Is Same Sex Marriage Upheld by Supreme Court Another “Fundamental Right” Inapplicable in U.S. Territories?

by Howard Hills, August 25, 2015

The U.S. Supreme Court ruling that same sex marriage is a “fundamental right” of citizenship under the U.S. Constitution is no longer headline news.  But some LGBT rights organizations are making news by calling for the ruling to be enforced in the U.S. territories in the same manner is applies in the 50 states. In particular, the LGBT community is exercising its political clout, enhanced by the high court ruling, to pressure the tiny U.S. island possession of American Samoa to comply with the new federal judicial mandate under local law.

A well-orchestrated media campaign was launched for that purpose by LGBT advocates after the Governor of American Samoa candidly questioned whether the ruling applies in that U.S. territory.  Local customs there are openly tolerant of non-heterosexuality, but not with formalities of ceremonial marriage due to traditions in the deeply religious island culture.

Echoing the Governor’s call for federal restraint as the island works through this issue in the “Samoan way,” Catholic and Mormon church leaders on the island supported a dialogue about legal and social meaning of the court’s ruling.  Most church leaders in American Samoa called for just solutions based on love, kindness and respect for same-sex couples and their rights.  At the same time, local openly homosexual public figures called for dialogue also respecting traditional island cultural values.  So while battle lines were being drawn in the mainland a potentially more conciliatory discussion began in the territory.

While some LGBT advocates in the mainland saw the Governor’s remarks as “defiance” of federal law, the Governor has good reason to ask if the high court’s mandate applies in the territory, especially in the same manner it does in the 50 states.  The U.S. Supreme Court long has held that 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, unless and until determined by Congress and the courts on a case-by-case basis.

In contrast to American Samoa, four other “unincorporated” territories (Guam, Mariana Islands, Puerto Rico and Virgin Islands) adopted local policies choosing voluntarily to embrace same sex marriage under local law, as if the court’s ruling applied directly by its own force as it does in the states.  Yet, the court’s opinion does not mention the territories.  Rather, the court limited its ruling to states, declaring same sex marriage is a right in the states, based on federal jurisprudence that applies the Bill of Rights in the U.S Constitution to the 50 states pursuant to the equal protection and due process clause of the 14th Amendment.

Nevertheless, Omar Gonzales-Pagan of the LAMBDA LEGAL gay rights lobbying network argued the territories are required to comply due to supremacy of federal law, citing the 1922 case of Balzac v. Puerto Rico as legal precedent for enforcement of all “fundamental rights” in “unincorporated” territories.  LAMBDA also claimed the Bush v. Boumediene ruling in 2008 confirmed the Balzac doctrine of equal “fundamental rights” for territories.

The LAMBDA assertion that American Samoa must comply with the new federal same sex marriage ruling in the same manner as the 50 states was echoed by Rose Cuison Villazor, a law professor at UC Davis, who asserted the court’s same sex marriage ruling “should not be questioned” in American Samoa.

Similarly, professor Chimene Keitner at the Hastings College of Law called on same sex couples go to American Samoa to demand same sex marriage, and file a preemptive lawsuit if denied.  As lawyers who did just that to demand other fundamental rights denied in the territories have learned, that tactic can backfire.  This is due to the long history of U.S. Supreme Court’s rulings that the Bill of Rights and the 14th Amendment provisions under which federal constitutional rights are applied to the states do not apply automatically to the “unincorporated” territories.

Specifically, the Balzac ruling relied upon by LAMNDA LEGAL does not even stand for the principle that all U.S. citizens in the five remaining “unincorporated” territories have equal “fundamental rights.”  To the contrary, Balzac is an infamously discriminatory holding by the high court that conferral of U.S. citizenship in territories classified as “unincorporated” does not require equal application of the Constitution to the territory or its U.S. citizen population.  It is because of Balzac that the Bill of Rights has not been applied to America’s unincorporated territories as it has to the states.

Historically, the federal courts ruled that territories with U.S. citizen populations were incorporated into the union with rights under the Constitution. Again, it was the very same ruling in Balzac cited by LAMBDA that denied incorporation and fundamental rights under the Constitution to the U.S. citizens of Puerto Rico, ignoring the specific precedents the high court had followed under constitutionally indistinguishable rulings on incorporation of Louisiana, Alaska and Hawaii.

The ruling in Balzac meant Congress can govern U.S. citizens in Puerto Rico and other “unincorporated” territories outside the Constitution, as we had ruled non-citizens in the Philippines when it was an “unincorporated” U.S. territory prior to being granted independence.   The phrase “fundamental rights” in the Balzac case applied only to the subclass of U.S. citizens and nationals in the unincorporated territories with less than equal rights compared to citizens in the 50 states.  Thus, citing the Balzac case to argue for a national standard of equal rights in unincorporated territories is like citing Plessy v. Ferguson to argue for racial equality under federal and state law.

Contrary to the LAMBDA LEGAL argument that Balzac applies the rights of equal protection and due process to the federal government in “unincorporated” territory, since Balzac was handed down in 1922 no federal court has ever declared any federal law or policy applied in an “unincorporated” territory under the territorial clause powers of Congress to be unconstitutional based on denial of a “fundamental right” of U.S. citizens or nationals in any such territory.

Instead, the Balzac ruling had the exact opposite effect, explicitly denying rights in unincorporated territories equal to citizens in the 50 states.  Indeed, Balzac even denied to “unincorporated” territories the rights under the Constitution that applied in incorporated territories where Congress had conferred U.S. citizenship on a previously non-citizen population, i.e. Louisiana, Alaska and Hawaii, as already noted.  Notably, the case of Boumediene v. Bush (2008), also cited by LAMBDA, relied on the “fundamental rights” phrase in Balzac not to give U.S. citizens in the territories equal rights, but rather to buttress that ruling requiring Congress to provide ad hoc provisional habeas corpus rights for military detainees at the GITMO military base in Cuba.

Similarly, the Balzac has been invoked in cases such as PDP v. Rodriguez (1982) to limit the powers of local territorial governments, or to defer and decline to second guess local territorial authorities, even where the territorial government’s action would not be exempt from federal judicial review if taken by a state government.  Because federal powers never have been restrained to redeem “fundamental rights” of citizens in “unincorporated” territories, Federal Judge Juan Torruella of the U.S. First Circuit Court of Appeals has criticized the Balzac ruling as a “separate but unequal” doctrine for citizens and nationals in the unincorporated territories.

Not surprisingly, the LAMBDA LEGAL argument that all “fundamental rights” must be enforced in American Samoa immediately was seized upon by lawyers who brought a recently dismissed federal lawsuit claiming all persons born in American Samoa or the other four unincorporated territories have the same rights of U.S. citizenship by direct application of the 14th Amendment to the Constitution as citizens born in the 50 states.  But the territorial government in American Samoa and its Delegate in the U.S. House of Representatives opposed the lawsuit demanding the same citizenship rights as the states.  That is because America Samoa also has a customary communal land ownership system and recognizes rights and title of traditional leaders, a cultural heritage all of which might be jeopardized if not legally protected before the same legal system that applies to citizens in the 50 states is applied by a court in American Samoa.

Thus, if the tangled web of twisted legal arguments made in the American Samoa citizenship case were adopted by the courts, it would make an already bad situation worse, leaving the five island jurisdictions with some features of both incorporated and unincorporated territorial status.  Political status of territories is a political question, requiring Congress to decide whether an unincorporated territory is ready for incorporation, statehood, integration with an existing state or sovereign nationhood based on the right to independence.  A federal court ruling imposing citizenship under the Constitution would substitute the court’s judgment for the right of the territories to democratic self-determination leading to a permanent constitutionally defined political status.

For more than a century U.S. Supreme Court territorial law rulings before and after Balzac have taken local cultural customs and traditions (not to mention “alien race” of islanders) into consideration in denying equal rights under the Constitution to citizens and nationals in unincorporated territories.  Why shouldn’t cultural traditions now be taken into consideration in determination through the local process of democratic self-government how best to apply a federal court ruling that defines rights of citizens under the Constitution in the 50 states?

Is there latitude under federal territorial law for the local legislature, in the only current unincorporated territory never organized as a body politic under federal statutory law, to seek dialogue with non-heterosexual residents of the territory, same sex marriage supporters, members of the clergy, and opponents of same sex marriage, before deciding how to respond to a federal court same sex marriage ruling applicable on its face in the 50 states?

Without presupposition about the answers, instead of seeking to suppress such questions, we should seek truth first.  That is the first step toward justice for the citizens and nationals of the territories, both in their individual rights and duties, as well as the form of local and national government under which they live.

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Howard Hills served as legal counsel on federal relations to local governments in the Federated States of Micronesia, Commonwealth of the Northern Mariana Islands, Guam and the Republic of the Marshall Islands.  He also served in the National Security Council, U.S. Department of State and the Department of Defense as a legal advisor on U.S. territorial law and policy.  In addition to his own scholarly law journal articles on territorial law, Hills was lead researcher for a book by former U.S. Attorney General Dick Thornburgh on the history of U.S. territorial law, published in 2007 by the Center for Strategic and International Studies in Washington D.C.