Ban on Same-Sex Marriage Declared Unconstitutional in Cherokee Nation

"The right to marry without the freedom to marry the person of one's choice is no right at all," says the Native American Attorney General M. Todd Hembree.

By Dawn Ennis - Advocate

12/12/2016

by Noel Gutierrez-Morfin - NBC

 Dec 13 2016

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The Cherokee Nation's Attorney General issued an opinion that, effective immediately, will permit the tribe to recognize same-sex marriages, overturning a previous ban that was implemented in 2004.

Cherokee Nation Attorney General Todd Hembree 

The decision came after the Cherokee Nation Tax Commission sent an inquiry to Attorney General Todd Hembree asking whether the group was able to issue a motor vehicle license tag to a woman who provided her same-sex marriage certificate as proof of identity. Hembree ruled that under the Due Process Clause and Equal Protection Clause of the Cherokee Constitution a ban on recognizing same-sex marriages was unconstitutional. 

"There can be no doubt that the same-sex marriage ban rests solely upon distinctions drawn according to sexual orientation. The right to marry without the freedom to marry the person of one's choice is no right at all," Hembree said in his issuing opinion. 

Hembree had previously defended traditional marriage as law and even helped draft the original 2004 act that ruled the Cherokee Nation would not recognize same-sex marriages. The issue came up during a rules committee meeting on Monday.

"Just like anything else in life, times change, interpretations of the law change," Hembree said. "The law that was overturned based on the opinion that I just issued, based on the plain reading of the Cherokee Nation Constitution ... and in my opinion guaranteeing equal rights for all -- it was not lost on me that I was personally changing my opinion and personally changing my legal position." 

Hembree added that he's "proud" of his decision and will "defend it" if it goes to court. His ruling comes more than a year after the U.S. Supreme Court issued its landmark Obergefell v. Hodges decision, legalizing same-sex marriage nationwide. 

"As a practical matter, this gets rid of a lot of confusion -- whether or not spouses could be added to employee benefits, change their name on tribal records if they had a name changed pursuant to a license in another district, legal benefits and rights regarding healthcare," Chrissi Nimmo, Assistant Attorney General for the Cherokee Nation, told NBC Out. 

 

"For Cherokee citizens who are gay, there's the experience and feeling of 'My country treats me legally, the same as everyone else,' which is a validating and important result of this decision," Nimmo added. 

 

The sovereign Cherokee Nation, the largest tribal nation in the U.S. with more than 317,000 citizens, is not the first Native American nation to recognize same-sex marriages. The Suquamish Tribe of Washington state legalized same-sex marriage in 2011, and the Coquille Indian Tribe legalized it in 2008. 

The Chikasaw Nation, Choctaw Nation and Seminole Nation, in contrast, do not recognize same-sex marriages. The Navajo nation expressly forbids recognition under an amendment that was enacted in 2005.

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