Marilyn lives in a house with her closest friends, whom she calls her sisters.
Sharing their hopes, dreams, and dresses, this family of choice is closer than most families. Although some sisters have boyfriends, they lament that their plans for the future cannot include marriage, because they are fa‘afafine, members of American Samoa’s traditional third gender.
They were all born and raised on American soil, and if they lived in any state or any other U.S. territory, they would be able to legally marry whom they please. But Marilyn and her sisters live in American Samoa, the U.S. territory that stands alone in refusing to recognize gender-neutral marriage. This denial of rights inflicts significant harm on male–fa‘afafine couples. In addition to the dignitary harm that these couples experience when the government labels their relationships as unworthy, they face discrimination in healthcare, taxation, estate planning, and everyday life.
Marriage equality unfurled across America in the summer of 2015. In Obergefell v. Hodges,
the Supreme Court struck down the same-sex marriage bans of Kentucky, Michigan, Ohio, and Tennessee, observing that “the Court has long held the right to marry is protected by the Constitution.”
While the opinion immediately brought marriage equality to all fifty states, the Attorney General of American Samoa, Talauega Eleasalo Ale, declined to recognize the decision as binding. Instead, Ale deferred judgment of Obergefell’s “applicability to American Samoa”
—a determination he never made in the next six years before becoming the territory’s Lieutenant Governor in 2021. More transparent in his obstruction, the Governor of American Samoa, Lolo Matalasi Moliga, announced days after the opinion was issued that the Obergefell “ruling will not apply to our preamble, our constitution and our Christian values . . . . [T]he Supreme Court ruling does not apply to our territory.”
The executive branch was not alone in blocking marriage equality in American Samoa. Months later, during his confirmation hearing to become a local judge, the territory’s former Attorney General, Fiti Alexander Sunia, testified that he had not read the Obergefell opinion and would not perform same-sex weddings unless American Samoan law were changed.
The American Samoa Senate then unanimously confirmed his appointment.
This Essay explores why American Samoan leaders believe they can ignore the U.S. Supreme Court. This is a modern problem, but one rooted in America’s history of colonial expansion. The fa‘afafine of American Samoa are denied marriage rights because of a series of Supreme Court opinions from 1901, before the United States acquired the eastern islands of the Samoan archipelago and transformed them into a U.S. territory.
America doesn’t see itself as an empire, but it is.
The modern United States would not exist but for settler colonialism.
Instead of colonies, however, America maintains and controls territories, districts, and possessions.
The year 1898 was momentous in America’s empire building, with the annexation of Hawai‘i through subterfuge
and of Spain’s former colonies of the Philippines, Puerto Rico, and Guam as the spoils of winning the Spanish-American War.
These acquisitions raised the issue of how U.S. law, including the Constitution, would apply to these new possessions.
In the early twentieth century, the Supreme Court issued a slate of opinions known as the Insular Cases.
Though elastic, the label of Insular Cases generally refers to several Supreme Court cases decided in 1901 and their close-following progeny.
None of the Insular Cases arose from legal disputes in American Samoa, but the opinions would nevertheless define and constrain the Constitution’s reach into America’s most faraway territory.
Although U.S. territories are technically part of the United States of America, from a constitutional perspective the lacuna between technicality and reality is vast. The Insular Cases limited and continue to limit constitutional protections for Americans in U.S. territories by holding that “the Constitution is applicable to territories acquired by purchase or conquest, only when and so far as Congress shall so direct.”
In the absence of congressional direction, the Insular Cases framework provides that courts should extend a constitutional right to protect citizens of a U.S. territory only if the right is judged to be “fundamental”—which has a narrow meaning in the Insular context—and if recognizing the right would not be “impracticable and anomalous.”
The Insular Cases prevent current Supreme Court opinions that recognize or expand constitutional rights from automatically applying to U.S. territories, as these opinions do to U.S. states.
The Insular Cases created the illusion of constitutional self-government in America’s far-flung territories even though the residents of these various islands were entitled neither to full constitutional protections nor to true autonomy.
The Supreme Court justices who authored the opinions did not trust the people of the former Spanish colonies to govern themselves, but the justices also “repeatedly voiced concern that native inhabitants of the unincorporated territories were simply unfit for the American constitutional regime.”
By not denying constitutional protections outright, the Insular Cases clothed colonialism in democracy’s garb.
Given their colonial premises and racist reasoning, the Insular Cases have long been controversial and are generally held in disrepute.
Yet despite abundant refutations of their logic and holdings, the cases remain influential because the Supreme Court has not overruled them.
As a result, lower courts continue to apply—and sometimes expand—the Insular Cases in ways that “deprive territorial residents of rights and protections to which they are almost surely entitled.”
Their enduring influence is both tragic and perplexing because they are anachronisms. The 1901 Insular Cases were decided before the Wright Brothers’ first flight
and the opening of the Panama Canal,
when America’s Pacific territories were inaccessible, abstract concepts generally omitted from maps of the United States.
Constitutional jurisprudence was still in its early stages, as the Supreme Court had not yet meaningfully incorporated the provisions of the Bill of Rights to apply to the states, let alone to recently acquired territories.
Yet even though the Age of the Insular Cases is in many ways unrecognizable today, these opinions continue to limit constitutional protections in U.S. territories.
This Essay explores one less-appreciated problem with the Insular Cases: This body of jurisprudence can deprive sexual minorities living in U.S. territories of constitutional rights, such as the right to marriage equality in American Samoa.
The Obergefell decision invalidated any same-sex marriage ban in all fifty states. But the Insular Cases insulated the residents of U.S. territories from automatic protection. Soon after the Supreme Court announced Obergefell, however, officials in Guam, the Commonwealth of the Northern Mariana Islands (CNMI), the U.S. Virgin Islands (USVI), and Puerto Rico acquiesced to the opinion, leaving American Samoa as the exception—the only U.S. territory that does not recognize gender-neutral marriages.
Beyond the marriage issue, American Samoa is exceptional among the U.S. territories in myriad ways. For example, American Samoa has a unique origin story. The United States acquired its other current territories from rival colonial powers. Puerto Rico, Guam, and the CNMI had all been Spanish colonies. The United States acquired Puerto Rico and Guam directly from Spain following the Spanish-American War,
while it gained control over the CNMI through a more circuitous route.
The United States purchased the USVI—then known as the Danish West Indies—from Denmark in 1917 for $25,000,000.
In contrast to these territories, the United States acquired American Samoa through a combination of negotiation, religious imperialism, and promises to protect the local customs and culture.
Flowing from its distinctive genesis, American Samoa is the only territory whose people lack birthright citizenship, meaning that individuals born there are U.S. nationals, not U.S. citizens.
In addition, American Samoa has distinctive political and social structures. Unlike other U.S. territories, American Samoa “remains under the ultimate supervision of the Secretary of the Interior.”
It is the only U.S. territory without a federal court.
American Samoa is also the only state or territory composed primarily of communal land.
Its society is structured around extended families, known as ‘aiga.
Over ninety percent of American Samoan land is owned and controlled by ‘aiga, not individuals.
Although some land is individually owned, American Samoan law restricts land ownership to individuals who are at least fifty percent American Samoan.
Communal land ownership and related restrictions are part of fa‘a Samoa—translated as “the Samoan way”—the governing principle of Samoan law and society.
Fa‘a Samoa provides the foundation for both daily life and generational governance.
American Samoa is also America’s only Polynesian territory, ever since the Territory of Hawai‘i became a state in 1959.
This status is significant because Polynesian social and legal culture is distinct. In particular, Polynesian concepts of land, family, sexuality, and identity do not map neatly onto their Anglo-American counterparts or those of other U.S. territories.
Given its Polynesian roots, American Samoa shares more cultural commonalities with Hawai‘i than with the other U.S. territories. For example, Polynesian cultures recognize a category of individuals who are anatomically male and spiritually female, an identity called fa‘afafine in Samoa and māhū in Hawai‘i.
Fa‘afafine is a compound word, combining the prefix fa‘a—“in the way of”—and fafine, the Samoan word for “woman.”
Dressing in traditional women’s garments, the fa‘afafine of Samoa and the māhūs of Hawai‘i are not crossdressers; they are a third gender.
Although many have romantic and intimate relationships with men,
fa‘afafine are not gay because they are not men in Samoan culture.
Fa‘afafine and māhūs represent a separate, distinct gender in their respective societies.
Fa‘afafine identity is innate.
This concept of identity can be difficult for some non-Polynesians to comprehend. As one scholar who is fa‘afafine explained, “[F]a’afafine is a cultural identity and for one to understand it, one must first understand the Samoan culture.”
Discussing Polynesian concepts through the English language is difficult. Scholars can invoke Hawaiian and Samoan words—transliterated into the Roman alphabet—but these words have no meaning to an English-speaking audience unless described in English words, which will inherently fail precisely because there is no English equivalent to these Polynesian concepts. This is particularly true with gender identity and sexual orientation. In recent years, American society has progressed in recognizing a greater range of sexual orientations and gender identities, many of which are included in the ever-expanding acronym of LGBTQIA+. But none of the Polynesian concepts map perfectly onto the sexual alphabet of English-language discourse. The categories of māhū and fa‘afafine are not identical to transgender identity.
In contrast to the Western concept of transgender or transsexual identity, in which a person is anatomically one sex but feels themselves to be in the “wrong body,” fa‘afafine are in the “correct” body but are a gender unrecognized in the Western binary.
The Western sexual lexicon contains no equivalent to māhū or fa‘afafine.
Because māhū and fa‘afafine do not seamlessly map to the “T” in LGBTQIA+ and have a more nuanced meaning than any of the remaining letters, this Essay sometimes uses the terms “third gender” and “sexual minorities.” Because these phrases are also Western constructs written in English, they are not perfect either.
For now, though, these terms are the best available given the limitations of language.
With these linguistic caveats in mind, this Essay proceeds in five parts. Part I discusses pre-Western-contact Polynesian societies,
especially Tahiti, Hawai‘i, and Samoa, the latter two of which would become U.S. territories, with Hawai‘i eventually becoming a state. In particular, Part I describes how all these societies recognized and respected third-gender individuals. Part II discusses why American Samoa is now the only part of the United States that does not recognize gender-neutral marriages. American Samoa prevents both same-sex couples and fa‘afafine–male couples from exercising their constitutional right to marry.
This is a function of territorial law, including the Insular Cases.
Part III discusses how American Samoa became a U.S. territory and how the Insular Cases operate to prevent American Samoans from automatically receiving the protections of the U.S. Constitution. Although the Insular Cases never considered the constitutional rights of sexual minorities, these cases nonetheless have important implications for the fa‘afafine. Part III also makes the case for why Obergefell should apply to American Samoa despite the Insular Cases.
Part IV examines the inherent unfairness of allowing the 1901 Insular Cases to prevent fa‘afafine from having marriage rights in the 2020s. American Samoa is the only American territory or state that prohibits fa‘afafine from marrying their intended husbands. Yet American Samoa is precisely the communal and ancestral land that is most important and sacred to the fa‘afafine. While litigation for marriage equality defined the LGBT movement in the United States at the beginning of the twenty-first century, because of its territorial status and related constraints, such litigation is less likely to occur and to be successful in American Samoa. This denial and delay of constitutional rights is an affront to the dignity of fa‘afafine and other sexual minorities in American Samoa.
Part V highlights the broader issue of how to protect minority rights in the shadow of colonialism. Expanding marriage equality to American Samoa over the opposition of local leaders arguably smacks of legal imperialism. While a seemingly narrow issue, the denial of marriage rights in American Samoa is a microcosm of the larger tension between empire and democracy, between colonialism and self-determination. Part V explains why, in the context of the individual right to marry, constitutionalism trumps self-rule.
The issue of marriage equality has important implications for how the U.S. Constitution should apply to U.S. territories. This Essay advances three points. First, it exposes an unappreciated harm caused by the Insular Cases: the denial of minority rights in U.S. territories, in this case the constitutional right to gender-neutral marriage in American Samoa.
Second, the Essay makes the case for why Obergefell protects the marriage rights of sexual minorities in American Samoa. Although the Insular Cases present a hurdle to marriage equality, the barrier is not insurmountable. But because of the Insular framework, the legal issues are unnecessarily complicated. And even if the challengers win, the litigation process imposes an unacceptable burden on sexual minorities seeking constitutional protections.
Third, the Essay situates these above discussions in the context of the larger issue of self-determination of U.S. territories. What does it mean for the United States to exert control over a territory? On the surface, a tension seems to exist between the importance of recognizing the fundamental right of marriage equality and the importance of respecting self-determination in a territory. When a territory declines to recognize a constitutional right—such as marriage equality in American Samoa—should federal officials (whether Congress or Article III judges) override local decisionmakers? This Essay argues that when the right is fundamental and personal, the answer is affirmative, even though there is a countervailing interest in territorial self-determination.