Same-sex marriage case goes before JAT
- A civil case regarding the legality of a Cherokee Nation marriage application issued last year to a lesbian couple was appealed to the tribe's Judicial Appeals Tribunal in December.
According to court documents, the JAT took the case on Dec. 20, 2004, when the same-sex couple of Kathy Reynolds and Dawn L. McKinley petitioned the tribe's highest court to review it.
They petitioned the JAT after District Court Judge John Cripps denied their motion of summary judgment, which included motions to dismiss and quash the case as well as lift a moratorium on filing their marriage certificate with the tribe. As of press time, no date had been set for the case in the JAT.
Reynolds and McKinley, tribal citizens from Owasso, Okla., were issued a tribal marriage application May 13, 2004. They were married May 18 by Leslie Penrose, a Tulsa-area minister, but were turned away at the tribal courthouse because of a marriage application moratorium that prevented court officials from issuing or accepting marriage applications for 30 days.
Reynolds and McKinley were the only same-sex couple to receive a marriage application before the moratorium.
Mike Miller, tribal communications officer, said the tribe issues marriage applications instead of licenses. After a ceremony, the person conducting the wedding signs the application and the couple returns it to the tribal court for certification.
Same-sex marriages are illegal in Oklahoma, but the state honors marriage applications from the tribe. Oklahoma Attorney General Drew Edmondson previously said that federal law does not require Oklahoma to recognize same-sex marriages from other states. It is not immediately clear whether the tribe's sovereign status would change that.
On June 11, District Court Judge John Cripps extended the marriage application suspension, days before the original 30-day moratorium was set to expire, after Tribal Council attorney and tribal citizen Todd Hembree filed an objection to the couple's marriage application.
Hembree said he filed the objection because Dowty's moratorium was set to expire June 14 and if a Cherokee citizen did not lodge a formal protest, the couple's marriage application would be approved.
The couple again tried to register the marriage application with the court June 15, one day after the original moratorium expired. However, McKinley and Reynolds were turned away again because of the extended moratorium granted by Cripps.
At a June 13 meeting, the Tribal Council unanimously voted to amend the tribe's marriage law by banning same-sex marriages along with bigamy and adultery. Under the previous marriage law, most citizens 18 or older could marry, only people with a "husband or wife living, parties who are nearer of kin than first cousins, either of the half or of the whole blood, and parties who are insane or idiotic" could not be married.
Under the new law, the tribe recognizes marriage as "a civil contract between one man and one woman."
However, David Cornsilk, a tribal citizen serving as the couple's lay advocate in the case, said the new law is not retroactive to the marriage application since the application was issued in May and the law was passed in June. He also said he understood the challenge to the marriage application, just not the challenger.
"It cannot touch Kathy and Dawn's marriage license," Cornsilk said of the new marriage law. "The Constitution prohibits that, and we're not opposed…to a challenge to their marriage license. We just don't feel that Todd Hembree is a person who should do it. He has no standing and no connection to them. In order for a lawsuit to survive in a legitimate course, that person has to have some harm, and he just can't prove that he is at harm."
On June 18, Cripps issued a temporary injunction in the case until a hearing could be set. He then issued a clarifying order July 30 stating that the tribal courthouse could resume issuing heterosexual marriage licenses, but that a restraining order was still in place against same-sex marriage applications.
The couple filed a motion for decision in November, and on Dec. 10 Cripps denied their motions to dismiss, quash and for summary judgment. Reynolds and McKinley then appealed to the JAT on Dec. 17.
Cornsilk said he thought Cripps didn't go by tribal law in ruling against the couple's motions.
"He didn't go by what the law says, the rulings of the Judicial Appeals Tribunal and the authorized relationship between the District Court and the JAT," he said. "I thought he lacked courage. I think he just made a ruling that he knew would bounce up to the JAT, and he would be able to walk out of there saying ‘I didn't give the lesbians anything.'"
However, the women weren't disappointed by the District Court ruling and are more optimistic now that the case is to go before the JAT, Cornsilk said.
"They didn't expect anything one way or another. They pretty much resigned themselves that the tribal government is going to protect them or their rights, and they were just waiting to see what happened," he said of Cripps' ruling. "They're more hopeful now that the case is before the JAT because I've shown them some rulings that the JAT made in previous issues that were politically unpopular. They feel like they have a little bit better chance with the JAT than with the District Court."