Thursday, October 23, 2014

“Same As It Ever Was”?: The Definition of Marriage in Puerto Rico

Linda McClain

On October 21, Judge Juan M. Pérez-Giménez, a federal district court judge in the District of Puerto Rico, made headlines by granting the Commonwealth of Puerto Rico’s motion to dismiss in Conde-Vidal v. Garcia-Padilla, a federal constitutional challenge brought by four same-sex couples  to Article 68 of Puerto Rico’s Civil Code, which defines marriage as “originating in a civil contract whereby a man and woman mutually agree to become husband and wife. . . ” Understandably, news stories and legal commentary about this case highlight the court’s consciously departing from other post-Windsor  federal courts to rule that Baker v. Nelson (1972) required it to dismiss plaintiffs’ case, given that, in 2012, the First Circuit observed, in striking down DOMA on Equal Protection grounds, that it was neither  “empowered” to imply that the Supreme Court’s precedents since Baker implied Baker’s overruling nor  “willing to predict” the Court would overrule Baker. Nonetheless, another feature that warrants comment is the district court’s appeal to the Civil Code’s “long-standing definition of marriage, stretching against two legal traditions” – Spanish and United States – to  rule out “animus” and show a clear, coherent, and consistent  policy that marriage is between one man and one woman. The law of marriage, however, has been far from “consistent,” as the changing versions of the Civil Code illustrate.  Instead, that evolution well illustrates marriage’s trajectory from (as Ninth Circuit Judge Marsha Berzon put it in her recent  concurrence in Latta v. Otter ) “a profoundly unequal institution [that] imposed distinctively different rights and obligations on men and women” to a more “genderless” relationship of mutuality and equality.

To illustrate the consistency of Puerto Rico’s marriage policy, the federal district court observes that, in 1899, when “royal decree brought Puerto Rico within the ambit of the Spanish Civil Code,” that Code governed marriage and the “rights and obligations of husband and wife.”  The court traces Puerto Rico path to becoming a “possession” of the United States, observing that the underlying definition of marriage did not change. Thus, marriage, in the 1902 Civil Code, 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.”

But what were those duties imposed by law?  The court attaches to its opinion a translation of an excerpt from the 1899 Civil Code, which include certain “rights and responsibilities” of husband and wife: “The husband must protect his wife and the latter obey the husband.” (Art. 57); “The wife is obliged to follow her husband wherever he may establish his residence” (Art. 58); “The husband is the representative of his wife. The latter cannot, without his permission, appear in a suit in person nor through a solicitor” (Art. 60).  The husband is also “the administrator of the property of the conjugal partnership,” unless otherwise stipulated (Art. 59).

These provisions of the Civil Code, rooted in Spanish influence,  have parallels in the English common law system of coverture, a system that, as the Supreme Court explained in Planned Parenthood v. Casey, is “no longer consistent with our understandings of the family, the individual, or the Constitution.”  Challenging the idea of a consistent marriage policy is the fact that these hierarchical provisions no longer appear in the current version of the Civil Code. Instead,  the “duties” of spouses “imposed by law” now take a mutual, gender neutral form:  “The spouses shall protect themselves and satisfy their needs in proportion to their conditions and fortune” (Section 282); “The spouses shall decide by mutual agreement where to establish their domicile and residence for the attainment of the best interest of the family” (Section 283); “Both spouses shall be administrators of the community property, except when otherwise stipulated . . .” (Section 284); and “[E]ither of the spouses may legally represent the conjugal community” (Section 286).

These changes are similar to the abrogation of the common law model of marriage. They show how the law of marriage evolves over time. Thus, the “traditional marriage” to which Judge Juan M. Pérez-Giménez appeals has already departed in many ways from “tradition.” The critical constitutional question, which he fails to address, is whether Puerto Rico  has sufficient present-day reasons for excluding same-sex couples from an institution transformed from a hierarchical relationship of the wife under the protection and rulership of the husband into an equal partnership in which gender does not determine rights and responsibilities.

Indeed, illustrative of the evolution of the definition of marriage toward an equal relationship that supports marriage by same-sex couples is Spain’s amendment, in 2005, of its Civil Code to allow same-sex couples to marry and to reflect that “marriage will have the same requirements and effects when both parties are the same or different sex.” That legislative change survived a constitutional challenge. The constitutional court  pointed to the equality of spouses already present in marriage law and the idea of marriage as a “mutual aid society between two people with identical position within the institution”  as among the essential elements that supported the further reform of 2005.

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