Vol. 96, Postscript

Respect for Marriage in U.S. Territories

Christopher R. Leslie
Constitutional Law
Postscript

The 2010s were a watershed decade for marriage equality in the United States. In 2013, the Supreme Court in United States v. Windsor struck down section 3 of the so-called Defense of Marriage Act (“DOMA”),¹ which denied federal recognition to valid state marriages between same-sex couples. The opinion left intact section 2 of DOMA, which “allow[ed] States to refuse to recognize same-sex marriages performed under the laws of other States.”² Two years after Windsor, the Supreme Court in Obergefell v. Hodges invalidated all state laws against same-sex marriage.³ The opinion effectively invalidated section 2 of DOMA and went one step further: states had to not merely recognize out-of-state same-sex marriages but also had to perform same-sex marriages in state as well. Obergefell brought marriage equality to every state.⁴

Although Obergefell seemed to guarantee same-sex couples the constitutional right to marry, marriage equality became vulnerable in the summer of 2022. In addition to providing the critical fifth vote to reverse Roe v. Wade in Dobbs v. Jackson Women’s Health Organization,⁵ Justice Thomas wrote a concurrence calling for the complete repudiation of substantive due process.⁶ Ominously, he wrote “in future cases, we should reconsider all of this Court’s substantive due process precedents, including . . . Obergefell.”⁷

Justice Thomas’s concurrence in Dobbs reinvigorated congressional efforts to pass the Respect for Marriage Act (“RFMA”), a statute that would require states to grant full faith and credit to out-of-state marriages regardless of race, gender, ethnicity, or national origin.⁸ The marriage equality movement succeeded when President Biden signed the RFMA into law in December 2022.⁹ Despite the recent controversy of Thomas’s Dobbs concurrence, the RFMA was not new legislation; versions of the RFMA had been proposed in Congress for over a decade, before either the Windsor or Obergefell opinions were issued.¹⁰ The RFMA did not simply codify Obergefell, as the Act does not invalidate any state’s prohibition on licensing same-sex marriage within its own borders. Instead, the RFMA effectively repealed section 2 of DOMA and affirmatively requires states to recognize same-sex marriages legally performed in other states.¹¹

Opponents of the RFMA argued that the legislation was unnecessary because Obergefell already protects marriage equality.¹² They seem unimpressed with Justice Thomas’s shot across the bow in Dobbs.¹³ For example, one month after Justice Thomas announced his intention to reconsider and perhaps reverse Obergefell, Senator Marco Rubio belittled the RFMA as a “stupid waste of time.”¹⁴ Iowa Senator Chuck Grassley voted against the RFMA, asserting that the “legislation is simply unnecessary. No one seriously thinks Obergefell is going to be overturned so we don’t need legislation.”¹⁵ He implied that RFMA supporters were seeking “to fabricate unnecessary discontent in our nation.”¹⁶

The argument that the RFMA was unnecessary because marriage equality was already the law of the land failed to appreciate how constitutional law reaches the shores of U.S. territories. Even if Justice Thomas fails in his mission to overturn Obergefell, the RFMA is still essential now to bring the protections of Obergefell to all corners of the American empire. Before the RFMA, the U.S. territory of American Samoa refused to follow Obergefell and continued to restrict marriage licenses to opposite-sex couples.¹⁷

While Obergefell instantly brought marriage equality to every state, the path toward marriage rights has been more complicated in U.S. territories: American Samoa, Guam, the Commonwealth of the Northern Mariana Islands (“CNMI”), the U.S. Virgin Islands (“USVI”), and Puerto Rico.

Acquired primarily from colonial powers by purchase or as the spoils of war, U.S. territories hold a precarious position in our constitutional structure. Beginning in 1901, the Supreme Court issued a series of opinions known as the Insular Cases.¹⁸ This line of authority prevented constitutional rights from automatically protecting territorial residents. Instead, the Court held that “the Constitution is applicable to territories acquired by purchase or conquest, only when and so far as Congress shall so direct.”¹⁹ In the absence of congressional directive, the Insular rubric provides that federal courts can hold that a constitutional right applies to one or more territories when the court determines that the right is “fundamental” and that recognizing the right would not be “impracticable and anomalous” for that territory.²⁰ Under this test, for example, the district court in King v. Andrus²¹struck down rules denying jury trials in criminal cases in American Samoa, finding that it would not be impractical and anomalous to require American Samoa to provide jury trials to criminal defendants, given the structure of the American Samoan judicial system.²²

Conversely, in rejecting calls to provide birthright citizenship to individuals born in American Samoa,²³ The Court of Appeals for the D.C. Circuit in 2015 in Tuaua v. United States held that it would be “anomalous to impose citizenship over the objections of the American Samoan people themselves”²⁴ and federal judges should not “forcibly impose a compact of citizenship—with its concomitant rights, obligations, and implications for cultural identity.”²⁵ In 2021, the Tenth Circuit in Fitisemanu v. United States followed suit and used the Insular framework to block birthright citizenship for American Samoans.²⁶

The Fitisemanu plaintiffs petitioned the Supreme Court for certiorari.²⁷ Some commentators saw the case as the perfect vehicle for challenging the Insular Cases.²⁸ The hope was not far-fetched. Respected scholars advocate the reversal of the Insular Cases.²⁹ Significantly, in his concurrence in United States v. Vaello Madero in April 2022,³⁰ Justice Gorsuch observed the following:

A century ago in the Insular Cases, this Court held that the federal government could rule Puerto Rico and other Territories largely without regard to the Constitution. It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.³¹

On October 17, 2022, however, the Supreme Court denied certiorari in Fitisemanu,³² thus leaving the Insular Cases intact. While not obvious at first glance, that decision has implications for marriage equality in U.S. territories.

This Article proceeds in three parts. Part I examines how the governments of the five U.S. territories responded to the Obergefell decision. Because of the Insular Cases, Obergefell did not necessarily automatically apply to the territories. Of the most concern, the territorial government of American Samoa has refused to recognize either Obergefell or marriage equality. Part II explains how the RFMA provides a partial solution to the problem created by the Insular Cases. It discusses the unappreciated significance of the RFMA for residents of U.S. territories. The RFMA brings a form of marriage equality to American Samoa for the first time. Less historic, but also important, the RFMA would ensure the continuation of marriage equality in those U.S. territories where the right to same-sex marriage is currently recognized but uniquely vulnerable because of the Insular Cases. Part III exposes some of the limitations of the RFMA. For example, the RFMA requires that states and territories provide full faith and credit to marriages legally performed in other states and territories; same-sex couples still cannot get legally married in American Samoa. They must leave home to get married, a burden not imposed on opposite-sex couples.

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Respect for Marriage in U.S. Territories

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