JAT dismisses same-sex marriage injunction
By Lisa Hicks
Phoenix StaffTAHLEQUAH, Okla.
- Kathy E. Reynolds and Dawn L. McKinley can file their Cherokee Nation marriage application after the Judicial Appeals Tribunal dismissed a second attempt to invalidate their same-sex marriage Dec. 22.
The JAT dismissed the lawsuit filed by nine Tribal Councilors stating the councilors failed to "demonstrate a specific particularized harm." Under CN law, a person must prove individual harm before proceeding with litigation.
Todd Hembree, acting as a private citizen, filed the first suit against the couple in June 2004. As council attorney, Hembree represented Bill John Baker, Audra Smoke-Conner, Joe Crittenden, Charles Hoskin, John Keener, Linda Hughes-O'Leary, Melvina Shotpouch, David Thornton and Phyllis Yargee in the second suit.
"Under the court's ruling, the only individual who would be able to bring a lawsuit in this stature would be the general counsel of the Cherokee Nation. Former General Counsel Julian Fite had issued a memo that stated the purported marriage was contrary, yet the General Counsel's Office has done nothing to bring that action before the court," Hembree said.
Lena Ayoub, staff attorney with the National Center for Lesbian Rights, who represented the couple before the JAT, disagreed.
"The court's ruling did not reference any particular individual or office that could satisfy the stringent standing requirements necessary to challenge the validity of Ms. Reynolds and Ms. McKinley's marriage. Instead, the court found that the petitioners, nine members of the Tribal Council, failed to demonstrate the necessary harm or that they were personally affected by the couple's marriage," she said.
Diane Hammons, who succeeded the late Fite as CN general counsel, affirmed Fite's opinion regarding the traditional laws on marriage still stands, but said she did not plan to file anything and the court can refuse to file the completed application.
"They could come by and try to attempt to register it. At this point, we've been advised by our attorney not to make any comment on that because we haven't decided what we're going to do in the event they come," Lisa Fields, courthouse clerk, said.
McKinley and Reynolds were married May 18, 2004, in a ceremony by a CN-sanctioned religious official within the tribe's jurisdiction five days after receiving their marriage application from the CN District Court. When the couple obtained their marriage application, tribal law did not define marriage as a union between a man and a woman, but as between a "provider" and "companion."
"We had no problems getting the application. We were warned by the clerk that we may have trouble finding a minister, but we had no idea of the other trouble we would have," Reynolds said.
In response to the issuance of the couple's marriage application, Fite filed a petition against issuing marriage applications to same-sex couples. Darrell Dowty, the JAT's chief justice at the time, initiated a moratorium on the issuance of all marriage applications.
When the women returned to file their application, they were turned away.
"No matter what happens and what comes out of this, the one thing they can't take away from us, and that's our love for each other and our lives. We're still going to be together and we're still going to live our lives together and they can't take that away from us," McKinley said. "We just want the same thing everyone else has - a legal marriage."
An incident in September 2003 made the couple realize they needed legal recognition of their relationship. Reynolds was hospitalized with a debilitating back injury and McKinley was forbidden entry while Reynolds was being treated. McKinley was also barred from Reynolds' hospital room.
"I was the person who lived with her. I was the person who knew about her pain, knew what was happening with her. But as far as the state of Oklahoma was concerned, I was a stranger," McKinley said. "As Kathy's spouse, I wouldn't have been shut out that way. It's a very sickening feeling to know you have no rights, no say so."
Reynolds and McKinley are aware they may now file their marriage application but are fearful of being refused yet again.
"I don't know. We're going to wait and see. But I knew from the moment I saw her, that she was the one for me, the woman I wanted to marry," McKinley said.
Hembree said if the two do file their application, their same-sex marriage would be the only one allowed because of the revised marriage law. The Tribal Council passed a measure June 16, 2004, that excludes same-sex couples from marrying.
Same-sex marriage is illegal in Oklahoma, but the state recognizes and honors Cherokee Nation marriage licenses. However, federal law does not require Oklahoma to recognize same-sex marriages from other states.