IN RE: ADA M. CONDE-VIDAL; MARITZA LÓPEZ-AVILÉ S; IRIS DELIA RIVERA-RIVERA; JOSÉ A. TORRUELLAS-IGLESIAS; THOMAS J. ROBINSON; ZULMA OLIVERAS-VEGA; YOLANDA ARROYO-PIZARRO; JOHANNE VÉ LEZ-GARCÍA; FAVIOLA MELÉ NDEZ-RODRÍGUEZ; PUERTO RICO PARA TOD@S; IVONNE Á LVAREZ-VÉ LEZ, 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.
Gonzá lez-Pagá n, 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-Avilé s, Iris D. Rivera-Rivera;
José A. Torruellas-Iglesias, Thomas J. Robinson; Zulma
Oliveras-Vega, Yolanda Arroyo-Pizarro; Johanne Vé
lez-Garcí a, Faviola Melé ndez-Rodrí
guez; and Puerto Rico Para Tod@s.
Conde-Vidal and Conde Attorney at Law, PSC, for Petitioner
Ivonne Á lvarez-Vé lez.
L. Nieto and Nieto Law Offices for Petitioner Ada M.
Mercado-Echegaray, Solicitor General, Department of Justice,
Commonwealth of Puerto Rico, for Respondents Alejandro J.
Garcí a-Padilla, Dr. Rí us-Armendá riz,
Wanda Llovet-Dí az, and Juan C. Zaragoza-Gómez.
Torruella, Thompson and Kayatta, Circuit Judges.
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, 192 L.Ed.2d 609 (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
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, 192 L.Ed.2d 609;
United States v. Windsor, 133 S.Ct. 2675, 186
L.Ed.2d 808 (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, 96 S.Ct. 2264, 49 L.Ed.2d 65 (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.
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.
Judgment, In re Conde-Vidal, et al., No. 14-2184,
(1st Cir. July 8, 2015). (Emphasis added.)
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
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, 68
S.Ct. 1035, 92 L.Ed. 1351 (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, 14 S.Ct. 675, 38 L.Ed. 534
(1894)); see also Baltimore & O.R. Co. v. United
States,279 U.S. 781, 785, 49 S.Ct. 492, 73 L.Ed. 954
(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)