Gay marriage is still illegal for the Navajo. This man is trying to change that.

Alray Nelson lives in one of the last places in America where gay marriage isn’t legal.

By Jorge Rivas, Fusion 

He’s a member of the Navajo nation, the largest Native American reservation, whose territory spans three states in which same-sex marriage is now the law of the land.

But the Supreme Court’s ruling last month that declared the Fourteenth Amendment requires all states to issue marriage licenses to same-sex couples has no immediate legal impact on Nelson, the Navajo, or any of the 566 federally-recognized tribes in the United States.

Just like the 50 states had different positions on gay marriage before the Court stepped in, the 566 tribes have a variety of different stances on same-sex unions.

At least 11 tribes have created laws that either prohibit same-sex marriages or define marriage as between a man and a woman, according to an analysis by the Associated Press. About 12 have developed laws that approve and recognize same sex marriage, according to the New York-based gay-rights group Freedom to Marry. Many others stay silent on the issue or follow the lead of their surrounding states.

And then there’s the Seminole Nation of Oklahoma, which has a law that states a “person of the same gender will not be allowed to marry or divorce.”

Except from the Seminole Nation of Oklahoma Code of Law.

Except from the Seminole Nation of Oklahoma Code of Law.

 

The second most populous tribe, the Oklahoma-based Cherokee Nation, passed its law banning gay marriage in 2004.

The Navajo, who count 300,000 members and to whom smaller tribes often look for direction, passed a law in 2005 explicitly banning gay marriage. It followed in the footsteps of the U.S. Defense of Marriage Act, the federal law recognizing marriage as between a man and a woman that was signed by Bill Clinton in 1996, according to Native American LGBT advocates and historians.

But Nelson, 29, says times are changing on reservations, too.

“Now there’s Navajo couples that are becoming more vocal, and we’re seeing transgender youth also talking about their rights,” he told Fusion in a telephone interview.

He said he plans to appeal to his tribe’s traditional notions of respect and fairness to help change hearts and minds.

“There were same-sex couples from our creation story all the way to today. Those relationships were there, they were recognized, and they had every right to be productive members of our community,” Nelson said.

“If they repeal the [Diné Marriage Act] it brings it back to what our traditional values used to be. They’re using the whites man’s language, a foreign way of speaking, to redefine something that was already sacred and defined, we didn’t need to redefine it at all,” he said.

Historians say many Native Americans have embraced more fluid notions of gender and sexuality than the current gay-marriage bans might suggest.

“There is overwhelming evidence for the historic and cultural presence of multiple gender roles and same-sex relations among most if not all Native North Americans, including the Cherokee, and that they historically shared in the institution of marriage,” said Doctor Brian Gilley, an anthropology professor at the University of Vermont, in a 2005 brief submitted in a Cherokee court case after tribal leaders tried to invalidate a marriage license to a lesbian couple.

The highest Cherokee Court ultimately ruled that the two women couldkeep their marriage license.

Photo by Jerry Archuleta courtesy of Alray NelsonAlray Nelson, left, and his partner, Brennen Yonnie, are leading the fight to get the Navajo Nation to recognize gay marriage.

Photo by Jerry Archuleta courtesy of Alray Nelson
Alray Nelson, left, and his partner, Brennen Yonnie, are leading the fight to get the Navajo Nation to recognize gay marriage.

For the last 16 months Nelson was the deputy manager for former Navajo Nation President Joe Shirley, Jr.’s re-election campaign. The candidate lost after a long contested election.

Now Nelson is using his political connections to set up meetings with tribal leaders to talk about eliminating the Diné Marriage Act. (Diné is a term some Navajo use to describe themselves.) He’s scheduled meetings with lawmakers to discuss eliminating the act now so they address it in the upcoming tribal session in October.

Nelson is also reaching out to the broader community to change people’s views culturally.

“When we talk about discrimination in regards to taking away someone’s rights, Navajo people get that,” he said. “They get it because they’ve dealt with decades of assimilation policy and continue to deal with those issues. So when a certain segment of the community feels left out and aren’t treated with respect and fairness, Navajos understand that and they get that fight.”

The office of Navajo Nation president Ben Shelly did not respond to requests to be interviewed for this story.

There are other significant issues affecting the LGBT Navajo community. LGBT bullying and teen suicides are high, and the Navajo Nation has seen an unprecedented spike in new HIV diagnoses.

But Nelson said starting with gay marriage can help bring attention to the other issues.

“The Diné Marriage Act is the only law in the books that directly discriminates against the Navajo LGBT community,” Nelson said.

Same-Sex Marriage, In The Justices’ Words

Chief Justice John Roberts (from left) and Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor at the State of the Union address earlier this year.MANDEL NGAN AP

Chief Justice John Roberts (from left) and Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor at the State of the Union address earlier this year.
MANDEL NGAN AP

 

By NINA TOTENBERG, KUOW

 

The U.S. Supreme Court directly confronts the question of gay marriage this week with a whopping 2 1/2 hours of oral argument, accompanied by plenty of prognostication afterward about the expected results. It won’t be until June that we learn how the issue is settled nationally. In the meantime, though, we do know a good deal about the views of the justices already.

To say that there has been a revolution in the law when it comes to gay rights is an understatement.

Just 17 years later, however, the court reversed itself and struck down a Texas anti-sodomy law nearly identical to the Georgia one it had previously upheld

The author of that opinion was Justice Anthony Kennedy.

“It is the promise of the Constitution that there is a realm of personal liberty which the government may not enter,” Kennedy said, in summarizing his opinion from the bench.

Had the writers of the Constitution known all the possible components of liberty, Kennedy acknowledged, “they might have been more specific.” But, “they did not presume to have this insight.”

“They knew times can blind us to certain truths, and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” he said.

Justice Antonin Scalia dissented vociferously.

“It is clear from this that the Court has taken sides in the culture war, and in particular, in that battle of the culture war that concerns whether there should be any moral opprobrium attached to homosexual conduct,” Scalia said.

Fast forward 10 years to 2013. The leading players were the same. Kennedy again would write the decision for a five-justice majority, this time invalidating the federal Defense of Marriage Act (DOMA), a 1996 law that had barred federal recognition of same-sex marriages in states where such unions were legal.

The law, said Kennedy, had “the purpose and effect to disparage and to injure” the personhood and dignity of legally married same-sex couples, converting their unions into second-class status.

Dissenting again, Scalia predicted that legalization of same-sex marriage, through the courts, would become inevitable.

“By formally declaring anyone opposed to same-sex marriage as an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition,” he said.

Less than two years later, Scalia’s view hadn’t changed, but his tone had.

“Don’t paint me as anti-gay … or anti anything else,” he said in February of this year. The occasion was a Smithsonian Associates event where this reporter interviewed the conservative Scalia and his longtime liberal dueling partner, Justice Ruth Bader Ginsburg.

Scalia explained his view this time not in the language of a culture war, but as the court respecting a structural principle of democracy.

“The point is: Who decides?” he asked rhetorically. “Should these decisions be made by the Supreme Court, without any text in the Constitution, or any history in the Constitution to support imposing that on the whole country. Or is it a matter left to the people?”

Justice Ginsburg quickly jumped in.

“But as I see it, it isn’t the Supreme Court that is deciding for the whole society, like an imperial ruler,” she said. “There hasn’t been any major change in which there wasn’t a groundswell among the people before the Supreme Court put its stamp of approval on the inclusion in the equality concept of people who were once left out.”

Ginsburg went on to note that it wasn’t until after World War II and the fight against the Nazis that the court faced separation of the races in the U.S. and declared public school segregation unconstitutional.

“It was a huge embarrassment that racism persisted in our country, that our troops in World War II until the very end were separated,” said Ginsburg. “I think that World War II made inevitable the change with respect to the status of racial minorities. And it was the same way with women’s increasing demand to count as full citizens.”

So where are the nine current Supreme Court justices on the issue of gay marriage? In 2013, the court struck down the Defense of Marriage Act by a 5-4 vote, with the conservative Justice Kennedy joining the court’s four generally liberal justices.

It’s likely that Kennedy will once again join the liberals in this term’s challenge to state bans on same-sex marriage. But nothing is assured, especially since Kennedy’s 2013 opinion also stressed the traditional right of the states to define marriage.

“The significance of state responsibilities for the definition and regulation of marriage dates to the nation’s beginning,” he wrote. “When the Constitution was adopted, the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the states.”

Confronted by that states’ rights question, gay rights supporters this week will point to the court’s 1967 decision striking down state laws that banned interracial marriage. That case was called, fittingly, Loving v. Virginia — the plaintiffs being named, really, Mildred and Richard Loving.

Chief Justice John Roberts raised the Loving case at his 2005 confirmation hearing when he was asked how he would evaluate newly asserted rights.

“The example I think that I’ve always found is easiest to grasp was Loving against Virginia,” said Roberts. “Do you look at the history of miscegenation statutes, or do you look at the history of marriage?”

Roberts concluded that under the court’s precedents, it should look at the broader question, the history of the right to marry.

Just what, if anything, that forecasts is unclear. The court has repeatedly said marriage is a fundamental right. But Roberts was a dissenter in the Defense of Marriage Act case. He would have upheld the law on the grounds that federal recognition justifies uniformity.

This week’s case, though, is different. It is the direct challenge to bans on gay marriage that gay rights advocates have been seeking for 20 years. For the court, and the justices, it has all the earmarks of legacy.

 

Obama seeks benefits for all gay couples

Washington Post
President Barack Obama signaled Thursday that his administration would extend federal benefits to gay couples living in states that don’t recognize their marriages, a relief for advocates left with a thicket of uncertainty a day after their historic Supreme Court victory.

The president said the government should define marriage based on where a couple weds and not necessarily where they live – a definition of wedlock that’s essential to how the administration will implement the court’s decision Wednesday to strike a key provision of the federal Defense of Marriage Act.

“It’s my personal belief – but I’m speaking now as a president as opposed to as a lawyer – that if you’ve been married in Massachusetts and you move someplace else, you’re still married, and that under federal law you should be able to obtain the benefits of any lawfully married couple,” Obama told reporters at a news conference in Dakar, Senegal, on a trip to sub-Saharan Africa.

The president called the ruling a “victory for American democracy” and said he has directed his administration to “comb through every statute” to ensure that gay couples receive federal benefits for which they are now eligible.

The task is already proving daunting.

As jubilant same-sex couples scrambled to call attorneys and agencies and scour the Internet about new rights, officials across the government continued reviewing the 1,110 federal rights, benefits and obligations that marriage confers.

They range from Social Security and pension benefits to green cards for spouses who are not citizens. All but two are regulations the administration can change without congressional action. Social Security and veterans’ benefits are the two exceptions that may require Congress to make the legal changes to ensure that married same-sex couples get the benefits of those programs.

A White House official said the process will take time, but benefits for same-sex couples will come on a rolling basis.

But since the court stopped short of ruling that the right to marry must be extended to same-sex couples no matter where they live, state lines still determine who is legally married and who is not. And that’s where much is left for the Obama administration to interpret – and opponents of same-sex marriage to contest.

Thirty-seven states do not allow same-sex unions. Virtually every federal agency has a different standard for how it defines marriage, whether based on the place a couple weds or where they live. Some agencies do not address either definition, such as the Office of Personnel Management, which makes policy on benefits for 2 million federal employees.

The federal employee retirement law, for example, defines a marriage for retirement benefit purposes as one recognized in the jurisdiction “with the most significant interest in the marital status” of the individual, unless that law is contrary to federal policy, according to the Congressional Research Service.

A decision on which state has the “most significant interest” likely would take into account where the employee lived while working and during retirement, and where the person eventually died. Also taken into consideration would be where the couple had financial assets and where the surviving spouse lives, personnel experts say.

Some issues are more clear-cut. For example, once the ruling takes effect, a legally married gay spouse who is not a citizen should be permitted to apply for a green card in any state. Under immigration law, the rules of a state where a wedding occurs takes precedence.

But most others are not.

“You could have federal employees in D.C. getting all the benefits of marriage,” said Fred Sainz of the Human Rights Campaign, a gay rights advocacy group. “Legally, across the river in Arlington ⅛County in Virginia€, they would not get them.”

Sainz called the president’s comments Thursday an “incredibly encouraging” sign to resolving the murkiness.

“We are literally sitting on pins and needles waiting on guidance from the administration on how the court’s decision will be put into practice.”

As with immigration, the Pentagon defines marriage based on the place of celebration. Defense Secretary Chuck Hagel said the military will extend to same-sex couples medical and dental care, access to base housing and commissaries and other benefits, including the right to a burial at Arlington National Cemetery.

But for Defense Department civilians, who are covered by OPM’s murkier definition of marriage, these benefits are not as cut-and-dried.

Hagel said there is no estimate yet on how much it will cost to make the changes mandated by the ruling. “But make no mistake, it will be implemented in its entirety,” he told reporters.

Defense officials said they have launched an effort to update systems for issuing identification cards for same-sex spouses, but estimate that it will take six to 12 weeks to complete.

Stephen Peters, president of the American Military Partner Association, said some same-sex military couples now in domestic partnerships are planning to travel to states where gay marriage is legal and get married to qualify for benefits.

Shannon Simpson, who married Army 1st Lt. Ellen Schick at the U.S. Military Academy at West Point in November, said the couple are already examining what steps they will need to take to get access to the same benefits provided opposite-sex couples.

“We were looking at some of that material last night, trying to figure out what kind of paperwork I’ll have to file,” said Simpson, 26.

Simpson, who lives off-post with her spouse, will also have access to the Keller Army Community Hospital on the West Point campus where Schick, a registered nurse, is assigned.

“There’ve been times I’ve gotten ill and we’ve had to drive 45 minutes over a mountain to get to an urgent-care clinic, and thinking the whole time that this is ridiculous that we can’t drive five minutes to the hospital where she works,” Simpson said.

Questions remain about how the Supreme Court decision will affect taxes and tax filings for same-sex couples. Currently, federal law treats them differently depending upon whether their states recognize same-sex marriage and whether the couple owns property.

“We had to find special accountants who knew how to do it,” said California resident Karen Golinski, a federal attorney. “I don’t think most people understand how difficult life can be when the law doesn’t treat you the same as everyone else.”

Suzanne Artis, who lives in Connecticut with her same-sex spouse, said the ruling “feels a little unfinished.”

“The result was great, but I’m looking forward to closure – complete closure.”

Some conservative leaders who oppose the court’s ruling said Thursday that Obama may be treading on shaky legal ground by redefining marriage in states that have made it clear they do not support gay marriage.

“We would support a narrower interpretation that would only apply to the state of domicile,” said Peter Sprigg, senior fellow at the Family Research Council, which filed a friend-of-the-court brief in support of DOMA.

“If we now say the same-sex couples will be recognized as married even where states don’t allow it, you would have inconsistent benefits,” he said. “You would have to file two tax returns, federal and state, according to different laws.”

Sprigg acknowledged that a legal challenge if the federal government extends benefits to states that don’t recognize gay marriage could be tricky:

“The challenge would be to figure out who suffers harm from that recognition,” he said.

Story tags »  • FederalTaxesGay marriage

Gay marriage ruling: Supreme Court finds DOMA unconstitutional

David G. Savage, The Los Angeles Times

WASHINGTON — The Supreme Court struck down a key part of the federal Defense of Marriage Act on Wednesday and declared that same-sex couples who are legally married deserve equal rights to the benefits under federal law that go to all other married couples.

The decision is a landmark win for the gay rights movement. It voids a section of the law known as DOMA, which was adopted with bipartisan support in Congress in 1996 to deny all benefits and recognition to same-sex couples.

At that time, no state permitted gays and lesbians to marry. Now, 12 states and the District of Columbia authorize same-sex marriages.

FULL COVERAGE: Prop. 8 and DOMA

Justice Anthony Kennedy, speaking for the 5-4 majority, said DOMA was unconstitutional because it violated the right to liberty and to equal protection for gay couples.

“By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute” violates the Constitution, he said

Dissenting were Justices John Roberts, Antonin Scalia, Samuel Alito and Clarence Thomas.

The ruling means that more than 100,000 gay and lesbian couples who are legally married will be able to take advantage of tax breaks, pension rights and other benefits that are available to other married couples.

Four years ago, several gay couples who were married in Massachusetts launched a lawsuit to challenge DOMA, arguing it denied them equal protection of the laws. They won before a federal judge in Boston and before the federal appeals court there.

DOCUMENTS: Supreme Court decisions on DOMA, Prop. 8

Their win prompted the Obama administration to switch course and join with the challengers, who said the law was discriminatory. House Republicans voted to take up the legal defense of the law.

When the issue reached the Supreme Court, the justices voted to decide a case brought by Edith Windsor, a New York widow who was sent a $363,000 estate tax bill by the Internal Revenue Service after her wife died in 2009.

The decision leaves in place another provision in the law that says no state is required to recognize gay marriages performed in any other state. That provision was not under challenge.