The Cherokee Nation now recognizes same-sex marriages under an opinion issued Friday by the tribe's attorney general.
As a sovereign nation, the Cherokees and other tribes weren’t bound by a 2015 U.S. Supreme Court decision that made same sex marriage legal in all 50 states.
In the opinion, attorney general Todd Hembree said the Cherokee Nation’s constitution protects the fundamental right to marry regardless of the gender of those in the relationship.
“The Bill of Rights unequivocally articulates the foundational principals [sic] of liberty and equality for all Cherokee citizens. Article III, Section 1 provides that “equal protection, shall be afforded under the laws of the Cherokee Nation.” In addition, Article III, Section 3 provides that “the Cherokee Nation shall not deprive any person of life, liberty or property without due process of law . . ..” When read together, Article III, Sections 1 and 3 embody a guarantee that the Cherokee government will not interfere with, and indeed will protect, individual liberty including one’s choice and behavior over which the majority may not exercise control to the detriment of a select minority. Protection of individual liberty necessarily requires respect for an individual’s choice of family. Marriage is “one of the vital personal rights essential to the orderly pursuit of happiness of free men [and women].” “[B]ecause it fulfills yearnings for security, save haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition.”
The attorney general’s ruling nullifies a 2004 law the Cherokee Nation enacted that specifies marriage recognized by the tribe had to be between a man and a woman:
In this instance, the Tribal Council enacted a law that not only unjustifiably and arbitrarily created two classes of Cherokee citizens – heterosexual couples and homosexual couples – but one that also denies same-sex couples the same benefits automatically afforded to couples of the opposite sex. The prohibition against two persons of the same sex marrying burdens the liberty of those individuals, as well as offends the fundamental precepts of equality. The equal protection and due process provisions of the Cherokee Constitution prohibit this baseless infringement on the fundamental right to marry.
That 2004 was codified after Dawn McKinley and Kathy Reynolds obtained a marriage license from the tribe that was later invalidated by an opinion from then-attorney general Diane Hammons, The Tulsa World’s Michael Overall reports:
McKinley and Reynolds, who both changed their last names to Reynolds-McKinley, learned about the Cherokee decision from the Tulsa World. And it came as a particular surprise because Hembree, as a lawyer for the tribe before he became attorney general, had defended the tribe’s right to refuse them a marriage license. “We’re overwhelmed,” Dawn Reynolds-McKinley said. “We didn’t expect his opinion to go this way at all.” Now they hope to get a statement from Hembree specifically validating their 2004 license, she said. “It’s been a long time coming,” she said.
Nimmo said nothing about Hembree’s opinion requires ministers or individual Cherokee citizens to participate in a same-sex wedding. Former principal chief Chad Smith told The World he was pleased to see the attorney general’s decision.
Hembree’s opinion says Cherokee beliefs about sexuality and gender roles changed after contact with Europeans and the introduction of Christianity. He wrote oral histories, quote, “suggest a tradition of homosexuality or alternative sexuality among a minority of Cherokees.” Hembreee cited John Howard Payne, an author invited to visit the tribe by then-Chief John Ross in the 1830s:
Though such traditions are infrequently recorded, in his papers, John Howard Payne describes a ceremony that bonded two people of the same sex together for life. The relationship described in some respects would seem to parallel a modern day same-sex marriage in the depth of its commitment, its permanence, and its recognition by the other members of the tribe.
The attorney general’s ruling carries the weight of the law and takes effect immediately, although it could still be challenged in court.
About three dozen Native American tribes across the country provide legal recognition of same-sex marriage.
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