By

recognizing only opposite-gender marriage, Commonwealth law deprives

gay and lesbian couples of the intrinsic societal value and individual

dignity attached to the term “marriage”.

The Commonwealth’s case. Article 68 stands as a valid exercise

of the Commonwealth’s regulatory power over domestic relations.

Because the federal Constitution is silent on the issue of marriage,

Puerto Rico is free to formulate its own policy governing marriage.

See Rodriguez v. Popular Democratic Party, 457 U.S. 1, 8

(1982)(“Puerto Rico, like a state, is an autonomous political entity

‘sovereign over matters not ruled by the Constitution.’”)(citation

omitted).

As Puerto Rico sees it, the Supreme Court has said as much: in

Baker v. Nelson, 409 U.S. 810 (1972), the Supreme Court held that it

lacked jurisdiction over a constitutional challenge to Minnesota’s

marriage laws. The ancient understanding and traditional doctrine of

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Civil No. 14-1253 (PG)

Page 3

marriage and family life expressed by Article 68 offends neither Equal Protection nor Due Process.
The plaintiffs seek a declaratory judgment invalidating Article 68. (Docket No. 7.) Puerto Rico moved to dismiss. (Docket No. 31.) The plaintiffs responded. (Docket No. 45.) Puerto Rico replied. (Docket No. 53.) The plaintiffs sur-replied. (Docket No. 55-1.)
II. LEGAL STANDARD To survive a Rule 12(b)(6) motion to dismiss, a plaintiff’s complaint must contain “‘a short and plain statement of the claim.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see also FED.R.CIV.P. 8(a)(2). While a complaint need not contain detailed factual allegations, RodriguezVives v. Puerto Rico Firefighters Corps of Puerto Rico, 743 F.3d 278, 283 (1st Cir.2014), a plaintiff must provide “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555 (internal quotation marks omitted). In assessing a claim’s plausibility, we must construe the complaint in the plaintiff’s favor, accept all non-conclusory allegations as true, and draw any reasonable inferences in favor of the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678 (citing Twombly, 550 U.S. at 570); accord Maloy v. Ballori–Lage, 744 F.3d 250, 252 (1st Cir.2014). When reviewing a motion to dismiss, we “must consider the complaint in its entirety, as well as other sources ordinarily examined when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues &

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Civil No. 14-1253 (PG)

Page 4

Rights, Ltd., 551 U.S. 308, 322 (2007). Finally, determining the plausibility of a claim for relief is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
III. DISCUSSION A. Standing
Standing is a “threshold question in every federal case.” Warth v. Seldin, 422 U.S. 490, 498 (1975). Article III of the Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies,” U.S. CONST. art. III, § 2. The doctrine of standing serves to identify those disputes that are of the “justiciable sort referred to in Article III” and which are thus “‘appropriately resolved through the judicial process,’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)(quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). In assessing standing, the Court focuses on the parties’ right to have the Court decide the merits of the dispute. Warth, 422 U.S. at 498.
To establish the irreducible constitutional minimum of standing, a plaintiff must prove that “he has suffered a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision.” Hollingsworth v. Perry, 570 U.S. ___, 133 S. Ct. 2652, 2661 (2013)(citing Lujan, 504 U.S. at 560–61 (1992)).
The Commonwealth argues that the plaintiffs lack standing because they have no injury traceable to the defendants and because they never applied for a marriage license. But the plaintiffs have alleged a

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Civil No. 14-1253 (PG)

Page 5

sufficient injury, and it is not necessary for them to apply for a

marriage license given the clarity of Puerto Rican law. See Cook v.

Dept. of Mental Health, Retardation, & Hosps., 10 F.3d 17, 26 (1st

Cir. 1993)(rejecting proposition “that the law venerates the

performance of obviously futile acts”).

The plaintiffs have satisfied the Court of their standing to sue.

Each of the plaintiffs wishes to marry and obtain the

Commonwealth’s “official sanction” of that marriage — a form of

recognition unavailable to them given that Article 68 permits

“marriage” in Puerto Rico solely between one man and one woman.

(Docket No. 7 at 3.) The plaintiffs have identified several harms

flowing from Article 68, including the inability to file joint tax

returns or to take advantage of certain legal presumptions,

particularly as relates to adopting and raising children. (Id. at 18-

21.) The plaintiffs have sued the Commonwealth officials responsible

for enforcing Article 68. Ex parte Young, 209 U.S. 123, 157

(1908)(holding a state official sued in his official capacity must

“have some connection with the enforcement” of a challenged

provision).

And should the plaintiffs prevail against these

defendants, an injunction preventing the Commonwealth from enforcing

Article 68 would redress their injuries by allowing them to marry as

they wish and gain access to the benefits they are currently denied.

All of that is sufficient to establish that the plaintiffs have a

legally cognizable injury, redressable by suing these defendants.

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Civil No. 14-1253 (PG)

Page 6

B. Burford Abstention The Burford abstention doctrine stands as a narrow exception to
the rule that federal courts “have a strict duty to exercise the jurisdiction that is conferred upon them by Congress.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996). Burford abstention is proper where a case involves an unclear state-law question of important local concern that transcends any potential result in a federal case. Burford v. Sun Oil Co., 319 U.S. 315, 332–34 (1943). However, “abstention is ... ‘the exception, not the rule.’” Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976), and “there is, of course, no doctrine requiring abstention merely because resolution of a federal question may result in the overturning of a state policy.” Zablocki v. Redhail, 434 U.S. 374, 379 n.5 (1978).
The Commonwealth contends that this Court should refrain from ruling on the constitutionality of Article 68 in the interest of allowing for the implementation of a coherent marriage policy. The Court is not persuaded.
Contrary to its contentions, the Commonwealth’s marriage policy is neither unclear nor unsettled. In 1889, royal decree brought Puerto Rico within the ambit of the Spanish Civil Code. Title IV of that code governed marriage, including the “[r]ights and obligations of husband and wife.” See Title IV “Marriage” of the Spanish Civil Code of 1889, see Attachment 1. The United States recognizes Puerto Rico’s legal heritage, including its historical adherence to the Spanish Civil Code. See, e.g., Ponce v. Roman Catholic Apostolic

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Church, 210 U.S. 296, 309 (1908)(holding that the legal and political institutions of Puerto Rico prior to annexation are, pro tanto, no longer foreign law).
Shortly after Puerto Rico became an unincorporated insular territory of the United States, see Treaty of Paris, Dec. 10, 1898, U.S.-Spain, Art. II 30 Stat. 1755, T.S. No. 343, Congress enacted the Foraker Act to establish the governing legal structure for the Island. See 31 Stat. 77 1900 [repealed]. The Act created a commission to draft several key pieces of legislation. Id. at Section 40. The ultimate result of the commission’s work was the enactment of the Civil Code of 1902, which included Article 129:
Marriage is a civil institution that emanates from a civil contract by virtue of which a man and a woman are mutually obligated to be husband and wife, and to fulfill for one another all the duties that the law imposes. It will be valid only when it is celebrated and solemnized in accordance with such provisions of law and may only be dissolved before the death of any of the spouses in those instances expressly provided for in this Code. Puerto Rico, Civil Code 1902, title 4, chap. 1, § 129, see Attachment 2. A revised Code was approved in 1930 that incorporated the 1902 code’s definition of marriage as Article 68. See P.R. LAWS ANN. tit. 31, § 221. Two amendments were later added but the Code’s original definition of marriage as between “a man and a woman” did not change. This long-standing definition, stretching across two distinct legal traditions, rules out animus as the primary motivation behind Puerto Rico’s marriage laws. From the time Puerto Rico became a possession of the United States its marriage laws have had the same consistent policy:

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marriage is between one man and one woman. For that reason, Puerto Rico’s marriage policy is neither unclear nor unsettled.
Besides, there is neither a parallel case in commonwealth court nor any legislation currently pending, so this Court has no legitimate reason to abstain. A stay of these proceedings is neither required nor appropriate. C. Baker v. Nelson
The plaintiffs have brought this challenge alleging a violation of the federal constitution, so the first place to begin is with the text of the Constitution. The text of the Constitution, however, does not directly guarantee a right to same-gender marriage, for “when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States.” See Windsor, 133 S.Ct. at 2691—92, (citing Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383-384 (1930)).
Without the direct guidance of the Constitution, the next source of authority is relevant Supreme Court precedent interpreting the Constitution. On the question of same-gender marriage, the Supreme Court has issued a decision that directly binds this Court.
The petitioners in Baker v. Nelson were two men who had been denied a license to marry each other. They argued that Minnesota’s statutory definition of marriage as an opposite-gender relationship violated due process and equal protection – just as the plaintiffs argue here. The Minnesota Supreme Court rejected the petitioners’ claim, determining that the right to marry without regard to gender was not a fundamental right and that it was neither irrational nor

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invidious discrimination to define marriage as requiring an oppositegender union. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971).
The petitioners’ appealed, pursuant to 28 U.S.C. § 1257(2) [repealed], presenting two questions to the Supreme Court: (1) whether Minnesota’s “refusal to sanctify appellants’ [same-gender] marriage deprive[d] appellants of their liberty to marry and of their property without due process of law under the Fourteenth Amendment”; and (2) whether Minnesota’s “refusal, pursuant to Minnesota marriage statutes, to sanctify appellants’ marriage because both are of the male sex violate[d] their rights under the equal protection clause of the Fourteenth Amendment.” Jackson v. Abercrombie, 884 F.Supp.2d 1065, 1087 (citing Baker, Jurisdictional Stmt., No. 71-1027 at 3 (Feb. 11, 1971)). The Supreme Court considered both claims and unanimously dismissed the petitioners’ appeal “for want of [a] substantial federal question.” Baker, 409 U.S. at 810.
Decided five years after the Supreme Court struck down race-based restrictions on marriage in Loving v. Virginia, 388 U.S. 1 (1967), Baker was a mandatory appeal brought under then-28 U.S.C. § 1257(2)’s procedure. The dismissal was a decision on the merits, and it bound all lower courts with regard to the issues presented and necessarily decided, Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam); see also Ohio ex. Rel. Eaton v. Price, 360 U.S. 246, 247 (1959) (“Votes to affirm summarily, and to dismiss for want of a substantial federal question, it hardly needs comment, are votes on the merits of a case…”).

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Today, when the Supreme Court’s docket is almost entirely discretionary, a summary dismissal or affirmance is rare. In fact, the very procedural mechanism used by the Baker petitioners to reach the Supreme Court has since been eliminated. See Public Law No. 100352 (effective June 27, 1988). That, however, does not change the precedential value of Baker. This Court is bound by decisions of the Supreme Court that are directly on point; only the Supreme Court may exercise “the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). This is true even where other cases would seem to undermine the Supreme Court’s prior holdings. Agostini v. Felton, 521 U.S. 203, 237 (1997)(“We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent...”). After all, the Supreme Court is perfectly capable of stating its intention to overrule a prior case. But absent an express statement saying as much, lower courts must do as precedent requires. State Oil Co. v. Khahn, 522 U.S. 3, 20 (1997) (noting that the “Court of Appeals was correct in applying” a decision even though later decisions had undermined it); see also Day v. Massachusetts Air Nat. Guard, 167 F.3d 678, 683 (1st Cir. 1999)(reiterating the Supreme Court’s admonishment that circuit or district judges should not pioneer departures from Supreme Court precedent). The Supreme Court, of course, is free to overrule itself as it wishes. But unless and until it does, lower courts are bound by the Supreme Court’s summary decisions “‘until such time as the Court informs [them] that [they]

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are not.’” Hicks v. Miranda, 422 U.S. 332, 344 (1975)(citation omitted).
Thus, notwithstanding, Kitchen v. Herbert, 961 F.Supp.2d 1181, 1195 (D. Utah 2013) (Baker no longer controlling precedent), aff’d 755 F.3d 1193, 1204-08 (10th Cir. 2014); Bostic v. Schaefer, 970 F.Supp.2d 456, 469–70 (E.D. Va. 2014)(same), aff’d 760 F.3d 352, 373-75 (4th Cir. 2014); Baskin v. Bogan, --- F.Supp.2d ----, 2014 WL 2884868 at *5 (S.D. Ind. June 25, 2014)(same), aff’d, 766 F.3d 648, 659-60 (7th Cir. 2014); Wolf v. Walker, 986 F.Supp.2d 982, 988–92 (W.D. Wisc. 2014)(same), aff’d 766 F.3d 648, 659-60 (7th Cir. 2014); Latta v. Otter, ––– F.Supp.2d ––––, 2014 WL 1909999, at **7–10 (D. Idaho May 13, 2013)(same) aff’d, --- F.3d ----, 2014 WL 4977682 **2-3 (9th Cir. October 7, 2014); Bishop v. U.S. ex rel. Holder, 962 F.Supp.2d 1252, 1274–77 (N.D. Okla.2014)(same), aff’d, Bishop v. Smith, 760 F.3d 1070, 1079-81 (10th Cir. 2014); McGee v. Cole, 993 F.Supp.2d 639, 649 (S.D. W.Va. 2014)(same); DeLeon v. Perry, 975 F.Supp.2d 632, 648 (W.D. Tex. 2014)(order granting preliminary injunction)(same); DeBoer v. Snyder, 973 F.Supp.2d 757, 773 n.6 (E.D. Mich. 2014)(same); Brenner v. Scott, 999 F.Supp.2d 1278, 1290-1 (N.D. Fl. 2014)(same); Love v. Beshear, 989 F.Supp.2d 536, 541-2(W.D. Ky. 2014)(same); Whitewood v. Wolf, 992 F.Supp.2d 410, 419-21 (M.D. Pa. 2014)(same); Geiger v. Kitzhaber, 994 F.Supp.2d 1128, 1132 (D. Or. 2014)(same), this Court will apply Baker v. Nelson, as the Supreme Court has instructed it to do. As a result, the plaintiffs’ constitutional claims challenging the Puerto Rico Civil Code’s recognition of opposite-gender marriage fail to present a substantial federal question, and this Court must dismiss them.

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The plaintiffs would have this Court ignore Baker because of subsequent “doctrinal developments.” Specifically, the plaintiffs see the Supreme Court’s decisions in Romer, Lawrence, and Windsor as limiting Baker’s application, as most other courts to consider the issue have held. But see, e.g., Sevcik v. Sandoval, 911 F.Supp.2d 996 (D. Nev. 2012)(holding Baker precludes equal protection challenge to existing state marriage laws) overruled by Latta v. Otter, --- F.3d ---, 2014 WL 4977682, at **2-3 (9th Cir. 2014); Jackson, 884 F.Supp.2d at 1086—88 (holding that Baker is the last word from Supreme Court regarding the constitutionality of a state law limiting marriage to opposite-gender couples); Wilson v. Ake, 354 F.Supp.2d 1298, 1304—05 (M.D. Fla. 2005)(holding Baker required dismissal of due process and equal protection challenge to Florida’s refusal to recognize out-ofstate same-gender marriages). The Court cannot agree.
For one thing, the First Circuit has spared us from the misapprehension that has plagued our sister courts. The First Circuit expressly acknowledged – a mere two years ago – that Baker remains binding precedent “unless repudiated by subsequent Supreme Court precedent.” Massachusetts v. U.S. Dept. of Health and Human Services, 682 F.3d 1, 8 (1st Cir. 2012). According to the First Circuit, Baker prevents the adoption of arguments that “presume or rest on a constitutional right to same-sex marriage.” Id. Even creating “a new suspect classification for same-sex relationships” would “imply[ ] an overruling of Baker,” – relief that the First Circuit acknowledged is beyond a lower court’s power to grant. This Court agrees, and even if this Court disagreed, the First Circuit’s decision would tie this

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Court’s hands no less surely than Baker ties the First Circuit’s hands.
Nor can we conclude, as the plaintiffs do, that the First Circuit’s pronouncements on this subject are dicta. Dicta are those observations inessential to the determination of the legal questions in a given dispute. Merrimon v. Unum Life Ins. Co. of America, 758 F.3d 46, 57 (1st Cir. 2014)(citation omitted); see also Dedham Water Co. v. Cumberland Farms Dairy, Inc., 972 F.2d 453, 459 (1st Cir. 1992)(“Dictum constitutes neither the law of the case nor the stuff of binding precedent.”). Or, said another way, “[w]henever a question fairly arises in the course of a trial, and there is a distinct decision of that question, the ruling of the court in respect thereto can, in no just sense, be called mere dictum.” See Union Pac. R. Co. v. Mason City & Ft. D.R. Co., 199 U.S. 160, 166 (1905).
In Massachusetts v. HHS, the defendants argued that Baker foreclosed the plaintiff’s claims. The First Circuit concluded that Baker was binding but that it did not address all of the issues presented in the particular dispute. The conclusion that Baker was binding precedent was a considered legal pronouncement of the panel. Without that conclusion, the remainder of the argument – that Baker nevertheless did not control the case at hand – would have been unnecessary. That the panel engaged in a deliberate discussion shows that their conclusion about Baker’s “binding” nature carried practical and legal effect in their opinion — in other words, it was necessary to the outcome. If the plaintiffs’ reading of Massachusetts v. HHS were correct, any opinion rejecting a constitutional argument but

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deciding the case on another ground would be dicta as to the constitutional question, because only the non-constitutional argument was “necessary” to resolve the case. That is hardly the way courts understand their rulings to work. In Massachusetts v. HHS, the First Circuit decided the case the way that it did in part because Baker foreclosed other ways in which it might have decided the same question. That considered holding binds this Court.
Nor is this Court persuaded that we should follow the Second Circuit’s opinion about what the First Circuit said in Massachusetts v. HHS. See Windsor v. United States, 699 F.3d 169, 179 (2d Cir. 2012)(“The First Circuit has suggested in dicta that recognition of a new suspect classification in this context would ‘imply an overruling of Baker.’”). In fact the utterings of the Second Circuit were a bit more developed than what the plaintiffs let on. The Second Circuit recognized that Baker held that the use of the traditional definition of marriage for a state’s own regulation of marriage did not violate equal protection. Id. at 194. But it distinguished Section 3 of the Defense of Marriage Act (DOMA), asserting “[t]he question whether the federal government may constitutionally define marriage as it does . . . is sufficiently distinct from the question . . . whether same sex marriage may be constitutionally restricted by the states.” Id. at 178. Nothing in the Second Circuit’s opinion addressed the First Circuit’s explicit holding that Baker remains binding precedent. More importantly, only the First Circuit’s opinions bind this court.
Even if the First Circuit’s statements about Baker were dicta, they would remain persuasive authority, and as such, they further

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support the Court’s independent conclusions about, and the impact of subsequent decisions on, Baker.
And even if the Court assumes for the sake of argument that the First Circuit has not determined this issue, the Court cannot see how any “doctrinal developments” at the Supreme Court change the outcome of Baker or permit a lower court to ignore it.
The plaintiffs’ reliance on Romer v. Evans, 517 U.S. 620 (1996) and Lawrence v. Texas, 539 U.S. 558 (2003) is misplaced. Romer invalidated a state law repealing and barring sexual-orientation discrimination protection. Lawrence involved the very different question of a state government’s authority to criminalize private, consensual sexual conduct. Neither case considered whether a state has the authority to define marriage.
Judge Boudin, writing for the three-judge panel in Massachusetts v. HHS, likewise recognized that Romer and Lawrence do not address whether the Constitution obligates states to recognize same-gender marriage. Judge Boudin explained that, while certain “gay rights” claims have prevailed at the Supreme Court, e.g., Romer and Lawrence, those decisions do not mandate states to permit same-gender marriage. Massachusetts v. HHS, 682 F.3d at 8. The Court agrees and notes that the First Circuit’s understanding comports with the explicit statements of the Supreme Court. See Lawrence, 539 U.S. at 578 (“[t]he present case does not involve ... whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”) (Op. of Kennedy, J.).

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Windsor does not – cannot – change things. Windsor struck down Section 3 of DOMA which imposed a federal definition of marriage, as an impermissible federal intrusion on state power. 133 S. Ct. at 2692. The Supreme Court’s understanding of the marital relation as “a virtually exclusive province of the States,” Id. at 2680 (quoting Sosna v. Iowa, 419 U.S. 393, 404 (1975)), led the Supreme Court to conclude that Congress exceeded its power when it refused to recognize state-sanctioned marriages.
The Windsor opinion did not create a fundamental right to samegender marriage nor did it establish that state opposite-gender marriage regulations are amenable to federal constitutional challenges. If anything, Windsor stands for the opposite proposition: it reaffirms the States’ authority over marriage, buttressing Baker’s conclusion that marriage is simply not a federal question. Windsor, 133 S. Ct. at 2691-93 (“[t]he definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the ‘[p]rotection of offspring, property interests, and the enforcement of marital responsibilities’”); accord Massachusetts v. HHS, 682 F.3d at 12 (“DOMA intrudes into a realm that has from the start of the nation been primarily confided to state regulation – domestic relations and the definition and incidents of lawful marriage – which is a leading instance of the states’ exercise of their broad police-power authority over morality and culture.”) Contrary to the plaintiffs’ contention, Windsor does not overturn Baker; rather, Windsor and Baker work in tandem to emphasize the States’ “historic and essential authority to define the marital

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relation” free from “federal intrusion.” Windsor, 133 S.Ct. at 2692.

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.

The plaintiffs contend, as well, that the Supreme Court’s recent

denial of certiorari in three cases where Baker was expressly

overruled is tantamount to declaring that Baker is no longer good law.

The denial of certiorari is not affirmation. See Maryland v.

Baltimore Radio Show, 338 U.S. 912, 919 (1950)(holding that denial of

petition for certiorari “does not remotely imply approval or

disapproval” of lower court’s decision); Hughes Tool Co. v. Trans

World Airlines, Inc., 409 U.S. 363, 365 n.1 (1973)(holding denial of

certiorari imparts no implication or inference concerning the Supreme

Court’s view of the merits). That the Supreme Court denied certiorari

in Baskin, Bostic, and Kitchen speaks more to the fact that there is

not, as of yet, a split among the few circuit courts to consider this

issue. See SUP. CT. R. 10. For now, if presumptions must be made about

the unspoken proclivities of the Supreme Court, they ought to be

governed by the prudent injunction that “a denial of certiorari on a

novel issue will permit the state and federal courts to ‘serve as

laboratories in which the issue receives further study before it is

addressed by this Court.’”

Lackey v. Texas, 514 U.S. 1045

(1995)(Stevens, J. respecting denial of certiorari)(citation omitted).

Nor does the procedural outcome of Hollingsworth v. Perry, imply

that the Supreme Court has overruled Baker. The plaintiffs creatively

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argue that when the Supreme Court dismissed Hollingsworth, its

judgment had the effect of vacating the Ninth Circuit’s opinion and

leaving the district court’s opinion intact. Because the district

court’s opinion (which struck down California’s ban on same-gender

marriage) was allowed to stand, the plaintiffs say the Supreme Court

tacitly recognized that the right to same-gender marriage presents a

federal question.

But that outcome was entirely caused by

California’s decision not to appeal the district court’s adverse

ruling. A group of intervenors appealed the case when the state would

not, and those intervenors lost again at the Ninth Circuit. They

appealed to the Supreme Court, which concluded that they lacked

standing to appeal. Because the intervenors lacked standing, the

portion of the litigation that they pursued (the Ninth Circuit and

Supreme Court appeals) was invalid. The district court’s judgment

remained intact, not because the Supreme Court approved of it —

tacitly or otherwise — but because no party with standing had appealed

the district court’s decision to the Supreme Court such that it would

have jurisdiction to decide the dispute. Thus, nothing about the

Hollingsworth decision renders Baker bad law.

Lower courts, then, do not have the option of departing from

disfavored precedent under a nebulous “doctrinal developments” test.

See National Foreign Trade Council v. Natsios, 181 F.3d 38, 58 (1st

Cir. 1999) (“[D]ebate about the continuing viability of a Supreme

Court opinion does not, of course, excuse the lower federal courts

from applying that opinion.”)(Op. of Lynch, J.); see also, Scheiber v.

Dolby Labs., Inc., 293 F. 3d 1014, 1018 (7th Cir. 2002) (“[W]e have no

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authority to overrule a Supreme Court decision no matter how dubious its reasoning strikes us, or even how out of touch with the Supreme Court’s current thinking the decision seems.”)(Op. of Posner, J.). Consequently, neither Romer, Lawrence, nor Windsor, wreck doctrinal changes in Supreme Court jurisprudence sufficient to imply that Baker is no longer binding authority. See U.S. v. Symonevich, 688 F.3d 12, 20 n. 4 (1st Cir. 2012) (holding that, generally, an argument that the Supreme Court has implicitly overruled one of its earlier decisions is suspect).
Baker, which necessarily decided that a state law defining marriage as a union between a man and woman does not violate the Fourteenth Amendment, remains good law. Because no right to samegender 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. In a system of limited constitutional self-government such as ours, this is the prudent outcome. The people and their elected representatives should debate the wisdom of redefining marriage. Judges should not.
IV. CONCLUSION That this Court reaches its decision by embracing precedent may prove disappointing. But the 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 decisis embodies continuity, certainly, but also limitation: there are some principles of logic and law that cannot be forgotten.

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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? See Elizabeth Brake, Minimal Marriage: What Political Liberalism Implies for Marriage Law, 120 ETHICS 302, 303 (2010). 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.” (Docket No. 7 at 4.)

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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, 572 U.S. __, 134
S.Ct. 1623, 1637 (2014)(Op. of Kennedy, J.).
For the foregoing reasons, we hereby GRANT the defendants’ motion
to dismiss. (Docket No. 31.) The plaintiffs’ federal law claims are
DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.
San Juan, Puerto Rico, this 21st day of October, 2014.
S/ JUAN M. PÉREZ-GIMÉNEZ JUAN M. PÉREZ-GIMÉNEZ UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO

ADA MERCEDES CONDE VIDAL and IVONNE ÁLVAREZ VÉLEZ; MARITZA LÓPEZ AVILES and IRIS DELIA RIVERA RIVERA; JOSÉ A. TORRUELLAS IGLESIAS and THOMAS J. ROBINSON; ZULMA OLIVERAS VEGA and YOLANDA ARROYO PIZARRO; JOHANNE VÉLEZ GARCÍA and FAVIOLA MELÉNDEZ RODRÍGUEZ; and PUERTO RICO PARA TOD@S,
Plaintiffs,
v.
ALEJANDRO J. GARCIA PADILLA, in his official capacity as Governor of the Commonwealth of Puerto Rico; ANA RIUS ARMENDARIZ, in her official capacity as Secretary of the Health Department of the Commonwealth of Puerto Rico; WANDA LLOVET DIAZ, in her official capacity as Director of the Commonwealth of Puerto Rico Registrar of Vital Records; and MELBA ACOSTA FEBO, in her official capacity as Director of the Treasury in Puerto Rico,
Defendants.

No. 3:14-cv-01253
AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Plaintiffs Ada Mercedes Conde Vidal and Ivonne Álvarez Vélez, by and through their attorney; and Plaintiffs Maritza López Aviles and Iris Delia Rivera Rivera; José A. Torruellas Iglesias and Thomas J. Robinson; Zulma Oliveras Vega and Yolanda Arroyo Pizarro; Johanne Vélez García and Faviola Meléndez Rodríguez; and Puerto Rico Para Tod@s, an organization (collectively “Plaintiffs”), by and through their attorneys, file this Amended Complaint against Defendants Alejandro J. García Padilla, Ana Rius Armendariz, Wanda Llovet Diaz, and Melba Acosta Febo (collectively “Defendants”), and allege as follows:
-1-

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INTRODUCTION 1. Plaintiffs, all residents of the Commonwealth of Puerto Rico (“Commonwealth” or “Puerto Rico”), are five loving, committed same-sex couples who reside in Puerto Rico (“Plaintiff Couples”) and an organization that represents lesbian, gay, bisexual, transsexual and transgender (“LGBT”) people and their families in their struggle for social inclusion, equality and fairness in Puerto Rico. Plaintiffs bring this action pursuant to 42 U.S.C. §§ 1983 and 1988 to challenge Defendants’ discriminatory denial, pursuant to Puerto Rico’s laws, of the freedom of the unmarried Plaintiff Couples and the unmarried LGBT members of Puerto Rico Para Todo@s to marry in the Commonwealth; and the discriminatory refusal to recognize marriages lawfully entered into in other jurisdictions by Plaintiff Couples and married LGBT people who are members of Puerto Rico Para Tod@s. Plaintiffs seek declaratory and injunctive relief for Defendants’ violation of their guarantees of liberty and equality under the Fourteenth Amendment to the United States Constitution, caused by Defendants’ interpretation and enforcement of Article 68 of the Civil Code of Puerto Rico, 31 L.P.R.A. § 221, and other laws in the Commonwealth that preclude Plaintiff Couples and LGBT people who are members of Puerto Rico Para Tod@s from marrying or having their marriages lawfully entered into in other jurisdictions recognized in Puerto Rico (hereinafter the Commonwealth’s “Marriage Ban”). 2. Through the Marriage Ban, the Commonwealth and Defendants send a message that LGBT people who wish to marry or to have marriages recognized but who are prevented from marrying or gaining recognition by the laws of Puerto Rico (“Banned Couples”) and their children are second-class citizens, against whom discrimination is acceptable, and who are undeserving of the legal sanction, respect, protections, and support that the couples permitted to
-2-

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marry in Puerto Rico (“Accepted Couples”) and their children receive automatically through marriage.
3. Marriage plays a unique role in society as a universally recognized and celebrated hallmark of a couple’s commitment to build a family together. It confers upon couples a dignity and status of immense import. The Plaintiff Couples and LGBT members of Puerto Rico Para Tod@s have formed committed, enduring bonds equally worthy of the respect the Commonwealth affords Accepted Couples in Puerto Rico. Yet the Commonwealth, without adequate justification, has enacted, and Defendants have interpreted and enforced the Commonwealth’s laws in ways that single out LGBT Puerto Ricans on the basis of sexual orientation and/or sex by excluding them from marriage. The right to marry includes the right for Plaintiff Couples and LGBT members of Puerto Rico Para Tod@s, lawfully married in other jurisdictions, to remain married while in Puerto Rico. Yet, by refusing to recognize and respect their lawful marriages entered into in other jurisdictions, Puerto Rico excludes LGBT Puerto Ricans lawfully married in other jurisdictions from marriage in Puerto Rico.
4. The Marriage Ban inflicts serious and irreparable harm on Banned Couples and their children. Maritza López Aviles and Iris Delia Rivera Rivera, and Zulma Oliveras Vega and Yolanda Arroyo Pizarro are not married, and each couple wishes to marry for the same reasons as Accepted Couples: to publicly declare their love and commitment before their family, friends, and community, and to give one another and any children that they are raising, or may raise in the future, the security and legal protections that marriage provides. Ada Mercedes Conde Vidal and Ivonne Álvarez Vélez; José A. Torruellas Iglesias and Thomas J. Robinson; Johanne Vélez García and Faviola Meléndez Rodríguez; and married LGBT members of Puerto Rico Para Tod@s all entered into legally recognized marriages in other jurisdictions, but are treated as legal strangers
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in the island they consider their home—a hurtful invalidation of their relationship, which frustrates their dreams, deprives them of dignity, drains them of resources, and denies them numerous state and federal protections that Accepted Couples readily enjoy.
5. Members of the Banned Couples seek the freedom to marry – and be recognized as married to – the one unique and irreplaceable person each loves, and thereby to assume the responsibilities and obtain the myriad protections, obligations, and benefits conferred upon married couples and upon their children under Puerto Rico and federal law.
6. The right to marry the person of one’s choice, to remain married as one moves or travels to and from Puerto Rico and other locales, and to direct the course of one’s life in this intimate realm without undue government interference is one of the fundamental liberty interests protected for all by the Due Process Clause of the Fourteenth Amendment to United States Constitution. The Commonwealth’s exclusion of Plaintiff Couples and other Banned Couples from marriage based on their sexual orientation and/or sex of the individuals in the couples violates their fundamental right to marry without any compelling, important or even legitimate justification.
7. The Plaintiff Couples who have children and the LGBT members of Puerto Rico Para Tod@s who have children seek to provide their children with the protections, security, respect, and benefits conferred upon the children of married parents, and to end the stigma and humiliation engendered by a legal framework that designates their families as inferior and unworthy of marriage. The Commonwealth’s Marriage Ban and Defendants’ interpretation and enforcement of it also interferes with the constitutionally protected liberty and privacy interests in familial association and familial integrity of the children of some of the Plaintiff Couples and of
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the children of the LGBT members of Puerto Rico Para Tod@s, without any compelling, important or even legitimate justification.
8. The Commonwealth also has deprived each individual in Plaintiff Couples and the LGBT members of Puerto Rico Para Tod@s of their guarantee of equality under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution by denying them the right to marry the person of their choice, based solely on their sexual orientation and/or sex. Likewise, Puerto Rico denies the children of Banned Couples equal access to the dignity, legitimacy, protections, benefits, support, and security conferred on children of Accepted Couples under Puerto Rico and federal law.
9. Our courts and our society have discarded, one by one, marriage laws that violate the United States Constitution’s mandates of liberty and equality, including laws that banned marriage between members of different races and that relegated married women to property. Eliminating these unconstitutional marriage rules has allowed the institution of marriage to retain its relevance and to continue to nurture families. Eliminating laws that exclude LGBT people from marriage based on sexual orientation or sex, as has already occurred in at least nineteen states and the District of Columbia, is no different.
10. Because the freedom to marry is one of the vital personal rights central to the orderly pursuit of happiness, Plaintiffs seek equal access to the freedom to marry and equal recognition of their marriages entered into in other jurisdictions and to eliminate the myriad serious harms inflicted on Plaintiffs and their families by the Marriage Ban and Defendants’ enforcement of it.
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JURISDICTION AND VENUE

11. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the

deprivation under color of state law of rights secured by the United States Constitution.

12. This Court has original jurisdiction over the subject matter of this action pursuant

to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution

and laws of the United States.

13. Venue is proper in this Court under 28 U.S.C. § 1391(b) because all Defendants

reside within the District of Puerto Rico, Defendants reside and have offices within the district,

and/or a substantial part of the events that gave rise to Plaintiffs’ claims occurred, and will

continue to occur, within the District of Puerto Rico.

14. This Court has the authority to enter a declaratory judgment and to provide

preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of

Civil Procedure and 28 U.S.C. §§ 2201 and 2202.

15. This Court has personal jurisdiction over Defendants because they are domiciled

in the Commonwealth and/or have otherwise made and established contacts with the District

sufficient to permit the exercise of personal jurisdiction over them.

PARTIES

A. Plaintiffs

Ada Mercedes Conde Vidal and Ivonne Álvarez Vélez

16.

Plaintiffs Ada Mercedes Conde Vidal, 53, and Ivonne Álvarez Vélez, 67, are

a same-sex couple residing in San Juan, Puerto Rico. They have been in a loving, committed

relationship for more than fourteen years. Ada is an attorney, primarily practicing bankruptcy

law, admitted in Puerto Rico and the United States District Court in Puerto Rico. Ivonne is an

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accountant and financial advisor. Ada’s daughter was thirteen years old when Ada and Ivonne

committed to a life together. Since then, Ivonne and Ada have cared for her together.

17.

Desiring to express their love and commitment, and to protect their family,

Ada and Ivonne married in Massachusetts on August 2, 2004, in the presence of a few friends. To

their great sadness, neither Ivonne’s brother nor Ada’s daughter, who has required repeated heart

surgeries, were able to travel from Puerto Rico to Massachusetts to attend the ceremony, due to

financial and travel limitations. They and their daughter had hoped she could be the ring bearer at

the ceremony.

18.

When the couple returned home, because their marriage was unrecognized

under Puerto Rico law, they paid to execute powers of attorney to help document and ensure each

could make health care decisions for the other. As they get older, they worry more that with their

marriage unrecognized, their relationship and rights to decision-making will not be recognized in

an urgent medical or other important situation.

19.

Ivonne had hoped to adopt Ada’s daughter, but she cannot, since in Puerto

Rico only couples recognized as validly married are allowed to adopt together. Because Ivonne’s

relationship to the couple’s daughter is not legally recognized, the family fears that Ivonne may

be excluded from medical decisions or the hospital room when their daughter is the most

vulnerable.

20.

Ada and Ivonne are also concerned that because Ada is not recognized as

Ivonne’s spouse, under Puerto Rico inheritance law, Ada will not be recognized as the surviving

spouse, and Ivonne’s estate will be transferred to the Commonwealth of Puerto Rico unless the

couple pays to execute a costly will.

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21.

Because their marriage is unrecognized in Puerto Rico, Ada and Ivonne

cannot file Commonwealth of Puerto Rico income tax returns as a married couple.

Maritza López Aviles and Iris Delia Rivera Rivera

22.

Plaintiffs Maritza López Aviles, 58, and Iris Delia Rivera Rivera, 56, are a

same-sex couple residing in Toa Alta, Puerto Rico. Iris operates a food truck on the industrial

docks in San Juan, and Maritza is a homemaker. Maritza and Iris have known each other since

high school. While students at the Interamerican University of Puerto Rico, they realized that

their feelings were deeper than friendship. Maritza and Iris have been in a loving, committed

relationship for the past thirty-eight years. Faith is important to both Maritza and Iris. In 1978

they presented themselves as a couple before God, in church, and asked God to bless their

relationship. They are now active members of their church in Bayamón.

23.

In 1981, after college, Iris enlisted in the National Guard. She served for ten

years and was deployed to Panama in 1989 as part of Operation Just Cause and to Iraq in 1990-

1991 as part of the first Gulf War. While the different-sex spouses of active duty soldiers

received information, counseling, and services, the military did not recognize Maritza and Iris’

relationship and did not provide them with similar benefits. Maritza recalls vividly the anxiety

she experienced because she did not know where Iris was or whether she was safe. The family

qualifies for less compensation and benefits than married soldiers/veterans with dependents,

because Maritza and Iris are unmarried.

24.

Maritza and Iris have an eighteen-year-old daughter, who has lived with them

since she was four weeks old. Maritza and Iris have raised her as their own, although Maritza

only officially obtained legal custody in 2010 when their daughter’s biological mother died of

cervical cancer. They wish for her to have the security of a family protected by marriage.

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25.

Maritza and Iris want to marry each other in Puerto Rico. They do not have

the economic resources to travel to and plan a wedding in a jurisdiction where marriage of same-

sex couples is permitted. Moreover, they want to marry at home in Puerto Rico, where they were

both born and raised and where they have large, supportive families with whom to celebrate their

wedding.

26.

Maritza and Iris urgently want to marry to protect Maritza, who depends

economically on Iris, should something happen to Iris. Maritza has primarily been a homemaker,

and she will not be entitled to Social Security spousal benefits unless she is permitted to marry

Iris. Additionally, Iris cannot pass on her veteran’s survivor benefits to Maritza, since Iris and

Maritza cannot marry.

27.

Maritza and Iris worry that because they are not married, hospital staff may

prevent them from visiting one another if either is hospitalized. This worry is based on past

experience. In 2007 and again in 2008, Maritza was hospitalized for intestinal surgery, but the

hospital staff refused to allow Iris to see Maritza. Both times, Iris was able to get an update about

Maritza’s status only after extensive arguing. Maritza and Iris believe that they would be more

secure medically, financially, and emotionally if their relationship were respected and recognized

like Accepted Couples’ relationships, and others would view their relationship with more

legitimacy if they could tell them that that they were married.

José A. Torruellas Iglesias and Thomas J. Robinson

28.

Plaintiffs José A. Torruellas Iglesias, 57, and Thomas J. Robinson, 56, are a

same-sex couple residing in San Juan, Puerto Rico. José works for the Autoridad de Energía

Eléctrica de Puerto Rico (the Puerto Rico Electric Power Authority, or “PREPA”) as a customer

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service representative. Thomas was previously a technical writer in Chicago and later taught

English in San Juan; he now volunteers at a library in Guaynabo.

29.

José and Thomas met in 2001, when Thomas was on vacation in Puerto

Rico. At the time Thomas lived in Chicago, and José and Thomas fell in love over the phone,

sustaining their relationship through long telephone calls and infrequent visits. In June 2005,

after three years of a long-distance relationship, Thomas moved to Puerto Rico to live with José.

30.

In 2007, José and Thomas decided to get married to make their relationship

official. They value commitment and the structure and formality of marriage. Thomas’s parents

have been married for sixty-six years, and José’s parents were married for thirty-seven years

before his father’s death. José and Thomas were married in Toronto, Canada on May 28, 2007.

Thomas’s entire family was present, but José’s family could not make the trip from Puerto Rico to

Canada.

31.

José has been trying to add Thomas to his health insurance plan through his

employer, PREPA, since 2007. Employees of PREPA with different-sex spouses can obtain

health insurance for their spouses, but José has not been able to obtain health insurance for

Thomas, despite raising the issue many times over the years and requesting help from his union.

The couple was paying for private insurance for Thomas, but cancelled this insurance in March

2014 due to the cost. Now Thomas obtains his health coverage through Mi Salud, Puerto Rico’s

government-administered health insurance.

32.

José would like to be able to claim Thomas as his dependent on his taxes. In

February 2014, José called the Puerto Rico tax department and asked to be able to file a joint tax

return with his husband. The employee who answered the call said, “That’s never going to

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happen.” Because Thomas is not working, José and Thomas believe they would owe less money

in taxes if their marriage were recognized in Puerto Rico.

Zulma Oliveras Vega and Yolanda Arroyo Pizarro

33.

Plaintiffs Zulma Oliveras Vega, 43, and Yolanda Arroyo Pizarro, 43, are a

same-sex couple currently residing in Carolina, Puerto Rico. Zulma was born and raised in San

Germán, Puerto Rico; Yolanda is from Guaynabo. Zulma currently works for the Social Security

Administration in Puerto Rico. Yolanda is a technology educator, a poet, and an author. Zulma

met Yolanda at a poetry event in Old San Juan, and asked her out after the event. They talked for

hours, walking in the moonlight of Old San Juan, and started to fall in love. Soon after, they

decided to build a life with one another and moved in together in October 2009. Yolanda has a

sixteen-year-old daughter.

34.

Yolanda has asthma, which often requires medical care. In June 2014,

Yolanda was hospitalized in the Hospital Auxilio Mutuo with bronchitis after she experienced

complications with her asthma. Without the security of marriage, Zulma and Yolanda are

concerned about what would happen in a medical emergency.

35.

Zulma and Yolanda want to marry in Puerto Rico because they are from

Puerto Rico, and it is their home. In July 2012, Yolanda and Zulma held a commitment ceremony

in a restaurant in San Juan before their families and friends, exchanging vows and rings. They

would like their commitment to each other to be recognized by the Commonwealth through

marriage.

Johanne Vélez García and Faviola Meléndez Rodríguez

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36.

Plaintiffs Johanne Vélez García, 49, and Faviola Meléndez Rodríguez, 37,

are a same-sex couple residing in Guaynabo, Puerto Rico. They met in December 2007 and

shortly afterwards decided to build a life together. They moved in together in 2008.

37.

In 2009, Johanne was nominated by then-Puerto Rico Governor Luis

Fortuño as Procuradora de las Mujeres de Puerto Rico (“Women’s Advocate of Puerto Rico”), a

ten-year designation. She held this position for four months, until the Puerto Rico Senate rejected

her nomination. Among the reasons stated publicly for rejecting her nomination was the fact that

she was a known lesbian, had spoken publicly about her sexual orientation, and supported

marriage equality. Following Johanne’s dashed confirmation, she served as Executive Director of

the Women’s Caucus for the Puerto Rico House of Representatives and worked as a grants

management consultant for Governor Fortuño. In January 2013, Johanne and Faviola opened a

nonprofit venture together, Frauen Group, Inc.

38.

Johanne and Faviola decided to marry in New York after watching Governor

Andrew Cuomo, on television, sign New York’s marriage equality bill in June 2011. They had to

plan from afar for their marriage, working out the details for the location, travel, officiant,

limousine, flowers, and food and beverages. On May 26, 2012, they were married at the Strand

Hotel in New York City in front of thirty family members and friends. For Johanne and Faviola,

it was spectacular to finally take their vows to honor each other and stay together forever.

39.

Johanne and Faviola want to grow their family together. In 2011 they

decided to become adoptive parents, but because same-sex couples are not permitted to adopt

jointly in Puerto Rico, Johanne alone completed the adoption application with at an adoption

agency operated by the City of San Juan. Johanne and Faviola completed the interview process

and home observation together as a couple. Johanne and Faviola are frustrated because, despite

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their preparedness, the agency has not contacted them since they completed their application.

They worry they have not been selected as adoptive parents due to the discrimination against

same-sex couples in Puerto Rico. Johanne and Faviola also worry about raising children in a

place that does not respect their marriage.

40.

As a result of Puerto Rico’s Marriage Ban, Johanne and Faviola must file

taxes as single individuals, even though they would owe less money in taxes if Puerto Rico

recognized their marriage and they could file jointly. Also because their marriage is not

recognized, Johanne and Faviola have each been forced to purchase individual health insurance

plans, and to safeguard each other’s future wellbeing with a legally binding will.

Puerto Rico Para Tod@s

41. Plaintiff Puerto Rico Para Tod@s is a leading organization advocating for LGBT

people and their families in the Commonwealth of Puerto Rico. It has members throughout the

Commonwealth and works collaboratively to secure, protect, and defend the equal civil rights and

welfare of lesbian, gay, bisexual, transsexual and transgender people in the Commonwealth.

Many of Puerto Rico Para Tod@s’ members want to marry a life partner in Puerto Rico, but have

been prevented from doing so by Puerto Rico’s Marriage Ban. Many of Puerto Rico Para

Tod@s’ LGBT members have married in jurisdictions outside of Puerto Rico, but their marriages

are not recognized in Puerto Rico due to the Commonwealth’s Marriage Ban and Defendants’

interpretation and enforcement of it. Many of the LGBT members of Puerto Rico Para Tod@s

who are in committed, loving relationships, have children, who are being denied the freedom to

belong to families headed by married parents and the protections and benefits that would result if

their parents could marry or have their marriages recognized in Puerto Rico.

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B. Defendants 42. Defendant Alejandro J. García Padilla is sued in his official capacity as Governor of the Commonwealth of Puerto Rico. In his capacity as governor, García Padilla executes the laws of the Commonwealth of Puerto Rico, including the Marriage Ban, and supervises the official conduct of all executive and ministerial officers who implement and enforce the Marriage Ban. Defendant García Padilla has publicly supported the Marriage Ban, and has knowingly encouraged, condoned and acquiesced in the acts excluding Plaintiffs from marriage and marriage recognition. Defendant García Padilla is a person within the meaning of 42 U.S.C. § 1983 and has acted under color of state law at all times relevant to this amended complaint. 43. Defendant Ana Rius Armendariz (Rius) is sued in her official capacity as Secretary of the Health Department of the Commonwealth of Puerto Rico. Defendant Rius’s duties include, among others, preparing, printing and furnishing the forms and instructions to be used for the registration of births, marriages, or deaths in the Commonwealth. Rius also supervises and manages the Commonwealth Demographic Registry and the Commonwealth of Puerto Rico Registrar of Vital Statistics, Defendant Wanda Llovet Diaz. Defendant Rius ensures compliance in all of these functions with the relevant Commonwealth laws, including those that exclude unmarried Banned Couples from marriage and married Banned Couples from recognition. Defendant Rius is a person within the meaning of 42 U.S.C. § 1983 and has acted under color of state law at all times relevant to this amended complaint. 44. Defendant Wanda Llovet Díaz (Llovet) is sued in her official capacity as the Director of the General Registry of Vital Statistics of the Commonwealth. In her official capacity, Defendant Llovet is “in charge of all matters connected with the registration of births, marriages and deaths which may occur or take place in Puerto Rico.” 24 L.P.R.A. § 1071. Llovet
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also ensures compliance in all of these functions with the relevant Commonwealth laws, including those that exclude unmarried Banned Couples from marriage and married Banned Couples from recognition. Defendant Llovet is a person within the meaning of 42 U.S.C. § 1983 and has acted under color of state law at all times relevant to this amended complaint.
45. Defendant Melba Acosta Febo (Acosta) is sued in her official capacity as Director of the Treasury in Puerto Rico. Defendant Acosta’s duties include overseeing tax administration and revenue collection for the Commonwealth and being directly responsible for the direction, control, and operation of the Department of Treasury. Defendant Acosta ensures compliance in all of these functions with the relevant Commonwealth laws, including those that preclude samesex married couples from filing a joint Commonwealth income tax return. Defendant Acosta is a person within the meaning of 42 U.S.C. § 1983 and has acted under color of state law at all times relevant to this amended complaint.
46. Each Defendant, and those subject to their supervision, direction, and control, intentionally performed, participated in, aided, and/or abetted in some manner the acts averred herein, proximately caused the harm averred herein, and will injure Plaintiffs irreparably if not enjoined.
STATEMENT OF FACTS 47. Plaintiff Couples all are residents of Puerto Rico who experience the same joys and shoulder the same challenges of family life as their neighbors, co-workers, and other community members who are free to marry. Plaintiff Couples include productive, contributing, tax-paying members of society who support their committed partners and nurture their children, but currently are forced to do so without the same dignity and respect afforded by the Commonwealth to other families through access to marriage. The Commonwealth’s exclusion of
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Banned Couples from marriage based on sexual orientation and/or sex of the individuals in the couples subjects them to legal vulnerability and related stress, and deprives them of equal dignity and security. Through its Marriage Ban and Defendants’ interpretation and application of it, the Commonwealth and Defendants send a purposeful message that the Commonwealth views LGBT people and their children as second-class members of society undeserving of the legal sanction, respect, and dignity Accepted Couples and their children enjoy.
48. But for the fact that they are barred by Puerto Rico’s Marriage Ban, each member of the unmarried Plaintiff Couples is legally qualified to marry under the laws of Puerto Rico and wishes to marry their same-sex partner in Puerto Rico, and Plaintiff Couples legally married in other jurisdictions wish to have their marriages recognized in Puerto Rico.
49. Though they strongly desire to marry, neither of the unmarried Plaintiff Couples, Maritza López Aviles and Iris Delia Rivera Rivera, and Zulma Oliveras Vega and Yolanda Arroyo Pizarro, have applied for marriage licenses in Puerto Rico, because doing so is a crime under 33 L.P.R.A. § 4757 (misdemeanor to marry another person in a marriage prohibited by civil law).
50. Puerto Rico Para Tod@s has LGBT members who want to marry in Puerto Rico and who have married in other jurisdictions, but whose marriages the Commonwealth of Puerto Rico does not recognize because of the members’ sexual orientation and/or sex.
A. Puerto Rico’s Marriage Ban Singles Out LGBT People and Excludes Them From Marriage.
51. In 1997, the Commonwealth enacted a statute defining marriage as “a civil contract whereby a man and a woman mutually agree to become husband and wife.” 31 L.P.R.A.
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§ 221. This legislation also explicitly banned Puerto Rico from recognizing marriages “between persons of the same sex or transsexuals” performed in other jurisdictions. Id.
52. There are no legitimate public policies that justify the legal disabilities and detriments, and societal disadvantages that the Marriage Ban imposes on Banned Couples and their children. The history of the Marriage Ban’s enactment and its own text demonstrate that interference with the equal dignity of LGBT people was its essence or purpose, rather than a mere side effect of this enactment.
53. The purpose and effect of the Marriage Ban mirrors the purpose and effect of the federal Defense of Marriage Act (“Federal DOMA”), 28 U.S.C. § 1738C, passed by Congress in 1996, and struck down by the Supreme Court in Windsor v. United States, 133 S. Ct. 2675, 269395 (2013) (“Windsor”). Federal DOMA, among other things, singled out a class of same-sex couples legally married in a state or other jurisdiction and imposed a disability on the class by refusing to acknowledge their marriages, based on the sexual orientation and/or sex of the individuals who had married. The federal government’s refusal to recognize those legal marriages, pursuant to the Federal DOMA, disqualified those who have legally married a samesex partner from a vast range of federal benefits linked to marriage.
54. In June 2013, when the United States Supreme Court in Windsor struck down the portion of the Federal DOMA that denied federal recognition to legally married same-sex couples, the Supreme Court observed that when government relegates same-sex couples’ relationships to a second-tier status, the government demeans the couple, humiliates children now being raised by same-sex couples, deprives these families of equal dignity, and degrades them in addition to causing them countless tangible harms, all in violation of basic due process and equal protection principles.
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B. Puerto Rico’s Marriage Ban Inflicts Profound Harms and Injury Upon Plaintiffs and LGBT Members of Puerto Rico Para Tod@s.
55. Barring LGBT people from marriage disqualifies them from critically important rights and responsibilities under Puerto Rico law that Accepted Couples rely upon to protect one another and themselves, to secure their commitment to each other, and to safeguard their families. Marriage is the only route to access many rights and responsibilities; for others, marriage is the least complex and least expensive route. By way of example only, the Marriage Ban denies Banned Couples who wish to marry:
a. The ability to safeguard family resources under an array of laws that protect spousal finances, including for example, tax laws that grant married individuals the right to file jointly to reduce tax liability, and tax benefits when transferring or inheriting interests in real and personal property; the benefit of a homestead exemption; an exemption for a portion of a deceased spouse’s personal estate from the deceased’s debts or liabilities; the ability for the surviving spouse of a workers compensation beneficiary to receive compensation; and the ability for a spouse to receive unemployment compensation for a deceased claimant;
b. Benefits for spouses and dependent children of members of the military and veterans;
c. Tuition fee waivers to the spouses and dependent children of employees of public universities;
d. Family health insurance coverage, including spousal health benefits; e. The benefit of the presumption that both spouses are parents to a child born during the marriage, including the automatic listing of a birth mother’s spouse as a parent on a child’s birth certificate;
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f. A streamlined and relatively inexpensive process for bringing children into the family through adoption, whether through joint adoption, or by one spouse adopting another spouse’s child through a step-parent adoption;
g. Retirement benefits, and surviving spouse annuity benefits for public employees; h. Family leave for a public employee to care for a spouse; i. In the event that a couple separates, access to an orderly dissolution process for terminating the relationship, assuring an equitable division of the couple’s assets and debts, and adjudication of issues relating to custody, visitation, and support with respect to any children the couple may have. j. Death benefits for surviving spouses of firefighters, law enforcement, military members, and emergency medical services personnel who die in the line of duty, and additional death benefits for each dependent child; k. The ability to make caretaking decisions for one another in times of serious illness, including priority to make medical decisions for an incapacitated spouse; l. The ability to make decisions for one another at the time of death, including the ability to authorize an autopsy, the automatic right to make burial decisions and other decisions concerning disposition and handling of remains of deceased spouses; and m. The right to inheritance under the laws of intestacy and the right of a surviving spouse to an elective share; 56. The Marriage Ban not only denies Plaintiffs, their children, and other Banned Couples access to protections, benefits, rights, and responsibilities afforded to Accepted Couples and their children under Puerto Rico law, it also denies them eligibility for a host of federal rights and responsibilities that span the entire United States Code and federal regulations. Unmarried
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couples are denied recognition for virtually all purposes throughout the more than 1,000 statutes and federal regulations relating to marriage – including laws that pertain to Social Security benefits, housing, taxes, criminal sanctions, copyrights, and veterans benefits. Couples validly married in another jurisdiction and living in Puerto Rico may qualify for some federal benefits and protections, but the language of certain statutes and regulations, such as veterans’ spousal benefits, copyright, and Social Security survivor benefits, references couples married under the law of their state of residence or domicile and therefore the Marriage Ban deprives Plaintiff Couples of the recognition of their marriages by the federal government. Many of these deprivations drain family economic resources, causing financial harm not only to Banned Couples but to their children as well.
57. In addition to the tangible harms listed above, Banned Couples are denied the unique social recognition that marriage conveys. Without access to the familiar language and legal label of marriage, Plaintiffs are unable instantly or adequately to communicate to others the depth and permanence of their commitment, or to obtain respect for that commitment as Accepted Couples do, simply by invoking their married status.
58. For example, many Banned Couples are rearing children in Puerto Rico. The substantive, societal, and dignitary inequities imposed on LGBT people in committed relationships include particular harms to their children, who are equally deserving of the stability, permanence, social recognition, and financial supports that are enjoyed by children of Accepted Couples in Puerto Rico. Civil marriage affords official sanctuary to the family unit, offering parents and children critical means to secure parent-child legal bonds, and a familiar, public way of demonstrating those bonds to third parties. Through the Marriage Ban, the Commonwealth and Defendants reinforce the view that the family ties of LGBT parents and their children are less
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consequential, enduring, and meaningful than those of Accepted Couples and their children. All members of the families subjected to the Marriage Ban, including children, must live with the vulnerability and stress inflicted by the lack of legal recognition of the Banned Couples’ relationships and the ever-present possibility that others may question their familial relationships—in social, legal, educational, and medical settings and in moments of crisis. Banned Couples raising children in Puerto Rico cannot invoke their status as married in order to communicate to their own children and others the depth and permanence of their commitment to each other in terms that all members of society, even young children, readily understand. These are challenges that Accepted Couples, because their marriages are recognized, avoid by simple reference to being married.
59. Plaintiffs’ children and other children of Banned Couples are less secure legally and worse situated economically than children of Accepted Couples, due in part to expenses incurred in attempting to create legal protections that approximate some of those that are automatic through marriage.
60. Puerto Rico’s Marriage Ban, and Defendants’ enforcement of it, triggers many private entities such as banks, insurers, and even health clubs to define “family” for purposes of an array of benefits and protections in ways that exclude same-sex couples and their children from important safety nets, such as private employer-provided health insurance for family members. The Commonwealth and Defendants also encourage disrespect and disparagement of Banned Couples and their children by others in workplaces, schools, businesses, and other major arenas of life, in ways that would be less likely to occur and more readily corrected if marriage were available.
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61. The government is a powerful teacher of discrimination to others. By denying marriage to Banned Couples and disregarding the valid marriages of LGBT people, the Commonwealth and Defendants instruct all persons with whom these couples interact, including the couples’ own children, that their relationships are less worthy than the relationships of others. Bearing the imprimatur of the government, Puerto Rico’s Marriage Ban, and Defendants’ enforcement of it, communicates a view that Banned Couples and their children are unfit for the dignity, respect, and stature afforded to Accepted Couples and their children, which encourages others to follow the government’s example in discriminating against these Banned Couples, their children, and all lesbian, gay, bisexual, transsexual, and transgender people.
C. The Marriage Ban Is Not Even Rationally Related to a Legitimate Governmental Purpose, Let Alone Substantially Related to an Important Government Purpose or Narrowly Tailored to a Compelling Governmental Purpose.
62. No legitimate, let alone important or compelling, interest exists to exclude Banned Couples from marriage. An individual’s capacity to establish a loving and enduring relationship does not depend upon that person’s sexual orientation or sex in relation to his or her life partner, nor is there a compelling or even a legitimate interest in preventing LGBT people and their children from belonging to families headed by a married couple or in denying them the spousal protections marriage provides.
63. Neither history nor tradition can legally justify the Commonwealth’s discriminatory Marriage Ban. Marriage has remained a vital and enduring institution despite undergoing significant changes over time to meet changing social and ethical needs, including by the elimination of many former requirements of marriage now recognized as discriminatory or otherwise impermissible – such as coverture laws, requiring a woman’s legal rights and obligations to be subsumed by those of her husband upon marriage, and bans on marriage
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between people considered to be members of different races. Puerto Rico is not bound to historic exclusions from marriage, and no excuse exists for the Commonwealth’s continued discriminatory restriction.
64. The Supreme Court has made clear that the law cannot, directly or indirectly, give effect to private biases, and has expressly rejected moral disapproval of lesbian and gay relationships as a legitimate justification for a law.
65. Excluding Banned Couples from marriage does nothing to protect or enhance the rights of the couples who are permitted to marry in Puerto Rico. Accepted Couples will continue to enjoy the same rights and status conferred by marriage regardless of whether Banned Couples are permitted to marry or have their marriages recognized in Puerto Rico.
66. The Commonwealth’s interest in child welfare is affirmatively harmed – not furthered – by the exclusion of LGBT people from marriage. That exclusion injures these couples’ children and benefits no others.
67. There is no valid basis for Puerto Rico to assert a preference for parenting by Accepted Couples over Banned Couples.
68. The Marriage Ban cannot be justified by any inability of Banned Couples to procreate. Procreation is not a requirement of marriage, and many married people choose not to have children or are unable to do so, while many unmarried people procreate. Puerto Rico has never restricted marriage to those capable of or intending to procreate, nor would it be constitutionally permissible to do so. Moreover, Puerto Rico’s Marriage Ban does not prevent LGBT people in committed, loving relationships from raising children with their life partners; rather, it deprives those families of protections, simply by virtue of the partners’ sexual orientation and/or sex. Couples targeted by the Puerto Rico Marriage Ban can and do bear
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children, including through use of reproductive technology that is available to same-sex couples and different-sex couples alike, and bring children into their families through foster care and adoption.
69. Excluding LGBT people from marriage harms their children, by depriving them of legal benefits and protections, by branding their families as inferior and less deserving of respect, and by encouraging private bias and discrimination. Denying these couples the equal dignity and status of marriage humiliates the children now being raised by these couples, and makes it more difficult for the children to understand the integrity and closeness of their own family.
70. The Marriage Ban does not make the children of Accepted Couples more secure. Accepted Couples’ children will continue to enjoy the benefits that flow from their parents’ marriages regardless of whether Banned Couples are permitted to marry.
71. The Commonwealth’s interest in the welfare of children raised by Banned Couples is as great as its interest in the welfare of children of Accepted Couples. The family security that comes from the Commonwealth’s official recognition and support of families headed by Banned Couples is no less important for these parents and their children than it is for Accepted Couples and their children.
FIRST CLAIM FOR RELIEF Deprivation of Due Process: Fundamental Right to Marry
U.S. Const. Amend. XIV (42 U.S.C. § 1983)
72. Plaintiffs incorporate by reference and reallege all of the preceding paragraphs of this amended complaint as though fully set forth herein.
73. Plaintiffs state this cause of action against Defendants in their official capacities for purposes of seeking declaratory and injunctive relief.
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74. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, bars the Commonwealth, from depriving any person of life, liberty, or property without due process of law (the “Due Process Clause”).
75. The right to marry the unique and irreplaceable person of one’s choice and to direct the course of one’s life in this intimate realm without undue government restriction is one of the fundamental liberty interests protected by the Due Process Clause. Indeed, the essence of the fundamental right to marry is freedom of personal choice in selecting one’s spouse.
76. Puerto Rico’s Civil Code, 31 L.P.R.A. § 221, and all other sources of Commonwealth law that preclude Banned Couples from marrying or prevent recognition of their marriages on the basis of their member’s sexual orientation and/or sex violate the due process guarantee of the Fourteenth Amendment, both facially and as applied to Plaintiffs. Defendants’ actions to enforce the Marriage Ban directly and impermissibly infringe on Plaintiffs’ choice of whom to marry, interfering with a core, life-altering, and intimate personal choice.
77. The Due Process Clause also protects choices central to personal dignity and autonomy, including each individual’s rights to family integrity and association. Defendants’ actions to enforce the Marriage Ban directly and impermissibly infringe on Plaintiffs’ deeply intimate, personal, and private decisions regarding family life, and preclude them from obtaining full liberty, dignity, and security for themselves and their families.
78. The duties and actions of Defendant García Padilla, as Governor of the Commonwealth of Puerto Rico; Defendant Rius, as Secretary of the Health Department, and Defendant Llovet; as Director of the General Registry of Vital Statistics, to ensure compliance with Puerto Rico’s discriminatory Marriage Ban by, for example, denying same-sex couples marriage licenses, violate Plaintiffs’ fundamental right to marry and rights to liberty, dignity,
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autonomy, family integrity, association, and due process contained in the Fourteenth Amendment to the United States Constitution.
79. The duties and actions of Defendant Acosta, as the Director of the Treasury, to ensure compliance with the Commonwealth’s discriminatory Marriage Ban by, for example, not allowing same-sex married couples to file joint Puerto Rico income tax returns, violate Plaintiffs’ fundamental right to marry and the rights to liberty, dignity, autonomy, family integrity, association, and due process under the Fourteenth Amendment to the United States Constitution.
80. Defendants cannot satisfy the Due Process Clause’s decree that government’s denial of a fundamental right or substantial infringement of a liberty interest may be sustained only upon a showing that the burden is narrowly tailored to serve a compelling or even important governmental interest, as the Marriage Ban is not even tailored to any legitimate interest at all.
81. Thus, Defendants, acting under color of state law, are depriving Plaintiffs of rights secured by the Due Process Clause of the Fourteenth Amendment to the United States Constitution in violation of 42 U.S.C. § 1983.
SECOND CLAIM FOR RELIEF Deprivation of Equal Protection on the Basis of Sexual Orientation and/or Sex
U.S. Const. Amend. XIV (42 U.S.C. § 1983)
82. Plaintiffs incorporate by reference and reallege all of the preceding paragraphs of this amended complaint as though fully set forth herein.
83. Plaintiffs state this cause of action against Defendants in their official capacities for purposes of seeking declaratory and injunctive relief.
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84. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall “deny to any person the equal protection of the laws.” U.S. Const. amend. XIV, § 1.
85. Puerto Rico’s Civil Code, 31 L.P.R.A. § 221, and all other sources of Puerto Rico law that preclude marriage of Banned Couples or prevent recognition of their marriages violate the equal protection guarantee of the Fourteenth Amendment both facially and as applied to Plaintiffs. The conduct of Defendants in enforcing these laws violates the right of Plaintiffs to equal protection by discriminating impermissibly on the basis of sexual orientation and/or sex.
86. The duties and actions of Defendants García Padilla, Rius, and Llovet to ensure compliance with Puerto Rico’s discriminatory Marriage Ban by, for example, denying LGBT couples marriage licenses, violate the right of Plaintiffs to equal protection guaranteed by the Fourteenth Amendment to the United States Constitution by discriminating impermissibly on the basis of sexual orientation and/or sex.
87. The duties and actions of Defendant Acosta, as the Director of the Treasury, to ensure compliance with the Commonwealth’s discriminatory Marriage Ban by, for example, not allowing LGBT married couples to file joint Puerto Rico income tax returns, violate Plaintiffs’ constitutional right to equal protection by discriminating impermissibly on the basis of sexual orientation and/or sex.
88. In all of the characteristics relevant to marriage, Banned Couples, such as Plaintiff Couples, are identical to Accepted Couples. Banned Couples make the same commitment to one another as those couples permitted to marry. Banned Couples fall in love, build their lives together, plan their futures together, and hope to grow old together. Like Accepted Couples, Banned Couples support one another emotionally and financially and take care of one another
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physically when faced with injury or illness, as for example Plaintiff Iris Delia Rivera Rivera did for Maritza López Aviles when Maritza had intestinal surgeries in 2007 and 2008. Plaintiffs seek to marry for the same emotional, romantic, and dignitary reasons, and to provide the same legal shelter to their families as Accepted Couples. The only distinction drawn by the Marriage Ban, and Defendants enforcing it, is the sexual orientation and/or sex of the individuals in the Banned Couples.
Discrimination Based on Sexual Orientation 89. The Marriage Ban targets LGBT Puerto Ricans as a class for exclusion from marriage and discriminates against Plaintiffs based on their sexual orientation, both facially and as applied. 90. The exclusion of Plaintiff Couples and other Banned Couples from marriage based on their sexual orientation subjects Defendants’ conduct to strict or at least heightened scrutiny, which Defendants’ conduct cannot withstand because the exclusion does not even serve any legitimate governmental interests, let alone any important or compelling interests, nor does it serve any such interests in an adequately tailored manner. 91. LGBT people have suffered a long and painful history of discrimination in Puerto Rico and across the United States. 92. Sexual orientation is a core, defining trait that is so fundamental to one’s identity and conscience that a person may not legitimately be required to abandon it – even if that were possible – as a condition of obtaining equal treatment by the government. 93. Sexual orientation generally is fixed at an early age and highly resistant to change through intervention. No credible evidence supports the notion that interventions are either effective or safe; indeed, they often are harmful and damaging. No mainstream mental health
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professional organization approves interventions that attempt to change sexual orientation, and virtually all of them have adopted policy statements cautioning professionals and the public about such attempts.
94. Sexual orientation bears no relation to an individual’s ability to contribute to society.
95. LGBT people are a discrete and insular minority, and ongoing prejudice against them continues to curtail the operation of those political processes that might ordinarily be relied upon to protect minorities. Gay people have fewer civil rights protections at the state and federal level than racial minorities and women had when race- and sex-based classifications were determined to be suspect and quasi-suspect, respectively.
96. LGBT people lack express statutory protection against discrimination in employment, public accommodations, and housing at the federal level and in more than half the United States, including Puerto Rico; are underrepresented in federal, state, and local democratic bodies; have been stripped of the right to marry through 30 state constitutional amendments and are not currently permitted to marry in most (although a decreasing number of) states; and have been targeted across the nation through the voter initiative processes more than any other group.
97. The Marriage Ban, which allows for the marriage and recognition of the marriages of Accepted Couples while excluding Banned Couples from marriage and recognition of their marriages, imposes inequality on LGBT people, sends a message of second-class status, and cannot survive either the heightened scrutiny required for such classifications, or less demanding review, because it perpetuates discrimination and stigma.
Discrimination Based on Sex
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98. Puerto Rico’s Marriage Ban discriminates against Plaintiffs and LGBT members of Puerto Rico Para Tod@s on the basis of sex, both facially and as applied, barring Plaintiffs from marriage, and barring recognition of marriages entered by Banned Couples–such as Plaintiff Couples and members of Puerto Rico Para Tod@s– on the basis of their sex. The sex-based restriction is plain on the face of Puerto Rico’s law, which restricts marriage to a contract “whereby a man and a woman mutually agree to become husband and wife,” and prohibits recognition of any marriage contracted in other jurisdictions “between persons of the same sex or transsexuals.” 31 L.P.R.A. § 221.
99. Because of these sex-based classifications, Yolanda Arroyo Pizarro is precluded from marrying the person to whom she is devoted, solely because Yolanda is a woman and not a man; were Yolanda a man, she could marry Zulma Oliveras Vega. Similarly, José A. Torruellas Iglesias is precluded from having his marriage to Thomas J. Robinson recognized as valid, simply because José is a man and not a woman; were José a woman, José’s validly-entered marriage to Thomas would be recognized as such under Puerto Rico law.
100. The Commonwealth’s Marriage Ban serves the impermissible purpose of enforcing and perpetuating sex stereotypes by excluding Plaintiffs and other members of Banned Couples from marriage, and from being recognized as validly married, because they have failed to conform to sex-based stereotypes that men should marry women, and women should marry men. The Marriage Ban also discriminates on the basis of sex by targeting transsexual and/or transgender Puerto Ricans who have married in other jurisdictions and barring their marriages from recognition in Puerto Rico.
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101. Especially given that there are no longer distinctions between the legal duties of spouses in Puerto Rico law, there is no basis for the sex-based eligibility requirements for marriage in Puerto Rico.
102. The exclusion of Plaintiffs from marriage and marriage recognition based on their sex and upon gender-based stereotypes cannot survive the heightened scrutiny required for sexbased discrimination.
103. Discrimination in regard to Parental Status. The Marriage Ban impermissibly restricts LGBT parents from establishing parental status, for example through the parental presumption afforded when a child is born into a marriage, on the bases of their parents’ sex, sexual orientation, and marital status, denying such parents and their children the dignity, legitimacy, security, support, and protections available when parents can marry. The Commonwealth’s differential treatment of families and children based upon their parents’ sex, sexual orientation, and marital status cannot survive the heightened scrutiny required for classifications based on parental status.
104. Discrimination With Respect to Fundamental Rights and Liberty Interests Secured by the Due Process Clause. The Marriage Ban discriminates against Plaintiffs based on sexual orientation and/or sex with respect to the fundamental right to marry and with respect to their liberty interests in dignity, autonomy, and family integrity and association. Differential treatment with respect to the exercise of fundamental rights and liberty interests, based on Plaintiffs’ sexual orientation and/or sex, subjects Defendants’ conduct to strict or at least heightened scrutiny, which Defendants’ conduct cannot withstand.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court enter judgment as follows:
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A. Declaring that the provisions and enforcement by Defendants of Article 68 of the Civil Code of Puerto Rico, 31 L.P.R.A. § 221, and any other sources of Puerto Rico law or regulation that exclude LGBT couples from marriage or bar recognition of valid marriages of LGBT people entered into in another jurisdiction violate Plaintiffs’ rights under the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution;
B. Enjoining enforcement by Defendants of Article 68 of the Civil Code of Puerto Rico, 31 L.P.R.A. § 221, and any other sources of Puerto Rico law or regulation that exclude LGBT couples from marriage or bar recognition of valid marriages of LGBT people entered in other jurisdictions;
D. Requiring Defendants, in their official capacities, to allow Banned Couples to marry on the same terms as Accepted Couples and to recognize the valid marriages of LGBT people entered into in other jurisdictions on the same legal terms as other marriages recognized in Puerto Rico;
E. Awarding Plaintiffs their costs, expenses, and reasonable attorneys’ fees pursuant to 42 U.S.C. § 1988 and other applicable laws; and
F. Granting such other and further relief as the Court deems just and proper. G. The declaratory and injunctive relief requested in this action is sought against each Defendant; each Defendant’s officers, employees, and agents; and against all persons acting in cooperation with any Defendant or under a Defendant’s supervision, direction, or control.
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Case 3:14-cv-01253-PG Document 7 Filed 06/25/14 Page 33 of 34
Dated: _ June 25, 2014
By: s/ _ Ada Mercedes Conde Vidal ______________________________________ Ada Mercedes Conde Vidal P.O. Box 13268 San Juan, PR 00908-3268 T: (787) 721-0401 | F: (787) 977-8072 condelawpr@gmail.com USDCPR 206209
Attorney for Plaintiffs ADA MERCEDES CONDE VIDAL and IVONNE ÁLVAREZ VÉLEZ
_ By:
Hayley Gorenberg* Omar Gonzalez-Pagan* Jael Humphrey-Skomer* LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 120 Wall Street, 19th Floor New York, NY 10005 T: (212) 809-8585 | F: (212) 809-0055 hgorenberg@lambdalegal.org ogonzalez-pagan@lambdalegal.org jhumphrey@lambdalegal.org
Gary W. Kubek* Harriet M. Antczak* Jing Kang* DEBEVOISE & PLIMPTON LLP 919 Third Avenue New York, NY 10022 T: (212) 909-6000 | F: (212) 909-6836 gwkubek@debevoise.com hmantcza@debevoise.com jkang@debevoise.com
Ryan M. Kusmin* DEBEVOISE & PLIMPTON LLP 555 13th Street N.W. Washington, DC 20004 T: (202) 383-8000 | F: (202) 383-8118 rmkusmin@debevoise.com
Celina Romany-Siaca Celina Romany Law Offices 268 Munoz Rivera Avenue, Suite 1500 San Juan, PR 00918 T: (787) 754-9304 | F: (787) 754-9324 bufetecelinaromany@gmail.com
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Case 3:14-cv-01253-PG Document 7 Filed 06/25/14 Page 34 of 34 USDCPR 121811 Attorneys for Plaintiffs MARITZA LÓPEZ AVILES and IRIS DELIA RIVERA RIVERA; JOSÉ A. TORRUELLAS IGLESIAS and THOMAS J. ROBINSON; ZULMA OLIVERAS VEGA and YOLANDA ARROYO PIZARRO; JOHANNE VÉLEZ GARCÍA and FAVIOLA MELÉNDEZ RODRÍGUEZ; and PUERTO RICO PARA TOD@S * Motions for admission pro hac vice submitted separately
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 Case 3:14-cv-01253-PG Document 62 Filed 07/08/15 Page 1 of 3

United States Court of Appeals

For the First Circuit

No. 14-2184

_____________________

ADA MERCEDES CONDE-VIDAL; MARITZA LOPEZ-AVILES; IRIS DELIA RIVERARIVERA; JOSE A. TORRUELLAS-IGLESIAS; THOMAS J. ROBINSON; ZULMA
OLIVERAS-VEGA; YOLANDA ARROYO-PIZARRO; JOHANNE VELEZ-GARCIA; FAVIOLA MELENDEZ-RODRIGUEZ; PUERTO RICO PARA TOD@S; IVONNE ALVAREZ-VELEZ,

Plaintiffs, Appellants,

v.

DR. ANA RIUS-ARMENDARIZ, in her official capacity as Secretary of the Health Department of the Commonwealth of Puerto Rico; WANDA LLOVET DIAZ, in her official capacity as the
Director of the Commonwealth of Puerto Rico Registrar of Vital Records; ALEJANDRO J. GARCIA-PADILLA, in his official capacity as Governor of the Commonwealth of Puerto Rico; JUAN C. ZARAGOSA-GOMEZ, in his official capacity as Director of the Treasury in Puerto
Rico,

Defendants, Appellees. __________________

Before

Torruella, Thompson and Kayatta, Circuit Judges.
__________________

JUDGMENT

Entered: July 8, 2015

Upon consideration of the parties' Joint Response Pursuant to Court Order filed June 26, 2015, we vacate the district court's Judgment in this case and remand the matter for further consideration in light of Obergefell v. Hodges, -- S. Ct. -, 2015 WL 2473451 (Nos. 14-556, 14562, 14-571, 14-574, June 26, 2015). We agree with the parties' joint position that the ban is unconstitutional. Mandate to issue forthwith.

Case 3:14-cv-01253-PG Document 62 Filed 07/08/15 Page 2 of 3
By the Court:
/s/ Margaret Carter, Clerk
cc: Honorable Juan M. Perez-Gimenez Frances Rios de Moran, Clerk of Court Felicia H. Ellsworth Ada M. Conde Vidal Rachel I. Gurvich Celina Romany Siaca Mark Christopher Fleming Karen Lee Loewy Alan Evan Schoenfeld Gary W. Kubek Harriet M. Antczak Jing Kang Ryan M. Kusmin Hayley J. Gorenberg Jael Humphrey-Skomer Omar Gonzalez-Pagan Paul R.Q. Wolfson Jose L Nieto-Mingo Idza Diaz-Rivera Tanaira Padilla-Rodriguez Margarita Luisa Mercado-Echegaray Andres Gonzalez-Berdecia Benjamin Gross Shatz Abbe David Lowell Christopher Dowden Man Andrew John Davis Rocky Chiu-Feng Tsai Suzanne B. Goldberg Paul Victor Holtzman Paul March Smith Aaron M. Panner Diane M. Soubly Maura T. Healey Jonathan B. Miller Janet T. Mills Joseph A. Foster Susan Leann Baker Manning Michael Louis Whitlock George Patrick Watson

Case 3:14-cv-01253-PG Document 62 Filed 07/08/15 Page 3 of 3
Claire Laporte Stephen Thomas Bychowski Sarah Burg Rose Ann Saxe William Ramirez-Hernandez Catherine Emily Stetson Mary Helen Wimberly Joseph F. Tringali Hunter Thompson Carter Marjory A. Gentry Jeffrey S. Trachtman Kurt Michael Denk Jason Michael Moff Norman Christopher Simon Edward Francis Foye Howard M. Cooper Tristan Purdy Colangelo Emily Martin Marcia D. Greenberger David Ramos-Pagan Anita Leigh Staver Mathew D. Staver Mary Elizabeth McAlister Horatio Gabriel Mihet Thomas Michael Harvey Kevin Trent Snider Lawrence John Joseph Arnaldo Pereira Ruben T. Nigaglioni-Mignucci Sr. Israel Santiago-Lugo Gina R. Mendez-Miro Germarie Mendez-Negron James Andrew Campbell Douglas G. Wardlow Evelyn Aimee De Jesus

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

ADA CONDE VIDAL, ET AL., Plaintiffs, v.
ALEJANDRO GARCIA-PADILLA, ET AL., Defendants.

CIVIL NO. 14-1253 (PG)

OPINION AND ORDER
For, certainly, no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co-ordinate states of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.1
I. BACKGROUND
The instant action was commenced almost two years ago by the plaintiffs - a group of individuals and a lesbian, gay, bisexual and transgender nonprofit advocacy organization who have challenged the constitutionality of the Commonwealth of Puerto Rico’s codification of opposite-sex marriage under Article 68 of the Puerto Rico Civil Code (“Article 68”).2 See P.R. Laws Ann. tit. 31, § 221. The plaintiffs seek declaratory and injunctive relief for violation of their rights under the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Upon the defendants’ motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Docket No. 31, on October 21, 2014, the court dismissed the plaintiffs’ claims with prejudice for failure to present a substantial federal question. See
1 Murphy v. Ramsey, 114 U.S. 15, 45 (1885). 2 The plaintiffs include two same-sex couples who seek the right to marry in Puerto Rico; three-same sex couples who are validly married under the laws of Massachusetts, New York, and Canada, respectively, and who wish to have their marriages recognized in the island; and the LGBT advocacy group Puerto Rico Para Tod@s. See Docket No. 7. For a detailed discussion of each of the parties’ arguments at the dismissal stage of the proceedings, the court refers to that included at Docket No. 57.

Civil No. 14-1253 (PG)

Page 2

Docket No. 57 at page 11. Judgment was entered on that same date. See Docket No. 58. An appeal ensued. See Docket No. 59.
While the appeal was pending, the Supreme Court decided Obergefell v. Hodges, 135 S.Ct. 2584 (2015), ruling on the issue of same-sex marriage under the Constitution. There, the Court concluded that under the Due Process and Equal Protection Clauses of the Fourteenth Amendment same-sex couples may not be deprived of the fundamental right to marry. See id. at 2604-2605. Thus, the marriage laws of the States of Michigan, Kentucky, Ohio, and Tennessee challenged by the petitioners in the consolidated cases reviewed by the Court were held invalid. See id. at 2605.
On July 8, 2015, twelve days after the Supreme Court’s landmark ruling, the First Circuit vacated this court’s judgment and remanded the case “for further consideration in light of Obergefell v. Hodges.” See Docket No. 62 (citation omitted). In doing so, the First Circuit expressed that it “agree[s] with the parties’ joint position that the ban is unconstitutional.” Id. (alteration in original).
On July 17, 2015, the parties filed a “Joint Motion for Entry of Judgment,” wherein they request a determination that Article 68, and any other Puerto Rico law that (i) prohibits same-sex marriage; (ii) denies same-sex couples the rights and privileges afforded to opposite-sex couples, and (iii) refuses to recognize same-sex marriages validly performed under the laws of another jurisdiction, violate the Fourteenth Amendment to the Constitution of the United States. See Docket Nos. 64 and 64-1. The parties also seek injunctive relief against the enforcement of Article 68 and any other law denying same-sex couples the right to marry. The relief now sought by the parties is intended “to benefit all LGBT people and same-sex couples in Puerto Rico....” 3 See id. at pages 2-3. For the reasons set forth below, the court DENIES the parties’ joint motion.

3 The parties further request a ruling regarding the binding effect of the court’s disposition for purposes of issue and claim preclusion. See id. For the reasons that follow, the court does not reach the request.

Civil No. 14-1253 (PG)

Page 3

II. DISCUSSION

A. The Obergefell decision

The Supreme Court’s ruling in Obergefell seems to touch directly upon the issue at the heart of this litigation, to wit, whether Puerto Rico’s marriage ban found in Article 68 violates the Fourteenth Amendment. See U.S. Const. amend. XIV, § 1.
In the consolidated cases on review before the Supreme Court, the petitioners, fourteen same-sex couples and two men whose same-sex partners are deceased, challenged the marriage laws of the States of Michigan, Kentucky, Ohio and Tennessee that defined marriage as a union between one man and one woman. See Obergefell, 135 S.Ct. at 2593. The first issue decided by the Court was “whether the Constitution protects the right of same-sex couples to marry.” Id. at 2606. After identifying the historical, cultural and legal principles and traditions that have shaped the right to marry as a fundamental one under the Constitution, the Court concluded that under the Due Process and Equal Protection Clauses of the Fourteenth Amendment same-sex couples may not be deprived of that right. See id. at 2604-2605. The Court also held that “Baker v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” Id. at 2605 (emphasis added).
The Obergefell cases also “present[ed] the question of whether the Constitution requires States to recognize same-sex marriages validly performed out of State.” Id. at 2607. In its analysis, the Court indicated that the “recognition bans” on valid same-sex marriages performed in other States inflicted substantial harm on same-sex couples and could continue to cause hardships in certain events, such as a spouse’s hospitalization, across state lines. See id. The Court also noted the distressing complications such bans created in the law of domestic relations. See id. These reasons led to the following conclusion:
The Court, in this decision, holds that same-sex couples may exercise this fundamental right in all States. It follows that the Court must also hold--and it now does hold--that there is no lawful basis for a State to refuse to recognize a lawful

Civil No. 14-1253 (PG)

Page 4

same-sex marriage performed in another State on the ground of its same-sex character.

Id. at 2607-2608 (emphasis added).

As forewarned in this court’s opinion and order from October 21, 2014, see Docket No. 57, lower courts are bound by the Supreme Court’s decisions “‘until such time as the Court informs [them] that [they] are not.’” Hicks v. Miranda, 422 U.S. 332, 344 (1975)(citation omitted). After careful consideration, this court reads the Supreme Court’s decision in Obergefell as one incorporating the fundamental right to same-sex marriage in all States through the Fourteenth Amendment and, consequently, striking down the marriage and recognition bans codified in the laws of four States in violation of the Due Process and Equal Protection Clauses of that Amendment.4 However, Obergefell did not incorporate the fundamental right at issue to Puerto Rico through the Fourteenth Amendment, nor did it invalidate Article 68. And it is not within the province of this court to declare, as the parties ask, that the Fourteenth Amendment guarantees same-sex couples in Puerto Rico the right to marry.5
In interpreting Obergefell, this court is bound by an elementary principle of federal jurisdiction under which “[a] judgment or decree among the parties to a lawsuit resolves issues among them, but it does not conclude the right of strangers to those proceedings.” Martins v. Wilkis, 490 U.S. 755, 762 (1989), superseded by statute, Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1071; see also Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975)(noting that “neither declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular

4 As noted by the Supreme Court, “[t]hese cases [came] from Michigan, Kentucky, Ohio, and Tennessee.” Obergefell, 135 S.Ct. at 2593 (alteration in original).
5 Just hours after the Supreme Court’s decision in Obergefell, the Governor of Puerto Rico, Hon. Alejandro Garcia Padilla, signed Executive Order OE-2015-21, requiring several government agencies to become compliant with the ruling and take all measures necessary for the issuance of marriage licenses to same-sex couples. Subsequently, various members of the Puerto Rico Legislature filed suit before the Puerto Rico Court of First Instance, San Juan Part, challenging the constitutionality of the Governor’s actions. See Maria M. Charbonier et al. v. Hon. Alejandro Garcia Padilla, et al. (case number not verified). As the plaintiffs see it, the fundamental right to marry between same-sex couples has not been applied against the Government of Puerto Rico through the Due Process Clause of the Fourteenth Amendment. The plaintiffs also raise claims of a separation of powers violation by the First Executive.

Civil No. 14-1253 (PG)

Page 5

plaintiffs....”). This supports the conclusion that Obergefell does not directly invalidate Article 68 or resolves the issues presented before this court.6
At this juncture, the court’s job is to determine the extent, if any, to which Obergefell impacts the Puerto Rico marriage laws. This task, in turn, requires examining two doctrines elaborated by the Supreme Court that touch directly upon the incorporation of certain fundamental rights, such as the right to marry, to the States and Puerto Rico through the Fourteenth Amendment.

B. The Doctrine of Selective Incorporation

At the time of its adoption in 1871, the Bill of Rights –and, particularly, the individual liberties secured within it– did not apply against the States. See Barron ex rel. Tiernan v. Baltimore, 32 U.S. 243, 250 (1833)(noting that the amendments found in the Bill of Rights “contain no expression indicating an intention to apply them to the State governments”); Lessee of Livingston v. Moore, 32 U.S. 469, 551-552 (1833)(same). Nevertheless, in the aftermath of the Civil War, the Fourteenth Amendment to the Constitution was adopted to protect certain individual rights from interference by the States.7 And thereafter, the Supreme Court began using that Amendment’s Due Process Clause to “incorporate” a number of the individual liberties found in the first ten Amendments against the States, “initiating what has been called a process of ‘selective incorporation,’ i.e. the Court began to hold that the Due Process Clause fully incorporates particular rights contained in the

6 It is worth noting the decisions of other sister courts discussing the impact of Obergefell with respect to the marriage laws of other States prohibiting the issuance of same-sex marriage licenses. See Waters v. Ricketts, 798 F.3d 682, 685 (8th Cir. 2015)(noting that “[t]he [Obergefell] Court invalidated laws in Michigan, Kentucky, Ohio, and Tennessee – not Nebraska”); Jernigan v. Crane, 796 F.3d 976, 979 (8th Cir. 2015)(“not Arkansas”); Rosenbrahn v. Daugaard, 799 F.3d 918, 922 (8th Cir. 2015)(“not South Dakota”); see also Marie v. Mosier, Case No. 14-cv-02518-DDC-TJJ, 2015 WL 4724389, at *14 (D. Kan. Aug. 10, 2015)(noting that “[w]hile Obergefell is clearly controlling Supreme Court precedent, it did not directly strike down the provisions of the Kansas Constitution and statutes that ban issuance of same-sex marriage licenses and prohibit the recognition of same-sex marriages entered into in Kansas and elsewhere.”)(internal quotations omitted).
7 The Fourteenth Amendment provides, in pertinent part, that “[n]o State shall...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.” U.S. Const. amend. XIV, § 1.

Civil No. 14-1253 (PG)

Page 6

first [ten] Amendments.” McDonald v. City of Chicago, III., 561 U.S. 742, 763 (2010)(alteration in original)(listing cases).
In the cases decided during this era, the Court fashioned the boundaries of the Due Process Clause by expressly incorporating those rights considered fundamental to a scheme of ordered liberty and system of justice. See id., 561 U.S. at 760-764; see also Palko v. Connecticut, 302 U.S. 319 (1937)(indicating that due process protects those rights that are “the very essence of a scheme of ordered liberty”); Duncan v. Louisiana, 391 U.S. 145, 148 (1968)(referring to those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions”)(internal quotations omitted). Today, most of the rights found in the first ten Amendments have been incorporated.8
Notwithstanding, the incorporation of fundamental rights to Puerto Rico through the Fourteenth Amendment, unlike the States, is not automatic. See Mora v. Torres, 113 F.Supp. 309, 319 (D.P.R. 1953), aff’d sub. nom., Mora v. Mejias, 206 F.2d 377 (1st Cir. 1953)(holding that the Fourteenth Amendment is not applicable to Puerto Rico insofar as Puerto Rico is not a federated state within the terms of said Amendment)(citation omitted). Thus, for the reasons that follow, the court concludes that absent an express decision from the Supreme Court of the United States, the Supreme Court of Puerto Rico, Congress or the

8 With respect to the First Amendment, see Everson v. Board of Ed. of Ewing, 330 U.S. 1 (1947)(Establishment Clause); Cantwell v. Connecticut, 310 U.S. 296 (1940)(Free Exercise Clause); De Jonge v. Oregon, 299 U.S. 353 (1937)(freedom of assembly); Gitlow v. New York, 268 U.S. 652 (1925)(free speech); Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931)(freedom of the press).
As to the Second Amendment’s right to bear arms, see McDonald v. City of Chicago, 561 U.S. at 742.
With respect to the Fourth Amendment, see Aguilar v. Texas, 378 U.S. 108 (1964)(warrant requirement); Mapp v. Ohio, 367 U.S. 643 (1961)(exclusionary rule); Wolf v. Colorado, 338 U.S. 25 (1949)(freedom from unreasonable searches and seizures).
With respect to the Fifth Amendment, see Benton v. Maryland, 395 U.S. 784 (1969)(Double Jeopardy Clause); Malloy v. Hogan, 378 U.S. 1 (1964)(privilege against self-incrimination); Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 22 (1897)(Just Compensation Clause).
With respect to the Sixth Amendment, see Duncan , 391 U.S. 145 (trial by jury in criminal cases); Washington v. Texas, 388 U.S. 14 (1967)(compulsory process); Klopfer v. North Carolina, 386 U.S. 213 (1967)(speedy trial); Pointer v. Texas, 380 U.S. 400 (1965)(Confrontation Clause); Gideon v. Wainwright, 372 U.S. 335 (1963)(assistance of counsel); In re Oliver, 333 U.S. 257 (1948)(right to a public trial).
With respect to the Eighth Amendment, see Robinson v. California, 370 U.S. 660 (1962)(Cruel And Unusual Punishments Clause); Schilb v. Kuebel, 404 U.S. 357 (1971)(Excessive Bail Clause).

Civil No. 14-1253 (PG)

Page 7

Puerto Rico Legislature, the fundamental right claimed by the plaintiffs in this case has not been incorporated to Puerto Rico.

C. Now, does the Constitution follow the flag? The Doctrine of Territorial Incorporation
And the determination of what particular provision of the Constitution is applicable, generally speaking, in all cases, involves an inquiry into the situation of the territory and its relations to the United States.9
At the dawn of the 20th century, the Supreme Court rendered a series of decisions later known as the Insular Cases,10 that established “a vital distinction between incorporated and unincorporated territories with the second category describing possessions of the United States not necessarily thought of as future States.” U.S. v. Lebron_Caceres, Criminal No. 15-279 (PAD), 2016 WL 204447, at *6 (D.P.R. Jan. 14, 2016).11 Puerto Rico ultimately fell into the second category. Indeed, the Supreme Court explained that with the ratification of the Treaty of Paris, “the island became territory of the United States, although not an organized territory in the technical sense of the word.” De Lima v. Bidwell, 182 U.S. at 196.
“The Insular Cases allowed the Court to address whether the Constitution, by its own force, applies in any territory that is not a State.” Boumediene v. Bush, 553 U.S. 726, 756 (2008)(citation omitted). The considerations inherent in the Supreme Court’s position, one that

9 Downes v. Bidwell, 182 U.S. 244, 293 (1901)(White, J., concurring)(questioning whether the Citizenship Clause of the Fourteenth Amendment naturally and inexorably extends to acquired territories).
10 See Huus v. N.Y. & Porto Rico S.S. Co., 182 U.S. 392 (1901)(holding that a vessel engaged in trade between the island and New York engaged in coastal, and not foreign trade); Downes v. Bidwell, 182 U.S. 244 (holding that Puerto Rico did not become a part of the United States within the meaning of Article I, Section 8 of the Constitution); Armstrong v. United States, 182 U.S. 243 (1901)(holding that the tariffs imposed on goods exported from the mainland to Puerto Rico were invalid after the ratification of the Treaty of Paris); Dooley v. United States, 182 U.S. 222 (1901)(holding that the right of the president to exact duties on imports from Puerto Rico into the mainland ceased after the ratification of the Treaty of Paris); Goetze v. United States, 182 U.S. 221 (1901)(holding that Puerto Rico and Hawaii were not foreign countries within the meaning of the U.S. tariff laws); De Lima v. Bidwell, 182 U.S. 1 (1901)(holding that at the times the duties challenged by the plaintiff were levied, Puerto Rico was not a foreign country for purposes of the tariff laws, but a territory of the United States).
11 For a detailed analysis of the relationship between the United States and Puerto Rico through the doctrine of territorial incorporation, as well as the judicial developments regarding the application of various provisions of the Federal Constitution in Puerto Rico, the court refers to that included in the case of U.S. v. Lebron Caceres, 2016 WL 204447.

Civil No. 14-1253 (PG)

Page 8

views the Constitution as having an independent force in noncontiguous territories such as Puerto Rico, resulted in the doctrine of territorial incorporation. See id. at page 757. Under this doctrine, “the Constitution applies in full in incorporated Territories surely destined for statehood but only in part in unincorporated Territories.” Id. (citing Dorr v. United States, 195 U.S. 138 (1904);12 Downes, 182 U.S. at 293 (White, J., concurring)).
Even after the enactment of the Foraker Act, 31 Stat. 77 (1900)(codified at 11 U.S.C. §§ 1, 11), providing for an elected legislature, and a governor and supreme court appointed by the President of the United States, and the Jones Act, 39 Stat. 951 (1917)(codified at 48 U.S.C. § 737), which granted statutory United States citizenship to the people of Puerto Rico and provided for an enhanced, bicameral legislature, Puerto Rico remained an unincorporated territory of the United States to which the Bill of Rights of the Constitution did not apply ex propio vigore.13 See Balzac v. Porto Rico, 258 U.S. 298, 304 (1922)(reaffirming the doctrine of territorial incorporation); see also Reid v. Covert, 354 U.S. 1, 74 (1957)(Harlan, J., concurring)(“The proposition is, of course, not that the Constitution does not apply overseas, but that there are provisions in the Constitution which do not necessarily apply in every foreign place.”).
Notwithstanding the intense political, judicial and academic debate the island’s territorial status has generated over the years, the fact is that, to date, Puerto Rico remains an unincorporated territory subject to the plenary powers of Congress over the island under the Territorial Clause.14 More importantly, jurisprudence, tradition and logic teach us

12 In Dorr, the Court held that territories ceded by treaty to the United States and not yet incorporated by Congress are subject to Congressional territorial authority and “to such constitutional restrictions upon the powers of that body that are applicable to the situation.”
13 The same conclusion is reached with respect to Public Law 600, 64 Stat. 319 (codified at 48 U.S.C. § 731b et seq.), enacted by Congress in 1950, and which provided federal statutory authorization for the citizens of Puerto Rico to write their own constitution, subject to congressional approval. See Popular Democratic Party v. Com. of Puerto Rico, 24 F.Supp.2d 184, 194 (D.P.R. 1998).
14 In declining to interpret a federal bankruptcy statute to avoid Tenth Amendment concerns, the First Circuit recently indicated that “[t]he limits of the Tenth Amendment do not apply to Puerto Rico, ‘which is constitutionally a territory,’ United States v. Lopez Andino, 831 F.3d 1164, 1172 (1st Cir. 1987)(Torruella, J., concurring), because Puerto Rico’s powers are not those reserved to the States, but those specifically granted to it by Congress under its constitution.” Franklin California Tax-Free Trust v. Puerto Rico, 805 F.3d 322, 344-345 (1st Cir. 2015)(emphasis added)(citation omitted).

Civil No. 14-1253 (PG)

Page 9

that Puerto Rico is not treated as the functional equivalent of a State for purposes of the Fourteenth Amendment. As explained by the Supreme Court, “noting the inherent practical difficulties of enforcing all constitutional provisions ‘always and everywhere,’ the Court devised in the Insular Cases a doctrine that allowed it to use its power sparingly and where it would be most needed.” Boumedine, 553 U.S. at 758 (internal citation omitted).
It is in light of the particular condition of Puerto Rico in relation to the Federal Constitution, with due consideration of the underlying cultural, social and political currents that have shaped over five centuries of Puerto Rican history, that the court examines the effect of Obergefell in the instant case. The court’s analysis, therefore, does not end with the incorporation of the fundamental right to same-sex marriage in the States. Generally, the question of whether a constitutional guarantee applies to Puerto Rico is subject to determination by Supreme Court of the United States, See Torres v. Com. of Puerto Rico, 442 U.S. 456, 478 (1979), in the exercise of its authority “to say what the law is.” See Marbury v. Madison, 5 U.S. 137, 177 (1803). Thus, this court believes that the right to same-sex marriage in Puerto Rico requires: (a) further judicial expression by the U.S. Supreme Court; or (b) the Supreme Court of Puerto Rico, see e.g. Pueblo v. Duarte, 109 D.P.R. 59 (1980)(following Roe v. Wade, 410 U.S. 113 (1973) and declaring a woman’s right to have an abortion as part of the fundamental right to privacy guaranteed under the Fourteenth Amendment); (c) incorporation through legislation enacted by Congress, in the exercise of the powers conferred by the Territorial Clause, see Const. amend. Art. IV, § 3; or (d) by virtue of any act or statute adopted by the Puerto Rico Legislature that amends or repeals Article 68.15
III. CONCLUSION A practical and theoretical analysis of the Supreme Court’s opinion in Obergefell reveals the inherent conflicts between the principles of liberty and equality and the precepts of the democratic process established in the Constitution, considerations that ultimately led a majority of the Nation’s highest court to declare same-sex marriage a

15 See P.R. Laws Ann. tit. 31, § 5.

Civil No. 14-1253 (PG)

Page 10

fundamental right as a matter of constitutional law. See Obergefell, 135 S.Ct. at 2605. A thorough recitation of the historical, political and cultural backgrounds against which the legal question of same-sex marriage arose, eventually dividing the States on the issue, was followed by the unequivocal assertion that the fundamental liberties central to the litigation stemmed from, and were protected by the Fourteenth Amendment. See id. at 2597. Under that Amendment, concluded the Supreme Court, same-sex couples are guaranteed the right to marry and to have their marriages recognized in all States. One might be tempted to assume that the constant reference made to the “States” in Obergefell includes the Commonwealth of Puerto Rico. Yet, it is not the role of this court to venture into such an interpretation.
For the foregoing reasons, the court concludes that the fundamental right to marry, as recognized by the Supreme Court in Obergefell, has not been incorporated to the juridical reality of Puerto Rico. Thus, the court declines to hold that the marriage ban codified in Article 68 of the Civil Code violates the Due Process and the Equal Protection Clauses of the Fourteenth Amendment by denying same-sex couples in Puerto Rico the right to marry or to have marriages validly performed in another jurisdiction given full recognition.16 Therefore, the parties’ joint motion for entry of judgment (Docket No. 64) is hereby DENIED.

IT IS SO ORDERED. In San Juan, Puerto Rico, March 8, 2016.

S/ JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PEREZ-GIMENEZ SENIOR U.S. DISTRICT JUDGE

16 It is worth noting that in earlier stages of this litigation, the Commonwealth officials defended the constitutionality of Article 68 as a valid exercise of the Puerto Rico Legislature’s power to regulate family affairs, including marriage. See e.g. Docket No. 31.

 
 Case 3:14-cv-01253-GAG Document 70 Filed 04/07/16 Page 1 of 6
United States Court of Appeals
For the First Circuit
No. 16-1313
IN RE: ADA M. CONDE VIDAL; MARITZA LÓPEZ-AVILÉS; IRIS DELIA RIVERA-RIVERA; JOSÉ A. TORRUELLAS-IGLESIAS; THOMAS J. ROBINSON;
ZULMA OLIVERAS-VEGA; YOLANDA ARROYO-PIZARRO; JOHANNE VÉLEZGARCÍA; FAVIOLA MELÉNDEZ-RODRÍGUEZ; PUERTO RICO PARA TOD@S;
IVONNE ÁLVAREZ-VÉLEZ,
Petitioners.
PETITION FOR A WRIT OF MANDAMUS TO THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before Torruella, Thompson and Kayatta,
Circuit Judges.
Omar González-Pagán, Hayley Gorenberg, Karen Loewy and Lambda Legal Defense and Education Fund, Inc., Felicia H. Ellsworth, Mark C. Fleming, Steven J. Horn, Alan E. Schoenfeld, Adriel I. Cepeda Derieux, Paul R. Q. Wolfson, Robbie Manhas, and Wilmer Cutler Pickering Hale and Dorr, LLP, Gary W. Kubek, Harriet M. Antczak, Jing Kany, Ryan M. Kusmin, and Debevoise & Plimpton, LLP, Celina Romany-Siaca and Celina Romany Law Offices, for Petitioners Maritza López-Avilés, Iris D. Rivera-Rivera; José A. TorruellasIglesias, Thomas J. Robinson; Zulma Oliveras-Vega, Yolanda ArroyoPizarro; Johanne Vélez-García, Faviola Meléndez-Rodríguez; and Puerto Rico Para Tod@s.
Ada M. Conde-Vidal and Conde Attorney at Law, PSC, for Petitioner Ivonne Álvarez-Vélez.
José L. Nieto and Nieto Law Offices for Petitioner Ada M. Conde-Vidal.
Margarita Mercado-Echegaray, Solicitor General, Department of Justice, Commonwealth of Puerto Rico, for Respondents Alejandro J. García-Padilla, Dr. Ríus-Armendáriz, Wanda Llovet-Díaz, and Juan C. Zaragoza-Gómez.

Case 3:14-cv-01253-GAG Document 70 Filed 04/07/16 Page 2 of 6 April 7, 2016
- 2 -

Case 3:14-cv-01253-GAG Document 70 Filed 04/07/16 Page 3 of 6

Per Curiam. A group of individuals and advocacy groups

("Petitioners") challenge the constitutionality of Article 68 of

the Civil Code of Puerto Rico, P.R. Laws Ann. tit. 31, § 221, and

other laws of the Commonwealth that prohibit same-sex couples from

marrying. During the pendency of a prior appeal from the dismissal

of Petitioners' claims, the United States Supreme Court decided

Obergefell v. Hodges, 135 S.Ct. 2584 (2015). In the wake of that

decision, all parties agreed that the Commonwealth's ban on same-

sex marriage was unconstitutional. We agreed, vacated the

judgment, and remanded.

On remand, the district court

nevertheless denied the parties' joint request that the court enter

judgment in favor of Petitioners. Instead, the court issued a

memorandum concluding that the Commonwealth's ban was not

unconstitutional because, the district court claimed, the "right

to same-sex marriage" has not been determined to apply in Puerto

Rico. Petitioners now request the issuance of a writ of mandamus

requiring the district court to enter judgment in their favor

striking down the ban as unconstitutional. Respondents, in turn,

move for leave to join in Petitioners' request.

- 3 -

Case 3:14-cv-01253-GAG Document 70 Filed 04/07/16 Page 4 of 6

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. Obergefell, 135 S. Ct. 2584; United States

v. Windsor, 133 S. Ct. 2675 (2013). Those rights have already

been incorporated as to Puerto Rico. Examining Bd. Of Eng'rs,

Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 600

(1976). And even if they had not, then the district court would

have been able to decide whether they should be. See Flores de

Otero, 426 U.S. at 590.1

In any event, for present purposes we need not gild the lily.

Our prior mandate was clear:

Upon consideration of the parties' Joint

Response Pursuant to Court Order filed June

26, 2015, we vacate the district court's

Judgment in this case and remand the matter

for further consider in light of

Obergefell . . . . We agree with the

parties' joint position that the ban is

unconstitutional.

Mandate to issue

forthwith.

1 In Flores de Otero, the Court stated that although Congress, via the Foraker Act, had "conveyed uncertain[ty] of its own powers respecting Puerto Rico and of the extent to which the Constitution applied there. . . . it recognized, at least implicitly, that the ultimate resolution of these questions was the responsibility of this Court." Flores de Otero, 426 U.S. at 590. The use of the word "ultimate" suggests the involvement of lower courts, rather than viewing itself as the sole arbiter of such issues. This interpretation aligns with the limited jurisdiction of the Supreme Court.
- 4 -

Case 3:14-cv-01253-GAG Document 70 Filed 04/07/16 Page 5 of 6
Judgment, In re Conde-Vidal, et al., No. 14-2184 (1st Cir. July 8, 2015). (Emphasis added.)
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. See United States v. U.S. Dist. Court for S. Dist. of N.Y., 334 U.S. 258, 263-64 (1948) ("It was held that mandamus was the proper remedy to enforce compliance with the mandate.") (citing City Nat. Bank of Ft. Worth v. Hunter, 152 U.S. 512, 515 (1894)); see also Baltimore & O.R. Co. v. United States, 279 U.S. 781, 785 (1929) ("When a lower federal court refuses to give effect to or misconstrues our mandate, its action may be controlled by this court, either upon a new appeal or by writ of mandamus."); Dep't of Navy v. Fed. Labor Relations Auth., 835 F.2d 921, 923 (1st Cir. 1987) (explaining that mandamus is an appropriate means of compelling effectuation of mandate where failure to take action might "[r]equir[e] petitioner to participate in the relitigation of issues already decided").
- 5 -

Case 3:14-cv-01253-GAG Document 70 Filed 04/07/16 Page 6 of 6 Accordingly, Respondents' motion to join in the petition for writ of mandamus is granted, the petition itself is also granted, and 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.
- 6 -

 
 Case 3:14-cv-01253-GAG Document 73 Filed 04/07/16 Page 1 of 2

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE DISTRICT OF PUERTO RICO

3 ADA CONDE VIDAL, et al., 4 Plaintiffs, 5 v. 6 ALEJANDRO GARCÍA PADILLA, et al., 7 Defendants. 8

CIVIL NO. 14-1253 (GAG)

9

ORDER DECLARING UNCONSTITUTIONALITY OF PUERTO RICO SAME-SEX

10

MARRIAGE BAN

11

The undersigned United States District Judge hereby declares1 unconstitutional Article 68

12 of the Puerto Rico Civil Code, P.R. LAWS ANN. tit. 31, § 221, as well as any other federal or

13 commonwealth law that prohibits same-sex couples from marrying, or which fails to recognize

14 any valid same-sex marriage performed in another jurisdiction. See Obergefell v. Hodges, ___

15 U.S. ___, 135 S.Ct. 2584 (2015); see also Conde Vidal v. Rius-Armendariz, No. 14-2184, 2015

16 WL 10574261 (1st Cir. 2015). Judgment shall enter forthwith.

17

In light of the above, the Court intends to enter judgment with all due deliberate

18 speed. However, in order to adequately ensure that the instant Order resolves all matters as

19 between the parties to this action, a conference is hereby set for Monday, April 11, 2016 at

20 11:30am at the Old San Juan Courthouse, at the first floor courtroom. The parties are

21

22
1 The Court declares the plaintiff's rights pursuant to the Declaratory Judgments Act, 28 U.S.C. §
23 2201, given that the Court has before it an actual case and controversy.

24

1

Case 3:14-cv-01253-GAG Document 73 Filed 04/07/16 Page 2 of 2 Civil No. 14-1253 (GAG)

1 encouraged over the weekend to stipulate to a proposed judgment, which can be entered as early

2 as that same day. The parties shall further come prepared to address, as well as include in the

3 proposed judgment, the matter of the Court retaining jurisdiction to enforce its declaratory

4 judgment. This is so given that the commonwealth legislature, following Obergefell, has not

5 amended Article 68 to conform with our Constitution.

6

SO ORDERED.

7

In San Juan, Puerto Rico this 7th day of April, 2016.

8

s/ Gustavo A. Gelpí

9

GUSTAVO A. GELPI

United States District Judge 10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

2

 
 Case 3:14-cv-01253-GAG Document 76 Filed 04/11/16 Page 1 of 2

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE DISTRICT OF PUERTO RICO

3

4 ADA CONDE VIDAL, et al.,

5 Plaintiffs,

6 v.

CASE NO. 14-1253 (GAG)

7 ALEJANDRO GARCÍA PADILLA, et al.,

8 Defendants.

9

10

DECLARATORY JUDGMENT

11

Pursuant to its Order on April 7, 2016 (Docket No. 73), the Court hereby enters the

12 following declaratory judgment:

13
1. Article 68 of the Puerto Rico Civil Code, P.R. LAWS ANN. tit. 31, § 221, as well 14
as any other Commonwealth law or provision that prohibits same-sex couples from marrying, or 15
which fails to recognize a valid same-sex marriage from another jurisdiction is 16
UNCONSTITUTIONAL. 17
2. The Commonwealth of Puerto Rico, by way of its officials, employees and 18
agents, is hereby prohibited from enforcing Article 68 of the Puerto Rico Civil Code in its 19
current version. 20
3. The Commonwealth of Puerto Rico, by way of its officials, employees and 21
agents, shall give good faith and credit to same-sex marriages validly performed in any other 22
jurisdiction. 23

24

1

Case 3:14-cv-01253-GAG Document 76 Filed 04/11/16 Page 2 of 2 Civil No. 14-1253 (GAG)

1

4. The Commonwealth of Puerto Rico, by way of its officials, employees and

2 agents, shall guarantee validly married same-sex couples the same exact rights enjoyed by

3 validly married opposite-sex couples.

4

5. Any valid marriage of same-sex couples performed in Puerto Rico on or after the

5 Supreme Court’s decision in Obergefell v. Hodges, ___ U.S.___, 135 S.Ct. 2584 (June 26, 2015)

6 shall be fully recognized by the Commonwealth, its officials, employees and agents, just as any

7 opposite-sex marriage.

8

6. “The Commonwealth of Puerto Rico” for purposes of this judgment includes its

9 executive, legislative and judicial branches, as well as its municipal governments. It also

10 includes their officials, employees and agents, when acting in official capacity.

11

7. The Court shall retain jurisdiction to enforce the present judgment until the Puerto

12 Rico Legislative Assembly repeals and/or amends the current version of Article 68 of the Civil

13 Code, or the Court otherwise so orders.

14

8. Finally, this judgment does not require any religious official, duly authorized by

15 the Commonwealth to perform marriages, to perform same-sex marriages, if contrary to his/her

16 particular dogma or creed.

17

SO ORDERED.

18

In San Juan, Puerto Rico this 11th day of April, 2016.

19

s/ Gustavo A. Gelpí

GUSTAVO A. GELPI 20
United States District Judge 21

22

23

24

2

 
 Case: 3:14-cv-1253 As of: 10/19/2016 05:16 PM AST 1 of 16
CASECLOSED
United States District Court District of Puerto Rico (San Juan) CIVIL DOCKET FOR CASE #: 3:14−cv−01253−GAG

Conde−Vidal et al v. Rius−Armendariz et al Assigned to: Judge Gustavo A. Gelpi Case in other court: 14−02184 Cause: 42:1983 Civil Rights Act
Plaintiff Maritza Lopez−Aviles

Date Filed: 03/25/2014 Date Terminated: 04/11/2016 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question
represented by Gary W. Kubek Debevoise &Plimpton LLP 919 Third Avenue 31st Floor New York, NY 10022 212−909−6000 Fax: 212−909−6836 Email: gwkubek@debevoise.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Harriet M. Antczak Debevoise &Plimpton LLP 919 Third Avenue 31st Floor New York, NY 10022 212−909−6000 Fax: 202−909−6836 Email: hmantcza@debevoise.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hayley Gorenberg Lambda Legal Defense &Education Fund, Inc. 120 Wall Street 19th Floor New York, NY 10005−3919 212−809−8585 x289 Fax: 212−809−0055 Email: hgorenberg@lambdalegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jael Humphrey−Skomer Lambda Legal Defense &Education Fund, Inc. 120 Wall Street 19th Floor New York, NY 10005−3919 212−809−8585 x218 Fax: 212−809−0055 Email: jhumphrey@lambdalegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jing Kang Debevoise &Plimpton LLP 919 Third Avenue 31st Floor

Case: 3:14-cv-1253 As of: 10/19/2016 05:16 PM AST 2 of 16

New York, NY 10022 212−909−6000 Fax: 212−909−6836 Email: jkang@debevoise.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Omar Gonzalez−Pagan Lambda Leal Defense &Education Fund, Inc. 120 Wall Street 19th Floor New York, NY 10005−3919 212−809−8585 x211 Fax: 212−809−0055 Email: ogonzalez−pagan@lambdalegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan M. Kusmin Debevoise &Plimpton LLP 555 13th Street N.W. 31st Floor Washington, DC 20004 202−383−8000 Fax: 202−383−8118 Email: rmkusmin@debevoise.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ada M. Conde−Vidal Conde Law Office PO Box 11674 San Juan, PR 00910−2774 787−721−0401 Email: condelaw@gmail.com ATTORNEY TO BE NOTICED

Celina Romany−Siaca Celina Romany Law Office PMB 291 #1353 Rd. 19 Guaynabo, PR 00966−2700 787−754−9304 Fax: 787−781−8885 Email: bufetecelinaromany@gmail.com ATTORNEY TO BE NOTICED

Plaintiff Iris Delia Rivera−Rivera

represented by Gary W. Kubek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Harriet M. Antczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hayley Gorenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jael Humphrey−Skomer

Case: 3:14-cv-1253 As of: 10/19/2016 05:16 PM AST 3 of 16

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jing Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Omar Gonzalez−Pagan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan M. Kusmin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ada M. Conde−Vidal (See above for address) ATTORNEY TO BE NOTICED

Celina Romany−Siaca (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jose A. Torruellas−Iglesias

represented by Gary W. Kubek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Harriet M. Antczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hayley Gorenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jael Humphrey−Skomer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jing Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Omar Gonzalez−Pagan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan M. Kusmin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ada M. Conde−Vidal

Case: 3:14-cv-1253 As of: 10/19/2016 05:16 PM AST 4 of 16

(See above for address) ATTORNEY TO BE NOTICED

Celina Romany−Siaca (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Thomas J. Robinson

represented by Gary W. Kubek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Harriet M. Antczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hayley Gorenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jael Humphrey−Skomer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jing Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Omar Gonzalez−Pagan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan M. Kusmin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ada M. Conde−Vidal (See above for address) ATTORNEY TO BE NOTICED

Celina Romany−Siaca (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Zulma Oliveras−Vega

represented by Gary W. Kubek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Harriet M. Antczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hayley Gorenberg (See above for address)

Case: 3:14-cv-1253 As of: 10/19/2016 05:16 PM AST 5 of 16

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jael Humphrey−Skomer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jing Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Omar Gonzalez−Pagan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan M. Kusmin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ada M. Conde−Vidal (See above for address) ATTORNEY TO BE NOTICED

Celina Romany−Siaca (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Yolanda Arroyo−Pizarro

represented by Gary W. Kubek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Harriet M. Antczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hayley Gorenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jael Humphrey−Skomer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jing Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Omar Gonzalez−Pagan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan M. Kusmin (See above for address)

Case: 3:14-cv-1253 As of: 10/19/2016 05:16 PM AST 6 of 16

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ada M. Conde−Vidal (See above for address) ATTORNEY TO BE NOTICED

Celina Romany−Siaca (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Johanne Velez−Garcia

represented by Gary W. Kubek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Harriet M. Antczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hayley Gorenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jael Humphrey−Skomer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jing Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Omar Gonzalez−Pagan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan M. Kusmin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ada M. Conde−Vidal (See above for address) ATTORNEY TO BE NOTICED

Celina Romany−Siaca (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Faviola Melendez−Rodriguez

represented by Gary W. Kubek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Harriet M. Antczak (See above for address) LEAD ATTORNEY

Case: 3:14-cv-1253 As of: 10/19/2016 05:16 PM AST 7 of 16

ATTORNEY TO BE NOTICED

Hayley Gorenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jael Humphrey−Skomer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jing Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Omar Gonzalez−Pagan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan M. Kusmin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ada M. Conde−Vidal (See above for address) ATTORNEY TO BE NOTICED

Celina Romany−Siaca (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Puerto Rico Para Tod@s

represented by Gary W. Kubek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Harriet M. Antczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hayley Gorenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jael Humphrey−Skomer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jing Kang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Omar Gonzalez−Pagan (See above for address) LEAD ATTORNEY

Case: 3:14-cv-1253 As of: 10/19/2016 05:16 PM AST 8 of 16

ATTORNEY TO BE NOTICED

Ryan M. Kusmin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ada M. Conde−Vidal (See above for address) ATTORNEY TO BE NOTICED

Celina Romany−Siaca (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Ada Mercedes Conde−Vidal

represented by Ada M. Conde−Vidal (See above for address) ATTORNEY TO BE NOTICED

Celina Romany−Siaca (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Ivonne Alvarez−Velez

represented by Ada M. Conde−Vidal (See above for address) ATTORNEY TO BE NOTICED

Celina Romany−Siaca (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Dr. Ana Rius−Armendariz as Secretary of the Health Department of Puerto Rico
Defendant Wanda Llovet as the Puerto Rico Registrar of Vital Recods
Defendant Alejandro J. Garcia−Padilla In his official capacity as Governor of the Commonwealth of Puerto Rico
Defendant

represented by Idza Diaz−Rivera P. R. Department of Justice − Federal Litigation PO Box 9020192 San Juan, PR 00902−0192 787−721−2900 x2610 Fax: 787−723−9188 Email: diazrivera74@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Idza Diaz−Rivera (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Idza Diaz−Rivera (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Case: 3:14-cv-1253 As of: 10/19/2016 05:16 PM AST 9 of 16

Melba Acosta−Febo In her official capacity as Director of the Treasury in Puerto Rico

Idza Diaz−Rivera (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant
Capellanes Internacionales Cristianos Leon de Juda, Inc.

represented by Sonimar Lozada−Rodriguez P.O Box 13885 San Juan San Juan, PR 00908 787−963−0266 Fax: 787−620−2656 Email: sonimar.lozada@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/25/2014
03/26/2014 03/26/2014 03/27/2014 03/27/2014 06/23/2014 06/25/2014 06/25/2014
06/25/2014
06/25/2014
06/25/2014

# Docket Text
1 COMPLAINT against All Plaintiffs ( Filing fee $400 receipt number 0104−3849776.), filed by Ada M. Conde−Vidal, IVONNE ALVAREZ. Service due by 7/28/2014, (Attachments: # 1 Civil Cover Sheet Civil Cover Sheet, # 2 Summons Summons)(Conde−Vidal, Ada) (Entered: 03/25/2014)
2 CLERK'S NOTICE OF DEFECTIVE FILING Category sheet not included electronically pursuant to L.Civ.R. 3.1(a). Notice of Compliance Deadline due by 3/27/2014. (jla) (Entered: 03/26/2014)
3 NOTICE of filing Category Sheet in compliance to L.Civ.R.3.1(a) filed by Ada M. Conde−Vidal on behalf of All Plaintiffs . (Conde−Vidal, Ada) Modified event on 4/1/2014 (su). Modified on 4/1/2014 (su). (Entered: 03/26/2014)
4 NOTICE OF JUDGE ASSIGNMENT Case has been assigned to Judge Juan M. Perez−Gimenez (jla) (Entered: 03/27/2014)
5 Summons Issued as to Wanda Llovet, Ana Rius−Armendariz (jla) (Entered: 03/27/2014)
6 NOTICE of Appearance by Ada M. Conde−Vidal on behalf of All Plaintiffs (Conde−Vidal, Ada) (Entered: 06/23/2014)
7 AMENDED COMPLAINT against Wanda Llovet, Ana Rius−Armendariz, filed by Ada Mercedes Conde−Vidal, Ivonne Alvarez−Velez.(Romany−Siaca, Celina) (Entered: 06/25/2014)
8 Motion to allow Ryan M Kusmin to appear pro hac vice (Pro Hac fee $150 receipt number PRX100027002) filed by Celina Romany−Siaca on behalf of Ivonne Alvarez−Velez, Ada Mercedes Conde−Vidal Suggestions in opposition/response due by 7/14/2014 (Romany−Siaca, Celina) (Entered: 06/25/2014)
9 Motion to allow Jing Kang to appear pro hac vice (Pro Hac fee $150 receipt number PRX100027003) filed by Celina Romany−Siaca on behalf of Ivonne Alvarez−Velez, Ada Mercedes Conde−Vidal Suggestions in opposition/response due by 7/14/2014 (Romany−Siaca, Celina) (Entered: 06/25/2014)
10 Motion to allow Gary W Kubek to appear pro hac vice (Pro Hac fee $150 receipt number PRX1000027004) filed by Celina Romany−Siaca on behalf of Ivonne Alvarez−Velez, Ada Mercedes Conde−Vidal Suggestions in opposition/response due by 7/14/2014 (Romany−Siaca, Celina) (Entered: 06/25/2014)
11 Motion to allow Harriet M Antczak to appear pro hac vice (Pro Hac fee $150 receipt number PRX100027005) filed by Celina Romany−Siaca on behalf of Ivonne Alvarez−Velez, Ada Mercedes Conde−Vidal Suggestions in opposition/response due by 7/14/2014 (Romany−Siaca, Celina) (Entered: 06/25/2014)

Case: 3:14-cv-1253 As of: 10/19/2016 05:16 PM AST 10 of 16

06/25/2014
06/25/2014
06/25/2014
06/25/2014 06/25/2014 06/25/2014 06/25/2014 06/25/2014 06/25/2014 06/25/2014 06/25/2014 07/03/2014 07/03/2014 07/03/2014 07/03/2014 07/03/2014
07/03/2014

12 Motion to allow Hayley Gorenberg to appear pro hac vice (Pro Hac fee $150 receipt number PRX100027006) filed by Celina Romany−Siaca on behalf of Ivonne Alvarez−Velez, Ada Mercedes Conde−Vidal Suggestions in opposition/response due by 7/14/2014 (Romany−Siaca, Celina) (Entered: 06/25/2014)
13 Motion to allow Omar Gonzalez−Pagan to appear pro hac vice (Pro Hac fee $150 receipt number PRX100027006) filed by Celina Romany−Siaca on behalf of Ivonne Alvarez−Velez, Ada Mercedes Conde−Vidal Suggestions in opposition/response due by 7/14/2014 (Romany−Siaca, Celina) (Entered: 06/25/2014)
14 Motion to allow Jael Humphrey−Skomer to appear pro hac vice (Pro Hac fee $150 receipt number PRX100027006) filed by Celina Romany−Siaca on behalf of Ivonne Alvarez−Velez, Ada Mercedes Conde−Vidal Suggestions in opposition/response due by 7/14/2014 (Romany−Siaca, Celina) (Entered: 06/25/2014)
15 ORDER granting 8 Motion to Appear PHV. Signed by Judge Juan M. Perez−Gimenez on 6/25/2014. (VCC) (Entered: 06/25/2014)
16 ORDER granting 9 Motion to Appear PHV. Signed by Judge Juan M. Perez−Gimenez on 6/25/2014. (VCC) (Entered: 06/25/2014)
17 ORDER granting 10 Motion to Appear PHV. Signed by Judge Juan M. Perez−Gimenez on 6/25/2014. (VCC) (Entered: 06/25/2014)
18 ORDER granting 11 Motion to Appear PHV. Signed by Judge Juan M. Perez−Gimenez on 6/25/2014. (VCC) (Entered: 06/25/2014)
19 ORDER granting 12 Motion to Appear PHV. Signed by Judge Juan M. Perez−Gimenez on 6/25/2014. (VCC) (Entered: 06/25/2014)
20 ORDER granting 13 Motion to Appear PHV. Signed by Judge Juan M. Perez−Gimenez on 6/25/2014. (VCC) (Entered: 06/25/2014)
21 ORDER granting 14 Motion to Appear PHV. Signed by Judge Juan M. Perez−Gimenez on 6/25/2014. (VCC) (Entered: 06/25/2014)
22 Summons Issued as to Melba Acosta−Febo, Alejandro J. Garcia−Padilla, Wanda Llovet, Ana Rius−Armendariz (rc) (Entered: 06/27/2014)
23 ***FILED IN ERROR− WRONG EVENT*** Summons Issued as to Ivonne Alvarez−Velez, Ada Mercedes Conde−Vidal (Romany−Siaca, Celina) Modified on 7/3/2014 (mr). (Entered: 07/03/2014)
24 ***FILED IN ERROR− WRONG EVENT*** Summons Issued as to Ivonne Alvarez−Velez, Ada Mercedes Conde−Vidal (Romany−Siaca, Celina) Modified on 7/3/2014 (mr). (Entered: 07/03/2014)
25 ***FILED IN ERROR−WRONG EVENT/INCOMPLETE PDF*** *RESTRICTED* Subpoena Issued (Romany−Siaca, Celina) Modified on 7/3/2014 (mr). (Entered: 07/03/2014)
26 ***FILED IN ERROR− WRONG EVENT*** *RESTRICTED* Subpoena Issued (Romany−Siaca, Celina) Modified on 7/3/2014 (mr). (Entered: 07/03/2014)
NOTICE of Docket Text Modification by Deputy Clerk re: 24 Summons Issued, 23 Summons Issued, 26 Subpoena Issued, 25 Subpoena Issued. ***FILED IN ERROR− WRONG EVENT. Counsel was advised to correct and re−file.*** (mr) (Entered: 07/03/2014)
27 SUMMONS Returned Executed by Ivonne Alvarez−Velez, Ada Mercedes Conde−Vidal upon Melba Acosta−Febo served on 6/30/2014, answer due 7/21/2014; Alejandro J. Garcia−Padilla served on 6/30/2014, answer due 7/21/2014; Wanda Llovet served on 6/30/2014, answer due 7/21/2014; Ana Rius−Armendariz served on 6/30/2014, answer due 7/21/2014. (Romany−Siaca, Celina) (Entered: 07/03/2014)

Case: 3:14-cv-1253 As of: 10/19/2016 05:16 PM AST 11 of 16

07/18/2014 07/21/2014 07/28/2014 08/27/2014 08/28/2014 08/28/2014
09/04/2014 09/08/2014
09/08/2014 09/08/2014 09/08/2014 09/08/2014 09/08/2014

28 MOTION for extension of time until August 27, 2014 to Answer complaint or otherwise plead filed by Idza Diaz−Rivera on behalf of Melba Acosta−Febo, Alejandro J. Garcia−Padilla, Wanda Llovet, Ana Rius−Armendariz Suggestions in opposition/response due by 8/4/2014 (Diaz−Rivera, Idza) (Entered: 07/18/2014)
29 RESPONSE in Opposition to Motion Requesting Extension of Time filed by All Plaintiffs Re: 28 MOTION for extension of time until August 27, 2014 to Answer complaint or otherwise plead filed by Alejandro J. Garcia−Padilla, Wanda Llovet, Ana Rius−Armendariz, Melba Acosta−Febo filed by All Plaintiffs. (Romany−Siaca, Celina) (Entered: 07/21/2014)
30 ORDER granting 28 Motion for extension of time. Answer deadline due by 8/27/2014. Signed by Judge Juan M. Perez−Gimenez on 7/28/2014. (VCC) (Entered: 07/28/2014)
31 MOTION to Dismiss for Failure to State a Claim pursuant to Fed.R.Civ.P. 12(b)(6) filed by Idza Diaz−Rivera on behalf of Melba Acosta−Febo, Alejandro J. Garcia−Padilla, Wanda Llovet, Ana Rius−Armendariz (Diaz−Rivera, Idza) (Entered: 08/27/2014)
32 MOTION to Intervene filed by Sonimar Lozada−Rodriguez on behalf of Capellanes Internacionales Cristianos Leon de Juda, Inc. Suggestions in opposition/response due by 9/15/2014 (Attachments: # 1 Memorandum in support of Motion to Intervene)(Lozada−Rodriguez, Sonimar) (Entered: 08/28/2014)
33 MOTION for Extension of Time until 14 days after granting Intervention to File Answer re: 7 Amended Complaint filed by Ivonne Alvarez−Velez, Ada Mercedes Conde−Vidal filed by Sonimar Lozada−Rodriguez on behalf of Capellanes Internacionales Cristianos Leon de Juda, Inc. Suggestions in opposition/response due by 9/15/2014 (Related document(s) 7 ) (Lozada−Rodriguez, Sonimar) (Entered: 08/28/2014)
34 First MOTION for Leave to File Excess Pages filed by Omar Gonzalez−Pagan on behalf of All Plaintiffs Suggestions in opposition/response due by 9/22/2014 (Gonzalez−Pagan, Omar) (Entered: 09/04/2014)
35 First MOTION for Extension of Time until 9/29/2014 to File Response/Reply as to 33 MOTION for Extension of Time until 14 days after granting Intervention to File Answer re: 7 Amended Complaint filed by Ivonne Alvarez−Velez, Ada Mercedes Conde−Vidal filed by Capellanes Internacionales Cristianos Leon de Juda, Inc., 32 MOTION to Intervene filed by Capellanes Internacionales Cristianos Leon de Juda, Inc. filed by Ada M. Conde−Vidal on behalf of Ivonne Alvarez−Velez, Ada Mercedes Conde−Vidal Suggestions in opposition/response due by 9/25/2014 (Related document(s) 33 , 32 ) (Conde−Vidal, Ada) (Entered: 09/08/2014)
36 First MOTION for Setting of Status Conference filed by Ada M. Conde−Vidal on behalf of Ivonne Alvarez−Velez, Ada Mercedes Conde−Vidal Suggestions in opposition/response due by 9/25/2014 (Conde−Vidal, Ada) Modified event on 9/8/2014 (su). (Entered: 09/08/2014)
37 ORDER granting 34 Motion for Leave to File Excess Pages. IT IS SO ORDERED. Signed by Judge Juan M. Perez−Gimenez on 9/8/2014. (om) (Entered: 09/08/2014)
38 ORDER denying 36 Motion for Setting of a Status Conference. Motion is denied. The Court will set a status conference after the motion to intervene and its opposition are ruled upon. IT IS SO ORDERED. Signed by Judge Juan M. Perez−Gimenez on 9/8/2014. (om) (Entered: 09/08/2014)
39 ORDER denying 33 Motion for Extension of Time to Answer Amended complaint filed byy Capellanes Internacionales Cristianos Leon de Juda, Inc. Once the Court makes a determination on the motion to Intervene, it will set the deadlines for answering the complaint. IT IS SO ORDERED. Signed by Judge Juan M. Perez−Gimenez on 9/8/2014. (om) (Entered: 09/08/2014)
40 ORDER granting 35 Motion for Extension of Time Reply 32 MOTION to Intervene pursuant to Rule 24(a)(2). Plaintiffs have until September 29, 2014 to file their objections to Capellanes Internacionales Cristianos Leon de Juda, Inc's motion to intervene. IT IS SO ORDERED. Signed by Judge Juan M.

Case: 3:14-cv-1253 As of: 10/19/2016 05:16 PM AST 12 of 16

09/10/2014 09/11/2014 09/15/2014
09/15/2014 09/15/2014 09/22/2014 09/25/2014
09/29/2014 09/30/2014 10/06/2014 10/09/2014

Perez−Gimenez on 9/8/2014. (om) (Entered: 09/08/2014)
41 STANDING ORDERS:(1) COURTESY COPIES, (2) COMMUNICATIONS WITH LAW CLERKS. Signed by Judge Juan M. Perez−Gimenez. (su) (Entered: 09/10/2014)
42 MOTION to Clarify / re: 40 ORDER filed by Harriet M. Antczak on behalf of All Plaintiffs. Suggestions in opposition/response due by 9/29/2014 (Antczak, Harriet) Modified to add relationship on 9/18/2014 (su). (Entered: 09/11/2014)
43 MOTION for Summary Judgment filed by Omar Gonzalez−Pagan on behalf of All Plaintiffs Suggestions in Opposition to Summary Judgment due by 10/2/2014. (Attachments: # 1 Statement of Uncontested Facts, # 2 Index of Exhibits, # 3 Affidavit Ada M. Conde Vidal, # 4 Affidavit Ivonne Alvarez Velez, # 5 Affidavit Iris Delia Rivera Rivera, # 6 Affidavit Maritza Lopez Aviles, # 7 Affidavit Jose A. Torruellas Iglesias, # 8 Affidavit Thomas J. Robinson, # 9 Affidavit Johanne Velez Garcia, # 10 Affidavit Faviola Melendez Rodriguez, # 11 Affidavit Zulma Oliveras Vega, # 12 Affidavit Yolanda Arroyo Pizarro, # 13 Affidavit Pedro Julio Serrano Burgos)(Gonzalez−Pagan, Omar) (Entered: 09/15/2014)
44 Memorandum in Support of Plaintiffs' Motion for Summary Judgment filed by All Plaintiffs Re: 43 MOTION for Summary Judgment filed by All Plaintiffs. (Gonzalez−Pagan, Omar) Modified text on 9/18/2014 (su). (Entered: 09/15/2014)
45 Memorandum in Opposition to Motion to Dismiss filed by All Plaintiffs Re: 31 MOTION to Dismiss for Failure to State a Claim pursuant to Fed.R.Civ.P. 12(b)(6) filed by Alejandro J. Garcia−Padilla, Wanda Llovet, Ana Rius−Armendariz, Melba Acosta−Febo filed by All Plaintiffs. (Gonzalez−Pagan, Omar) (Entered: 09/15/2014)
46 Memorandum in Opposition to Motion to Intervene filed by All Plaintiffs Re: 32 MOTION to Intervene filed by Capellanes Internacionales Cristianos Leon de Juda, Inc. filed by All Plaintiffs. (Gonzalez−Pagan, Omar) (Entered: 09/22/2014)
47 MOTION for Leave to File Document Reply to Opposition to Motion to Dismiss, MOTION for Extension of Time until October 10, 2014 to File Response/Reply as to 45 Memorandum in Opposition to Motion, filed by Jose A. Torruellas−Iglesias, Puerto Rico Para Tod@s, Ivonne Alvarez−Velez, Thomas J. Robinson, Ada Mercedes Conde−Vidal, Johanne Velez−Garcia, Faviola Melendez−Rodriguez, Maritza Lopez−Aviles, Iris Delia Rivera−Rivera, Zulma Oliveras−Vega, Yolanda Arroyo−Pizarro filed by Idza Diaz−Rivera on behalf of Melba Acosta−Febo, Alejandro J. Garcia−Padilla, Wanda Llovet, Ana Rius−Armendariz Suggestions in opposition/response due by 10/14/2014 (Related document(s) 45 ) (Diaz−Rivera, Idza) (Entered: 09/25/2014)
48 MOTION requesting Order to Deny or Hold in Abeyance Plaintiffs' Motion for Summary Judgment pursuant Fed.R.Civ.P. 56(b) filed by Idza Diaz−Rivera on behalf of Melba Acosta−Febo, Alejandro J. Garcia−Padilla, Wanda Llovet, Ana Rius−Armendariz Suggestions in opposition/response due by 10/17/2014 (Diaz−Rivera, Idza) (Entered: 09/29/2014)
49 ORDER granting 42 Plaintiffs' motion for clarification or, in the alternative, for Extension of time to respond to motion to intervene filed by Capellanes Internacionales cristianos Leon de juda, inc. Deadline 9/29/2014. IT IS SO ORDERED. Signed by Judge Juan M. Perez−Gimenez on 9/29/2014. (om) (Entered: 09/30/2014)
50 First MOTION for Leave to File Document Motion for leave to file reply filed by Sonimar Lozada−Rodriguez on behalf of Capellanes Internacionales Cristianos Leon de Juda, Inc. Suggestions in opposition/response due by 10/23/2014 (Attachments: # 1 Appendix)(Lozada−Rodriguez, Sonimar) (Entered: 10/06/2014)
51 MOTION for Leave to File Document First Notice of Supplemental Authority filed by Omar Gonzalez−Pagan on behalf of All Plaintiffs Suggestions in opposition/response due by 10/27/2014 (Attachments: # 1 First Notice of Supplemental Authority)(Gonzalez−Pagan, Omar) (Entered: 10/09/2014)

Case: 3:14-cv-1253 As of: 10/19/2016 05:16 PM AST 13 of 16

10/09/2014 10/10/2014
10/15/2014
10/16/2014 10/17/2014 10/21/2014 10/21/2014 10/28/2014

52 RESPONSE to Motion Re: 50 First MOTION for Leave to File Document filed by All Plaintiffs. (Gonzalez−Pagan, Omar) Modified on 10/10/2014 to edit docket text (nat). (Entered: 10/09/2014)
53 MOTION Submitting Tendered reply to Opposition to Motion to Dismiss re: 47 MOTION for Leave to File Document MOTION for Extension of Time until October 10, 2014 to File Response/Reply filed by Idza Diaz−Rivera on behalf of Melba Acosta−Febo, Alejandro J. Garcia−Padilla, Wanda Llovet, Ana Rius−Armendariz Suggestions in opposition/response due by 10/27/2014 (Attachments: # 1 Appendix tendered Reply to Opposition to Motion to Dismiss)(Related document(s) 47 ) (Diaz−Rivera, Idza) Modified on 10/14/2014 to correct event (nat). Modified on 10/15/2014 to correct event (nat). (Entered: 10/10/2014)
54 Memorandum in Opposition to Motion Requesting Court to Deny or Hold in Abeyance Plaintiffs' Motion for Summary Judgment filed by All Plaintiffs Re: 48 MOTION requesting Order to Deny or Hold in Abeyance Plaintiffs' Motion for Summary Judgment pursuant Fed.R.Civ.P. 56(b) filed by Alejandro J. Garcia−Padilla, Wanda Llovet, Ana Rius−Armendariz, Melba Acosta−Febo filed by All Plaintiffs. (Gonzalez−Pagan, Omar) (Entered: 10/15/2014)
55 MOTION for Leave to File Document Sur−Reply to Defendants Reply to Opposition to Motion to Dismiss filed by Omar Gonzalez−Pagan on behalf of All Plaintiffs Suggestions in opposition/response due by 11/3/2014 (Attachments: # 1 Plaintiffs' Sur−Reply to Defendants Reply to Opposition to Motion to Dismiss)(Gonzalez−Pagan, Omar) (Entered: 10/16/2014)
56 OPINION AND ORDER denying 32 Motion to Intervene. Signed by Judge Juan M. Perez−Gimenez on 10/17/2014. (om) (Entered: 10/17/2014)
57 OPINION AND ORDER granting 31 Motion to Dismiss for Failure to State a Claim. Signed by Judge Juan M. Perez−Gimenez on 10/21/2014. (Attachments: # 1 Exhibit Spanish Civil Code 1889, # 2 Exhibit PR Civil Code 1902) (Perez−Gimenez, Juan) (Entered: 10/21/2014)
58 JUDGMENT dismissing claims with prejudice. Signed by Judge Juan M. Perez−Gimenez on 10/21/2014.(Perez−Gimenez, Juan) (Entered: 10/21/2014)
59 NOTICE OF APPEAL as to 58 Judgment, 57 Opinion and Order on Motion to Dismiss for Failure to State a Claim, by Ivonne Alvarez−Velez, Yolanda Arroyo−Pizarro, Ada Mercedes Conde−Vidal, Maritza Lopez−Aviles, Faviola Melendez−Rodriguez, Zulma Oliveras−Vega, Puerto Rico Para Tod@s, Iris Delia Rivera−Rivera, Thomas J. Robinson, Jose A. Torruellas−Iglesias, Johanne Velez−Garcia. Filing fee $505, receipt number 0104−4139372.

11/10/2014 11/10/2014
07/08/2015

NOTICE TO COUNSEL: Counsel should register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf/. Counsel should also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/efiling.htm (Attachments: # 1 Exhibit Opinion and Order, # 2 Exhibit Judgment)(Gonzalez−Pagan, Omar) Modified on 11/10/2014 to add text (xi). (Entered: 10/28/2014)
60 Certified and Transmitted Record on Appeal to US Court of Appeals re 59 Notice of Appeal, [Docket Entries 57 − 59] (xi) (Entered: 11/10/2014)
61 USCA Case Number 14−2184 for 59 Notice of Appeal, filed by Jose A. Torruellas−Iglesias, Puerto Rico Para Tod@s, Ivonne Alvarez−Velez, Thomas J. Robinson, Ada Mercedes Conde−Vidal, Johanne Velez−Garcia, Faviola Melendez−Rodriguez, Maritza Lopez−Aviles, Iris Delia Rivera−Rivera, Zulma Oliveras−Vega, Yolanda Arroyo−Pizarro. (xi) (Entered: 11/10/2014)
62 USCA JUDGMENT as to 59 Notice of Appeal, filed by Jose A. Torruellas−Iglesias, Puerto Rico Para Tod@s, Ivonne Alvarez−Velez, Thomas J. Robinson, Ada Mercedes Conde−Vidal, Johanne Velez−Garcia, Faviola Melendez−Rodriguez, Maritza Lopez−Aviles, Iris Delia Rivera−Rivera, Zulma Oliveras−Vega, Yolanda Arroyo−Pizarro; VACATED &REMANDED. (xi) (Entered: 07/08/2015)

Case: 3:14-cv-1253 As of: 10/19/2016 05:16 PM AST 14 of 16

07/08/2015
07/08/2015 07/16/2015 07/22/2015
08/10/2015 08/12/2015
09/17/2015 03/08/2016 04/07/2016 04/07/2016
04/07/2016
04/07/2016 04/09/2016

63 MANDATE of USCA as to 59 Notice of Appeal, filed by Jose A. Torruellas−Iglesias, Puerto Rico Para Tod@s, Ivonne Alvarez−Velez, Thomas J. Robinson, Ada Mercedes Conde−Vidal, Johanne Velez−Garcia, Faviola Melendez−Rodriguez, Maritza Lopez−Aviles, Iris Delia Rivera−Rivera, Zulma Oliveras−Vega, Yolanda Arroyo−Pizarro; VACATED &REMANDED. RE: 62 USCA JUDGMENT. (xi) (Entered: 07/08/2015)
Appeal Record Returned: 59 Notice of Appeal, filed by Maritza Lopez−Aviles, et. al. RE: 63 USCA Mandate, 60 Appeal Record Sent to USCA, 62 USCA Judgment. (xi) (Entered: 07/08/2015)
64 Joint MOTION for Judgment filed by Omar Gonzalez−Pagan on behalf of All Parties. Suggestions in opposition/response due by 8/3/2015 (Attachments: # 1 Exhibit [Proposed] Judgment)(Gonzalez−Pagan, Omar) (Entered: 07/16/2015)
65 MOTION to Clarify or for extension of deadlines to petition for attorneys' fees and costs (Unopposed) filed by Omar Gonzalez−Pagan on behalf of Yolanda Arroyo−Pizarro, Maritza Lopez−Aviles, Faviola Melendez−Rodriguez, Zulma Oliveras−Vega, Puerto Rico Para Tod@s, Iris Delia Rivera−Rivera, Thomas J. Robinson, Jose A. Torruellas−Iglesias, Johanne Velez−Garcia Suggestions in opposition/response due by 8/10/2015 (Gonzalez−Pagan, Omar) (Entered: 07/22/2015)
66 ORDER noted 65 Motion to Clarify or for extension of deadlines to petition for attorneys' fees and costs (Unopposed). Signed by Judge Juan M. Perez−Gimenez on 8/10/2015. (om) (Entered: 08/10/2015)
67 AMENDED ORDER re 65 Plaintiffs' unopposed motion for clarification or in the alternative for extension of deadline to petition for attorneys' fees and costs. Since the judgment of the 1st Circuit remanded the case for further consideration, the fourteen (14) days set forth in local rule 54 will begin to run when the final judgment by this Court is entered. Signed by Judge Juan M. Perez−Gimenez on 8/12/2015.(om) (Entered: 08/12/2015)
68 CORRECTED TAXATION OF COSTS from USCCA entered on 09/17/15 in favor of appellants. (Attachments: # 1 Exhibit Taxation of Costs) (xi) (Entered: 09/17/2015)
69 ORDER denying 64 Motion for Judgment. Signed by Judge Juan M. Perez−Gimenez on 03/08/2016. (Entered: 03/08/2016)
70 Printed Opinion of USCA dated 04/07/16 as to In Re: Conde Vidal. (xi) (Entered: 04/07/2016)
71 USCA JUDGMENT entered on 04/07/16 as to In Re: Conde Vidal; Upon consideration whereof, it is now here ordered, adjudged and decreed as follows: Respondents' motion to join in the petition for writ of mandamus is GRANTED, the petition for a writ of mandamus is GRANTED, and the case is REMITTED to the district court with instructions that it 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. (xi) (Entered: 04/07/2016)
72 MEMORANDUM OF THE CLERK: By order of the U.S. Court of Appeals for the First Circuit (see, Docket Nos. 70−71), remitting the case to be randomly assigned to a different district judge to enter judgment and for further proceedings, as necessary, this case has been randomly reassigned within the Case Assignment System to U.S. District Judge Gustavo A. Gelpi. Signed by Clerk on 04/07/2016.(gr) (Entered: 04/07/2016)
73 ORDER: Order declaring unconstitutionality of Puerto Rico same−sex marriage ban. Signed by Judge Gustavo A. Gelpi on 4/7/2016. (Entered: 04/07/2016)
74 Joint MOTION for Judgment by all parties filed by Omar Gonzalez−Pagan on behalf of All Plaintiffs Suggestions in opposition/response due by 4/28/2016 (Attachments: # 1 Exhibit Proposed Judgment)(Gonzalez−Pagan, Omar) (Entered: 04/09/2016)

Case: 3:14-cv-1253 As of: 10/19/2016 05:16 PM AST 15 of 16

04/11/2016 04/11/2016 04/11/2016 04/25/2016
04/26/2016
05/26/2016 05/26/2016 06/06/2016 06/08/2016 07/19/2016 07/29/2016

75 ORDER: Noted 74 Motion for Judgment. Signed by Judge Gustavo A. Gelpi on 4/11/2016. (MET) (Entered: 04/11/2016)
76 DECLARATORY JUDGMENT is hereby entered. See attachment. Signed by Judge Gustavo A. Gelpi on 4/11/2016. (MET) (Entered: 04/11/2016)
77 Minute Entry for proceedings held before Judge Gustavo A. Gelpi:Status Conference held on 4/11/2016. (Court Reporter Evilys Carrion.) (sc) (Entered: 04/14/2016)
78 MOTION for Extension of Time until May 25, 2016 to file Motion for Attorneys Fees' and Costs(Unopposed) filed by Omar Gonzalez−Pagan on behalf of Yolanda Arroyo−Pizarro, Maritza Lopez−Aviles, Faviola Melendez−Rodriguez, Zulma Oliveras−Vega, Puerto Rico Para Tod@s, Iris Delia Rivera−Rivera, Thomas J. Robinson, Jose A. Torruellas−Iglesias, Johanne Velez−Garcia Suggestions in opposition/response due by 5/12/2016 (Gonzalez−Pagan, Omar) (Entered: 04/25/2016)
79 ORDER: Granting 78 Motion for Extension of Time to File with a sine die filing due date. To hopefully resolve this matter, which is the result of two appellate rulings within the past year, and, hence, culminate all proceedings, First Circuit Settlement Counsel Judge Charles Cordero has agreed to hold a settlement conference with the parties. The undersigned strongly urges the parties to reach an agreement, accordingly. In doing so, Plaintiffs should consider Puerto Rico's present fiscal debacle vis a vis the constitutional rights they now have secured in a federal judgment, and which at one point during the litigation were conceded by the Commonwealth. This is priceless. More so, the Court hopes that counsel who partake in paving the civil rights landscape in Puerto Rico and the rest of the United States, while entitled to reasonable compensation, also advocate for the rights of their clients to the greatest extent possible for the principle and not for the bucks. At the same time, the Commonwealth should recognize that prevailing civil rights litigants are entitled to reasonable attorneys' fees. More so, the Court always encourages the parties to be as creative as possible in reaching any ultimate settlement. Signed by Judge Gustavo A. Gelpi on 4/26/2016. (COL) (Entered: 04/26/2016)
80 Joint MOTION to Continue Settlement Conference filed by Omar Gonzalez−Pagan on behalf of All Plaintiffs Suggestions in opposition/response due by 6/13/2016 (Gonzalez−Pagan, Omar) (Entered: 05/26/2016)
81 ORDER: Granting 80 Motion to Continue. The parties shall jointly inform the court whether a settlement is reached, on or before June 6, 2016. The court shall inform Judge Cordero that the conference should be postponed, and indeed is likely moot. Signed by Judge Gustavo A. Gelpi on 5/26/2016. (MET) (Entered: 05/26/2016)
82 Joint INFORMATIVE Motion regarding Progress Made in Finalizing Settlement Agreement filed by Omar Gonzalez−Pagan on behalf of All Plaintiffs Suggestions in opposition/response due by 6/23/2016 (Gonzalez−Pagan, Omar) (Entered: 06/06/2016)
83 ORDER. Noted 82 Informative motion. Signed by Judge Gustavo A. Gelpi on 6/8/2016. (YUC) (Entered: 06/08/2016)
84 ORDER: The parties shall jointly inform the Court whether a settlement has been reached, on or before July 29, 2016. If no settlement has been reached by this date, First Circuit Settlement Counsel Judge Charles Cordero shall schedule a settlement conference with the parties. Signed by Judge Gustavo A. Gelpi on 7/19/20016.(YUC) (Entered: 07/19/2016)
85 MOTION to Restrict Document Joint Status Report filed by Omar Gonzalez−Pagan on behalf of Yolanda Arroyo−Pizarro, Maritza Lopez−Aviles, Faviola Melendez−Rodriguez, Zulma Oliveras−Vega, Puerto Rico Para Tod@s, Iris Delia Rivera−Rivera, Thomas J. Robinson, Jose A. Torruellas−Iglesias, Johanne Velez−Garcia Suggestions in opposition/response due by 8/15/2016 (Gonzalez−Pagan, Omar) (Entered: 07/29/2016)

Case: 3:14-cv-1253 As of: 10/19/2016 05:16 PM AST 16 of 16

07/29/2016
08/01/2016 08/01/2016 08/15/2016
08/15/2016
08/17/2016 08/17/2016

86 **CASE PARTICIPANTS**STATUS REPORT Regarding Settlement Agreement for Attorneys' Fees and Costs by Ivonne Alvarez−Velez, Yolanda Arroyo−Pizarro, Ada Mercedes Conde−Vidal, Maritza Lopez−Aviles, Faviola Melendez−Rodriguez, Zulma Oliveras−Vega, Puerto Rico Para Tod@s, Iris Delia Rivera−Rivera, Thomas J. Robinson, Jose A. Torruellas−Iglesias, Johanne Velez−Garcia. (Gonzalez−Pagan, Omar) (Entered: 07/29/2016)
87 ORDER: Granting 85 Motion to Restrict. Signed by Judge Gustavo A. Gelpi on 8/1/2016. (YUC) (Entered: 08/01/2016)
88 ORDER: Noted 86 Joint Status Report. Final agreement to be submitted by August 15, 2016. Signed by Judge Gustavo A. Gelpi on 8/1/2016.(YUC) (Entered: 08/01/2016)
89 MOTION to Restrict Document Joint Status Report filed by Omar Gonzalez−Pagan on behalf of Yolanda Arroyo−Pizarro, Maritza Lopez−Aviles, Faviola Melendez−Rodriguez, Zulma Oliveras−Vega, Puerto Rico Para Tod@s, Iris Delia Rivera−Rivera, Thomas J. Robinson, Jose A. Torruellas−Iglesias, Johanne Velez−Garcia Suggestions in opposition/response due by 9/1/2016 (Gonzalez−Pagan, Omar) (Entered: 08/15/2016)
90 **CASE PARTICIPANTS**JOINT STATUS REPORT Regarding Settlement Agreement for Attorneys' Fees and Costs by Ivonne Alvarez−Velez, Yolanda Arroyo−Pizarro, Capellanes Internacionales Cristianos Leon de Juda, Inc., Ada Mercedes Conde−Vidal, Maritza Lopez−Aviles, Faviola Melendez−Rodriguez, Zulma Oliveras−Vega, Puerto Rico Para Tod@s, Iris Delia Rivera−Rivera, Thomas J. Robinson, Jose A. Torruellas−Iglesias, Johanne Velez−Garcia. (Attachments: # 1 Exhibit Settlement Agreement) (Gonzalez−Pagan, Omar) Modified on 8/16/2016 to add filers(cm). (Entered: 08/15/2016)
91 ORDER: Granted 89 Motion to Restrict. Signed by Judge Gustavo A. Gelpi on 8/17/2016. (YUC) (Entered: 08/17/2016)
92 ORDER: Noted 90 Joint Status Report. Settlement is approved. Defendants shall pay within the current fiscal year, as agreed by the parties. See Docket No. 90−1. Signed by Judge Gustavo A. Gelpi on 8/17/2016.(YUC) (Entered: 08/17/2016)