marriage equality

Ann Tweedy on Tribal Laws & Same-Sex Marriage

Matthew L.M. Fletcher1 Comment

Our own Ann Tweedy has posted her very interesting and relevant paper, “Tribal Laws & Same-Sex Marriage: Theory, Process, and Content,” on SSRN.

Here is the abstract:

In 1996, Congress, in enacting the federal Defense of Marriage Act (DOMA), took the somewhat surprising step of explicitly including tribes within its purview. The legislative history is silent as to the decision to explicitly include tribes, and, at the time of DOMA’s passage, it does not appear that any tribe was seriously examining the issue. Since then, however, there have been many developments among tribes on this issue, including enactment of laws permitting same-sex marriage and enactment of prohibitions on same-sex marriage. Nonetheless, generally speaking, the issue does not seem to be a priority among tribes to the same extent it is a priority for states and the federal government.

In 2013, the Supreme Court struck down section 3 of the DOMA, which concerns the federal definition of marriage, as a violation of equal protection and due process. In doing so, it left the constitutionality of section 2, which pertains to tribes’ and states’ recognition of out-of-jurisdiction marriages, uncertain.

This article presents the post-DOMA developments in tribal law as to same-sex marriage, explaining the different tribal approaches to the issue, and then examines the processes by which tribal laws on same-sex marriage, particularly those explicitly permitting same-sex marriage, have been enacted. Finally, this article examines the possible effects that United States v. Windsor will likely have on tribal laws and suggests that tribal courts apply Windsor as persuasive authority under the Indian Civil Rights Act unless there is significant historical evidence as to a lack of openness to same-sex relationships or LGBT identities within that particular tribe. Finally, it discusses the reasons that laws on same-sex marriage may be less of a priority for tribes than for the other sovereigns in the United States. This article is the only comprehensive examination of tribal same-sex marriage laws since the issue gained serious momentum among tribes in 2011 and 2012, and it is the first to address the potential effects of Windsor on Indian tribes.

Federal Court Opinion in DeBoer v. Snyder

Matthew L.M. Fletcher

Here.

A worthy read for anyone interested in marriage equality. The court roundly discredited the State’s efforts to use junk science to support overt discrimination against same-sex couples.

The State should be utterly embarrassed and drop any appeal. There is no defense for a ban on same-sex marriage.

On Justice Sotomayor’s Judicial Philosophy

Matthew L.M. Fletcher

Angelique EagleWoman sent around this short article commenting on Justice Sotomayor’s judicial philosophy, which contains this remark:

In literally every case involving Native American rights in any form, Sotomayor has always sided with the Natives. In Match-E-Be-Nash-She-Wish Band v. Patchak, U.S. v. Jicarilla Apache Nation, Salazar v. Ramah Navajo Chapter, and most recently in Adoptive Couple v. Baby Girl, Sotomayor has taken the side of the Native American parties, even if that meant her being one of the only dissenters, if not the sole dissenter.

Thus, even though Sotomayor can be accurately labeled as “liberal, but unpredictable,” she’s still quite predictable in cases involving Native rights.

– See more at: http://westlawinsider.com/top-legal-news/sonia-sotomayor-liberal-yet-unpredictable-with-one-exception/#sthash.1d1vpQzq.dpuf

As an advocate for most tribal causes, I find it refreshing to see a Justice take an interest in Indian law and tribal interests. Even when she’s in dissent, which she will be nearly every time until (and if) there is a massive shift in the Supreme Court, she gives a voice to the tribal advocates and their cause that has been missing since the retirements of Justices Blackmun and Brennan (and, I would argue, the entire history of the Supreme Court and the federal judiciary). In fact, Justice Sotomayor’s SCT record is far better than tribal advocates could have hoped when President Obama nominated her.

But a word of caution. My sense is that the strong dissents coming from Justice Sotomayor are being heard by those on the Court in opposition to her views — and they are responding in kind. I read Jicarilla and Adoptive Couple (despite the real and continuing tragedy of that case) as being very narrow questions, but looking at the majority opinions, there are broad statements directly attacking important understandings of tribal interests that might not have appeared in a majority opinion except in response to a strong dissent. Would Justice Alito have made such damning remarks about the trust responsibility and the Indian Child Welfare Act unless the legal positions the majority adopted had not been so powerfully attacked by Justice Sotomayor? I wonder.

An analog of sorts are the equal protection cases, where there is simply no full-throated defense of marriage equality from the liberals on the Court so terrifically and justifiably worried about losing Justice Kennedy’s vote. When you’ve the votes, you don’t need to defend the position as much. But, in the case of affirmative action, where the last strong defense of AA came in Bakke, the liberal side’s analysis hasn’t been developed at all. It has hurt in the long run.

In sum, Justice Sotomayor’s dissents are outstanding and powerful, and much of what she argues may one day become the law. At least someone on the Court is making those arguments. And I suspect the majority knows, like Justice Scalia admitted in other contexts, that they’re on the wrong side of history; hence, the expansive dicta. And to lower court judges, dicta is the law. Tribes are timeless entities. But there’s a long slog ahead.

P.S. I thank Yale law prof. Reva Siegel, whose scholarship and comments significantly influenced these views of mine.