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Case: 14-2184

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No. 14-2184
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
ADA MERCEDES CONDE-VIDAL, et al.,
Plaintiffs-Appellants,
v.
ANA RIUS-ARMENDARIZ, in her official capacity as Secretary of
the Health Department of the Commonwealth of Puerto Rico, et al.,
Defendants-Appellees,
On Appeal from the United States District Court
for the District Of Puerto Rico
The Honorable Juan M. Prez-Gimnez
Brief of Amici Curiae LatinoJustice PRLDEF, Familia es Familia,
Hispanic Federation, Hispanic National Bar Association,
Latino Commission on AIDS, League of United Latin American Citizens,
Mexican American Legal Defense and Educational Fund, National
Council of La Raza, National Hispanic Media Coalition,
National Latina Institute for Reproductive Health, and
National Puerto Rican Coalition, Inc.,
Supporting Appellants and Reversal
(filed with consent of all parties)
JUAN CARTAGENA, ESQ.
JOSE PEREZ, ESQ.
JACKSON CHIN, ESQ.
LATINOJUSTICE PRLDEF
99 HUDSON STREET, 14TH FL.
NEW YORK, NY 10013
(212) 219-3360

JOSEPH F. TRINGALI
1ST CIR. NO. 1167839
SIMPSON THACHER & BARTLETT LLP
425 LEXINGTON AVENUE
NEW YORK, NY 10017
(212) 455-2000

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CORPORATE DISCLOSURE STATEMENT


Pursuant to Local Rule 26.1, each of the amici curiae certifies that:
(1) It is a nonprofit organization that is not a publicly held entity; and
(2) It is not a parent, subsidiary, or affiliate of, or a trade association
representing, a publicly held corporation, or other publicly held entity. No
parents companies or publicly held companies have a 10% or greater
ownership in amici curiae.

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TABLE OF CONTENTS
Page
INTEREST OF AMICI CURIAE ......................................................................... 1
RULE 29(c)(5) STATEMENT.............................................................................. 2
SUMMARY OF ARGUMENT ........................................................................... 3
FACTUAL BACKGROUND.............................................................................. 5
The Migration of Puerto Ricans to the United States Mainland Has
Created Strong Cultural and Economic Ties Connecting the Island
to the Mainland ..........................................................................................5
ARGUMENT ..................................................................................................... 12
Because of Frequent Migration Patterns, Legally Married LGBT
Puerto Ricans Are Especially Susceptible to the Denial of
Important Benefits Founded on Marriage.............................................13
A.

Puerto Ricos Refusal to Recognize Marriages


Contracted in Other Jurisdictions Infringes Upon
Parental and Adoption Rights ............................................14

B.

The Marital Property of Couples Migrating to Puerto


Rico Is Placed in Jeopardy by Puerto Ricos Failure to
Recognize Marriage Rights .................................................22

C.

Puerto Rico Law Interferes With the Inheritance


Expectations and Estate Planning Ability of Married
LGBT Couples ......................................................................26

D.

Veterans and Their Families Are at Risk of Being


Deprived of Valuable Benefits............................................28

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CONCLUSION.................................................................................................. 30
CERTIFICATE OF COMPLIANCE ................................................................. 32
APPENDIX

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TABLE OF AUTHORITIES
Page
Cases
Adar v. Smith,
639 F.3d 146 (5th Cir. 2011) ............................................................................ 16
Balzac v. Porto Rico,
258 U.S. 298 (1922) ......................................................................................... 12
Boggs v. Boggs,
520 U.S. 833 (1997) ......................................................................................... 26
Boumediene v. Bush,
553 U.S. 723 (2008) ......................................................................................3, 12
Della Corte v. Ramirez,
81 Mass. App. Ct. 906, 961 N.E.2d 601 (2012)................................................ 18
Downes v. Bidwell,
182 U.S. 244 (1901) ......................................................................................... 13
Embry v. Ryan,
11 So. 3d 408 (Fla. App. 2 Dist. 2009) ............................................................. 16
Ex. Parte A.A.R.,
187 D.P.R. 835 (2013).................................................................................14, 15
Examining Bd. of Engineers, Architects & Surveyors v. Flores De
Otero,
426 U.S. 572 (1976) ......................................................................................... 13
Finstuen v. Crutcher,
496 F.3d 1139 (10th Cir. 2007) ........................................................................ 16
In re Marriage of Bonds,
24 Cal. 4th 1, 5 P.3d 815 (Cal. 2000)................................................................ 23

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Matter of Seb C-M,


X 2013-21, N.Y.L.J. 1202640083455 (Surr. Ct. Kings Cnty. Jan. 6,
2014) ...........................................................................................................17, 18
Mora v. Mejias,
206 F.2d 377 (1st. Cir. 1953)............................................................................ 13
Rivera Rivera v. Monge Rivera,
117 D.P.R. 464, 17 P.R. Offic. Trans. 561 (1986) ............................................ 15
Robicheaux v. Caldwell,
No. 14-31037 (5th Cir. argued Jan. 9, 2015) .................................................... 16
Saenz v. Roe,
526 U.S. 489 (1999) ......................................................................................... 21
Seplveda-Lebrn v. Amador-Borges,
Civ. No. 08-1690(JAF), 2009 WL 605814 (D.P.R. Mar. 9, 2009) .................... 22
Serrano v. Stefan Merli Plastering Co.,
52 Cal. 4th 1018, 262 P.3d 568 (Cal. 2011)...................................................... 14
Sharon S. v. Superior Ct.,
31 Cal. 4th 417, 73 P.3d 5541 (Cal. 2003)........................................................ 21
Toppel v. Toppel,
114 D.P.R. 775, 14 P.R. Offic. Trans. 1001 (1983) .......................................... 24
Wendy G-M v. Erin G-M,
985 N.Y.S.2d 845, 45 Misc. 3d 574 (N.Y. Sup. Ct. 2014) ................................ 17
Statutes
1 L.P.R.A. 412(8).............................................................................................. 20
24 L.P.R.A. 3047 .............................................................................................. 21
29 L.P.R.A. 737 ................................................................................................ 28
31 L.P.R.A. 10 .................................................................................................. 25
31 L.P.R.A. 1501 .............................................................................................. 26
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31 L.P.R.A. 221 .............................................................................................3, 13


31 L.P.R.A. 2411 .............................................................................................. 26
31 L.P.R.A. 2415 .............................................................................................. 26
31 L.P.R.A. 2591 .............................................................................................. 26
31 L.P.R.A. 2641 .............................................................................................. 26
31 L.P.R.A. 2642 .............................................................................................. 27
31 L.P.R.A. 2643 .............................................................................................. 26
31 L.P.R.A. 2677 .............................................................................................. 26
31 L.P.R.A. 301 ................................................................................................ 26
31 L.P.R.A. 343 ................................................................................................ 23
31 L.P.R.A. 3621 .........................................................................................22, 26
31 L.P.R.A. 385 ................................................................................................ 23
31 L.P.R.A. 534 ...........................................................................................14, 23
31 L.P.R.A. 534(1)............................................................................................ 15
31 L.P.R.A. 538 ................................................................................................ 15
31 L.P.R.A. 56 .................................................................................................. 24
31 L.P.R.A. 681 ................................................................................................ 20
31 L.P.R.A. 701 ................................................................................................ 20
N.Y. Dom. Rel. Law 10-a.................................................................................. 17
N.Y. Dom. Rel. Law 236................................................................................... 24
R.I. Gen. Laws Ann. 30-30-1............................................................................ 29

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Other Authorities
Anna Brown & Eileen Patten, Hispanics of Puerto Rican Origin in
the United States,
2011, Pew Research (June 19, 2013), http://www.pewhispanic.org
/2013/06/19/hispanics-of-puerto-rican-origin-in-the-united-states2011/................................................................................................................... 8
Cindy Y. Rodriguez, Why More Puerto Ricans Are Living in
Mainland U.S. Than in Puerto Rico,
CNN (March 24, 2014, 11:36 AM EDT) ........................................................7, 9
DVera Cohn, Eileen Patten & Mark Hugo Lopez, Puerto Rican
Population Declines on Island, Grows on U.S. Mainland,
Pew Research (August 11, 2014), http://www.pewhispanic.org
/2014/08/11/puerto-rican-population-declines-on-island-grows-onu-s-mainland/ ..................................................................................................7, 9
Elizabeth M. Aranda, Emotional Bridges To Puerto Rico: Migration,
Return Migration, and the Struggles of Incorporation 19-20 (2007).................. 9
Fernando Ramos, Out-Migration and Return Migration of Puerto
Ricans, Immigration and the Workforce: Economic Consequences
for the United States and Source Areas 65 (George J. Borjas &
Richard B. Freeman eds., January 1992)........................................................... 10
Harry Franqui-Rivera, The Well-being of Puerto Rican Veterans and
Service Members and Their Place within the Diaspora,
182, in Puerto Ricans at the Dawn of the New Millennium (Edwin
Melendez & Carlos Vargas-Ramos eds., Center for Puerto Rican
Studies 2014)...........................................................................................6, 10, 28
James C. McKinley Jr, N.Y. Judge Alarms Gay Parents by Finding
Marriage Law Negates Need for Adoption,
N.Y. Times (Jan. 28, 2014), http://www.nytimes.com/2014/01/29/
nyregion/ny-judge-alarms-gay-parents-by-finding-marriage-lawnegates-need-for-adoption.html......................................................................... 18
Jorge Duany, Mickey Ricans?: The Recent Puerto Rican Diaspora to
Florida, Paper prepared for the Conference on Floridas Hispanic
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Heritage, Institute for the Study of Latin America and the


Caribbean, University of South Florida, Tampa,
October 13 20, 2012, available at
http://scholarcommons.usf.edu/cgi/viewcontent.cgi?article=1019&c
ontext=las_hhfc. ............................................................................................... 12
Jorge Duany, Mobile Livelihoods: The Sociocultural Practices of
Circular Migrants between Puerto Rico and the United States,
36 Intl Migration Rev., no. 2, (Summer 2002), at 356 ...................................... 8
Jorge Duany, Nation, Migration, Identity: The Case of Puerto
Ricans,
1 Latino Studies 424 (2003).............................................................................4, 9
Jorge Duany, To Send or Not to Send: Migrant Remittances in
Puerto Rico, the Dominican Republic, and Mexico,
630 Annals of the American Academy of Political and Social
Science 210 (July 2010) .................................................................................... 11
Paul Spickard, Almost All Aliens: Immigration, Race, and
Colonialism in American History and Identity 309 (2007)............................... 11
Tara Siegel Bernard, A Family With Two Moms, Except in the Eyes
of the Law, N.Y Times (July 20, 2012),
http://www.nytimes.com/2012/07/21/ your-money/same-sexcouples-often-face-obstacles-in-establishing-legal-ties-tochildren.html .................................................................................................... 19

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INTEREST OF AMICI CURIAE


Amici Curiae are a coalition of bar associations, and publicinterest civil rights and nonprofit legal service organizations committed to
advancing and protecting the equal rights of Latinos and others. Amici
submit this brief in support of reversing the judgment of the district court
and holding that Puerto Ricos law banning same-sex marriage and
denying recognition of valid same-sex marriages obtained in other
jurisdictions is unconstitutional. Each of the Amici has a strong interest in
opposing all forms of discrimination and ensuring that the Fourteenth
Amendments protections are applied fairly, including in the marriage
arena. Individual statements of interest are set out in Addendum A.
The amici file this brief with the consent of all parties.

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RULE 29(c)(5) STATEMENT


No partys counsel has authored this brief in whole or in part.
Further, neither a party or a partys counsel contributed money that was
intended to fund preparing or submitting this brief. Moreover, no person other than amici curiae, their members, or their counsel - contributed money
that was intended to fund preparing or submitting this brief.

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SUMMARY OF ARGUMENT
Article 68 of the Puerto Rico Civil Code defines marriage as
between a man and a woman and in doing so, expressly bars same sex
marriages and renders invalid in Puerto Rico marriages between persons
of the same sex or transsexuals contracted in other jurisdictions. 31
L.P.R.A. 221. Article 68 thus denies Puerto Ricans the fundamental rights
afforded by the Due Process and Equal Protection clauses of the United
States Constitution, both of which have independent force in Puerto
Rico. Boumediene v. Bush, 553 U.S. 723, 757 (2008).
In this brief, amici explain why Puerto Ricos failure to
recognize valid marriages performed in one of the thirty-six states that
currently recognize the freedom to marry denies important rights not only
to those who are denied the right to marry, but to married persons who
have travelled or may travel between Puerto Rico and the United States
mainland.
This is a particularly important consideration because Puerto
Ricans and their family members frequently migrate back and forth
between the island of Puerto Rico and the United States mainland. Unlike
state-to-state migration on the mainland, Puerto Rico is seen as an ancestral
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homeland for millions of Puerto Ricans living in places across the United
States mainland, with language and other cultural ties that results in backand-forth migration differing in character from ordinary state-to-state
movement. This pattern, known as revolving door migration, is a key
feature of contemporary Puerto Rican Society. See Jorge Duany, Nation,
Migration, Identity: The Case of Puerto Ricans, 1 Latino Studies 424, 425
(2003). An important consequence of revolving door migration is that it
has created strong cultural and economic ties between Puerto Ricans on the
island and the mainland.
Legally married LGBT Puerto Ricans, many of whom as a
consequence of revolving door migration have social and property
connections to both the mainland and the island, are especially susceptible
to the denial of important benefits founded on marriage. First, Puerto
Ricos refusal to recognize same sex marriages contracted in other
jurisdictions denies Puerto Rican couples important parental and adoption
rights, resulting in uncertainty with respect to family ties between parents
and their children. Second, married couples are in danger of losing
property rights that accrue during the course of a marriage relationship.
Third, inheritance rights and estate planning ability becomes much more
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complex and expensive for same-sex couples than for similarly situated
opposite sex couples, thereby increasing the risk that spouses and children
are unable to inherit or benefit from estate transfer expectations. Fourth,
families of United States veterans are at risk of losing benefits provided to
them under state laws that exist in many mainland jurisdictions if they
relocate to Puerto Rico.
By denying Puerto Rican same-sex married couples a
fundamental right, Article 68 thus has a significant disruptive effect on the
Constitutional and fundamental right of many Puerto Ricans in the United
States mainland with ties to Puerto Rico as well as those who visit, and the
thousands who relocate or return to, Puerto Rico from the mainland.
FACTUAL BACKGROUND
The Migration of Puerto Ricans to the United States Mainland Has
Created Strong Cultural and Economic Ties Connecting the Island
to the Mainland
According to a common saying, every Puerto Rican living on
the island knows a Puerto Rican in the states. Harry Franqui-Rivera, The
Well-being of Puerto Rican Veterans and Service Members and Their Place within
the Diaspora, 182, in Puerto Ricans at the Dawn of the New Millennium
(Edwin Melendez & Carlos Vargas-Ramos eds., Center for Puerto Rican
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Studies 2014). In fact, Puerto Ricans frequently migrate back and forth
between the island of Puerto Rico and the United States mainland many
times in their life, with revolving door migration between the United
States and Puerto Rico being a key feature of contemporary Puerto Rican
society. See Jorge Duany, Nation, Migration, Identity: The Case of Puerto
Ricans, 1 Latino Studies 424, 425 (2003).
Puerto Ricos ban on same-sex marriage as instituted in Article
68 will significantly disrupt the lives of same-sex married couples coming
from states that recognize the loving and committed relationships of these
couples by allowing them to marry. Such treatment further casts
substantial doubt on the status of the rights conferred to them as American
citizens. Accordingly, the district courts decision upholding and allowing
this disparate treatment should be reversed.
A steady flow of Puerto Ricans has migrated to the United
States mainland since at least the end of World War II, with that flow
notably increasing in recent years. From 2000-2010, approximately 300,000
Puerto Ricans left Puerto Rico to come to the U.S. mainland, marking the
largest migration wave of Puerto Ricans since the 1950s. Cindy Y.
Rodriguez, Why More Puerto Ricans Are Living in Mainland U.S. Than in
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Puerto Rico, CNN (March 24, 2014, 11:36 AM EDT),


http://www.cnn.com/2014/03/22/us/ puerto-rico-migration-economy/.
This migration is expected to continue into the present decade with the
Census Bureau estimating that about 55,000 Puerto Ricans migrated from
the island to the mainland for each of 2011 and 2012.1 Id. The Puerto Rican
population in the United States mainland is now approximately five
million people, with the largest population center for Puerto Ricans in the
mainland being New York City.2 DVera Cohn, Eileen Patten & Mark
Hugo Lopez, Puerto Rican Population Declines on Island, Grows on U.S.
Mainland, Pew Research (August 11, 2014),
http://www.pewhispanic.org/2014/08/11/puerto-rican-populationdeclines-on-island-grows-on-u-s-mainland/. In the First Circuit, both

The Puerto Rico Institute of Statistics is in the process of collecting data


for those who migrated in 2013, but it estimates the numbers will be similar
to 2011 and 2012. See, e.g., Cindy Y. Rodriguez, Why More Puerto Ricans are
Living in Mainland U.S. Than in Puerto Rico, CNN U.S. (March 24, 2014, 11:36
AM EDT), http://www.cnn.com/2014/03/22/us/puerto-rico-migrationeconomy/.
2 According to Census data analysis by the Center for Latin American,
Caribbean & Latino Studies, 719,444 Puerto Ricans resided in New York
City in 2013.
7
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Boston3 and Providence4 have significant Puerto Rican populations. Of the


mainland population, nearly 31% were born on the island of Puerto Rico.
Anna Brown & Eileen Patten, Hispanics of Puerto Rican Origin in the United
States, 2011, Pew Research (June 19, 2013), http://www.pewhispanic.org
/2013/06/19/hispanics-of-puerto-rican-origin-in-the-united-states-2011/.
Puerto Rican migrants in the U.S. mainland often return home
to the island. One of the driving forces behind this reverse migration to
Puerto Rico arises when socioeconomic conditions in the mainland
deteriorate. See Jorge Duany, Mobile Livelihoods: The Sociocultural Practices of
Circular Migrants between Puerto Rico and the United States, 36 Intl Migration
Rev., no. 2, (Summer 2002), at 356. In fact, Puerto Ricans in recent decades
have migrated to the mainland in large volumes, only to eventually return
to Puerto Rico on a permanent basis.5 Between 1991 and 1998, for example,
Puerto Rico received 144,528 return migrants. Duany, 1 Latino Studies 431-

The 2010 Census reported that 30,506 Puerto Ricans resided in Boston,
Massachusetts, making it the ninth-largest population center for Puerto
Ricans in the United States mainland.
4 The 2010 Census also reported that 35,979 residents of Providence, Rhode
Island, were Puerto Rican.
5 The 2000 Census found that 6.1 percent of Puerto Ricos entire population
had been born in the United States mainland and that 3.2 percent had been
living there in 1995.
8
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432. More recently, from 2010 to 2013, as many as 69,000 people6 moved
from the U.S. mainland to Puerto Rico even as the islands economy
suffered greatly from the 2008 recession, economic restructuring,
deindustrialization, and the presence of capital-intensive industries on the
island, which have all displaced low-skill industrial workers. Elizabeth M.
Aranda, Emotional Bridges To Puerto Rico: Migration, Return Migration, and
the Struggles of Incorporation 19-20 (2007). Studies found that nearly 95
percent of those who moved to the island were return migrants and their
children, thus creating a revolving door migration pattern. Duany, 1
Latino Studies 431-432.
Several factors contribute to this pattern of migration for Puerto
Ricans. Puerto Rico's status as a U.S. Territory plays a significant part
because it allows for continuous and unrestricted movement across
borders. Fernando Ramos, Out-Migration and Return Migration of Puerto
Ricans, Immigration and the Workforce: Economic Consequences for the United

This number is derived by combining estimates for annual migration


from the island to the mainland for 2010 (48,000); 2011 (55,000); 2012
(55,000); and 2013 (55,000), less net migration estimates for the period from
2010 to 2013 (144,000). See Rodriguez, supra; see also Cohn, Patten & Lopez,
supra.
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States and Source Areas 65 (George J. Borjas & Richard B. Freeman eds.,
January 1992). Puerto Ricans traveling to the mainland need not carry
travel documents or apply for visas because they are United States citizens
by law. Id. In addition, a significant number of Puerto Ricans serve in the
armed forces,7 contributing to both the growth and expansion of the Puerto
Rican population in the mainland and functioning as a conduit for traffic
between the island and the mainland. Franqui-Rivera, supra.
Other, non-political factors also contribute to the ease of
movement between Puerto Rico and the United States mainland, including
the proximity of Puerto Rico to the United States, low-cost air travel, and
more recently, the expansion of the internet. These factors, which focus on
expanded access to affordable mass transportation and improved
communications, also increase the likelihood that Puerto Ricans will
engage in multiple migrations between the island and mainland. See
Duany, 36 Intl Migration Rev. at 356. As a result, Puerto Ricans have
maintained an unusual tightness to their ancestral homeland. Paul

In 2011, the Census Bureau estimated that there were over 221,000 statebased Puerto Rican veterans, approximately 24,000 in active service, and
about 107,000 veterans residing on the island.
7

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Spickard, Almost All Aliens: Immigration, Race, and Colonialism in American


History and Identity 309 (2007).
Recurrent Puerto Rican migration has resulted in an exchange
of assets between the mainland and the island. According to certain
sources, Puerto Rican-born migrants send as much as $1 billion a year back
to the island in remittance payments. Jorge Duany, To Send or Not to Send:
Migrant Remittances in Puerto Rico, the Dominican Republic, and Mexico, 630
Annals of the American Academy of Political and Social Science 210 (July
2010). The future status of the assets and property exchanged between
stakeholders from the island and the mainland is directly implicated by
Puerto Ricos definition of marriage, and particularly its impact on
inheritance rights, as discussed below.
In the short term, Puerto Rican migration to the United States
will likely increase as economic issues continue to beset the island, leading
to an increase in asset transfers back to and property purchases in the
island of Puerto Rico. In the long term, though, more and more Puerto
Rican migrants are likely to return to the island as they have done in the

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past.8 In turn, this will exacerbate the disruptive impact of Puerto Ricos
ban on same-sex marriage and its disparate treatment of same-sex couples.
Accordingly, the district courts decision upholding and allowing this
disparate treatment should be reversed.
ARGUMENT
It is a long-settled principle that the United States provides the
citizens of Puerto Rico the guaranties of certain fundamental rights
declared in the Constitution. Boumediene v. Bush, 553 U.S. 723, 758 (2008)
(citing Balzac v. Porto Rico, 258 U.S. 298, 312 (1922)). [T]he Constitution has
independent force where United States territories like Puerto Rico are
concerned, a force that is not contingent on acts of legislative grace. Id. at
757. Accordingly, the fundamental rights afforded by the Due Process
and Equal Protection clauses apply to residents of Puerto Rico.

Puerto Rican scholar Jorge Duany notes that Puerto Ricans are returning
to the island in the greatest numbers from states located in the Northeast,
which generally recognize same-sex marriages. See Jorge Duany, Mickey
Ricans?: The Recent Puerto Rican Diaspora to Florida, Paper prepared for the
Conference on Floridas Hispanic Heritage, Institute for the Study of
Latin America and the Caribbean, University of South Florida, Tampa,
October 13 20, 2012, available at
http://scholarcommons.usf.edu/cgi/viewcontent.cgi?article=1019&contex
t=las_hhfc.
8

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Examining Bd. of Engineers, Architects & Surveyors v. Flores De Otero, 426 U.S.
572, 600-601 (1976) (citing Downes v. Bidwell, 182 U.S. 244, 283-84 (1901);
Balzac, 285 U.S. at 312-13); see also Mora v. Mejias, 206 F.2d 377, 382 (1st. Cir.
1953) ([T]here cannot exist under the American flag any governmental
authority untrammeled by the requirements of due process of law as
guaranteed by the Constitution of the United States.).
Because of Frequent Migration Patterns, Legally Married LGBT
Puerto Ricans Are Especially Susceptible to the Denial of
Important Benefits Founded on Marriage
Puerto Rico law defines marriage as between a man and a
woman, and same-sex marriages are expressly barred. 31 L.P.R.A. 221.
Equally significant, marriages between persons of the same sex or
transsexuals contracted in other jurisdictions are explicitly declared
invalid and not recognized in Puerto Rico. Id. This denial of a
fundamental right, coupled with the repudiation of valid marriages
entered into in other jurisdictions in the United States, has far-reaching
consequences. In fact, its effects can be felt by many individuals in the
United States mainland with ties to Puerto Rico and can even impact those
who visit, not to mention the thousands who relocate or return to, Puerto
Rico from the mainland.
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Puerto Ricos Refusal to Recognize Marriages


Contracted in Other Jurisdictions Infringes Upon
Parental and Adoption Rights

Puerto Ricos refusal to recognize same-sex marriages in


numerous states where such marriages are constitutionally protected
infringes numerous, tangible rights those married persons enjoy in the
states in which they were lawfully married. For example, children may be
adopted only by married couples who concur in the adoption under Puerto
Rico law. See 31 L.P.R.A. 534 (No one may be adopted by more than one
person except when the adopters are married to each other, in which case
they shall adopt jointly.). Because Puerto Rico law does not permit
second parent adoption, it effectively precludes same sex partners from
adopting and raising children together. See Ex. Parte A.A.R., 187 D.P.R. 835,
884-85 (2013) (holding that a woman could not adopt the biological
daughter of her same-sex partner of more than twenty years).9 The A.A.R.
court found that a child could have only one parent of each gender, so if
the adoption proceeded, it would extinguish the parental rights of the
biological parent. Id.; see also Rivera Rivera v. Monge Rivera, 117 D.P.R. 464,
Second parent adoption is a form of adoption in which the birth parent
does not give up parental rights. Serrano v. Stefan Merli Plastering Co., 52
Cal. 4th 1018, 1034, 262 P.3d 568, 578 (Cal. 2011).
14
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17 P.R. Offic. Trans. 561, 563 (1986) (indicating that [t]he adoption uproots
the adoptee from all [family] ties and from all rights with respect to his
biological family) (internal quotations omitted); 31 L.P.R.A. 538 (holding
that adoption shall extinguish any legal nexus between the adoptee and
his/her former biological or adoptive family).10
Puerto Ricos refusal to extend adoption rights to same-sex
couples, combined with its rejection of valid marriages from other
jurisdictions, casts significant doubt on whether Puerto Rico would
recognize parental rights established in other jurisdictions. Holdings in
other Puerto Rico cases involving same-sex parenting substantiate amicis
concerns that Puerto Rico would not recognize the parental rights granted
to same-sex couples by other jurisdictions when those couples move to or
visit the island. See A.A.R., 187 D.P.R. at 875.
Similar issues have arisen in other jurisdictions that restrict
ones freedom to marry. For example, Louisiana, which also does not

Puerto Rico does, however, permit second-parent adoption without


extinguishing the rights of the biological parent when one spouse wishes to
adopt the minor child of his or her opposite-sex spouse. See 31 L.P.R.A.
534(1).
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permit same-sex marriage,11 refused to issue a birth certificate with both


adopted parents names to an infant who had been legally adopted by a
same-sex couple in New York. Adar v. Smith, 639 F.3d 146, 149 (5th Cir.
2011). Both the district court and the Fifth Circuit stated that Louisiana
was required to issue the birth certificate under the full faith and credit
clause of the constitution. Id. at 150. The Fifth Circuit, sitting en banc,
however, reversed the district court, finding that the full faith and credit
clause did not obligate Louisiana to confer particular benefits . . . contrary
to its law by issuing the birth certificate. Id. at 161. The decision in Adar
was the product of a sharply divided court, with five judges dissenting,
and runs counter to holdings from other jurisdictions. See Finstuen v.
Crutcher, 496 F.3d 1139 (10th Cir. 2007) (holding that an Oklahoma policy of
refusing revised birth certificates to out-of-state same-sex adoptive parents
violated the Full Faith and Credit Clause); Embry v. Ryan, 11 So. 3d 408 (Fla.
App. 2 Dist. 2009) (reversing a trial courts finding that Florida was not
required to recognize a second-parent adoption by a same-sex partner
because her parental status offended Florida public policy).
Louisianas stance is presently being challenged before the Fifth Circuit.
See Robicheaux v. Caldwell, No. 14-31037 (5th Cir. argued Jan. 9, 2015).
11

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Amici are concerned that, absent this Court awarding the relief
sought by Appellants, the likelihood is high that Puerto Rico may similarly
discriminate against same-sex couples lawfully married in other
jurisdictions, with many families suffering harmful consequences like those
suffered by the family in Adar. Consider for example, a family originally
from Puerto Rico consisting of a same-sex couple legally married in New
York with a child biologically related to only one parent. If the couple had
resided in New York, the state with the highest Puerto Rican population,
they would benefit from a presumption that a child born to a married
couple is legally the child of both spouses. See Wendy G-M v. Erin G-M, 985
N.Y.S.2d 845, 861, 45 Misc. 3d 574, 595 (N.Y. Sup. Ct. 2014) (holding that
the child of either partner in a married same sex couple will be presumed
to be the child of both, even though the child is not genetically linked to
both parents); see also N.Y. Dom. Rel. Law 10-a (recognizing the validity
of same-sex marriage by statute). Thus, at least one New York court has
found that the second parent could not adopt a child because she was
already deemed the parent by operation of law as the legal spouse of the
natural mother at the time of birth. Matter of Seb C-M, X 2013-21, N.Y.L.J.
1202640083455 (Surr. Ct. Kings Cnty. Jan. 6, 2014). In that case, the non17

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biological parent sought to adopt to ensure that . . . her existing parental


relationship with the infant is less susceptible to challenge in the event of
the family's re-location to a jurisdiction less hospitable to the rights of
same-sex couples to marry and adopt children . Id. at *1. However, the
court, after examining the law, found that a New York court was not
permitted to affirm an existing, recognized and protected parent-child
relationship by granting the adoption. Id. at *3;12 see also Della Corte v.
Ramirez, 81 Mass. App. Ct. 906, 907, 961 N.E.2d 601, 603 (2012) ([T]he need
for . . . second-parent adoption . . . is eliminated when the child is born of
the marriage.).
The interaction between the laws of Puerto Rico and New York
creates an insoluble problem if the hypothetical family mentioned above
visits or moves to Puerto Rico, as any time a childs parentage is predicated
solely upon the marriage of a birth parent, the childs relationship with the
non-birth parent may be in jeopardy. The couple may justifiably rely upon

See also James C. McKinley Jr, N.Y. Judge Alarms Gay Parents by Finding
Marriage Law Negates Need for Adoption, N.Y. Times (Jan. 28, 2014),
http://www.nytimes.com/2014/01/29/nyregion/ny-judge-alarms-gayparents-by-finding-marriage-law-negates-need-for-adoption.html
(indicating that not all New York courts have refused to permit secondparent adoptions, as the Seb C-M court did).
18
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their marriage to legally tie the non-biological parent to the child. But
because the entire foundation for parental rights for the non-biological
parent rests in this example upon a marriage not recognized in Puerto Rico,
the second parent would risk having no legal recognition of her parental
rights and relationship upon travel or relocation to Puerto Rico.13 Neither
could the second parent simply adopt upon relocation to Puerto Rico, in
light of the A.A.R. decision.
If such a family needs or wants to relocate to Puerto Rico,
which many Puerto Ricans ultimately do, as detailed above, they run the
risk of essentially severing the legal bond between the non-biological
parent and the child. Were such a family to move to Puerto Rico, the nonbiological parent could be barred from involvement in her childs school
activities, would likely be unable to provide for the child though health
insurance or other benefits, and could face the risk of the child being
removed from her care if the childs biological parent dies or becomes

See Tara Siegel Bernard, A Family With Two Moms, Except in the Eyes of the
Law, N.Y. Times (July 20, 2012), http://www.nytimes.com/2012/07/21/
your-money/same-sex-couples-often-face-obstacles-in-establishing-legalties-to-children.html (reporting that jurisdictions that do not recognize
same-sex marriage are not obligated to honor relationships borne from a
state statute).
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incapacitated. Puerto Rican officials may even be required to contact


distant relatives, who the child hardly knows, if the biological parent dies
or is incapacitated. See 1 L.P.R.A. 412(8) (Bill of Rights for Children
providing that the first option for placement of a child in substitute care by
the Commonwealth is the home of qualified relatives).14 Further, if the
non-biological parent were to die or become incapacitated, the child as a
surviving family member could lose her right to inherit or collect disability
benefits as a result of her relationship to that parent.
Even if a couple lives in a jurisdiction that allows second parent
adoptions for same-sex spouses, and even assuming that Puerto Rico
would recognize such adoptions, a family planning to relocate or travel to
Puerto Rico would need to spend the time and incur the legal costs
necessary to effectuate the adoption, whereas a heterosexual couple that
conceives with the help of a donor is not expected to go through such a
process in order to legitimize the parenthood of both spouses. Moreover, a
family need not permanently relocate to Puerto Rico to suffer these harms.
A situation requiring the exercise of parental rights could easily occur
In the absence of a legal guardian provided for by will, the law also
provides that a Court should designate an orphaned childs grandparent or
brother or sister as his legal guardian. 31 L.P.R.A. 681, 701.
20
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during a vacation or a temporary visit with extended family. See 24


L.P.R.A. 3047 (indicating that a minor patient at a hospital facility is
entitled to be represented in the medical decision-making process by a
parent, legal guardian, or relative).
Finally, in the event that such a relocating family faces none of
these harms, additional harm may arise because the children may simply
not know whether their relationship with their parents is secure. Further,
fear of the uncertain legal status of their children may chill families from
travelling or relocating, relegating these families to second-class status and
stymieing their constitutional right to travel. See, e.g., Saenz v. Roe, 526 U.S.
489, 500 (1999) (recognizing the rights of travelers to freely leave and enter
jurisdictions and to be treated like other citizens of any jurisdiction they
relocate to). As the California Supreme Court has aptly observed, when
uncertainty exists over the legal relationships between children and nonbiological parents, [t]he ultimate financial and emotional losers will be
children. Sharon S. v. Superior Ct., 31 Cal. 4th 417, 442, 73 P.3d 554, 571
(Cal. 2003).

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The Marital Property of Couples Migrating to


Puerto Rico Is Placed in Jeopardy by Puerto Ricos
Failure to Recognize Marriage Rights

Puerto Rico law may also strip many LGBT married couples of
numerous protections related to property, income, and support
accumulated during marriage. In Puerto Rico, marriage is considered a copartnership in which property brought into marriage is treated differently
from that acquired during marriage, with the latter belonging in equal
parts to both spousesa doctrine known as community or partnership
property. During a marriage, all earnings and profits earned by both
spouses belong to the husband and wife, share and share alike, and are
evenly divided upon the dissolution of the marriage. 31 L.P.R.A. 3621.
This equal treatment extends to property acquired using partnership
property, and all fruits, income, and interest derived from that property
during the marriage. Id. 3641; see also Seplveda-Lebrn v. Amador-Borges,
Civ. No. 08-1690(JAF), 2009 WL 605814, at *3 (D.P.R. Mar. 9, 2009).
This failure to recognize marital property will be detrimental to
same-sex married couples coming to Puerto Rico after living in states that
recognize same-sex marriage. For example, a hypothetical same-sex couple
living in California would be subject to Californias community property
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laws, meaning that in general, property acquired by spouses during


marriage . . . is community property owned jointly by both spouses and
divided equally upon divorce. See In re Marriage of Bonds, 24 Cal. 4th 1, 12,
5 P.3d 815 (Cal. 2000). Although Puerto Rico is also a community property
jurisdiction, it does not recognize the validity of same-sex marriages from
other jurisdictions. For this reason, Puerto Rico would likely not recognize
the bundle of community property rights of this California couple when
they move to Puerto Rico, even though each spouse may have relied upon
this property as being classified as community property. In fact, it is
unclear at best how Puerto Rico would treat community property obtained
by same-sex married couples elsewhere if their marriage ends while they
reside in Puerto Rico.
Puerto Rico law also allows for the entry of support orders to
ensure the well-being of both spouses upon divorce. 33 L.P.R.A. 4766.
Courts may further allow a spouse to access partnership property or order
one spouse to pay for the others maintenance during divorce proceedings,
according to their respective means. 31 L.P.R.A. 343; see also 31 L.P.R.A.
385 (permitting courts to award alimony). Spouses who would have been
protected by analogous laws in the state where they were married will
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suddenly find themselves without any such protection upon relocation to


Puerto Rico.15
Same-sex married couples moving to Puerto Rico from
common law states would likely fare no better, as common law states also
recognize that each spouse may have a legal interest in marital property.
See, e.g., N.Y. Dom. Rel. Law 236 (providing that all property acquired by
either or both spouses during the marriage is marital property unless one
of a list of specified exceptions applies). Although Puerto Rico applies a
detailed test to determine whether the community property regime applies
to persons married in a common law jurisdiction, see Toppel v. Toppel, 114
D.P.R. 775, 14 P.R. Offic. Trans. 1001 (1983), this test would likely not even
take place for same-sex couples relocating to Puerto Rico because Puerto
Rico would not recognize their marriage in the first place.
Same-sex married couples should expect no legal recognition
by Puerto Rico of any marital property, community or otherwise. But it is
fundamentally unfair to apply these laws only to opposite-sex marriages,

By the same token, refusal to recognize same-sex marriages removes a


potential source of financial support for a child whose familial connection
to one parent is not legally recognized upon dissolution of marriage. See 31
L.P.R.A. 562 (an adopter is obliged to provide support for adopted child).
24
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as they are intended to protect spouses who contribute to the marriage


union largely in valuable, but non-monetary, ways and thus have
comparatively less earning potential or property, and thus less protection,
when the marriage ends. As a result, any such property rights that have
accrued over the course of a same-sex marriage that travels from the
mainland to Puerto Rico may well be left at the border, to the detriment of
spouses with no means to support themselves upon dissolution of their
relationship.
Finally, Puerto Rico law may even impact same-sex married
couples living outside of Puerto Rico. This is especially true in the case of
real property, which is subject to the law of the jurisdiction where situated,
31 L.P.R.A. 10. Even if a same-sex couple does not reside in Puerto Rico
but one spouse owns property there, serious potential for harm exists in
connection with Puerto Rico not recognizing the other spouses legitimate
rights in that property in the event that the couple divorces or the spouse
who owns the property predeceases the other.

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Puerto Rico Law Interferes With the Inheritance


Expectations and Estate Planning Ability of
Married LGBT Couples

Puerto Ricos same-sex marriage ban will also prevent same-sex


couples from benefitting from the same inheritance protections as oppositesex married couples. If a person dies without a will in Puerto Rico,
legitimate succession, or intestate succession, takes place. 31 L.P.R.A.
2591. Regardless of whether a will exists, a surviving spouse in Puerto
Rico takes one half of the community property upon death of her spouse,
with the other half going into the decedents estate. See 31 L.P.R.A. 301,
3621. Depending on the existence of other relatives, the widow or widower
may also be entitled to inherit from the estate. See id. 2641, 2643, 2677.16
Puerto Ricos marriage ban would likely prevent a same-sex
spouse living in Puerto Rico from claiming half of the marital community
property when the other spouse dies even when the couple acquired the
Puerto Rico law also provides the surviving spouse with a usufruct,
which is a right to use the products or income from a portion of the
decedents estate. 31 L.P.R.A. 1501, 2411. A usufruct is akin to a life
estate in common law jurisdictions, and the other heirs can satisfy it
alternatively through a life annuity or a cash settlement, thus providing
additional financial security for a surviving spouse. See 31 L.P.R.A. 2415;
see also Boggs v. Boggs, 520 U.S. 833, 836 (1997). The right to the usufruct
would also be barred under Puerto Rico law to the surviving spouse of a
same-sex marriage.
26
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property elsewhere, as Puerto Rico will reject their marriage from another
jurisdiction. The surviving spouse would also be unable to inherit through
intestate succession or to claim the usufruct as a means of support, as both
mechanisms require a marriage relationship recognized under the law.
In addition, the children of same-sex couples cannot benefit
from intestate succession with respect to a non-adopting parent, again
because Puerto Rico does not recognize the marriage between the parents.
See 31 L.P.R.A. 2642. The lack of protections offered under Puerto Rico
law results in estate planning that is more complex and expensive for these
couples than for opposite-sex spouses who can rely on the default rules.
Further, in many cases same-sex spouses and their children will lose their
right to inherit merely because they are part of a same-sex family and
cannot afford to take the necessary precautions to counter the disparate
treatment of Puerto Rico law. Moreover, property passing through the
estate that would not do so in the case of an opposite-sex couple can expose
it to legal challenges by relatives even where careful estate planning is
undertaken.

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Veterans and Their Families Are at Risk of Being


Deprived of Valuable Benefits

American military service provides a significant engine for


migration between the island and the mainland, with approximately 24,000
Puerto Ricans in active service as of 2011, and more than 221,000 Puerto
Rican veterans living on the mainland.17 Moreover, Puerto Rico law
confers numerous benefits on military veterans and their spouses,
including the spouses of deceased veterans. See 29 L.P.R.A. 737.18 For
example, Puerto Rico provides free medical care to veterans, their spouses,
and their children who are under age 25. Id. 737(d). The Puerto Rico
government also provides preferences to veterans in the sale or leasing of
property, preferences that include subsidized housing purchases, or entry
into housing projects or other affordable housing. Id. 737(a). As an
additional benefit, spouses and children of veterans are entitled to a 50%
discount on tuition and fees at the University of Puerto Rico.

Harry Franqui-Rivera, The Well-being of Puerto Rican Veterans and Service


Members and Their Place within the Diaspora 182.
18 Recent data has indicated that Puerto Ricans are well-represented in the
military. In 2011, 0.4% of the general United States population aged 16and-over were in active military service, while 0.7% of Puerto Ricans aged
16-and over were in in the military. This suggests a rapidly increasing
Puerto Rican veteran population in future years. Franqui-Rivera at 196.
28
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Id. 737(b)(6). In the case of veterans killed in action, surviving spouses


and children are entitled to free tuition, books, and fees at any institution of
higher education in Puerto Rico. Id.
Similar benefits are available in many mainland jurisdictions,
but the inability of the families of same-sex spouses to claim these benefits
in Puerto Rico has the potential to impact adversely Puerto Rican veterans
and their families. Consider the case of a soldier killed in combat, leaving
family on the mainland in Rhode Island. This soldiers spouse and
children would be entitled to a subsidy for their higher education expenses
in Rhode Island. See R.I. Gen. Laws Ann. 30-30-1 (providing for a fund
from which shall be paid in whole or in part the charges for the tuition
and books of the surviving children and spouses of deceased veterans). If
the surviving same-sex spouse and non-biological children move to Puerto
Rico, though, they would be in danger of losing these valuable benefits.
The children would almost certainly not receive a tuition subsidy unless a
second-parent adoption had been in effect (which as discussed above, is
not possible in some jurisdictions that permit same-sex marriage). The
veterans spouse would also be denied education benefits because the
marriage would not be recognized as valid. As with adoption, the denial
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of recognition of familial status to those who have served their country in


the military serves as a significant deterrent to the right of free and
unfettered travel to and from Puerto Rico, and deprives Puerto Ricans and
other U.S. citizens of their constitutional rights.
CONCLUSION
Amici respectfully request that the Court apply the protections
of the Due Process and Equal Protection clauses of Fourteenth Amendment
to invalidate Puerto Ricos law banning same-sex and transgender couples
from marrying and denying recognition to such legal marriages obtained
in other jurisdictions, and vacate the judgment of the district court.

Dated: New York, New York


February 2, 2015
/s/ Joseph F. Tringali
Joseph F. Tringali
1st Cir. No. 1167839
Simpson Thacher &
Bartlett LLP
425 Lexington Avenue
New York, NY 10017
212-455-2000
jtringali@stblaw.com
Counsel forAmici Curiae
LatinoJustice PRLDEF,
Familia es Familia,

Juan Cartagena,
President and General Counsel
Jose Perez, Esq.
Jackson Chin, Esq.
LatinoJustice PRLDEF
99 Hudson Street, 14th Fl.
New York, NY 10013
212-219-3360
jperez@latinojustice.org
jchin@latinojustice.org
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Hispanic Federation,
Hispanic National Bar
Association,
Latino Commission on
AIDS,
League of United Latin
American Citizens,
Mexican American Legal
Defense and Educational
Fund,
National Council of
La Raza,
National Hispanic Media
Coalition,
National Latina Institute
for Reproductive Health, and
National Puerto Rican
Coalition, Inc.

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CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Fed. R. App.
P. 32(a)(7)(B) because it contains 5,927 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App.
P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6)
because it is been prepared in a proportionally spaced typeface using
Microsoft Word in 14-point Book Antiqua.

Dated: February 2, 2015

/s/ Joseph F. Tringali


Joseph F. Tringali
1st Cir. No. 1167839
Simpson Thacher &
Bartlett LLP
425 Lexington Avenue
New York, NY 10017
(212) 455-2000
jtringali@stblaw.com

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ADDENDUM

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TABLE OF CONTENTS
Tab

Description

Pages

Statements of Interest of Amici

ADD1-ADD7

English Translation of Excerpts of


Ex. Parte A.A.R., 187 D.P.R. 835 (2013)

ADD8-ADD14

Decision in Matter of Seb C-M, X 2013-21,


N.Y.L.J. 1202640083455
(Surr. Ct. Kings Cnty. Jan. 6, 2014)

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STATEMENTS OF INTEREST OF AMICI


LATINOJUSTICE PRLDEF, which was founded in 1972 as the
Puerto Rican Legal Defense and Education Fund, champions an equitable
society. Using the power of the law together with advocacy and education,
LatinoJustice seeks to protect opportunities for all Latinos to succeed in
school and work, fulfill their dreams, and sustain their families and
communities. Its continuing mission is to protect the civil rights of all
Latinos and to promote justice for the pan-Latino community across the
country. During its 42 year history, LatinoJustice has advocated for and
defended the constitutional rights and the equal protection of all Latinos
under the law, and has litigated numerous cases challenging multiple
forms of discrimination including fair housing, employment, education,
language rights, redistricting and voting rights. LatinoJustice supports the
advancement of civil and human rights to include the legal recognition of
marriage equality, and due process under the United States Constitution,
and extending such protections to Puerto Rican residents within the
Commonwealth of Puerto Rico and in the United States.
FAMILIA ES FAMILIA is a partnership of over 20 national
Latino organizations aiming to build support within and among Latino

ADD1

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communities for acceptance of gay and lesbian family members and to


advocate for their full legal, political, and societal rights, including the
freedom to marry. Familia es Familia promotes conversation and public
education, and is a program of Freedom to Marry, the campaign to win
marriage nationwide.
HISPANIC FEDERATION (HF) is the nations premier
Latino non-profit membership organization. HF uplifts millions of
Hispanic children, youth and families through public policy advocacy,
innovative community programs and strengthening Latino nonprofits. By
working with a dynamic network of leading Latino community-based
organizations, HF is able to fulfill its mission to empower and advance the
Hispanic community. As part of its advocacy strategy, HF works with its
network leadership to educate policymakers, funders, the public and
media about the needs and aspirations of Latinos in the areas of education,
health care, immigration, economic empowerment, civic participation, the
environment and more. HF has historically fought for freedom, justice and
equality for Latinos and all Americans regardless of race, ethnicity,
national origin, immigration status, English proficiency, gender or sexual
orientation. HF respectfully requests that the Court reverse the Puerto Rico

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District Courts dismissal of a challenge to Puerto Ricos statutory


codification of opposite-gender marriage.
HISPANIC NATIONAL BAR ASSOCIATION (HNBA) is a
nonprofit, nonpartisan, national professional association that represents the
interests of over 100,000 attorneys, judges, law professors, and other legal
professionals of Hispanic descent in the United States. The HNBA has
thirty-eight affiliated bars in various states across the country. The
continuing mission of the HNBA is to improve the study, practice, and
administration of justice for all Americans by ensuring the meaningful
participation of Hispanics in the legal profession. Since its inception 40
years ago, the HNBA has served as the national voice for Hispanics in the
legal profession and has promoted justice, equity, and opportunity for
Hispanics.
THE LATINO COMMISSION ON AIDS is a nonprofit
membership organization founded in 1990 and dedicated to ending the
HIV-AIDS epidemic and decreasing the health disparities in the Latino
community. Latinos constitute 16% of the U.S. population but account for
over 20% of the AIDS cases. Over 200,000 Latinos in the U.S. and Puerto
Rico are currently living with HIV/AIDS. The Commission is dedicated to

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resolving the HIV crisis and the health inequities in the Latino community,
where stigma, poverty, language barriers, immigration status, homophobia
and trans-phobia , and challenges to health access create barriers to testing,
linkage to care, retention in care and treatment and consequently increase
the infection rate.
The Commission realizes its mission by spearheading health
advocacy and community mobilization strategies, promoting HIV
education, developing model prevention and health programs for high-risk
communities, and by building capacity in community organizations that
serve Latinos and other at-risk communities. The Commission has steadily
expanded its services outside New York to meet the emerging needs of
Latino communities in more than 40 States, Washington D.C., Puerto Rico
and the United States Virgin Islands.
THE LEAGUE OF UNITED LATIN AMERICAN CITIZENS
(LULAC) is the nations largest and oldest civil rights volunteer-based
organization that empowers Hispanic Americans and builds strong Latino
communities. With 900 councils in the U.S and Puerto Rico, its programs,
services and advocacy address important issues for Latinos. LULAC has
advanced equal justice under law for all Latinos, including its LGBT sisters

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and brothers through direct action and national resolutions for LGBT
Americans to be protected from hate crimes, to work free from
discrimination, to serve openly in the U.S. Armed Services, to allow binational couples to stay together under immigration laws, and, opposes
marriage laws that discriminate against couples who have entered legal
unions in their state.
THE MEXICAN AMERICAN LEGAL DEFENSE AND
EDUCATIONAL FUND (MALDEF) is a national civil rights organization
established in 1968. Its principal objective is to secure the civil rights of
Latinos living in the United States through litigation, advocacy, and
education. MALDEF defends the rights of all Latino families, including
those headed by lesbian or gay Latinos as well as Latino children who are
disadvantaged because their same-sex parents are denied full recognition
under the law.
NATIONAL COUNCIL OF LA RAZA (NCLR) -- the largest
national Hispanic civil rights and advocacy organization in the United
Statesworks to improve opportunities for Hispanic Americans. Through
its network of nearly 300 affiliated community-based organizations, NCLR
reaches millions of Hispanics each year in 41 states, Puerto Rico, and the

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District of Columbia. To achieve its mission, NCLR conducts applied


research, policy analysis, and advocacy, providing a Latino perspective in
five key areasassets/investments, civil rights/immigration, education,
employment and economic status, and health. In addition, it provides
capacity-building assistance to its Affiliates who work at the state and local
level to advance opportunities for individuals and families. Founded in
1968, NCLR is a private, nonprofit, nonpartisan, tax-exempt organization
headquartered in Washington, DC, serving all Hispanic subgroups in all
regions of the country. It has state and regional offices in Chicago, Los
Angeles, Miami, New York, Phoenix, and San Antonio.
NATIONAL HISPANIC MEDIA COALITION (NHMC) is a
media advocacy and civil rights organization for the advancement of
Latinos, working towards a media that is fair and inclusive of Latinos, and
towards universal, affordable, and open access to communications. As a
Latino media advocacy and civil rights organization, NHMC opposes
discrimination against any community. The LGBT (lesbian, gay, bisexual
and transgender) and Latino communities are not mutually exclusive, as
many Latinos are also LGBT.

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THE NATIONAL LATINA INSTITUTE FOR REPRODUCTIVE


HEALTH (NLIRH) is the only national reproductive justice organization
dedicated to building Latina power to advance health, dignity, and justice
for 26 million Latinas, their families, and communities in the United States.
NLIRH is committed to social, legal, and political equality and justice for
lesbian, gay, bisexual, and queer people and their families, and to ensuring
that all Latinas can receive legal recognition of their love and their families.
THE NATIONAL PUERTO RICAN COALITION, INC.
(NPRC) is a national non-profit organization representing the interests of
over 8 million Puerto Rican U.S. citizens on the mainland and in Puerto
Rico. NPRCs mission is to systematically strengthen and enhance the
social, political, and economic wellbeing of Puerto Ricans throughout the
United States and in Puerto Rico, with a special focus on the most
vulnerable.

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A.A.R., Petitioner, Ex Parte


Supreme Court of Puerto Rico
20 February 2013
CC-2008--1010

Opinion
[*843] Certiorari
San Juan, Puerto Rico, February 20th, 2013.
This could be an unsympathetic resolution, but we are acting not to gain sympathies, but to
resolve according to the law.1
There are instances in which the disputes that reach this Court have, in their depth, aspects that
transcend the parties solicited remedy. The dispute expressed in the source heading is a particularly
exceptional example of these instances.
[*844] The case requires us to face complex questions whose resolution [**3] could have effects that go
beyond the solicited remedy requested by Ms. A.A.R. (from here on the petitioner or A.A.R.). It involves
aspects that question the constitutional role of this Court and of the basic understandings on which our
entire judicial system is grounded. The matter we now have under our consideration places us, not for
the first time, with facing the tough task of answering the question of how far the powers of the Judicial
Branch extend in the democratic system in Puerto Rico. There should not be any doubt that, in essence,
the case relates to who has the Power to govern our constitutional order. As always, we must get close
to the process to answer this question under the basic understanding that in our constitutional,
democratic order, every power has limits. Partido Independentista Puertorriqueo v. Puerto Rico, res. 6
de julio de 2012, 186 D.P.R. 1, 2012 J.T.S. 124, 2012 T.S.P.R. 111, p. 2-3 (Dissenting Opinion by FIOL
MATTA, J.).
Ms. A.A.R. appears before us and solicits us to review a Decision issued by the Court of Appeals. Herein,
the intermediate appellate forum confirmed a decision of the Court of Primary Instance [**4] in which
the petition for adoption of the minor J.M.A.V., presented by the petitioner, was denied. This minor is
the biological daughter of Ms. C.V.V., who is also Ms. A.A.R.s girlfriend.2
The petitioner solicits us to revise if within our judicial order it is allowed for a person to adopt a minor
when the person is of the same sex of the minors biological parent, and that the filial bonds between
the minor and the biological parent are not terminated.
Before we move ahead to resolve the judicial controversy [*845] set in this case, lets set forth the facts
that led to it.
1

Pueblo v. Sustache Sustache, 176 D.P.R 250, 343 (2009)(Dissenting Opinion by RODRGUEZ RODRGUEZ, J.).
On this Opinion we refer to the petitioner, her girlfriend and the minor by the acronyms of their names and last
names, given that they wish to keep their names confidential according to various motions presented to the Court
of Primary Instance, San Juan Superior Room.
2

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I
According to case records, the petitioner and Ms. C.V.V. have maintained a sentimental relationship for
approximately twenty (20) years. At some point of the relationship, A.A.R. and C.V.V. agreed to start a
fertility process. Ms. C.V.V. [**5] proceeded then to participate in an artificial insemination process, that
resulted on the birth of the minor J.M.A.V. on July 17th, 2000.
Both women agreed to share the duties and responsibilities associated with the upbringing of the minor
J.M.A.V. Later on, both agreed that A.A.R. should adopt J.M.A.V. in order to provide the minor with the
opportunity to have two (2) legal mothers. Acting on this, on June 7th, 2005 the petitioner presented the
application for adoption before the First Impression Court, San Juan Supreme Room. Herein she solicited
to adopt the minor J.M.A.V. and that with this, the legal ties between the minor and the biological
mother C.V.V. would not be terminated. In fact, Ms. C.V.V. attached to the petitioners adoption
application a Sworn Statement in which she consented to the adoption but expressed that she was not
renouncing to her biological rights neither to the filial ties that bonded her to her daughter J.M.A.V.
To sustain the petition, Ms. A.A.R. called upon the Second Parent Adoption doctrine, or Adoption by
Functional Father or Mother, that had been used on many jurisdictions in the United [**6] States to
allow adoptions of minors of same sex couples. In the alternative, the petitioner argued that if the
Second Parent Adoption was not applicable to our jurisdiction, the Art. 138 of the Civil Code of Puerto
[*846] Rico that prohibits the adoption of minors by individuals of the same sex of their parent would be
unconstitutional under the Equal Protection under the Law Clause and for violating their constitutional
right to privacy.
Later, on August 30th, 2005 the Attorney for Family Affairs appeared before the instant forum through a
Fiscal Report and opposed to the adoption petition. Her opposition was sustained on the texts of Arts.
137 and 138 of the Civil Code, 31 L.P.R.A. secs. 538 and 539, which specifically prohibit a same-sex
parent to adopt a minor child without the parental rights between the minor and the biological parent
being terminated. Furthermore, the Attorney for Family Affairs sustained that our judicial order as it
relates to the adoption of same sex couples was on an uncertain state, so permitting the solicited
adoption would create a filial relationship [**7] equally vulnerable and detrimental to the well-being of
the minor J.M.A.V..
Following various procedural incidents, the lower court issued a Decision on June 20th, 2007 in which the
solicited adoption was denied. In short, the Court of Primary Instance understood that the petitioner did
not meet the jurisdictional requirements established by Arts. 137 and 138 of the Civil Code, supra, so it
lacked the jurisdiction to allow the solicited adoption. In regards to the argument on unconstitutionality
of the statutory dispositions, the lower court refused to attend to them as it concluded that the
petitioner did not outline it formally.
Unsatisfied, on October 18th, 2007 the petitioner presented a plea before the Court of Appeals. In it she
sustained her argument related to the Second Parent Adoption doctrine as compatible with the current
judicial order. Furthermore, she argued that the lower court erred for not considering in the merits the

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attack [*847] to the constitutionality of Arts. 137 and 138 of the Civil Code, supra, and for not
considering the wellbeing of the child at the moment of denying the solicited adoption.
Subsequently, [**8] on August 29th, 2008 the Appellate Court issued a Decision in which it confirmed the
determination of the Court of Primary Instance. The intermediate appellate forum reasoned that, even
though the current law of adoption advances the proposition of making the process of adoption flexible,
that flexibility is for the minors and it is not directed at making it easier for the adopters to comply with
the necessary requirements allowing for an adoption. Based on this, it was determined that the Second
Parent Adoption doctrine is not compatible with the texts of the relevant articles of the Civil Court in the
matter of adoption, and so, it could not be applied on our system. In regards to the argument of
unconstitutionality of these articles, the Court a quo shared the conclusion of the lower court in that the
petitioner did not formally present the constitutional attack to these statutory dispositions.
Unsatisfied, the petitioner appealed certiorari before this Court on November 13th, 2008 and argued to
the commission of the following errors:
The Court of Appeals erred by not considering the signaling of the unconstitutionality [**9] of
the application of articles 137 and 138 of the Civil Code, notwithstanding that their
constitutionality was challenged as an alternative to the Second Parent Adoption doctrine
presented in the initial petition.
The Court of Appeals erred by not applying the successive adoption doctrine or Second Parent
Adoption, and saving in that way the constitutionality of the legal dispositions regulating the
adoption.
The Court of Appeals erred in denying the Adoption Petition and in ignoring consideration of the
well-being of the minor in an adoption case.
Examining the appeal, on May 13th, 2009 we agreed to issue. The parties have submitted their
respective allegations [*848] and due to the public interest of the case controversy we have had the
participation as amicus curiae of the American Civil Liberties Union, the College of Law of Puerto Rico,
the Sexuality and Gender Law Clinic of the Columbia University School of Law, the Law Professor Carlos
A. Del Valle Cruz, the National Center for Lesbian Rights, de Puerto Rican Chapter of the American
Pediatric Association, the Psychology Association of Puerto Rico, the Citizen Coalition in Defense of the
Family, and the Alliance of Christian Jurors. With the benefit of the participation of all, we are in the
position to resolve without further steps.
*****
P.23
VIII
It is left to evaluate the alternative argument presented by the petitioner in the lower [**69] courts. As
we indicated before, the petitioner sustained that the Second Parent Adoption doctrine, or adoption by

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functional father or mother, should be adopted in Puerto Rico to salvage the constitutionality of Art.
138 of the Civil Code, supra.
HN38 The Second Parent Adoption doctrine allows someone to adopt a minor that has a biological or
legal parent, without requiring the latter to terminate his or her filial rights. K. Moulding, Sexual
Orientation and the Law, Ed. Thompson Reuters/West, 2012, Vol. I, p. 209 (translation provided). In
other words, this doctrine maintains intact the rights of one of the legal parents and recognizes a
second legal parent for the minor. W. Rubenstein et al., op. cit., p. 77823
In the case of homosexual couples, this figure requires a degree of interpretation by the Courts to
determine if it is compatible with the substantive requirements of adoption. Diverse [**70] tribunals of
the United States have had the opportunity to carry out this interpretive exercise. For example, in In re
Adoption of Luke, 263 Neb. 365, 640 N.W2d 374 (2002), the Nebraska Supreme Court denied the
adoption of a minor in a similar case. The Court interpreted that the Nebraska statute of adoption
required the legal ties of the biological mother with the minor to be terminated. To [*884] this, the
Second Parent Adoption doctrine could not be applied for contravening this requirement. Id. p 383.
Other Courts in Ohio and Wisconsin see In re Adoption of Doe, 130 Ohio App. 3d 288, 719 N.E. 2d 1071
(1998); In interest of Angel Lace M., 516 N.W. 2d 678 (1994)24 have reached the same conclusion. The
Connecticut Supreme Court reached the same conclusion, which led to, according to the Doctrine of
Separation of Powers, the legislature of that state to amend their adoption statute to allow the doctrine
of Second Parent Adoption. See In re Adoption of Baby Z, 247 Conn. 474, 724 A.2d 1035 (1999).
The petitioner puts us in the position to perform an interpretive exercise of Art. 138 of the Civil Code,
supra, to determine if it allows the Second Parent Adoption doctrine in Puerto Rico. As we have
expressed repeatedly, HN39 when interpreting a statute we have to first refer to the text of the law.
Cruz Parrilla v. Depto. Vivienda, 2012 TSPR 11, 184 D.P.R. 393, 404, 2012 Juris P.R. 24 (2012).
Subsequently, only if there is ambiguity found in the text, the Courts have to then make sure to comply
with the legislative purpose. Id.
It is necessary to remember that HN40 if in our legal order the language of the law is clear and free of
ambiguity, its text cannot be undervalued under the pretext to comply with its spirit. Art. 14 of Civil
Code, 31 L.P.R.A. sec. 14. For this reason, we have established that if the language of the law does not
create [**72] doubts and it is clear in its purpose, its own text is the best expression of the legal intent.
Soc. Asist. Leg. v. Ciencias Forenses, 179 D.P.R. 849, 862 (2010).

23

This doctrine is analogous, in the case of heterosexual couples, to the recognized successive adoption doctrine in
Art. 138 of the Civil Code. Through this, the biological parent maintains the legal ties with the child and the
adoptive parent assumes the ties of the other parent.
24
Contrario sensu, other state courts have allowed the use of the Second Parent Adoption doctrine after
interpreting that it does not go against the adoption statutory dispositions [**71]. For example, in In re Adoption of
Tammy, 416 Mass. 205, 619 N.E.2d 315 (1993), the Supreme Court of Massachusetts interpreted that the legal
order in that state did not require the legal ties between a minor and his or her biological parent to be terminated
in the case of the parent being part of the adoption process.

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[*885] A simple reading of Arts. 137 and 138 of the Civil Code of Puerto Rico show the impossibility to
adopt by legal interpretation the Second Parent Adoption doctrine in our jurisdiction. As we have
mentioned, HN41 Art 137, supra, requires the extinction of the bonds between the biological parent and
the adoptee. Moreover, Art. 138, supra, prevents a person from the same sex of the parent of the minor
to adopt him or her, in the case of minors who originate from a single affiliation. These requirements,
which constitutionality we have sustained, prevents us in following the Second Parent Adoption doctrine
in Puerto Rico and, consequently, in allowing the adoption in this case.
The provisions in Arts. 137 and 138 of the Civil Code, supra, are not simply guidelines that judges can
omit when they deem them unfriendly. They are a requirement whose infringement annuls the power
that a Court has to grant adoption applications. These statutory provisions did not emerge from a
vacuum, but from [**73] a calm and conscious judgment of the institution that, in our order, is in charge
in establishing the public policy: the Legal Branch.
On the other hand, there is no doubt that HN42 the wellbeing of the minor is the guiding principle that
leads all adoption procedures. Nonetheless, the Courts have to consider this principle while observing
the jurisdictional and substantive requirements that the Legislature established in the Civil Code. The
principle of the minors well-being is inexorably tied to the adoption procedural requirements. See
Virella v. Proc. Esp. Rel. Fam, supra, p 759. It is worth pointing out that the significant element of the
minors well-being does not grant the courts discretion to obviate the disposition that the legislature
rightfully adopted, as proposed by all the dissents issued today. This equates to saying that the
Legislature proposed to grant discretion to the judges for them to resolve adoption cases [*886] in a
manner contrary to other statutory provisions contained in the articles of the Civil Code. It is
inappropriate to attribute this irrational intention to the Legislature. The discretionary power of [**74]
the courts does not extend to deciding which statutory provisions are more appropriate than others.
Finally, to grant the adoption solicited in this case would go against the ratio decidenti utilized by this
Court in Delgado, Ex parte, 165 D.P.R. 170 (2005). On that occasion, through the Associate Judge Ms.
Rodrguez Rodrguez, we concluded that, whenever the Demographic Registry Law established by way of
numeurs clausus the instances to make changes on the annotations of vital changes of people on the
Birth Certificate, we could not amend the statute to allow a transsexual to change his or her sex on the
certificate. Id. pp 191-192. Notwithstanding, in this case HN43 the same statute we interpreted in
Delgado, Ex parte, supra, includes an exhaustive list of the requirements demanded when registering a
newborn or an adopted minor. These requirements include the minors father and mother information.
See 24 L.P.R.A. sec. 1133. Therefore, if the adoption in this case is allowed, the minor would have to be
registered J.M.A.V. in the Demographic Registry with two (2) mothers, a situation that [**75] the
Demographic Registry Law does not provide. If the adoption is allowed, we would have to forget our
previous statements that it corresponds to the Legislature to weigh all the interests involved in the
controversy that elucidate the issue of homosexuality to propose answers to a case such as this.
Delgado, Ex parte, supra, p 193. For all of the above, and adhering to the plain language of the law, the
Second Parent Adoption doctrine does not proceed within the legal order in Puerto Rico.

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Matter of Seb C-M, X 2013-21


January 28, 2014
Cite as: Matter of Seb C-M, X 2013-21, NYLJ 1202640083455, at *1 (Surr., KI, Decided
January 6, 2014)
X 2013-21
Surrogate Margarita Lpez Torres
Decided: January 6, 2014

DECISION
*1

This is an uncontested proceeding commenced by A. C. (the petitioner) for the adoption of


her infant son, Seb C-M, pursuant to DRL 111, et seq. The petitioner is married to M. M.,
Seb C-M's birth mother.1 In support of her petition, the petitioner offers, inter alia, a certified
copy of Seb C-M's Certificate of Birth Registration, issued by the City of New York, which
identifies the petitioner and her spouse, M.M., as the parents of Seb C-M.
The petitioner appears to have filed the instant application out of an abundance of caution,
perhaps to ensure that, with the support of judicial imprimatur, her existing parental
relationship with the infant is less susceptible to challenge in the event of the family's relocation to a jurisdiction less hospitable to the rights of same-sex couples to marry and adopt
children. Indeed, the court is mindful of the uncertainty occasioned by the tectonic shifts
occurring in the geography of our culture's definition of "family," particularly with respect to
the increasing recognition of the right to marriage equality and adoption by same-sex
2
families, as well as the ethical complexities arising from assisted reproductive technologies.
However, the relief sought herein by the petitioner is neither necessary nor available.
"Adoption is the legal proceeding whereby a person takes another person into the relation of
child and thereby acquires the rights and incurs the responsibilities of a parent in respect of

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such other person." DRL 110 (emphasis added). The "purpose and effect" of adoption is
"to create a new legal relationship where one did not previously exist. Adoption is not
utilized for, noris it available to reaffirm, an already existing parent/child relationship." In re
Sebastian, 25 Misc. 3d 567, 572 (Sur. Ct. New York Co. 2009) (emphasis in original,
citations omitted).3

*2

The petitioner herein was lawfully married to M.M. on April 29, 2011, in the State of
Connecticut. The marriage of the petitioner and her spouse was fully recognized by the
State of New York even before DRL 10-a took effect on July 24, 2011. See Martinez v.
County of Monroe, 50 A.D. 3d 189, 193 (4th Dep't 2008), app. dismissed 10 N.Y. 3d 856
(2008) (New York must recognize as valid same-sex marriages lawfully contracted in other
jurisdictions); see also Golden v. Paterson, 23 Misc.3d 641 (Sup. Ct. Bronx County 2008)
(upholding Governor Paterson's executive directive that New York State agencies recognize
same-sex marriages legally performed in other jurisdictions).
Furthermore, the petitioner's status as the parent of Seb C-M is reflected on his birth
certificate, which serves as prima facie evidence of his parentage (Public Health Law
4103). New York courts have long held that the presumption of legitimacy afforded children
born of married parents is "one of the strongest and most persuasive known to the law. "
David L. v. Cindy Pearl I., 208 A.D. 2d 502, 503 (2d Dep't 1994) (quoting Matter of Findlay,
253 N.Y. 1, 7 [1930]); see also Barbara S. v. Michael I., 24 A.D.3d 451 (2d Dep't 2005).
While the traditional understanding implied by the strong, albeit rebuttable, presumption is
that a child is the biological offspring of her or his married parents, the court notes that
recognition of marriage equality rights, coupled with advances in assisted reproductive
technologies, necessarily results in application of the presumption of legitimacy to offspring
of parents in lawful same-sex and opposite-sex marriages, regardless of the circumstances
of conception, gestation and birth of such children. Indeed, petitioner's status is further
protected by the enactment of subsection (2) of DRL 10-a:
[n]o government treatment or legal status, effect, right, benefit, privilege, protection or
responsibility relating to marriage, whether deriving from statute, administrative or court rule,
public policy, common law or any other source of law, shall differ based on the parties to the
marriage being or having been of the same sex rather than a different sex. When necessary
to implement the rights and responsibilities of spouses under the law, all gender-specific
language or terms shall be construed in a gender-neutral manner in all such sources of law.

*3

Prior to the holding in Martinez, supra, and the enactment of DRL 10-a, this court would
have, without any hesitation whatsoever, approved the petitioner's application for adoption of

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Seb C-M. However, today no such action is warranted or permitted by this court to affirm an
existing, recognized and protected parent-child relationship between the petitioner and her
son. Indeed, were this court to entertain the instant petition, such action would imply that,
notwithstanding the existing and lawful marital relationship between the petitioner and her
spouse, true marriage equality remains yet to be attained, and that, although legally
recognized in this state, a same-sex marriage remains somehow insufficient to establish a
parent-child relationship between one particular parent and any child born within that
marriage, thereby raising equal protection concerns.

If in fact the petitioner's and M.M.'s intent is to secure additional protection of their family's
legal relationship in order to assure its recognition in the event of relocation to a jurisdiction
hostile to marriage equality, the more appropriate, and indeed necessary, course of action
would be to seek redress of the denial of their civil rights in such jurisdiction. In just the past
half year, following Windsor, a host of state and federal courts in disparate parts of the
nation have struck down, on constitutional grounds, state laws and policies that limit the
rights of same-sex couples to civil marriage. For example, in Obergefell v. Wymyslo, 2013
U.S. Dist. LEXIS 179550, 78-79 (S.D.Ohio Dec. 23, 2013), the court declared invalid
provisions of Ohio's state constitution and statutes that banned recognition of out-of state
same-gender marriages, stating in no uncertain terms
Ohio must recognize valid out-of-state marriages between same-sex couples on Ohio death
certificates. That is, once you get married lawfully in one state, another state cannot
summarily take your marriage away, because the right to remain married is properly
recognized as a fundamental liberty interest protected by the Due Process Clause of the
United States Constitution.
See also Griego v. Oliver, 2013 N.M. LEXIS 414, *65-66. (Dec. 19, 2013) (New Mexico
Supreme Court, ruling on equal protection grounds that the state must allow same-gender
couples to marry and "extend to them the rights, protections, and responsibilities that derive
from civil marriage under state law," noted that "child-rearing for same-gender couples is
made more difficult by denying them the status of being married and depriving them of the
rights, protections, and responsibilities that come with civil marriage" and that "[c]hildren
benefit from the presumption of legitimacy when they are born to a married couple"); Kitchen
v. Herbert, 2013 WL 6697874 (D. Utah Dec. 20, 2013) (holding unconstitutional "state-law
prohibition that

*4

denies the Plaintiffs their rights to due process and equal protection under the law" based on
Windsor), stay denied, Kitchen v. Herbert, 2013 WL 6834634 (D. Utah Dec. 23, 2013), and
stay granted, Herbert v. Kitchen, 2014 WL 30367 (U.S. Utah Jan. 6, 2014); Garden State
Equality v. Dow, 79 A.3d 1036, 2013 N.J. LEXIS 1091, 2013 WL 5687193 at *6-7 ( Oct.18,
2013) (New Jersey Supreme Court denying stay of lower court decision holding that the
State must extend the right to civil marriage to same-sex couples on equal protections
grounds articulated in Windsor); Bassett v. Snyder, No. 12-10038, _ F. Supp.2d _, 2013 WL
3285111 at *23-25 (E.D. Mich. June 28, 2013) (enjoining enforcement of Michigan statute

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prohibiting public employers from providing medial and other benefits to co-habitants,
holding that the statute displayed animus against same-sex couples and lacked a rational
basis); and Bishop v. U.S. ex rel. Holder, 2014 WL 116013 (N.D. Oklahoma Jan. 14, 2014)
(determining that an amendment to the Oklahoma state constitution which limited the
definition of "marriage" solely to the union of one man and one woman intentionally
discriminated against groups of persons and violated a same-sex couple's equal protection
rights under the Fourteenth Amendment by preventing them from obtaining a marriage
license).

Accordingly, it being wholly unnecessary to affirm the existing parental relationship between
A. C. and her infant son, Seb C-M, the court hereby declines to entertain the instant petition
for adoption.
Date: January 6, 2014
Brooklyn, New York
1. Seb C-M was born in New York, New York on ____, 2013.
2. The court is fully cognizant of the reality that familial relationships sanctioned by the State
of New York may be accorded lesser status, or even denied, in certain jurisdictions, and is
wholly sympathetic to the concerns of families of same-sex couples who may wish or need
to relocate to such jurisdictions. Nonetheless, any jurisdiction which fails to accord
recognition to a marriage valid under the laws of the State of New York is equally likely to
deny full faith and credit to decrees of adoption issued to same-sex couples by a New York
Surrogate's Court.
3. In Sebastian, the petitioning parent was the genetic mother of a child born of her samesex spouse, to whom she was legally married in the Netherlands. The petitioning parent had
executed a surrender of her rights to her biological child as required by the physicians
supervising the in vitro fertilization procedure, and the birth certificate reflected only the birth
mother as the parent of the child. By virtue of her relinquishment of parental rights, the
petitioner in Sebastian had no legal status as parent of the subject infant; thus, the
Surrogate's entertainment and grant of her petition for adoption was appropriate. The Court
notes that the decision in Sebastian pre-dates both the enactment by the State of New York
of DRL 10-a, as well as the decisions of the United States Supreme Court in U.S. v.
Windsor, __ U.S. __, 133 S.Ct. 2675 (2013) (finding unconstitutional the federal Defense of
Marriage Act as denying same-sex couples the "equal liberty" guaranteed by the Due
Process Clause of the Fifth Amendment) and in Hollingsworth v. Perry, __ U.S. __, 133
S.Ct. 2652 (2013) (finding that the proponents of California's Proposition 8 lacked standing
to defend the law on appeal from a lower court's decision).
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ADD18
http://www.newyorklawjournal.com/printerfriendly/id=1202640083455

12/10/2014

Case: 14-2184

Document: 00116793780

Page: 65

Date Filed: 02/02/2015

Entry ID: 5883592

CERTIFICATE OF SERVICE
I hereby certify that I filed the foregoing brief with the Clerk of
the United States Court of Appeals for the First Circuit via the CM/ECF
system this 2nd day of February, 2015. I certify that counsel for all parties
in this case are registered CM/ECF users and will be served by the
appellate CM/ECF system.

Dated: February 2, 2015

/s/ Joseph F. Tringali


Joseph F. Tringali
1st Cir. No. 1167839
Simpson Thacher &
Bartlett LLP
425 Lexington Avenue
New York, NY 10017
(212) 455-2000
jtringali@stblaw.com