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Barlow case could help bring marriage equality to American Samoa

U.S. Federal District Courthouse in Honolulu
Source: LGBTQ Nation

Pago Pago, AMERICAN SAMOA — American Samoa has been a U.S. territory since 1900. But unlike every other territory in he U.S., it has no federal court because it’s an “unorganized territory.” It’s also the only U.S. territory that refuses to obey the 2015 U.S. Supreme Court ruling legalizing same sex marriage, Obergefell v. Hodges.

James Barlow appealed his 2014 conviction (read earlier story for details). Prior to the Trump Administration, the U.S. Department of the Interior (DOI) would send Federal judges to American Samoa to hear any appeals of the territory’s High Court convictions.

But when his appeal was heard in 2017, that process had been cancelled by the DOI, leaving Barlow’s appeal hearing in the hands of two Samoan high judges whose pending job promotions were being overseen by the High Court’s Chief Justice who had helped convict Barlow in the first place. Predictably, they denied his appeal.

Now that his local remedies have been exhausted, Barlow and his attorney filed for his case to be reviewed by a U.S. court. Normally, Barlow would’ve had to file suit against the U.S. Department of the Interior to get his case heard by a U.S. court. But by establishing commercial links between American Samoa and Hawaii — the nearest U.S. state where the American Samoan judicial system does most of its business — Barlow and his attorney argued that the Hawaiian court made sense as the nearest venue for a habeas corpus hearing (that is, a hearing that would explicitly lay out on what grounds Barlow had been charged, rather than concealing them as they believe the American Samoan court did).

A U.S. District Court in Hawaii recently granted them that hearing, basically asserting that the current system in American Samoa isn’t serving Barlow’s constitutional rights. This is a big deal seeing as in the past America Samoa has been able to ignore constitutional and federal laws at their discretion.

After the U.S. Supreme Court legalized marriage equality in 2015, the American Samoan government officials chose to ignore the ruling because of the territory’s heavily conservative Christian population. But Adams says the Hawaiian court’s recent habeas corpus ruling on Barlow’s case could mark the start of successfully challenging the U.S. territory’s disregard for same-sex marriage.

“The Barlow decision does strengthen the argument that the U.S. Constitution and laws have greater application to American Samoa than may have been previously believed,” Barlow’s lawyer, Bentley Adams III told LGBTQ Nation.

Before the question can truly be put to the test, someone in the U.S. territory would have to come forward and seek to obtain a license for a same-sex marriage and be willing to take the American Samoa Government to court if that license is denied, Adams says.

Read more at LGBTQ Nation