Gay marriage in the United States
The Territory of American Samoa
Map of the Pacific Ocean with American Samoa circled.
2015: Information about the Territory of American Samoa: status, location, motto, population, area, religion:
Along with the United States' 50 states, and the District of Columbia, the U.S> has a number of territories:
- The Commonwealth of Puerto Rico and the U.S. Virgin Islands in the Atlantic Ocean,
- Guam, Northern Mariana Islands, and American Samoa in the Pacific, and
- 16 uninhabited islands.
American Samoa is referred to as an "unincorporated unorganized territory" of the United States. It is located in the South Pacific Ocean, east of Australia, and is south of the equator. It is southeast of the Independent State of Samoa with which American Samoa is often confused. 1 It's location is shown circled in red in the above image. It consists of five main islands and two coral atolls spread over a distance of about 130 miles. The main island, Tutuila, is at the western extreme.
Its motto is "Samoa, Let God be first." 1
American Samoa has an estimated population of 57,345. It has a land area of about 200 sq. km. or 75 square miles. This is slightly larger that the District of Columbia, and has about 6% of the land area of Rhode Island, which is the smallest of the 50 U.S. states.
The faith of the population is close to 100% conservative Christian. The main denominations are the Congregational Christian Church of Samoa, the Roman Catholic Church, The Church of Jesus Christ of Latter-day Saints (the LDS or Mormon church) -- and various smaller evangelical congregations.
2015-JUN-26: The U.S. Supreme Court ruling on gay marriage and resistance in American Samoa:
The federal High Court [a.k.a. SCOTUS] issued its ruling in the case Obergefell v. Hodges. It is a consolidated case involving four lawsuits from four states
gay marriage (a.k.a. same-sex marriage and SSM). Although the case involved only Kentucky, Michigan, Ohio and Tennessee directly, it also affected nine other states and the five territories which still banned gay marriage at the time.
Within a few weeks, among the five U.S. territories, four had attained marriage equality. The only holdout was American Samoa. 2
Talauega Eleasalo Ale, the Attorney General of American Samoa, said:
"We’re still reviewing the [SCOTUS] decision to determine its applicability to American Samoa, and I have no specific comments at this time." 3
Justice Kennedy, who wrote the majority report for SCOTUS, described the right of same-sex couples to marry is a fundamental right of all citizens. Any person born in the other four unincorporated U.S. territories -- Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands -- is automatically recognized to be a citizen with full rights. But things work differently in American Samoa; people born there are considered American nationals, not American citizens -- unless one of their parents happens to be an American citizen.
Howard Hills, writing for the Samoa News, notes that
"The 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." 8
Mitch Kellaway. writing for The Advocate, said:
"Currently, a lawsuit to determine whether American Samoans are actually U.S. citizens — and therefore subject to all U.S. constitutional rulings — is wending its way through a D.C. Circuit Court." 6
On 2015-JUN-05, the court ruled that the 14th amendment does not apply to American Samoa. Thus, islanders remain without a full set of rights, apparently the only Americans who are. 9
Mid-2015: Status of marriage legislation in American Samoa:
The marriage statutes in the territory do not specifically ban marriage by same-sex couples. However, the wording assumes that couples seeking marriage consist of one woman and one man. Title 42 deals with domestic relations. Chapter 01 refers to marriage, and reads:
"42.0101 Requisites of valid marriage.
To enter into a valid marriage contract:
(a) The parties must not be related to each other nearer than the fourth degree of consanguinity.
(b) The male shall be at least 18 years of age and the female at least 14 years of age.
(c) If the female is less than 18 years of age, she must have the consent of one of her parents or her guardian." 4
It appears that only a minor change would be needed to permit same-sex marriage: changing "The male" to "A male" and "the female" to "a female."
2015-JUL-10: Reactions to the Attorney General's resistance:
- Professor Rose Cuison Villazor at the University of California Davis law school, specializes in territorial law. She said:
"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." 5
- Professor Chimene Keitner, at the University of California, Hastings College of the Law is another expert on territorial status issues. She said that to attain marriage equality would probably be:
"... 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." 4
- Omar Gonzalez-Pagan, a staff attorney for the equality group Lambda Legal said that gay marriage:
"... is a question of individual right, individual liberty." 5
- Aron Sasportas, a reader of an article about the American Samoa marriage conflict in Pink News posted:
"... the governor and the attorney general of American Samoa have taken an oath to support and defend the Constitution of the United States, so that from that point of view, the ruling in Obergefell v Hodges is binding on them." 7
2016-JAN: Status of gay marriages:
About seven months have passed since the U.S. Supreme Court's ruling of 2015-JUN-26. The status of marriage equality in the Territory remains unresolved:
- Shortly after the High Court's ruling, the governor had expressed his opinion that the court's decision did not apply in American Samoa.
- However. Attorney General Talauega Eleasalo Ale had not made his opinion public.
- Senator Tuaolo Manaia Fruean believes that the ruling does apply. He based his opinion on research done by Congresswoman Aumua Amata’s Office.
- The former Attorney General, Fiti Alexander Sunia, was appointed as the new District Court Judge following the previous Judge's retirement. Sunia's appointment was unanimously confirmed by the American Samoa Senate recently. During the confirmation hearing, he was asked about the SCOTUS ruling on gay marriage. He responded that he had not read the decision, and that he would not perform such weddings in his new assignment, unless the local marriage laws were first changed. 10,11
It appears that a local lawsuit will have to be raised by one or more same-sex couples before the matter can be decided. Same-sex couples can now marry, subject to age and genetic closeness requirements, throughout the U.S., in all states, the District of Columbia and four territories. Only in some tribal locations on the mainland and in American Samoa are they prohibited from marrying.
One or more same-sex couples could petition the court directly for permission to marry. Alternately they could go to Hawaii, be married there, return home, and launch a court case asking that their marriage be recognized. A same-sex couple who had married elsewhere in the U.S. could come to American Samoa and launch a case.
The total population of American Samoa is about 56,000. The total number of persons who are -- or will become later in life -- gay, lesbian, or bisexual is on the order of 6,000 individuals with the potential of entering into some fraction of 3,000 same-sex marriages.
The territory's marriage law is embedded in the American Samoa Code Annotated. It does not specifically restrict marriage to opposite-sex couples. However, it does refer to the age of "the male" and "the female." The marriage application form requires an engaged couple to identify their parents to whom they are related as a "son" or as a "daughter." 12
During 2003, Representative Sua Carl Schuster introduced a bill to the legislature to specifically ban same-sex marriage. The House Judiciary Committee and the full Senate voted against the bill.
The Marriage Equality USA (MEUSA) web site has suggested that any same-sex couple in American Samoa who wants to be married there apply for a marriage license locally. If they are refused, MEUSA recommends that they contact one of the following four groups, presumably to consider launching a lawsuit to bring marriage equality to the territory:
Lambda Legal has also asked any American Samoan same-sex couple, who has been denied a marriage license, to contact one of the above four groups.
As of 2019-AUG, we have not been able to find any indication that such a lawsuit has been considered.
2018-JAN: American Samoa's government is studying their local marriage laws:
The wedding business in the Pacific is booming, particularly in Samoa and Fiji, as citizens from other countries are flying there to be married. It is a multi-billion dollar market! However, current legislation in American Samoa discourages such activity. A foreigner must have a valid immigration ID and a letter from a local sponsor who approves the marriage in order to purchases a license. Then, there is waiting period before the marriage can be performed. The Visitors Bureau and the Attorney General's Office are working together to simplify procedures so that foreigners will be able to freely exchange vows in the Territory. There was no indication of these policies being extended to include same-sex couples.
2019-AUG: Status of same-sex marriage:
There appears to have been no significant activity on same-sex marriage in the territory since same-sex marriages became legalized in the U.S. by the Supreme Court in mid-2015.
To our knowledge, no local same-sex couples have come forward to attempt to marry or to launch a lawsuit asking to be able to marry. Also, no married same-sex couple has gone to American Samoa and attempted to exercise their marriage rights there.
It remains the only state or territory
in the U.S.
that restricts marriage to opposite-sex couples
2019-NOV: New legal case might cause American Samoa to allow same-sex marriage:
James Barlow, 72, is attempting to reverse a 24 year prison sentence in American Samoa. He was found guilty of engaging in sexual activities with three undeage boys. There are allegations that the prosecution mishandled the case. One charge is that Barlow was imprisoned for over two years while awaiting trial, apparently in violation of the U.S. Constitution’s 6th Amendment guarantee to due process and a speedy trial.
A U.S. District Court in Hawaii recently granted a hearing in the case. Lawyer Bentley Adams III who represents Barlow, said:
"American Samoa doesn’t follow the equal protection clause of the 14th amendment. They believe they can discriminate based on race. Unless you’re full-blooded Samoa, you cannot own land and it cannot be transferred. Job applications denote race and prefer Samoan applicants to those of other ethnicities. It has helped [American Samoa] retain their cultural identity better, unlike Hawaii which lost its land to white settlers.”
Adams believes that this hearing may start a challenge to American Samoas refusal to let same-sex couples marry. He said:
"I would anticipate that lawsuit would take the form of a civil rights action under 42 United States Code, Section 1983 which can be brought in the federal courts initially without the necessity of exhausting local remedies in the local courts there." 14
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- "American Samoa," Wikipedia, 2015-JUL-11, at: https://en.wikipedia.org/
- Mark Joseph Stern, "Obergefell Will Bring Marriage Equality to U.S. Territories. That Wasn’t a Sure Thing. Slate, 2015-JUL-09, at: http://www.slate.com/
- Fili Sagapolutele, "US territory reviews gay marriage ruling," Boston Globe, 2015-JUL-11, at: https://www.bostonglobe.com/
- "Chapter 01 - Marriage," American Samoa Bar Association, 2011, at: http://www.asbar.org/
- Fili Sagapolutele, "American Samoa Questions If Gay Marriage Ruling Applies To Territory," Huffington Post, 2015-JUL-10, at: http://www.huffingtonpost.com/
- Mitch Kellaway, "American Samoa Remains Lone Holdout Over U.S. Marriage Equality," The Advocate, 2015-JUL-10, at: http://www.advocate.com/
- Aron Sasportas, posting to: "American Samoa still won’t allow same-sex marriage," Pink News, 2015-JUL-10, at: http://www.pinknews.co.uk/
- Howard Hills, "Op-Ed: Same Sex Marriage another 'fundamental right' inapplicable in U.S. Territories?,"
Samoan News, 2015-AUG-31, at: http://www.samoanews.com/
- Joshua Keating, "How Come American Samoans Still Don’t Have U.S. Citizenship at Birth?" Slate, 2015-JUN-05, at: http://www.slate.com/
- "American Samoa judge objects to same sex marriage," Radio New Zealand, 2016-JAN-20, at: http://www.radionz.co.nz/
- Fili Sagapolutele, "Do Supreme Court decisions apply here — in particular same-sex marriage," Samoa News, 2016-JAN-23, at: http://www.samoanews.com/
- "LGBT rights in American Samoa," Wikipedia, as on 2018-JUL-02, at https://en.wikipedia.org/
- "American Samoa," Marriage Equality, undated, at: https://www.marriageequality.org/
- Daniel Villarreal,A gay criminal case could help bring marriage equality to American Samoa," Lgbtq Nation, 2019-NOV-27, at: https://www.lgbtqnation.com/
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Copyright © 2015 to 2020 by Ontario Consultants on
Original posting: 2015-JUL-19
Latest update : 2020-MAR-03
Author: B.A. Robinson