Women move to dismiss third legal challenge
- Two women considering having their same-sex marriage validated by Cherokee Nation filed a motion to dismiss a third challenge on March 8 in tribal court.
Cherokee citizens Kathy E. Reynolds and Dawn L. McKinley filed a dismissal motion against a petition asking the Judicial Appeals Tribunal to hear the case.
CN Court Administrator Lisa Fields filed the Jan. 26 petition asking the JAT to instruct her "how to direct the court clerk" to treat a marriage certificate issued to the women on May 13, 2004.
Fields' petition states her job includes supervising the District Court clerk, who records tribal marriage certificates, and she needs to know if accepting the certificate would violate her oath of "properly recording official records and documents" since the council changed the marriage law to prohibit same-sex marriages.
When the couple received its certificate, tribal law defined marriage as a union between a "companion" and "cooker." A month later, it was changed to state marriage could only occur between man and a woman.
"After the issuance of the marriage certificate ... the Tribal Council removed any possible ambiguity in tribal law when they expressly prohibited marriage between two people of the same sex," Fields' petition states. "Unless ... ordered by the tribal courts to accept and file the marriage ... this office's position is that the marriage certificate between the two women is voidable ... and that a judicial determination on the merits would conclude the marriage certificate void."
Fields also cited a June 2004 legal opinion by the late and former CN General Counsel Julian Fite that stated CN laws "reflected" marriage as a union between a man and woman. Fields' petition also states she and her lawyer John G. Ghostbear researched tribal law and history and determined gay marriages were "never contemplated or recognized."
In the motion to dismiss, the couple's counsel, Lena Ayoub of the National Center for Lesbian Rights in San Francisco, cites several reasons, including that Fields hasn't shown individualized harm. Under CN law, a person must prove individual harm before proceeding with litigation.
"She (Fields) has not identified any ‘injury of fact' or pointed to any way in which she has suffered a threatened or actual injury resulting from the Respondents' (McKinley and Reynolds) marriage," Ayoub wrote.
She also states Fields' job doesn't give her standing to file suit and argues the JAT and federal courts have clarified that the requirement of standing applies to every litigant.
"Simply alleging that one is a citizen, a taxpayer, a legislator or a public official is not sufficient ... a person who is invoking ... this Court must demonstrate that she has suffered or is threatened with suffering some individualized harm."
Ayoub contends Fields' fear of oath violation doesn't stand because the CN law Fields cites has no bearing. The law states that anybody who ... procures or offers "false or forged" documents to be filed in CN is guilty of a crime.
"Although (Fields) does not say so, she appears to suggest that either she or the Clerk might be liable under the statute if they recorded the ... marriage certificate," Ayoub wrote. "By its plain terms (the statute) applies to ‘a false or forged document.' The marriage license does not fall into either one of these categories regardless of whether it is or is not valid."
Ayoub states that even if the certificate was void, as Fields argues, it simply would be an invalid document issued in good faith by the court clerk and obtained in good faith by the couple based on a belief that they were legally entitled to marriage.
Two previous challenges to the marriage have failed because the JAT stated challengers did not demonstrate "specific particularized harm" caused by the marriage.
The first one came from Tribal Council attorney Todd Hembree acting as a private citizen. The JAT dismissed it on Aug. 3, 2005.
The second challenge came from nine Tribal Councilors who stated since they amended CN's marriage law forbidding same-sex marriage in June 2004, they had standing to contest the couple's certificate. The JAT dismissed it on Dec. 22, 2005.