Same-sex marriage in American Samoa

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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 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" and as "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) by 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 House Judiciary Committee voted against it and then the full Senate did as well. [3]

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. 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 if they wish to marry and have children they will marry women. The faʻafafine status thus creates the possibility for marriages between two female-presenting individuals to be performed in Samoan culture. [4]

Obergefell v. Hodges

[[File:Same-sex marriage map Oceania.svg|thumb|300px|right|1.5|Recognition of same-sex relationships in Oceania {{legend-shell|lang=en|title=Laws regarding same-sex sexuality in Oceania|

  Marriage
  Recognition of marriages performed elsewhere in the country (American Samoa)
  No recognition of same-sex couples
  Constitution limits marriage to opposite-sex couples (Palau)
  Same-sex sexual activity illegal
  Same-sex sexual activity illegal, but ban not enforced

(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. [5] In July 2015, Attorney General Eleasalo Ale said that his office was "reviewing the decision to determine its applicability to American Samoa". [6] [7] 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. [8]

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." [9] 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." [10] [11] 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. [9] [12]

In January 2016, Fiti A. Sunia was confirmed unanimously by the American Samoa Senate as the new district court judge. During his confirmation hearing, Sunia was asked about Obergefell. 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. [13]

Respect for Marriage Act

Under the Respect for Marriage Act 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. [14] [15] [16]

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 Wyoming since October 21, 2014. The U.S. state of Wyoming had previously prohibited state recognition of same-sex marriages by statute since 1977 and had enacted a more explicit ban in 2003. An attempt to enact legislation recognizing domestic partnerships as an alternative to marriage for same-sex couples failed in 2013. On October 17, 2014, a federal district court found the state's ban on same-sex marriage unconstitutional. Its ruling took effect on October 21 when state officials notified the court that they would not appeal the decision.

Same-sex marriage has been legal in Michigan since the U.S. Supreme Court's ruling in Obergefell v. Hodges on June 26, 2015. The U.S. state of Michigan had previously banned the recognition of same-sex unions in any form after a popular vote added an amendment to the Constitution of Michigan in 2004. A statute enacted in 1996 also banned both the licensing of same-sex marriages and the recognition of same-sex marriages from other jurisdictions.

Same-sex marriage has been legal in Guam since June 9, 2015 in accordance with a ruling from the District Court of Guam on June 5 that the territory's prohibition of same-sex marriage was unconstitutional. Guam was the first territory of the United States to recognize same-sex marriage. On August 27, 2015, the Guam Marriage Equality Act of 2015 passed by the Guam Legislature came into effect, officially incorporating the federal court ruling into statutory law.

Same-sex marriage has been legal in South Carolina since a federal court order took effect on November 20, 2014. Another court ruling on November 18 had ordered the state to recognize same-sex marriages from other jurisdictions. Following the 2014 ruling of the Fourth Circuit Court of Appeals in Bostic v. Schaefer, which found Virginia's ban on same-sex marriage unconstitutional and set precedent on every state in the circuit, one judge accepted marriage license applications from same-sex couples until the South Carolina Supreme Court, in response to a request by the Attorney General, ordered him to stop. A federal district court ruled South Carolina's ban on same-sex marriage unconstitutional on November 12, with implementation of that decision stayed until noon on November 20. The first same-sex wedding ceremony was held on November 19.

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. Same-sex marriages were performed in Ohio beginning shortly after the Supreme Court released its ruling, as local officials implemented the order.

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

Lesbian, gay, bisexual, transgender (LGBT) people in American Samoa face legal challenges not experienced by non-LGBT 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 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 has been legal in South Dakota since June 26, 2015 when the U.S. Supreme Court ruled in Obergefell v. Hodges that the U.S. Constitution guarantees same-sex couples the right to marry. Attorney General Marty Jackley issued a statement critical of the ruling but said South Dakota is obligated to comply and the state would recognize same-sex marriages.

Same-sex marriage has been legal in Texas since the U.S. Supreme Court's ruling in Obergefell v. Hodges on June 26, 2015. Previously, the U.S. state of Texas had banned same-sex marriage both by statute since 1973 and in its State Constitution since 2005. On February 26, 2014, Judge Orlando Luis Garcia of the U.S. District Court for the Western District of Texas found that Texas's ban on same-sex marriages was unconstitutional. On April 22, 2014, a state court came to the same conclusion. Both cases were appealed. The district court's decision was appealed to the Fifth Circuit Court of Appeals, but before that court could issue a ruling, the U.S. Supreme Court struck down all same-sex marriage bans in the United States in Obergefell on June 26, 2015. Within a few months of the court ruling, all counties had started issuing marriage licenses to same-sex couples, except for Irion County, which announced in 2020 that it would begin issuing licenses to same-sex couples, making it the last county in the United States to comply with the ruling.

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.

Same-sex marriage has been legal in Missouri since the U.S. Supreme Court's landmark ruling in Obergefell v. Hodges, which struck down state bans on marriages between two people of the same sex on June 26, 2015. Prior to the court ruling, the state recognized same-sex marriages from other jurisdictions pursuant to a state court ruling in October 2014, and certain jurisdictions of the state performed same-sex marriage despite a statewide ban.

Same-sex marriage was legalized in the Northern Mariana Islands by the U.S. Supreme Court's landmark ruling in Obergefell v. Hodges on June 26, 2015, which struck down same-sex marriage bans nationwide. On June 29, Governor Eloy Inos issued a statement hailing the decision as "historic", and said he would work with the Attorney General and local officials to bring the U.S. territory into compliance. Attorney General Edward Manibusan issued a memorandum on June 30 confirming that the territory was bound by the court decision and said that marriage license forms would be changed to include same-sex couples.

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. On June 30, Governor Kenneth Mapp said the territorial government would comply with the ruling, and on July 9 he signed an executive order that requires the government to extend marriage rights to same-sex couples. The first marriage licenses were granted on July 21, 2015, after the first same-sex couples to apply for licenses did so on July 13, beginning the 8-day waiting period between applying for and receiving marriage licenses.

Obergefell v. Hodges, 576 U.S. 644 (2015), is 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 fifty 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 all the accompanying rights and responsibilities. Prior to Obergefell, same-sex marriage had already been established by statute, court ruling, or voter initiative in thirty-six states, the District of Columbia, and Guam.

Same-sex marriage has been legal in 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>

[[File:Same-sex marriage map Oceania.svg|thumb|300px||1.5|Recognition of same-sex relationships in Oceania {{legend-shell|lang=en|title=Laws regarding same-sex sexuality in Oceania|

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. ↑ Farran, Sue (June 2004). "Transsexuals, Faʻafafine, Fakaleiti and Marriage Law: in the Pacific: Considerations for the Future". The Journal of the Polynesian Society. 113.
  5. ↑ 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.
  6. ↑ "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.
  7. ↑ "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.
  8. ↑ "Am. Samoa Governor: Same-Sex Marriage Against Values, Law". Pacific Islands Report. July 14, 2015.
  9. 1 2 "Gay marriage in the United States, The Territory of American Samoa". Religious Tolerance.
  10. ↑ "American Samoa questions gay marriage validity in territory". The Seattle Times. 10 July 2015.
  11. ↑ "Is Same Sex Marriage Upheld by Supreme Court Another "Fundamental Right" Inapplicable in U.S. Territories?". Puerto Rico Report. August 25, 2015.
  12. ↑ "American Samoa". www.marriageequality.org.
  13. ↑ "American Samoa judge objects to same sex marriage". Radio New Zealand. January 20, 2016.
  14. ↑ "Respect for Marriage Act" (PDF). United States Congress. Retrieved December 3, 2022.
  15. ↑ 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.
  16. ↑ Salerno, Rob (December 20, 2022). "The 10 biggest surprises in the fight for marriage equality in 2022". Xtra magazine.
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