LGBT rights in American Samoa

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LocationAmericanSamoa.png
StatusLegal since 1980
Gender identityYes
Discrimination protectionsNone
Family rights
Recognition of relationshipsNo recognition of same-sex unions
AdoptionNo

LGBT people in the unincorporated territory of the United States of 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 are not eligible for the rights and benefits available to different-sex married couples.

Law regarding same-sex sexual activity[edit]

The first criminal law against sodomy was enacted in 1963. The law made sodomy illegal for gay male couples and straight couples, but did not address sex between lesbian couples.

In 1979, the legislature revised the criminal code so that consensual sodomy was no longer illegal, unless it involved public acts, prostitution, minors or people unable to give consent due to mental defect. The law took effect in 1980.[1]

Recognition of same-sex relationships[edit]

The American Samoa Code Annotated 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".[2]

Representative Sua Carl Schuster introduced legislation to ban same-sex marriage in 2003. He 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]

It is uncertain how Obergefell v. Hodges may apply to American Samoa as its citizens are U.S. nationals by birth and not citizens.[4] In July 2015, Talauega Eleasalo Ale, American Samoa's attorney general, said after the 2015 ruling that his office was "reviewing the decision to determine its applicability to American Samoa."[5][6] A week later Governor Lolo Matalasi Moliga believes that the Supreme Court’s same sex marriage 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 in American Samoa, the Catholic Church of American Samoa, The Church of Jesus Christ of Latter-day Saints in American Samoa.[7] However, Senator Tuaolo Manaia Fruean believes that the ruling does apply.

There are many fa'afafine who aren’t supportive of same-sex marriage out of “respect for our Samoan culture and religious beliefs", Professor Rose Cuison Villazor at the University of California, Davis law school, said that the court’s same sex marriage 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 the Lambda Legal argued the territories are required to comply due to supremacy of federal law, and that same-sex marriage "... is a question of individual right, individual liberty." Chimene Keitner, an expert on territorial status issues at 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."[8][9]

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 Gay and Lesbian Advocates and Defenders (GLAAD), or the National Center for Lesbian Rights immediately for assistance.[10][11]

In January 2016, The former Attorney General, Fiti Alexander Sunia, was appointed as the new District Court Judge following the retirement of judge John Ward II. His appointment was unanimously confirmed by the American Samoa Senate. During the confirmation hearing, he was asked about the supreme Court ruling on same-sex marriage. He responded that he had not read the decision, and that the district court doesn't deal with this ruling. He also said that he would not perform weddings for same sex couples in his new assignment, unless the local marriage laws were first changed.[12] Currently same-sex marriages are neither licensed nor recognized there.

Summary table[edit]

Same-sex sexual activity legal Yes (Since 1980)
Equal age of consent Yes (Since 1980)
Anti-discrimination laws in employment only No
Anti-discrimination laws in the provision of goods and services No
Anti-discrimination laws in all other areas (Incl. indirect discrimination, hate speech) No
Same-sex marriages No[13]
Recognition of same-sex couples No
Step-child adoption by same-sex couples No
Joint adoption by same-sex couples No
Gays and lesbians allowed to serve openly in the military Yes (Since 2011)
Transgender people allowed to serve openly in the military Yes (Since 2018)
Right to change legal gender Yes
Access to IVF for lesbians No
Commercial surrogacy for gay male couples No
MSM allowed to donate blood No

See also[edit]

References[edit]

  1. ^ "Gay rights map: Notes on the data". BBC News. February 5, 2014. Retrieved November 3, 2014.
  2. ^ "American Samoa Code Annotated, Title 42, Chapter 01 - Marriage". American Samoa Bar Association. Retrieved November 5, 2014.
  3. ^ "American Samoa Senate rejects bill outlawing same sex marriages". Radio New Zealand International. March 20, 2003. Retrieved November 4, 2014.
  4. ^ 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.
  5. ^ "American Samoa is lone US territory questioning gay marriage validity; no licenses sought". U.S. News and World Report. July 10, 2015. Archived from the original on July 11, 2015. Retrieved July 10, 2015.
  6. ^ "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.
  7. ^ http://www.pireport.org/articles/2015/07/14/am-samoa-governor-same-sex-marriage-against-values-law
  8. ^ /https://www.seattletimes.com/nation-world/american-samoa-questions-gay-marriage-validity-in-territory/
  9. ^ https://www.puertoricoreport.com/is-same-sex-marriage-upheld-by-supreme-court-another-fundamental-right-inapplicable-in-u-s-territories/#.XLInJU3fsex
  10. ^ http://www.religioustolerance.org/same-sex-marriage-american-samoa.htm
  11. ^ https://www.marriageequality.org/region_american_samoa
  12. ^ https://amp.rnz.co.nz/article/7e4cbe43-535d-437f-a5f6-a8891f5e6b24
  13. ^ Sagapolutele, Fili. "gay marriage illegal in American Samoa". USNews. Archived from the original on July 11, 2015. Retrieved July 10, 2015.