Here is the opinion:
For the reasons discussed below, it is the official opinion of the Attorney General that the Cherokee Nation Constitution protects the fundamental right to marry, establish a family, raise children and enjoy the full protection of the Nation’s marital laws. The Nation may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage based solely upon the sex of the persons in the marriage union. Therefore, Section 1 of the Cherokee Nation Marriage and Family Act (“Act”), which defines marriage as “a civil contract between one man and one woman,” is unconstitutional. Likewise, Section 3 of the Act, which prohibits marriage “between parties of the same gender,” is also unconstitutional.
My article on tribal laws relating to same-sex marriage has just been published in Columbia Human Rights Law Review. It delves into the twelve tribal laws that allow same-sex marriage and also looks at tribal DOMAs, tribal domestic partnership laws, and other tribal laws that bear on same-sex marriage. Finally, it addresses the somewhat limited effects Windsor and the future Supreme Court decision in Obergefell are likely to have on tribal DOMAs.
Thanks to everyone who provided information on tribal laws. I couldn’t have done it without you!
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.
Here, “The Worst Argument Ever Made Against Gay Marriage” by David S. Cohen.
I won’t hide the ball here, so here it is: Gay people should not be able to get married because Pocahontas married John Rolfe.
This argument was actually made in federal court Tuesday, before the judges of the Court of Appeals for the 4th Circuit in Richmond, Virginia. They were hearing a challenge to Virginia’s ban on same-sex marriage. The argument is hands-down the worst argument ever offered against same-sex marriage.
A link to the oral argument is here.
More information is here.
New Mexico has seen celebrations across the state since its highest court 10 days ago unanimously ruled it was unconstitutional to deny a marriage license to same-sex couples. Not so for the sovereign Navajo Nation, whose borders spill over into the northeast part of the state and where tribal law is clear: Such unions are banned.
Some Navajo hope to change that, buoyed by the cultural climate shift underscored when the U.S. Supreme Court in June struck down part of the federal Defense of Marriage Act. Gay marriage is permitted in the District of Columbia and 18 states, the most recent being Utah, although officials there plan to appeal a federal court decision that overturned the state’s ban on same-sex marriage.
Among those who have suffered the denial of basic human rights in this country, Native Americans can unfortunately take a prominent place. Because their historic experience of prejudice strongly resonates to this day, the Santa Ysabel Tribe, founded in 1893 in California, has announced its firm support for the LGBT community as it strives for same-sex marriage equality and an end to governmental discrimination. As sovereign nations, Tribes in the United States have the power to issue proclamations on public policy issues affecting their membership and others occupying their reservations.
Santa Ysabel is one of only four Tribes in the U.S., and the only Tribe in California, to date, to recognize same sex marriage. The Santa Ysabel Tribe’s announcement comes as the Supreme Court contemplates the constitutionality of DOMA and Californians await a decision regarding the legality of prop 8 in their state.
Tim LaCroix and his longtime partner, Gene Barfield, will be guests of President Barack Obama on Thursday at a reception honoring LGBT Pride Month, MLive.com reportedtoday. LGBT stands for lesbian, gay, bisexual and transgender.
The men were married in March by the LittleTraverse Bay Bands of Odawa Indians, of which LaCroix is a member. Same-sex marriage is prohibited in Michigan, but federally recognized Native American tribes are self-governing and aren’t bound by state law.
Previous coverage here.