Thursday, August 11, 2005

Cherokee Couple's Marriage Faces New Legal Challenge

(Link) Whiny attorney who lost the first case finds more plaintiffs and files another suit against a lesbian couple whose marriage was proven not to affect his life.


LNewsEditor said...

JIC Post:
By Teddye Snell, Tahlequa Daily Press

Following the dismissal by the Cherokee Nation Judicial Appeals Tribunal of a case brought against Kathy Reynolds and Dawn McKinley challenging the couple's same-sex marriage, another battle is about to begin.

According to JAT documents, several council members joined together and filed a petition with the Cherokee Nation Tribal Court - including Buel Anglen, Bill John Baker, Audra Smoke-Conner, Joe Crittenden, Don Garvin, Bill Johnson, John Keener, Jackie Bob Martin, Linda Hughes O'Leary, Melvina Shotpouch, David Thornton and Phyllis Yargee.

The original petition listed the councilors' names individually, followed by "all members of the Cherokee Nation Tribal Council, in their official capacity."

Tribal Council attorney Todd Hembree, who filed the first lawsuit, will represent the councilors listed on the petition.

An area newspaper reported Tuesday that an amendment to the original petition was expected to be filed sometime Tuesday. Hembree declined to comment, and according to JAT court clerk Kendall Bird, no amendment had been filed as of press time today.

Although District 1 Councilors Smoke-Conner and Baker were contacted Tuesday morning after being named in the original petition, both declined comment pending the filing of the amendment.

"I was not aware of any petition being filed with JAT," said Baker, although his name was listed in the original petition filed Thursday.

Tribal councilors not named in the petition included Meredith Frailey, Cara Cowan and Chuck Hoskin.

The petition is asking for a declaratory judgment from JAT to forbid same-sex marriages under Title 43 of the Cherokee Nation Code, and declare the marriage certificate issued to McKinley and Reynolds null and void.

The petition states: "Respondents actions are an attempt to have the courts redefine the traditional concept of marriage within the Cherokee Nation. Simply put, respondents are seeking to take advantage of a perceived 'loop hole' in our statute that, if successful, would fly in the face of the traditional definition and understanding of marriage of the Cherokee people."

In the court's dismissal of the previous case, the JAT ruled Hembree did not have standing in the case and could not adequately prove he would be harmed by the couple's marriage.

The new petition is a response to that ruling, and councilors plan to challenge the marriage on the same grounds.

"It was ruled that Todd [Hembree] had no standing in the case," said O'Leary. "We are the legislators for the Cherokee Nation. We make the laws, and we do have standing."

Judicial Appeals Tribunal justices hearing the case include Stacy Leeds, Darrell Matlock, and Darrell R. Dowty.

The Owasso couple could not be reached for comment, but said earlier their marriage is not infringing on the rights of others within the tribe.

Lena Ayoub of the National Center for Lesbian Rights, said she and the couple had been notified of the pending action. Ayoub will continue to represent the couple in the latest court matter.

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

The couple exchanged vows in Cherokee in May 2004, after the tribe gave them a marriage certificate without protest. However, Hembree's lawsuit brought the injunction preventing the couple from filing the certificate in tribal records.

The tribal council made its decision to define marriage as between a man and a woman; however, no ruling made by the council can be retroactive. The act defining marriage within the Cherokee Nation also outlawed adultery within the tribe's jurisdiction.

The couple filed for a marriage certificate after determining that old marriage laws did not specify gender.

WordyGrrl said...

If "being harmed" by another couple's marriage is the litmus test, this could set a precendent for blowing all future cases out of the water. Hopefully as "No, being offended is not a reason to go to court -- even in America."