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Same-sex marriage is not currently performed inAmerican Samoa, though same-sex marriages from other jurisdictions are recognized. On June 26, 2015, theU.S. Supreme Court ruled inObergefell v. Hodges that theFourteenth Amendment of theU.S. Constitution guarantees same-sex couples the right to marry. The ruling legalized same-sex marriage nationwide in theUnited States; however, it is uncertain how the ruling applies to American Samoa as the territory isunincorporated and unorganized. In July 2015,GovernorLolo Matalasi Moliga said he believed that the Supreme Court's ruling does not apply to American Samoa.
In 2022, theUnited States Congress passed theRespect for Marriage Act requiring all U.S. states and territories, including American Samoa, to recognize same-sex marriages performed in other jurisdictions.
The American Samoa Code does not specify the sex of the parties to amarriage, 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 theAmerican Samoa Fono to bansame-sex marriage. The measure was proposed a few years after the federalDefense of Marriage Act (DOMA;Samoan:Tulāfono o le Puipuiga o Faʻaipoipoga) was passed by theUnited States Congress and signed into law by PresidentBill Clinton.[2] Schuster said he hoped to establish the territory's position clearly in order to avoid lawsuits like those in the mainlandUnited States. Many supporters of the bill cited theirChristian faith as their reason for supporting the proposal. TheSenate defeated the measure in March 2003 when it opted to table the bill without taking any action, following testimony fromAttorney GeneralFiti A. Sunia that "if it's not broken, don't fix it."[3][4]
While there are no records of same-sex marriages being performed in Samoan culture in the way they are commonly defined inWestern legal systems, local communities recognize identities and relationships that may be placed on the LGBT spectrum. Samoan culture recognizes people who occupy athird gender role in society. They are known asfaʻafafine (Samoan pronunciation:[faʔafaˈfine]) and are considered an integral part of society.[5] Thefaʻafafine 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 asfaʻafafine, but historically if they wished to marry and have children they would marry women, all while continuing their "duties [...] and performing women's work". Thefaʻafafine status thus created the possibility for marriages between two female-presenting individuals to be performed in Samoan culture.[6] Today, manyfaʻafafine have male partners.[7]
It is uncertain how theU.S. Supreme Court's ruling inObergefell v. Hodges applies to American Samoa as the territory isunorganized and unincorporated and its citizens areU.S. nationals by birth and not citizens.[8] In July 2015, Attorney GeneralEleasalo Ale said that his office was "reviewing the decision to determine its applicability to American Samoa".[9][10] A week later,GovernorLolo 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 theAssemblies of God, theCatholic Church, andthe Church of Jesus Christ of Latter-day Saints.[11] Howard Hills, writing for theSamoa 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 theUniversity 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 ofLambda 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 theUniversity 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 called on any same-sex couple who has been denied amarriage license to contact them or theAmerican Civil Liberties Union, theGLBTQ Legal Advocates & Defenders or theNational Center for Lesbian Rights immediately for assistance.[12][15]
In January 2016, Fiti Sunia was confirmed unanimously by theAmerican Samoa Senate as the newdistrict court judge. Asked aboutObergefell 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 same-sex weddings in his new assignment unless the marriagestatutes were changed.[16]
In a 2022 essay, Chancellor's Professor of Law Christopher Leslie of theUniversity 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 extendObergefell to American Samoa, local leaders could acquiesce toObergefell, 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 inHawaii or in theDistrict of Columbia. In addition, Leslie wrote, "The territory remains under the authority and supervision of theU.S. Department of the Interior, and, thus, it is unclear against whom same-sex couples hoping to enforceObergefell 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—theInsular 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 recognizedfaʻafafine, who are members of American Samoa's traditional third gender. [...] The refusal to recognizeObergefell effectively blocksfaʻafafine from marrying their male partners even though they would not be considered same-sex couples in traditional Polynesian culture because male andfaʻafafine 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.
Under theRespect for Marriage Act (RFMA;Samoan:Tulāfono o le Faʻaaloalo mō Faʻaipoipoga) passed by theUnited States Congress in December 2022 and signed into law by PresidentJoe Biden on December 13, 2022, all territories, including American Samoa, are required to recognize same-sex marriages performed legally in other jurisdictions. 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 becauseObergefell did not breach that territory's shores. [...] The RFMA brings a form of marriage equality to American Samoa for the first time."[7]
Noopinion polls have gauged public support for same-sex marriage in American Samoa. TheSamoa 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]
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.
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