Council sues to prevent same-sex marriage

BY ASSOCIATED PRESS
09/09/2005 10:47 AM
TAHLEQUAH, Okla. (AP) - Two days before a scheduled Aug. 18 hearing, the Judicial Appeals Tribunal granted more time for a same-sex couple to respond to a preliminary injunction filed by the Tribal Council to prevent the couple from filing their marriage certificate with the tribe.
The Aug. 16 order also dismissed the scheduled hearing, and as of press time, the court had not reset it for another date.

The JAT issued a temporary restraining order in the case after nine of 15 Tribal Councilors filed a petition Aug. 4 against Cherokee citizens Kathy E. Reynolds and Dawn L. McKinley, both of Owasso.

The councilors listed on the restraining order include Bill John Baker, Audra Smoke-Connor, Joe Crittenden, Charles Hoskin, Johnny Keener, Linda Hughes O'Leary, Melvina Shotpouch, David Thornton and Phyllis Yargee.

The councilors amended the petition Aug. 10 to point out several references in the Cherokee Nation Code denoting sex and gender in a tribal marriage.

"Petitioners pray that this court declare that same-sex marriages are not allowed under Cherokee law and that the respondents' marriage certificate is null and void," documents state.

Councilors filed the petition a day after the JAT unanimously dismissed a case filed by their attorney, Todd Hembree. That case was dismissed when the court stated that Hembree lacked standing and failed to show that harm would result from the couple's union. Hembree will represent the councilors in the latest action.

One of the councilors who filed the lawsuit, Linda Hughes O'Leary, Dist. 5 (Delaware, Ottawa counties), claimed that necessity brought about the petition.

"We don't want gay marriages in the Cherokee Nation. It's that simple," she said. "We do have standing in this case because we're the ones who make the laws."

Dist. 1 (Cherokee County) Councilor Bill John Baker said the filing is to protect tribal citizens.

"I think it's something the Cherokee Nation doesn't need to be involved in," Baker said. "The Cherokee grandmothers out there are very concerned we'll be the only government to have same-sex marriage, and we're trying to protect our constituents."

Reynolds said despite the controversy, there is no harm.

"I don't see how they could be harmed by it," she said. "I could see how it could cause controversy to recognize it, but they don't recognize it. They passed a law (barring same-sex marriage). We happened to get our certificate before they changed the law."

She added that even though she sees the petition as a setback, it didn't surprise her.

"It kind of looks like they're trying to drag it out," she said. "It doesn't surprise me; it's just something else to deal with."

Lena Ayoub of the National Center for Lesbian Rights said the center would continue to represent the two in their bid to file the license.

"We will respond accordingly, but I haven't had a chance to look over the documents," Ayoub said

The couple is fighting to have their marriage recognized by the tribe after other attempts to file their license were rejected. The couple has said their marriage is not infringing on the rights of others within the tribe.

Reynolds and McKinley have been in the middle of a complex battle over tribal law since they filed for a marriage certificate in May 2004. The couple filed for a marriage certificate after determining that old marriage laws did not specify gender.

Because no same-sex couple had filed for a license before, the certificate was granted. After a marriage ceremony, the two returned twice to file their completed paperwork, but were turned away each time by court orders.

Tribal judicial officials soon called for a moratorium on all marriage licenses, regardless of sex. Before that ban ran out, Hembree sued the couple.

JAT justices will render a judgment in the case.

If allowed to file their marriage license, the women will be the only same-sex couple to be registered with the Cherokee Nation because new marriage laws ban gay marriages. Oklahoma does not recognize same-sex marriages.

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