Same-sex marriage in American Samoa

Last updated

Same-sex marriage is not currently performed in American Samoa, though same-sex marriages from other jurisdictions are recognized. On June 26, 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges that the Fourteenth Amendment of the U.S. Constitution guarantees same-sex couples the right to marry. The ruling legalized same-sex marriage nationwide in the United States; however, it is uncertain how the ruling applies to American Samoa as the territory is unincorporated and unorganized. In July 2015, Governor Lolo Matalasi Moliga said he believed that the Supreme Court's ruling does not apply to American Samoa.

Contents

In 2022, the United States Congress passed the Respect for Marriage Act , requiring all U.S. states and territories, including American Samoa, to recognize same-sex marriages performed in other jurisdictions.

Background

The American Samoa Code does not specify the sex of the parties to a marriage, but refers to the age of "the male" and "the female". It prescribes the use of a form in which the parties identify the parents to whom they are related as "son" or "daughter". [1]

In 2003, Representative Sua Carl Schuster introduced legislation to the American Samoa Fono to ban same-sex marriage. The measure was proposed a few years after the federal Defense of Marriage Act (DOMA; Samoan : Tulafono o le Puipuiga o Faaipoipoga) was passed by the United States Congress and signed into law by President Bill Clinton. [2] Schuster said he hoped to establish the territory's position clearly in order to avoid lawsuits like those in the mainland United States. Many supporters of the bill cited their Christian faith as their reason for supporting his proposal. The Senate defeated the measure in March 2003 when it opted to table the bill without taking any action, following testimony from Attorney General Fiti A. Sunia that "if it's not broken, don't fix it." [3] [4]

Samoan culture recognizes people who occupy a third gender role in society. They are known as faʻafafine (Samoan pronunciation: [faʔafaˈfine] ) and are considered an integral part of Samoan society. [5] The faʻafafine are raised as girls from early childhood, wear women's clothing, and carry out women's work in the home and the community. Faʻafafine have sexual relationships exclusively with men who do not identify as faʻafafine, but historically if they wished to marry and have children they would marry women, all while continuing their "duties [...] and performing women's work". The faʻafafine status thus created the possibility for marriages between two female-presenting individuals to be performed in Samoan culture. [6] Today, many faʻafafine have male partners. [7]

Obergefell v. Hodges

Recognition of same-sex relationships in Oceania .mw-parser-output .legend{page-break-inside:avoid;break-inside:avoid-column}.mw-parser-output .legend-color{display:inline-block;min-width:1.25em;height:1.25em;line-height:1.25;margin:1px 0;text-align:center;border:1px solid black;background-color:transparent;color:black}.mw-parser-output .legend-text{} Marriage Marriages performed elsewhere are recognized (American Samoa) No recognition of same-sex couples Constitution limits marriage to opposite-sex couples (Palau, Tuvalu) Same-sex sexual activity illegal, but ban not enforced Same-sex sexual activity illegal (Country names will appear with mouse-overs when map is viewed at full size. Encircling lines are the exclusive economic zones of each state.) v t e Same-sex marriage map Oceania.svg
Recognition of same-sex relationships in Oceania
  Marriage
  Marriages performed elsewhere are recognized (American Samoa)
  No recognition of same-sex couples
  Constitution limits marriage to opposite-sex couples (Palau, Tuvalu)
  Same-sex sexual activity illegal, but ban not enforced
  Same-sex sexual activity illegal
(Country names will appear with mouse-overs when map is viewed at full size. Encircling lines are the exclusive economic zones of each state.)

It is uncertain how the U.S. Supreme Court's ruling in Obergefell v. Hodges applies to American Samoa as the territory is unorganized and unincorporated and its citizens are U.S. nationals by birth and not citizens. [8] In July 2015, Attorney General Eleasalo Ale said that his office was "reviewing the decision to determine its applicability to American Samoa". [9] [10] A week later, Governor Lolo Matalasi Moliga said he believed that the Supreme Court's ruling does not apply to American Samoa. He said, "My personal opinion is, this ruling will not apply to our preamble, our constitution and our Christian values. Also, our political status is still unorganized and unincorporated, so the Supreme Court ruling does not apply to our territory." His stance was backed by the Assemblies of God, the Catholic Church, and the Church of Jesus Christ of Latter-day Saints. [11]

Howard Hills, writing for the Samoa News , noted that "[t]he U.S. Supreme Court long has held the U.S. Constitution does not apply by its own force in 'unincorporated' territories like American Samoa. This leaves exactly which 'fundamental rights' are applicable in not yet incorporated territories undefined, until determined by Congress and the courts on a case-by-case basis." [12] Professor Rose Cuison Villazor at the University of California, Davis School of Law said that the court ruling "should not be questioned" in American Samoa, and that "the Supreme Court's decision was pretty strong. ... I would think there are cultural barriers to begin with. The AG might present some other legal and social barriers, too." Omar Gonzales-Pagan of Lambda Legal argued that the territories are required to comply due to the supremacy of federal law, and that same-sex marriage "... is a question of individual right, individual liberty." Chimene Keitner, an expert on territorial issues at the University of California, Hastings College of the Law, said that for same-sex marriage to be recognized in American Samoa, there needs to be a voluntary decision or litigation. Litigation would require "plaintiffs who have been denied the right to marry and are willing to take a public position on that and challenge their inability to marry. Plaintiffs could also be those who were married elsewhere and want the marriage recognized in American Samoa." [13] [14] Lambda Legal has asked any American Samoan same-sex couple who has been denied a marriage license to contact them or the American Civil Liberties Union, the GLBTQ Legal Advocates & Defenders, or the National Center for Lesbian Rights immediately for assistance. [12] [15]

In January 2016, Fiti Sunia was confirmed unanimously by the American Samoa Senate as the new district court judge. Asked about Obergefell during his confirmation hearing, he responded that he had not read the decision and that same-sex marriage fell outside the jurisdiction of the district court. He also said that he would not perform weddings for same-sex couples in his new assignment unless the local marriage statutes were changed. [16]

In a 2022 essay, Chancellor's Professor of Law Christopher Leslie of the University of California, Irvine School of Law wrote of three theoretical routes for the legalization of same-sex marriage in American Samoa: the U.S. Congress could extend Obergefell to American Samoa, local leaders could acquiesce to Obergefell, or a local same-sex couple could file suit in federal court. However, American Samoa lacks a federal district court, and as a result such a lawsuit would likely be heard in Hawaii or in the District of Columbia. In addition, Leslie wrote, "The territory remains under the authority and supervision of the U.S. Department of the Interior, and, thus, it is unclear against whom same-sex couples hoping to enforce Obergefell in American Samoa would file suit. [...] [I]f the federal judge in Hawaii determines that the Secretary of the Interior is the proper respondent, an American Samoan couple seeking a marriage license could be forced to litigate 7,000 miles away in Washington, D.C. No other couple seeking marriage rights must bear such an extraordinary burden. Assuming that they can make it into the proper federal court, the couple then faces another unique legal problem—the Insular Cases." [7] [17] Leslie further wrote:

The hostility to marriage equality in American Samoa is painfully ironic, as its Polynesian culture has historically welcomed and embraced gender diversity. For centuries, Samoan society has recognized faʻafafine, who are members of American Samoa's traditional third gender. [...] The refusal to recognize Obergefell effectively blocks faʻafafine from marrying their male partners even though they would not be considered same-sex couples in traditional Polynesian culture because male and faʻafafine are different genders. [...] The denial of marriage rights inflicts significant harms and hardships upon same-sex couples and male-faʻafafine couples in American Samoa. Couples denied marriage rights may endure higher taxes, reduced access to healthcare, and more complicated and expensive legal planning. They also experience dignitary harms by being denied basic rights that others enjoy freely. [...] Marriage is more than just a bundle of rights; it is dignity, respect, and belonging. All these benefits and virtues are denied to same-sex and male-faʻafafine couples in American Samoa.

Respect for Marriage Act

Under the Respect for Marriage Act (RFMA) passed by the United States Congress in December 2022 and signed into law by President Joe Biden on December 13, 2022, all territories, including American Samoa, are required to recognize same-sex marriages performed legally in another jurisdiction. The law requires that same-sex and opposite-sex couples be treated equally. [18] [19] [20] Christopher Leslie wrote in 2022 that "the RFMA is critically important in American Samoa precisely because Obergefell did not breach that territory's shores. [...] The RFMA brings a form of marriage equality to American Samoa for the first time." [7]

Public opinion

No opinion polls have gauged public support for same-sex marriage in American Samoa. The Samoa News reported in 2015 that the local LGBT community had welcomed the Supreme Court ruling. However, "they did not support it being done [performed] in the territory" according to the newspaper. A woman was reported as saying that she and her partner were going to get married off-island in the U.S. due to cultural sensitivity. [4]

See also

Related Research Articles

<span class="mw-page-title-main">Same-sex marriage in the United States</span>

The availability of legally recognized same-sex marriage in the United States expanded from one state (Massachusetts) in 2004 to all fifty states in 2015 through various court rulings, state legislation, and direct popular votes. States each have separate marriage laws, which must adhere to rulings by the Supreme Court of the United States that recognize marriage as a fundamental right guaranteed by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, as first established in the 1967 landmark civil rights case of Loving v. Virginia.

Same-sex unions in the United States are available in various forms in all states and territories, except American Samoa. All states have legal same-sex marriage, while others have the options of civil unions, domestic partnerships, or reciprocal beneficiary relationships. The federal government only recognizes marriage and no other legal union for same-sex couples.

Same-sex marriage has been legally recognized in Nevada since October 9, 2014, when a federal district court judge issued an injunction against enforcement of Nevada's same-sex marriage ban, acting on order from the Ninth Circuit Court of Appeals. A unanimous three-judge panel of the Ninth Circuit had ruled two days earlier that the state's ban on same-sex marriage was unconstitutional. Same-sex marriage was previously banned by an amendment to the Constitution of Nevada, which was approved by voters in 2002. The statutory ban on same-sex marriages was repealed by the Nevada Legislature in 2017, and the constitutional ban was repealed by voters in 2020 by 62–38 percent.

Same-sex marriage has been recognized in Montana since a federal district court ruled the state's ban on same-sex marriage unconstitutional on November 19, 2014. Montana had previously denied marriage rights to same-sex couples by statute since 1997 and in its State Constitution since 2004. The state appealed the ruling to the Ninth Circuit Court of Appeals, but before that court could hear the case, the U.S. Supreme Court struck down all same-sex marriage bans in the country in Obergefell v. Hodges, mooting any remaining appeals.

Same-sex marriage has been legal in Louisiana since the U.S. Supreme Court's ruling in Obergefell v. Hodges on June 26, 2015. The court held that the denial of marriage rights to same-sex couples is unconstitutional, invalidating Louisiana's ban on same-sex marriage. The ruling clarified conflicting court rulings on whether state officials are obligated to license same-sex marriages. Governor Bobby Jindal confirmed on June 28 that Louisiana would comply with the ruling once the Fifth Circuit Court of Appeals reversed its decision in a Louisiana case, which the Fifth Circuit did on July 1. Jindal then said the state would not comply with the ruling until the U.S. District Court for the Eastern District of Louisiana reversed its judgment, which it did on July 2. All parishes now issue marriage licenses in accordance with federal law.

Same-sex marriage has been legal in Ohio since the U.S. Supreme Court's ruling in Obergefell v. Hodges, a landmark decision in which the court struck down the state's statutory and constitutional bans on same-sex marriage on June 26, 2015. The case was named after plaintiff Jim Obergefell, who sued the state of Ohio after officials refused to recognize his marriage on the death certificate of his husband. The first same-sex marriages in Ohio were performed shortly after the Supreme Court released its ruling, as local officials implemented the order.

<span class="mw-page-title-main">LGBTQ rights in American Samoa</span>

Lesbian, gay, bisexual, transgender (LGBT) people in American Samoa face legal challenges not experienced by non-LGBTQ residents. Same-sex sexual activity became legal in the territory in 1980, but same-sex couples may not marry. Same-sex couples married legally in other jurisdictions are recognized and must be treated equally under US federal law since 13 December 2022. American Samoa remains the only part of the United States along with select Native American tribal jurisdictions to enforce a ban on same-sex couples marrying.

<span class="mw-page-title-main">Respect for Marriage Act</span> 2022 U.S. federal law

The Respect for Marriage Act is a landmark United States federal law passed by the 117th United States Congress in 2022 and signed into law by President Joe Biden. It repeals the Defense of Marriage Act (DOMA), requires the U.S. federal government and all U.S. states and territories to recognize the validity of same-sex and interracial civil marriages in the United States, and protects religious liberty. Its first version in 2009 was supported by former Republican U.S. Representative Bob Barr, the original sponsor of DOMA, and former President Bill Clinton, who signed DOMA in 1996. Iterations of the proposal were put forth in the 111th, 112th, 113th, 114th, and 117th Congresses.

Same-sex marriage became legal in Kansas following the U.S. Supreme Court's decision in Obergefell v. Hodges on June 26, 2015, which found the denial of marriage rights to same-sex couples unconstitutional. By June 30, all 31 judicial districts and all 105 Kansas counties were issuing marriage licenses to same-sex couples or had agreed to do so. Kansas state agencies initially delayed recognition of same-sex marriages for purposes including but not limited to changing names, ascribing health benefits and filing joint tax returns, but began doing so on July 6.

Same-sex marriage has been legal in Tennessee since the U.S. Supreme Court's ruling in Obergefell v. Hodges on June 26, 2015. Governor Bill Haslam quickly announced that the state would abide by the court's decision, and same-sex couples began to marry in Tennessee. Previously, Tennessee had banned same-sex marriage both by statute and its State Constitution.

Same-sex marriage has been legal in Kentucky since the U.S. Supreme Court's ruling in Obergefell v. Hodges on June 26, 2015. The decision, which struck down Kentucky's statutory and constitutional bans on same-sex marriages, was handed down on June 26, 2015, and Governor Steve Beshear and Attorney General Jack Conway announced almost immediately that the court's order would be implemented.

Tanco v. Haslam was the lead case in the dispute of same-sex marriage in Tennessee. A U.S. District Court granted a preliminary injunction requiring the state to recognize the marriages of the plaintiffs, three same-sex couples. The court found the equal protection analysis used in Bourke v. Beshear, a case dealing with a comparable Kentucky statute "especially persuasive." On April 25, 2014, that injunction was stayed by the Sixth Circuit Court of Appeals. Tanco was appealed to the Sixth Circuit, which reversed the district court and upheld Tennessee's refusal to recognize same-sex marriages from other jurisdictions on November 6.

Same-sex marriage has been legal in Mississippi since June 26, 2015. On November 25, 2014, U.S. District Court Judge Carlton W. Reeves of the U.S. District Court for the Southern District of Mississippi ruled that Mississippi's ban on same-sex marriage was unconstitutional. Enforcement of his ruling was stayed pending appeal to the Fifth Circuit Court of Appeals. On June 26, 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges that the denial of marriage rights to same-sex couples violates the U.S. Constitution. On June 29, Attorney General Jim Hood ordered clerks to comply with the court ruling and issue marriage licenses to same-sex couples. The Fifth Circuit lifted its stay on July 1, and Judge Reeves ordered an end to Mississippi's enforcement of its same-sex marriage ban. However, until July 2, 2015, several counties in Mississippi continued to refuse to issue marriage licenses, including DeSoto, Jasper, Jones, Newton, Pontotoc, Simpson and Yalobusha.

<span class="mw-page-title-main">LGBTQ rights in the United States Virgin Islands</span>

In the U.S. Virgin Islands, Lesbian, gay, bisexual, and transgender (LGBT) rights have evolved substantially in recent years. Same-sex sexual activity has been legal since 1985. The region also provides explicit legal protections against discrimination for LGBTQ residents since December 2022. Following the Supreme Court's ruling in Obergefell v. Hodges on June 26, 2015, which found the denial of marriage rights to same-sex couples unconstitutional, same-sex marriage became legal in the islands.

Same-sex marriage has been legal in Puerto Rico since July 13, 2015, as a result of the U.S. Supreme Court's decision in Obergefell v. Hodges. On June 26, 2015, the court ruled that bans on same-sex marriage are unconstitutional under the Due Process and Equal Protection clauses of the United States Constitution. Same-sex couples could begin applying for marriage licenses on July 13, and the first marriages occurred on July 17, 2015.

Same-sex marriage has been legal in the United States Virgin Islands since July 9, 2015, as a result of the U.S. Supreme Court's decision in Obergefell v. Hodges. On June 26, 2015, the Supreme Court ruled that same-sex couples have a constitutional right to marry under the Equal Protection and Due Process clauses of the Fourteenth Amendment, legalizing same-sex marriage in the U.S. Virgin Islands.

Obergefell v. Hodges, 576 U.S. 644 (2015), was a landmark decision of the Supreme Court of the United States which ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment of the Constitution. The 5–4 ruling requires all 50 states, the District of Columbia, and the Insular Areas to perform and recognize the marriages of same-sex couples on the same terms and conditions as the marriages of opposite-sex couples, with equal rights and responsibilities. Prior to Obergefell, same-sex marriage had already been established by statute, court ruling, or voter initiative in 36 states, the District of Columbia, and Guam.

Same-sex marriage has been legal in the U.S. state of Georgia since the U.S. Supreme Court's ruling in Obergefell v. Hodges on June 26, 2015. Attorney General Sam Olens announced that Georgia would "adhere to the ruling of the Court", and the first couple married just one hour after the ruling was handed down. Previously, Georgia had banned same-sex marriage both by statute and its State Constitution.

<span class="mw-page-title-main">Recognition of same-sex unions in Oceania</span>

Debate has occurred throughout Oceania over proposals to legalize same-sex marriage as well as civil unions.

<span class="mw-page-title-main">Jim Obergefell</span> American civil rights activist (born 1966)

James Obergefell is an American civil rights activist who was the lead plaintiff in the 2015 U.S. Supreme Court case Obergefell v. Hodges, which legalized same-sex marriage throughout the United States. Obergefell had sued the state of Ohio in 2013, due to the state's lack of legal recognition of Obergefell's marriage to his husband, John Arthur (1967–2013). Obergefell was the Democratic nominee for the 89th legislative district of the Ohio House of Representatives in the 2022 elections.

References

  1. ↑ "American Samoa Code Annotated, Title 42, Chapter 01 - Marriage". American Samoa Bar Association. Archived from the original on March 22, 2019. Retrieved November 5, 2014.
  2. ↑ "Lesbian ma Gay Rights 101". EFerrit (in Samoan).
  3. ↑ "American Samoa Senate rejects bill outlawing same sex marriages". Radio New Zealand International . March 20, 2003. Retrieved November 4, 2014.
  4. 1 2 "Columbia Law School civil rights attorney responds to question of gay marriage in the Territory". Samoa News. 7 July 2015.
  5. ↑ "Tusi I Le Faatonu". Samoa News (in Samoan). 29 June 2013.
  6. ↑ Farran, Sue (June 2004). "Transsexuals, Faʻafafine, Fakaleiti and Marriage Law: in the Pacific: Considerations for the Future". The Journal of the Polynesian Society. 113.
  7. 1 2 3 Leslie, Christopher R. (2022). The America Without Marriage Equality: Faʻafafine, The Insular Cases, And Marriage Inequality In American Samoa (PDF) (Thesis). Vol. 122. University of California, Irvine School of Law.
  8. ↑ Gonzales-Pagan, Omar. "No Same-Sex Couple Left Behind: SCOTUS Ruling for the Freedom to Marry Would Apply with Equal Force to U.S. Territories". Lambda Legal. Retrieved July 1, 2015.
  9. ↑ "American Samoa is lone US territory questioning gay marriage validity; no licenses sought". U.S. News & World Report. July 10, 2015. Archived from the original on July 11, 2015. Retrieved July 10, 2015.
  10. ↑ "Same-sex marriage: American Samoa may be the only territory in the US where the historic Supreme Court ruling does not apply". The Independent. July 10, 2015. Retrieved July 10, 2015.
  11. ↑ "Am. Samoa Governor: Same-Sex Marriage Against Values, Law". Pacific Islands Report. July 14, 2015.
  12. 1 2 "Gay marriage in the United States, The Territory of American Samoa". Religious Tolerance.
  13. ↑ "American Samoa questions gay marriage validity in territory". The Seattle Times. 10 July 2015.
  14. ↑ "Is Same Sex Marriage Upheld by Supreme Court Another "Fundamental Right" Inapplicable in U.S. Territories?". Puerto Rico Report. August 25, 2015.
  15. ↑ "American Samoa". www.marriageequality.org.
  16. ↑ "American Samoa judge objects to same sex marriage". Radio New Zealand . January 20, 2016.
  17. ↑ Fa’asau, Asi Andrew (2 July 2024). "Survey conducted on-island focuses on local same sex marriage ban". Samoa News. Pago Pago.
  18. ↑ "Respect for Marriage Act" (PDF). United States Congress. Retrieved December 3, 2022.
  19. ↑ Salerno, Rob (November 18, 2022). "U.S. Senate to hold final vote on Respect for Marriage Act on Nov. 28, helping protect same-sex couples". Xtra magazine.
  20. ↑ Salerno, Rob (December 20, 2022). "The 10 biggest surprises in the fight for marriage equality in 2022". Xtra magazine.

Leslie, Christopher R. (2022). The America Without Marriage Equality: Faʻafafine, The Insular Cases, And Marriage Inequality In American Samoa (PDF) (Thesis). Vol. 122. University of California, Irvine School of Law.

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.