A question of human rights
Is it time to repeal the Diné Marriage Act?
By Shondiin Silversmith
Navajo Times
WINDOW ROCK, July 4, 2013
Since the United States Supreme Court ruling on the Defense of Marriage Act last week, the scream for equality among the gay community has been heard across the U.S. But will that voice reach the Navajo Nation?
DOMA was introduced to the U.S. House of Representatives in May 1996 but didn't take effect until September 1996. Its supporters called it an act to define and protect the institution of marriage.
"The word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife," stated Section 3 of DOMA until the Supreme Court ruled Section 3 unconstitutional on June 26.
Associate Justice Anthony Kennedy spoke for the 5-4 majority and 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 U.S. Constitution, Kennedy said.
Now same-sex couples will receive the same tax, health and pension benefits as any other married couple within the states that allow and recognize same-sex marriage.
President Barack Obama released a statement following the ruling stating, "This was discrimination enshrined in law. It treated loving, committed gay and lesbian couples as a separate and lesser class of people. The Supreme Court has righted that wrong, and our country is better off for it. We are a people who declared that we are all created equal - and the love we commit to one another must be equal as well."
Alongside the DOMA ruling the Supreme Court lifted California's Proposition 8, which banned same-sex marriage within that state.
Now same-sex couples within California are legally allowed to marry, following the steps of Massachusetts, Connecticut, Vermont, Iowa, New Hampshire, New York, Maine, Maryland, Washington state, Rhode Island, Delaware, Minnesota and Washington, D.C.
With the nation embracing same-sex marriage, will Native American tribes do the same?
"My position has always been that it's up to the couple. If they love each other we don't have the right to say they can't," said Navajo Nation President Ben Shelly about the DOMA ruling. "If you love a person, same sex or opposite sex, that's what love's all about. We love who we want and choose who we want."
Only five of the nation's 500-plus federally recognized tribes recognize same-sex marriage. The Navajo Nation isn't one of them because of the Diné Marriage Act.
The Diné Marriage Act was enacted in April 2005 and introduced to the Navajo Nation Council by former Delegate Larry Anderson Sr. (Fort Defiance).
In section 3 it states "marriage between persons of the same sex is void and prohibited."
"Whatever the Supreme Court says doesn't affect the Navajo Nation because we are a sovereign nation, but if the people could petition the Navajo Nation Council to bring that subject (same-sex marriage) back for discussion or for review, yes it can be done," Anderson said. "It's about respecting people's rights."
Although the Council approved the Diné Marriage Act, President Joe Shirley Jr. vetoed it in May 2005.
Shirley wrote in his veto message that "the legislation is unnecessary and addresses issues already governed by existing law and by cultural values and our clan system. Further, the legislation seems to be focused on the prohibition of same-sex marriage and appears discriminatory."
"We've got some catching up here to do with our laws, our codes and what we operate our government under," Shelly said, because even if the Navajo Nation says no "they'll go out to a state that allows it and they're married so what can you do?"
Alray Nelson, organizer for the Coalition for Navajo Equality, which can be found on Facebook, said there are three ways the Diné Marriage Act can be updated.
One is to take it before the Navajo courts and challenge it as discriminatory. Another way is to have the Council repeal or amend the law to ensure it is inclusive to same-sex couples, and the third is to take it before the Navajo people for a vote.
"Our end goal for our coalition is to challenge the Diné Marriage Act," he said adding that the coalition also wants to talk to the Navajo people about what marriage means from both a modern and traditional perspective.
Jennifer Denetdale, an American Studies professor at the University of New Mexico, said based on her work and her years of reading documents as a historian and talking to members of the Navajo lesbian, gay, bisexual, transgender and questioning community, and Navajo medicine people, there isn't one perspective of the meaning to multiple gender in Navajo society.
"You could probably ask 10 different Navajo medicine people and get 10 different answers," Denetdale said. What's important, she noted, is the recognition of multiple genders in Navajo society.
"There is an indication that there have always been multiple genders in societies including the Navajo society," she said.
What's important about the current issues facing Navajo LGBTQ is the significance of the creation stories, in which they draw upon the story of Nadleeh to validate their places in society, Denetdale said.
"The Diné Marriage Act is a violation of human rights and Navajo civil rights," she added.
Federally recognized tribes that allow same-sex marriage include the Coquille Tribe from Oregon, the Suquamish tribe from Washington, the Little Traverse Bay Bands of Odawa Indians and the Pokagon Band of Potawatomi Indians from Michigan, and the Santa Ysabel Tribe from California.