Journal Article

THE AMERICA WITHOUT MARRIAGE EQUALITY

Leslie, Christopher R.

2022

Overview

American Samoa is the only U.S. jurisdiction that does not recognize gender-neutral marriage despite the Supreme Court’s Obergefell decision invalidating laws that limit marriage to male–female couples. Among U.S. territories, American Samoa has five unique features: It is the only territory that the United States acquired through negotiation with ruling sovereigns, whose land is largely communally owned, whose residents lack birthright citizenship, that remains under control of the Secretary of the Interior, and that lacks a federal court. This Essay explains how these characteristics have combined to thwart marriage equality in American Samoa. American Samoa’s denial of marriage equality is surprising because for centuries Samoan culture has respected third-gender individuals, called fa‘afafine. Despite this heritage and the Obergefell opinion recognizing the constitutional right to gender-neutral marriage, American Samoa does not allow fa‘afafine to marry their male partners. After documenting the centuries-old Polynesian tradition of respecting third-gender individuals, this Essay shows how current leaders in American Samoa are using suspect precedent to prohibit marriage equality for the fa‘afafine. In a series of racist opinions from 1901, known as the Insular Cases, the Supreme Court held that the U.S. Constitution does not apply to U.S. territories because their residents cannot be entrusted with rights and self-governance. Although all other U.S. territories acceded to Obergefell, American Samoa’s politicians have relied on Insular logic to block marriage equality from reaching America’s most distant territory. This Essay explains the inherent unfairness of allowing the anachronistic Insular Cases to prevent fa‘afafine from having marriage rights today.

• Publisher: Columbia Law Review Association, Inc
• Subject: ESSAY