Puerto Rico’s LGBT community received bipartisan support earlier this year when the newly elected mayor of the capital city, San Juan, ordered the municipality’s health insurance provider to include same-sex partners. On the opposite side of the political spectrum, former governor Pedro Rosselló openly endorsed marriage equality, making him the first prominent figure in the Statehood party (New Progressive Party or PNP in Spanish) to do so. Additionally, legislators presented bills to include same-sex couples in Puerto Rico’s Domestic Violence Act as well as labor discrimination laws. However, this week brought a significant setback to the LGBT community.
Following the largest rally in Puerto Rico since at least 2004, in which up to 200,000 people marched in favor of “traditional marriage” in a rally headed by religious leaders, the Puerto Rico Supreme Court handed a decision on Wednesday that shut the door to same-sex adoptions in the Island. In a 5-4 decision, Justices appointed by former PNP governor Luis Fortuño held that the Puerto Rico Adoption Act’s prohibition against same-sex adoption is constitutional given that the local constitution does not include sexual orientation as a suspect class. The Court held that the partner of the child’s mother could not adopt the child as a second mother. A child can only be adopted by members of the opposite sex, the Court held. In an argument that would make Justice Scalia proud, Justice Pabon Charneco held that the Court could not impose its values or judgment on the Legislature, and that it was up to the latter to amend the law and allow same-sex adoptions. The majority opinion was not swayed by arguments in favor of holding the prohibition unconstitutional.
On the dissenting side, the remaining three judges appointed by governors of the Commonwealth Party (Popular Democratic Party or PPD in Spanish), who were joined by the youngest of the judges appointed by governor Fortuño, would have ruled the prohibition unconstitutional. Justice Anabelle Rodriguez, who in the past wrote the majority opinion in a case that denied a transgendered’s man right to change his sex on his birth certificate, argued that the Court has the inherent power to strike down unconstitutional laws, and that the best interest of the minor required a new interpretation of the Adoption Act.
LGBT groups were quick to express their dismay at the Court’s decision while stating that it did not come as a surprise. In fact, this is hardly the first time the Court rules against LGBT rights. Prior to the Court’s ideological change (it was dominated by PPD appointed judges for decades), the Court ruled against including same-sex partners under Puerto Rico’s Domestic Violence Act, refused to hear a constitutional challenge to the then anti-sodomy act still on the Penal Code and refused to recognize a transgendered man’s right to change his sex on his birth certificate (based on the same reason the Court uses today: legislative deference). The Court’s new makeup is significantly more conservative and adheres to a more originalist interpretation of constitutional law. Thus, any chance for significant progressive decisions to strike down existing laws is quite slim.
All is not lost for the LGBT community. Governor Garcia Padilla (who has publicly stated he does not believe in marriage equality) has indicated that he will move to expand LGBT rights. Given his party’s control of the Legislature and Executive branch, the PPD could easily do away with the legal challenges facing the LGBT community, including (but not limited to): same-sex adoption, civil unions, discrimination laws and domestic violence protections. The PPD could right the wrong left unaddressed by the Court’s recent decision, as it can also make a stand against the thousands of protesters who came out against LGBT rights earlier this week. The ruling party has an unique opportunity to expand LGBT rights far beyond what any previous administration ever has.
Time will tell if they are up to the challenge.