Survey conducted on-island focuses on local same sex marriage ban

Pago Pago, AMERICAN SAMOA — Would the ban on same sex marriage in American Samoa survive if someone challenged it under the 14th Amendment?

That is the objective of a survey conducted on-island recently by Dr. Daniel Hall, a Law Professor who teaches Constitutional and Comparative Law at Miami University.

In an exclusive interview with Samoa News, Dr. Hall clarified that there is another issue he is surveying which involves an academic model that characterizes cultures and has different dimensions.

“The question is, are people more collectivistic or individualistic? How do they see time?” he revealed. “Collectivism vs individualism, for example in the perspective of orientation and time. A westerner would get up in the morning and there's a series of things he has to get done, and everything's linear and objective.

“On the other hand, there are people around the world who have a Polychronic view of time. This means when I get up I do what I'm supposed to do, but if my family needs help then I put everything on hold and take care of my family’s needs. This is a very different perspective on time and how things work.

“So I'm researching that and it should be pretty straightforward because it's been done all over the world. And of course, Samoans are collectivistic because in your culture, everything revolves around the family. Every family has a matai who represents them in the village council of chiefs.

“Every village is represented by a high chief in the district (county) council who then selects one as their representative in the Senate. The women have their own groups with their own hierarchical systems and duties.”

“But the constitutional question concerning same sex marriage is a little more controversial here because of the American Samoa Government’s rejection of the Supreme Court’s ruling legalizing same sex marriage in all 50 states.”

When the ruling was issued on June 26, 2015, then Governor Lolo Matalasi Moliga expressed his belief that the Supreme Court’s same sex marriage ruling does not apply to American Samoa.

“My personal opinion is, this ruling will not apply to our preamble, our constitution and our Christian values,” Gov. Lolo told Samoa News at the time. “Also, our political status is still unorganized and unincorporated, so the Supreme Court ruling does not apply to our territory.”

Samoa News also reached out to leaders of various church denominations for comments on the same sex marriage ruling.

According to American Samoa Assemblies of God Superintendent, the late Reverend Elder Siaosi Mageo, the same sex issue is nothing new and that it started back in the old generations of the Bible, which tells of the destruction of Sodom and Gomorrah.

“This serves as a powerful example of how God feels about sin in general, and homosexuality, the sin He dislikes the most,” said Rev. Elder Mageo. “When God created earth, he created Adam and then created Eve for Adam — and that is the perfect explanation that woman was created for man; there is nothing where it says man was created for man.”

He declared that AOG will not accept a marriage between two people of the same sex and that homosexuality is the sin God despises the most.

The head of the Catholic Church in American Samoa at the time, Bishop Peter Brown was also of the same opinion regarding same sex marriage. However, he emphasized that all human beings are God’s creation and therefore deserved to be loved.

“While the Catholic Church is clear on its teaching in regard to same sex marriage — that Jesus Christ taught marriage is the lifelong union between a man and a woman — the Church is also very much aware of its responsibility to care for all, regardless of their sexual orientation,” Bishop Brown pointed out.

“Pope Francis himself has stated that no one has the right to judge, but all God’s creation are worthy of love and respect.”

He explained that the Catholic Church teaches rather from the basis of the ‘nature’ of the human person and marriage as distinctly separate and is often confused with the question of equal rights.

This view was shared by the Church of Jesus Christ of Latter Day Saints in their official statement issued on mormonnews.org in June 2015.

It stated that “because of the recent decision of the United States Supreme Court and similar legal proceedings and legislative action in a number of countries that have given civil recognition to same sex marriage relationships, the LDS leaders reinstate and reaffirm the doctrinal foundation of Church teachings on morality, marriage and the family.

“Changes in the civil law do not, indeed cannot, change the moral law that God has established. God expects us to uphold and keep His commandments regardless of divergent opinions or trends in society. His law of chastity is clear: sexual relations are proper only between a man and a woman who are legally and lawfully wedded as husband and wife,” it reiterated.

But it also notes that “the gospel of Jesus Christ teaches us to love and treat all people with kindness and civility even when we disagree. We affirm that those who avail themselves of laws or court rulings authorizing same sex marriage should not be treated disrespectfully.”

However, there was a completely different response to the issue in the neighboring Independent State of Samoa.

Responding to recommendations in a health report from the Joint United Nations Program on HIV/AIDS (UNAIDS) for Samoa to legalize abortion and same sex marriage, the Prime Minister Tuilaepa Lupesoliai Sa’ilele Malielegaoi did not mince words when he outrightly opposed the two recommendations.

“Government will never ever accept legalizing abortion for any purposes regardless,” declared the former prime minister who is a staunch Catholic. “It is murder and similar to giving our women the license to kill.

“And that is absolutely against our religious Christian values and beliefs. It’s also totally against our culture and way of life. The same goes for same sex marriage. It will never be accepted by government because it undermines our tradition and our culture.

“I pray that this is the last time that these issues are brought to the government and my attention because it’s a useless waste of government stationery and time to acknowledge or even to respond to such suggestions.”

According to Dr. Daniel Hall, when the American Samoa Government announced its rejection of the Supreme Court ruling by banning same sex marriage, all the academics and almost everybody in the mainland said, “This is wrong.”

“But I think maybe they were a little insensitive to the cultural difference here, so most of the stuff that's written says it should be imposed on American Samoa,” Dr. Hall reasoned. “So I want to take a more balanced approach.

“None of them have data which why I want to gather data from American Samoans and then apply the Supreme Court’s test.”

He explained that the Supreme Court developed a test through a series of cases known as the Insular Cases, that is used to determine if a constitutional right applies to the territories.

The survey is designed to collect the data that could be used by courts when applying the Insular Cases to the same sex prohibition if ever challenged in court.

“My thought process in this issue is that, as more and more people in American Samoa are exposed to Western world ideologies and way of life through social media, and individuals who left the island for higher education, work or the military return after living in the mainland for more than 20 years, it is inevitable that some who are same sex oriented will say ‘I have rights’ including ‘We want to marry,’” Dr. Hall predicted.

“It only takes one individual to push against the local government’s stance and challenge the same sex marriage ban in the highest court in the land under the 14th Amendment. The question is, what is the court going to do about it? So I’m going to try and answer that question in advance and gather some of the data.”

And that is exactly what he has done since he arrived on-island last week.

Dr. Hall revealed that he has conducted one-on-one interviews with various matai, members of the Fono, members of the Fa’afafine community, gay individuals who spoke to him on the condition of anonymity, and the general public.

He has also disseminated a survey questionnaire in hard copies and through social media which he hopes will provide him with more insight on the issue.

Despite time constraints, he stated that his survey went smoothly and the people he interviewed were very forthcoming. This is due not only to his extensive experience, but also to the fact that he did the same thing on-island 25 years ago.

He recounted that he had first visited the Territory in 1998 to do research for an article he published on the constitutionality of curfews in American Samoa.

“The purpose of this research was to document the use of curfews in American Samoa, to determine if and why curfews are important to the leaders of American Samoa, and to examine whether application of the U.S. Constitution threatens the Samoan curfew,” he explained.

He recalled that his discussions with village chiefs revealed a concern that their culture could be threatened by an increased application of US laws in their islands.

They were all of the opinion that village curfews (6pm and 9pm) were essential to prioritize evening prayers in every household, to make sure the youth stayed indoors, and other social control issues to ensure peace and harmony within villages.

“So I concluded under the Supreme Court’s test that even if got challenged, curfews can survive, and it’s still being implemented.”

Other issues which Dr. Hall pointed out have been answered by the courts include the question of whether American Samoans discriminate against non-Samoans in ownership of land, a scenario which can never happen in the mainland.

“The answer was yes they may, so the equal protection clause does not apply here,” he said.

“Another example is the matai system because the US Constitution forbids titles of nobility. However, that survives because it is an essential part of the culture which connects and strengthens the bond which gives the Samoan people their identity.”

He revealed that his latest research is funded by a grant from a political science oriented organization called "The Study of Federalism,” which explores the state relationship to the federal government.

Dr. Hall said he noticed the relationship of territories to the federal government had been done, so he applied and received a grant for this undertaking. 

Dr. Daniel Hall has vast experience in the field of Law having worked as a lawyer and judge for many years in the mainland, and was Assistant Attorney General for the government of the Federated States of Micronesia during the early 1990s.

He is also a Law Professor who has taught in many law schools and tertiary institutions in the mainland. He was the Visiting Professor of Law at the Sun Yat-Sen University in Guangzhou, China from 2010 to 2022 and is currently Professor of Law at Miami University.

Dr. Hall is a member of the Bar in the Federated States of Micronesia, Washington, District of Columbia, Kansas, and the Federal Courts in Kansas, District of Columbia, and the Southern District of Indiana. He is also the author of more than 20 books on Criminal, Administrative and Constitutional Law.

He left for the mainland last night.

The complete report on the same sex marriage ban in American Samoa will be completed sometime at the end of the year and will be available for public scrutiny at the beginning of next year.