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June 27, 2003
Copyright © 2003 PUERTO RICO HERALD. All Rights Reserved. 

Should Puerto Rico Make Its Own Law?

June is harvest time for reporters covering national legal affairs and the U.S. Supreme Court. The nine Justices and their staffs — like the rest of Washington — are wilting under the region’s oppressive heat and humidity and have their bags packed for Martha’s Vineyard, Aspen and other refreshing summer retreats. June is the month when many arguments presented during the year before the nation’s bench of final resort are settled and announced in the form of a binding decision. The Court adjourned yesterday, June 26, and of the eighty-four cases it heard since its 2002—2003 term that began last October, twenty-three had been announced during June. Each judgment is applicable throughout areas under U.S. sovereignty, including Puerto Rico.

The Supreme Court’s pronouncements end all ambiguity in decisions made by inferior courts on the federal, state, county, territorial and municipal level, all the way down to administrative judgments made by authorities acting under local law. Theoretically, a citizen protest of a five-dollar fine levied by a town dog catcher could become a legal case that moves past the limestone columns of the Supreme Court’s entrance to be argued by the nation’s top lawyers in an austere chamber presided over by the seven men and two women who currently hold life-time appointments to be the final arbiters of the law and its acceptability under the U.S. Constitution. In a typical year, some 7000 petitions are filed with the Supreme Court but less than 100 accepted for adjudication.

Each Supreme Court decision runs like a shock wave through national legislative bodies whose laws and ordinances must conform to the letter and spirit of the pronouncement. Last week, the Court issued judgments upholding the constitutionality of a federal law requiring public libraries to block Internet pornography from computer screens, the admissibility of using diversity as a basis to give preferences to minorities seeking college admission, and permitting the government to administer anti-psychotic drugs against the will of defendants awaiting trail who, without their use, have been found incompetent to stand trail. All of these decisions are applicable to Puerto Rico.

Nor does the Supreme Court limit its jurisdiction to the fifty states of the Union. One of its rulings this year found in favor a petitioner from Guam whose appeal of a conviction was unsuccessful before a panel of federally appointed judges. One of the judges, while competent to hear the case, was barred from ruling on it due to an administrative technicality. The high court ruled that the appeal must be re-heard. Also on the Court’s 2002 docket were cases advanced by two Indian tribes. In one, the Navajo Nation sued the U.S. Government for inadequate compensation for certain coal mining concessions it granted on its reservation. In another, the White Mountain Apache Tribe sought additional monies from the federal government to restore buildings on Fort Apache, situated on Indian land. The Apaches won but the Navajos lost.

The scope and reach of U.S. federal law is disagreeable to that political sector within Puerto Rico that holds that the local courts should be able to decide what federal statutes are suitable for the island’s population and which are not. An "enhanced Commonwealth" doctrine is that, in some cases, the local constitution should trump the U.S. Constitution. Recently that matter came up when a U.S. Federal Court decided that the Puerto Rico Constitution, that prohibits capital punishment, had no power to deter federal prosecutors from asking for the death penalty in a trail being held in Puerto Rico. The decision was cited as "outside interference" by death penalty opponents and politicians of separatist bent.

Announced June 26th was another Supreme Court "blockbuster" decision striking down the nation’s sodomy laws by a 6-3 vote. In the case, dubbed "Lawrence and Garner v. Texas," the named petitioners were apprehended by Houston law officers while engaged in a homosexual act. The police had entered the house to enforce a different law but arrested the men under a state law prohibiting "deviate sexual intercourse with another of the same sex." The men appealed their conviction and the High Court heard arguments for and against a law that has been on the Texas books for over a century.

Gay rights groups had long targeted the sodomy laws still existing in thirteen states and Puerto Rico as "discriminatory." They are jubilant that the court agreed with their contention that individuals should be accorded privacy in their own homes. Unhappy with the decision are those that argued that a state has an obligation to regulate "immoral" behavior, such as sodomy, prostitution and gambling. Their position is that private acts can also affect the welfare of the whole society and should be regulated.

This issue has been hot in Puerto Rico over the past months as the legislature undertook the formulation of a new criminal code for the island. The same arguments were aired in the press from roughly the same groups as the House and Senate considered the elimination of a provision of the present code, criminalizing sexual relations between people of the same sex or heterosexual relations other than vaginal intercourse. The Senate version of the new code passed on Wednesday without a sodomy restriction but the House has yet to take up the bill.

But now that the Supreme Court has spoken on the matter, it is clear that the new criminal code of Puerto Rico will contain no law prohibiting sexual practices within the privacy of one’s home. The "Lawrence and Garner v. Texas" decision also negates Puerto Rico’s current statute regulating adult private consensual sexual conduct, as well as those currently codified in other states.

The Supreme Court’s decisions are the benchmark against which the constitutionality of all U.S. law is measured. No matter how controversial or disruptive of cultural norms their decisions may be, the Court’s current, past and future pronouncements are binding upon Puerto Rico. The Government of Puerto Rico, as well as the governments of the fifty states and various territories, are bound to conform to the findings of the "highest court in the land," the Supreme Court of the United States of America.

Who do you think should determine the validity and applicability of laws in Puerto Rico, the U.S. Supreme Court or the Courts of Puerto Rico? Please vote above.

This Week's Question:
Who should determine the validity and applicability of laws in Puerto Rico?

US . Residents
. PR
Puerto Rico Courts 51%
61% The U.S. Supreme Court 46%
3% No opinion. 3%


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