Less than two weeks after the Supreme Court declared that the Constitution protects same-sex couples’ right to marry, four of America’s five inhabited unincorporated territories are complying, or preparing to comply, with the ruling. The holdout, American Samoa, is currently stalling but could eventually be forced by a lawsuit to comply. You might assume that, since these territories are part of America, the marriage equality decision applies to them just as it does all 50 states. But in fact, the decision’s application to the territories was by no means a sure thing—and had the opinion been written differently, the U.S. territories might have found a way to avoid complying with it.
As I explained in March, the Constitution does not apply with equal force to states and territories. Instead, the Supreme Court has long stated that the Constitution guarantees only “fundamental rights” to the territories and their citizens. (Puerto Rico, a commonwealth, is treated like a state for most constitutional purposes.) Other rights, even those promised to other U.S. citizens, are negotiable. Courts have held that even rights most Americans would think of as fundamental—a right to a jury trial or equal protection of the laws—have been jettisoned when territorial governments object to them.
The Supreme Court created this distinction in the 1901 Insular Cases, building on the racist assumption that the “alien races” of the territories “diff[er] from us” too much. (“Us” means white people.) More recently, some justices have favored a different test, which asks whether the application of a constitutional right to a territory would be “impracticable and anomalous.” If not, the right must apply.
This test is much less malleable (and racist) than the old “fundamental rights” test. But the Insular Cases remain on the books, and so the old rule arguably remains the law of the land. That means any territorial government seeking to sidestep a Supreme Court ruling could simply argue that the specific right the justices articulated isn’t “fundamental.”
That, however, isn’t really possible in the case of marriage equality, for one simple reason: In his majority opinion, Justice Anthony Kennedy describes marriage as a “fundamental right” guaranteed to same-sex couples 10 times. Had Kennedy used only an equal protection rationale, some territories might have argued that the soft-core version of equal protection that applies to them permits same-sex marriage bans. But Kennedy pulled out the big guns, placing the fundamental right rationale at the center of his opinion and leaning on equal protection as a secondary argument. No one could claim, with a straight face, that Kennedy’s ruling does not apply fully to every territory.
Some commentators believe that the fate of same-sex marriage in American Samoa is inextricably linked to an ongoing lawsuit arguing that the island’s inhabits have a right to citizenship. (Currently, American Samoans are “U.S. nationals,” not citizens.) I don’t think that’s right. Oddly, the Supreme Court has never squarely held that citizenship is a fundamental right—even though the 14th Amendment clearly grants it to everyone born in the United States. Marriage, on the other hand, is now indisputably a fundamental right of every American. That’s how bizarre territorial constitutional law is in 2015: American Samoans may get the right to same-sex marriage before they get to the right to be U.S. citizens.
Want to hang out with Outward? If you’ll be in or near New York City on Monday, July 13, join June Thomas, J. Bryan Lowder, and Mark Joseph Stern—and special guests Ted Allen, of Queer Eye and Chopped fame, and marriage-equality campaigner extraordinaire Evan Wolfson—for a queer kiki at an Outward LIVE show, hosted by City Winery. Details and tickets can be found here.