Por: Jan M. Albino González*
A same-sex couple wishes to provide a loving home for a child born through artificial insemination. This child only has one registered parent, pursuant to Puerto Rico law. In view of this legal void, the couple employs a creative solution: filing an adoption petition to move the court to maintain the legal nexus with the child’s mother and to order the registration of the other woman as the child’s other parent. However, after years of litigation, the courts deny this couple the opportunity to form a loving home or afford them the legal rights and protections offered by the law. This is what happened in A.A.R., Ex parte a few years ago.[efn_note]A.A.R., Ex parte, 187 DPR 835 (2013).[/efn_note] Some would argue that this decision was unfair because it was too rigid in its review, and others would say that this decision was constitutionally sound. This article argues that a different review should have been applied in this case to protect this family from discrimination based on a person’s sex. In this manner, the objective of this article is to propose that courts in Puerto Rico adopt a proportionality review, as used in the courts of Canada and Germany, when difficult constitutional questions are raised while discarding a rigid textualist approach. This article argues that this would safeguard basic constitutional principles in Puerto Rico and would give its citizens better protections under the law. A brief overview is given of proportionality review, as well as a summary of the ruling in A.A.R., Ex parte and, lastly, an application of a proportionality review to the facts of the controversy raised in the case.
I. Different Approaches in Constitutional Interpretation
A constitution is a legal norm that shapes a society’s values, character, personal and governmental limits, and aspirations. Aharon Barak states that “[i]t lays the foundation for social values, setting goals, obligations, and trends.”[efn_note]AHARON BARAK, PURPOSIVE INTERPRETATION IN LAW 370 (Sari Bashi trans., 2005).[/efn_note] Herbert Wechsler, referring to the Constitution of the United States, points out that it is “the framework of our government.”[efn_note]Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. R. 1 (1959).[/efn_note] The task of an interpreter of a constitution would fall short if he or she would only examine the text. This is because modern constitutions can be considered an experiment, as Justice Holmes wrote in his dissent in Abrams.[efn_note]Abrams v. United States, 250 US 616, 630 (1919) (Holmes, J., dissenting). (“It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge.”)[/efn_note] To this point, although one can agree that the Constitution should be the rock-solid foundation for a society, one can also believe that construers of a constitution should not be strictly and wholly tied to its text. Justice Scalia was right when he said that “[i]n textual interpretation, context is everything.”[efn_note]ANTONIN SCALIA, A MATTER OF INTERPRETATION 37 (2018).[/efn_note] However, one can disagree with the late justice that a reasonable form of originalism is the only way to interpret the original meaning of the constitutional text. Sometimes, as David Strauss points out, a society must accept imperfect solutions to constitutional problems because “sometimes the best course overall may be to follow the admittedly less-than-perfect judgment reflected in the text of the Constitution.”[efn_note]DAVID A. STRAUSS, THE LIVING CONSTITUTION 105 (2010).[/efn_note] One could believe that this is what happened in 2019 when the Puerto Rico Supreme Court decided to weigh in on the constitutional crisis spurred by the resignation of the Governor of Puerto Rico.[efn_note]Senado de PR v. ELA, 203 DPR 62, 67 (2019).[/efn_note] In the per curiam opinion written by Justice Martínez Torres, the Puerto Rico Supreme Court reached a quick decision based on “the importance this decision bears for the stability of our government and for social peace.”[efn_note]Id. at 67 (translation provided by the author).[/efn_note] This brings to mind David Strauss’ view that “we can agree that a quick and obvious resolution is better than uncertainty or prolonged conflict” in order to find common ground in interpreting a constitutional text.[efn_note]STRAUSS, supra note 6.[/efn_note] But should a constitution be malleable by the whims of a new generation or should it remain unchanged through time? These are the questions that are often asked and must be answered by the new generation, called upon to interpret and apply the constitutional text.
The foundation laid by a constitution should be flexible enough to let a society adapt its text to its current values and aspirations, but rigid enough to thwart capricious and arbitrary rulings exercised under the guise of protecting the fundamental rights of others. In other words, it is not only the duty of the judiciary to construe a constitution, but the People and the other branches of government are also called on to give it meaning under a democratic system. Jack M. Balkin pointed in the right direction when he stated that a constitution should be viewed “as an initial framework for governance that sets politics in motion, and that [its citizens]must fill out over time through constitutional construction.”[efn_note]JACK M. BALKIN, LIVING ORIGINALISM 3 (2011).[/efn_note] And David Strauss stated pointedly that a constitution is the embodiment of a society’s most fundamental principles and it can be changed over time.[efn_note]DAVID STRAUSS, LIVING CONSTITUTION 3 (2010).[/efn_note] This is why originalism, especially strict originalism, is a lackluster method of interpreting a constitutional text. The textualist approach severely limits a society from adapting its current values and aspirations and hinders delivery of a fair decision for a person or a community seeking relief before a court. The textualist approach, in its ill-conceived quest for neutrality, does not consider inequality and inequity as central issues of its inquiry. These issues, thus, are absent when a factfinder only looks to the constitutional text to pass on a decision. With this in mind, examine, for example, Robert H. Bork’s troubling statements, in critiquing the decision reached in Griswold v. Connecticut, that “[the men who put the amendment in the Constitution]were not agreed about what the concept of racial equality requires. Many or most of them had not even thought the matter through.”[efn_note]Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L. J. 14 (1971) (critiquing Griswold v. Connecticut, 381 U.S. 479 (1965)).[/efn_note] Well then, if the men or women who approved the text of a constitution did not think the matter through, then who, pray tell, shall make the effort? Or is a society that approved a constitution forever barred from addressing issues of race, sex or class inequality or inequity in the courts? This article does not suggest that the law should bend to a factfinder’s political thought or bias, but that an inquiry into a constitutional text should be robust enough to make a reasonable attempt at finding justice for a party seeking it before a court and interpreting the law as it is understood by contemporary standards of society.
In view of this, Vicki C. Jackson argues that the United States should take a new look at “proportionality, both as a general principle in constitutional analysis and as structured doctrine of potential benefit to discrete areas of U.S. constitutional law.”[efn_note]Vicki C. Jackson, Constitutional Law in an Age of Proportionality, 124 Yale L. J. 3094, 3097 (2015).[/efn_note] She opines that a proportionate government is a goal of constitutional design because “an essential idea of constitutional democracy is that in confrontations between citizens and government, government is restrained and avoids oppressive and arbitrary action.”[efn_note]Id. at 3108.[/efn_note] In view of this, courts outside the United States have developed a proportionality review to constitutional inquiries.[efn_note]Although it is not within the scope of this article to provide an argument against applying proportionality review, please refer to the following articles raising good arguments against proportionality review for a fair assessment of this type of inquiry. See for example: Iryna Ponomarenko, On the Limits of Proportionality, 24 REV. CONST. STUD. 241, 275 (2019) (arguing that proportionality review could be irrational and epistemically uncertain when applied to positively conceived considerations, but improves constitutional adjudication when applied to negatively conceived considerations); David Kenny, Proportionality and the Inevitability of the Local: A Comparative Localist Analysis of Canada and Ireland, 66 AM. J. COMP. L. 537, 572 (2018) (suggesting that proportionality review is hugely affected by local factors that substantially change the application of this review on a case-by-case basis); Francisco J. Urbina, A Critique of Proportionality, 57 AM. J. JURIS. 49, 80 (2012) (opining that proportionality review could leave the court unguided and exposing the court to outside pressures that would undermine judicial independence).[/efn_note]
Maybe it is time that the Puerto Rico Supreme Court adopts a proportionality review to difficult constitutional controversies when it is faced with cases that warrant a higher degree of protection under the Puerto Rico Constitution, especially when applying the bill of rights with a broader style analysis.[efn_note]In Puerto Rico and its caselaw, this is known as the factura más ancha approach, which is predicated on the drafting history of the Puerto Rican bill of rights which aimed to provide more civil rights than what the U.S. Constitution affords to U.S. citizens residing in Puerto Rico. Please see, Ernesto L. Chiesa, Los derechos de los acusados y la factura más ancha, 65 REV. JUR. UPR 83 (1996), for a survey of this type of analysis in the area of criminal law, and Hiram A. Meléndez Juarbe, Privacy in Puerto Rico and the Madman’s Plight: Decisions, 9 Geo. J. Gender & L. 1, 34-67 (2008), for a survey in the area of the right to privacy for a full scope of this analysis. To illustrate this approach, speaking for the majority of the Puerto Rico Supreme Court, former Chief Justice Trías Monge wrote the following:
[T]he formulation of a Bill of Rights following a broader style than the traditional, that would gather the common feeling of different cultures on new categories of rights was sought. Hence the Universal Declaration of Human Rights and the American Declaration of Human Rights and Duties exercised such an important influence in the drafting of our Bill of Rights.
ELA v. Hermandad de Empleados, 104 P.R. Dec. 436, 440 [4 P.R. Offic. Trans. 605, 611] (1970).[/efn_note] The article will attempt to use a proportionality review on a case already decided by the Puerto Rico Supreme Court to give the reader a glimpse to this type of inquiry.
II. AAR, Ex parte, 187 DPR 835 (2013)
In this case, the Puerto Rico Supreme Court affirmed the judgment of the lower courts prohibiting a same-sex couple from adopting a minor without severing the filial bond of the biological father’s parental rights over the minor.[efn_note]AAR, Ex parte, 187 DPR 835, 844, 889 (2013).[/efn_note] The same-sex couple wanted to wield parental rights over the minor, but this couple was impaired from doing so because the adoption laws in Puerto Rico prohibited this when an adoption is carried out through a single filiation proceeding.[efn_note]Id. at 845-46. Civil Code of Puerto Rico of 1930, Art. 138, 31 P.R. LAWS ANN. § 539 (2015) (repealed by the Puerto Rico Adoption Act, Law No. 61-2018, 8 LPRA §§ 1081-1087a (Supp. 2021)).[/efn_note] The now-repealed Section 138 of the Civil Code of Puerto Rico was challenged because it stated the following:
[T]he legal nexus of the adoptee with his or her former paternal or maternal family shall continue . . . when the adoptee is the issue of a single filiation and is adopted by a person of a different sex than that of the parent who has acknowledged him or her as his or her child.[efn_note]31 P.R. LAWS ANN. § 539 (repealed 2018) (emphasis added).[/efn_note]
The lower courts found that section 137 and the above-cited 138 of the Civil Code prohibited the requested adoption.[efn_note]AAR, Ex parte, 187 DPR at 846-47; 31 P.R. LAWS ANN. §§ 538-39 (repealed 2018).[/efn_note] The Puerto Rico Supreme Court ruled that the lower courts erred in adjudging that petitioner did not properly attack the statute under constitutional grounds, but affirmed their ruling to prohibit the adoption.[efn_note]AAR, Ex Parte, 187 DPR at 861, 889.[/efn_note] The majority opinion delivered by the Court cited its caselaw to find that because it had not recognized adoption of a minor as a fundamental right in earlier cases, the Court was bound to apply a rational-basis review, instead of the strict scrutiny standard.[efn_note]Id. at 858 (citing López v. ELA, 165 DPR 280, 307 (2005)).[/efn_note] In its conclusion, the Puerto Rico Supreme Court grounded its majority opinion on historical context around the drafting of the Puerto Rico Constitution.[efn_note]Id. at 869.[/efn_note] It concluded that the prohibition of sex discrimination found in the Constitution of Puerto Rico did not extend to protect from other types of discrimination, such as sexual orientation discrimination.[efn_note]Id.[/efn_note] In the majority opinion, the Supreme Court concluded that:
“[t]he history of the Constitutional Convention and the precedents set by this Court for several decades have clearly established the scope of application of that clause. Attempting to turn the clause that prohibits sex discrimination—with its full legislative history and its clear purpose of eradicating archaic notions about the role of women in our society—into the means for also absorbing, as if by osmosis, the ban on sexual orientation discrimination, is not an honest intellectual exercise. History simply shows that this clause has another purpose.”[efn_note]Id. (translation provided by the author) (emphasis in original).[/efn_note]
In view of this ruling, this article argues that the Puerto Rico Supreme Court would have ruled differently in this matter if the majority had not applied a textualist review of the case. This article will attempt to analyze the case applying a proportionality review, as used in some countries outside the United States, under the premise that section 19 of Article II of the Puerto Rico Constitution mandates that the Puerto Rican bill of rights shall not be construed restrictively, nor does it contemplate the exclusion of other rights not specifically mentioned in the constitutional text.[efn_note]P.R. CONST., art. II, § 19.[/efn_note]
A. Proportionality Review Applied to AAR, Ex parte, 187 DPR 835 (2013)
As a starting point in this attempt, bear in mind that a court would have to do the following:
[S]tructured proportionality review begins with attention to the scope of what a right is intended to protect; if a right has been infringed, the inquiry turns next to the authority for the action, and to the importance and legitimacy of the government purpose. If an infringement on interests protected by a right is shown, and if the challenged action has been “prescribed by law” sufficiently precisely and for a legitimate and sufficiently important purpose, then the constitutionally of the means used are examined through a three-fold inquiry into: (a) rationality; (b) minimal impairment; and (c) proportionality as such.[efn_note]Jackson, supra note 13, at 3099.[/efn_note]
First, the review begins by identifying the scope of what a right is intended to protect. As the majority opinion points in AAR, Ex Parte, the Constitution of Puerto Rico expressly prohibits discrimination based on a person’s sex.[efn_note]Id. at 865 (citing P.R. CONST. art. II, § 2). (translation provided by the author).[/efn_note] Thus, the scope of the protection to the parent should be discrimination based on the parent’s sex. A minor’s right, as a corollary to having the opportunity of being brought up in a loving home and having access to education, is also involved in this inquiry because the Puerto Rican adoption law seeks to serve the best interests and welfare of the minor.[efn_note]Id. at 857.[/efn_note] As it is typically done in courts that apply a proportionally review, a court should adopt a generous view of the scope of what is protected by the right.[efn_note]Jackson, supra note 13, at 3111.[/efn_note] Thus, in this case, a generous view of the scope of the protected rights would allow the court to go forward with the inquiry.[efn_note]The majority decision in AAR, Ex Parte, did not reach this point because the majority opinion’s strict reading of the constitutional text did not allow the equal protection of the laws and suspect classification inquiry to go further.[/efn_note]
Next, the court would examine whether the government had shown that it is acting under clear legal authority. Again, as the majority opinion points out, the government was indeed acting under clear legal authority under section 138 of the Civil Code of Puerto Rico and—based on the Puerto Rico Supreme Court caselaw—adoptions are permitted to be strictly regulated by the government given the compelling state interests involved.[efn_note]A.A.R., Ex Parte, 187 DPR 835, 857 (2013).[/efn_note] The government was also acting for reasons that are pressing and substantial in a free and democratic society.[efn_note]Jackson, supra note 13, at 3112.[/efn_note]
At this stage, an infringement of a right under the Puerto Rico Constitution has been made and the government action is authorized by law and has a pressing and substantial purpose. Thus, a court using a proportionality review would now turn to the three-part justificatory stage. First, were the means chosen by the government rationally related to the legitimate object? A court would say yes. It would not be arbitrary for a government to regulate the adoption process and it would be in the best interests of the minors and parents for the government to do so.
Second, the court should determine whether the means chosen by the government minimally impairs the protected rights. At this stage, the court would have to rule that the government does at least minimally impair the protected rights of petitioner and the minor because it infringes on the right of petitioner to adopt a minor with her same-sex partner and the minor’s right of having a loving home and access to a proper education. Jackson describes that “[t]he Canadian courts will look to see whether there is an obvious and workable alternative, sometimes drawing on approaches already in use by governments.”[efn_note]Id. at 3114.[/efn_note] In this case, petitioner argued that the Puerto Rican courts should make available second-parent adoptions through judicial construction and striking down the local adoption statutes.[efn_note]In the United States, some states expressly regulate second parent adoptions through legislation, but some state “courts have granted second parent adoptions by expansively construing the state’s adoption statutes.” Alona R. Croteau, Voices in the Dark: Second Parent Adoptions When the Law Is Silent, 50 LOY. L. REV. 675, 685 (2004).[/efn_note] This is an alternative that is within the purview of the Puerto Rico Supreme Court as interpreters of the Puerto Rico Constitution and allowing second parent adoption would not make the government’s goal of regulating adoption proceedings any less effective. The inquiry would end here, and the Supreme Court would have vacated the rulings of the lower courts based on a proportionality review. Third, if the Puerto Rico Supreme Court determines that the means adopted by the government did not ‘minimally impair’ the protected rights at this stage of the proportionality review, then it would have to undertake the last stage of the analysis known as proportionality as such.
In this case, the Solicitor General’s contention that petitioner should be denied adopting the minor because adoptions made by same-sex couples were an uncertain subject in our legal system and, therefore, allowing the adoption requested would create an equally fragile relation of filiation that would be detrimental to the child’s best interests does not pass constitutional muster because it does not justify harming petitioner’s constitutionally protected interests of not being discriminated based on sexual orientation. As Jackson stated, “the greater intrusion on rights, the greater must be the need and justification for the challenged measure.”[efn_note]Jackson, supra note 13, at 3118.[/efn_note] No need or justification was raised to sufficiently justify the impairment of petitioner’s rights. In view of this, if the Puerto Rico Supreme Court would had used a proportionality review, the decision reached by the majority would have respected and upheld the constitutional rights of petitioner.
This method of constitutional interpretation should not be discarded outright and should be explored further when construing and applying the bill of rights found in the Puerto Rico Constitution. This article argues that this type of inquiry is more in harmony with the local constitution than applying a strict textualist approach. Proportionality review is in harmony with the ‘bill of rights with a broader style’ analysis adopted by the Puerto Rico Supreme Court in the past and section 19 of Article II of the Constitution of Puerto Rico. As Elfren Bernier and Cuevas Segarra point out, “[o]ur own laws, and its embodying objectives, have to be construed in light of our own reality.”[efn_note]R. ELREN BERNIER & JOSÉ A. CUEVAS SEGARRA, APROBACIÓN E INTERPRETACIÓN DE LAS LEYES DE PUERTO RICO 230 (1987) (translation provided by the author). See also, JORGE FARINACCI FERNÓS, HERMENÉUTICA PUERTORRIQUEÑA 149 (2019).[/efn_note] As stated earlier, a constitution should be flexible enough to let a society adapt the text of its constitution to its current values and aspirations, but rigid enough to thwart capricious and arbitrary rulings under the guise of protecting the fundamental rights of others. If courts use a proportionality review to pass on difficult constitutional issues, it will safeguard the rights of citizens and would uphold the guarantees promised by our constitutional order. This method of constitutional interpretation, as discussed, would have protected a right of a family in Puerto Rico to form a loving home and discouraged discrimination based on sexual orientation. If Puerto Rico courts would adopt this method of constitutional review, under the acceptable and legally sound circumstances, it would result in a legal system that would have a more rigorous, neutral, and manageable standard to adjudicate constitutional issues and would lead a path towards new civil rights long overdue.
* J.D., University of Puerto Rico Law School; M.A. in Translation, University of Puerto Rico; B.A. in Philosophy, University of Puerto Rico, Mayagüez Campus. The author would like to express his gratitude to Prof. Alvin Padilla Babilonia for his comments on the initial draft and for his encouragement to publish the article.