Will Navajo voters decide same-sex marriage issue? Council tables its own proposal

Long-anticipated legislation to recognize same-sex marriages in the Navajo Nation was tabled by the final committee before it could make its way to the Navajo Nation Council Fall session last month, and now some council members say they want voters to settle the question.

Delegates could take up the issue during a work session on the bill within the next 30 days. The next regular scheduled council session is in January, but a special session is possible before then.

The Council passed a resolution in 2005 to prohibit and void same-sex marriage in the Navajo Nation, but much has changed since then. The council was reduced from 88 to 24 members, and for the first time, there was a female Navajo Nation Vice President and Speaker.

Since 2017, the Navajo Nation has hosted a large tribal Pride event, and this year marked a significant milestone when both the council and a sitting president signed a proclamation declaring Navajo Nation Pride Week. The Council first signed a proclamation in 2020.

But despite those changes, one thing has remained constant: lawmakers' hesitancy and fear to pass legislation that would recognize same-sex marriage in the Navajo Nation.

During the council debate, at least one delegate proposed sending the issue to Navajo voters as a referendum, although chief legislative counsel Dana Bobroff said referendum legislation is complex.

"It's challenging to draft," said Bobroff. "You have to get the referendum question very precise and you have to work with the election office. We will attempt to draft substitute legislation for council, hopefully we can get the complexities worked out."

Family values or discrimination?

The issue has long divided lawmakers, who cite tradition and religion for their opposition to recognizing same-sex marriage. Others say the existing laws wrongfully discriminate against people.

"In my work as an educator and researcher, I recognize that our relatives experience discrimination of multiple kinds from their own families, who sometimes abandoned them," said Jennifer Denetdale,  chairwoman of the Navajo Nation Human Rights Commission and American Studies professor at the University of New Mexico. "They experience discrimination in our school system. I learned grandparents are often the ones who accept their grandchildren who are gender different."

In Denetdale’s 2009 academic paper "Securing Navajo National Boundaries: War, Patriotism, Tradition and the Diné Marriage of 2005," she writes about the resolution. It was sponsored by former council delegate Larry Anderson and defined marriage as between a man and a woman.

“Anderson declared that this legislation was intended to ‘promote strong families and strong family values, not discriminate,’" wrote Denetdale, who said the delegate made this legislation appealing to his constituents by stating traditionally and respectfully that Navajos “have always respected the woman and the man union.”

Anderson was successful in getting his resolution through the council, but former Navajo President Joe Shirley vetoed it, calling the measure a low priority, and listed “its discriminatory nature and its violation of a basic human right” as other reasons for his veto.

Anderson and over 60 other delegates then voted to overturn the veto.

“While Anderson has insisted that his only interest in the matter is the preservation of Navajo traditional practices,” wrote Denetdale in her article, “critics have pointed out that the passage of the Act coincides with American obsessions with family values, including monogamy, nuclear family preservation, and sexuality.”

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Should Navajo voters have the final say?

Now, nearly 20 years later, attempts to rescind the resolution have been made more than once, the last time during the tail end of the former administration. The move was always been met with various obstacles and hesitation, in part by lawmakers.

“As delegates we are caught in the middle,” said council delegate Danny Simpson during lawmakers’ debate last month. “We have constituents supporting this legislation and some constituents who are not supporting it. A lot who are not supporting this legislation are because of their belief, and I have to respect that.”

Even though Anderson and the delegates at that time took it upon themselves to restrict same-sex marriage for the entire Navajo Nation, Simpson said repealing it should be left up to the Navajo people through a referendum rather than the council making the decision.

“The people can decide on this legislation that is before the council,” said Simpson. “I believe we are caught in the middle as delegates to make that decision. It's time for the people to decide on this legislation.”

The sponsors of the legislation are Council Delegates Seth Damon and Eugenia Charles Newton. In response to Simpson's suggestion, Newton said since the council had previously decided to prohibit same-sex marriage, any decision to rescind that should also be made by the council.

“It should be the council that should be doing the vote to decide whether this is what we want to recognize or pass,” said Newton. “On one hand, I do agree we should give it to the people to decide, on the other hand it was the Navajo Nation council who chose to pass without consulting the people, so we should be standing to make that decision today.”

Supreme Court decision is cited in debates

The repeal of the 2005 legislation would primarily recognize all marriages in the Navajo Nation. It does not mandate that churches conduct marriage ceremonies or recognize same-sex marriages. Instead, its focus is on allowing the Navajo Nation to officially acknowledge same-sex marriages and provide the associated rights that come with a recognized marriage.

“There is a strong religious conviction on this legislation, but I want to remind my colleagues at one time we also had those strong religious convictions when it came to divorce,” said Newton to the council. “We have come a long way since that time and we have adjusted to the notion, idea and action of divorce. We also used to have a strong conviction about marrying non-Navajos. We also recognize…common law marriages. All three have changed.”

In 2015, the U.S. Supreme Court ruled in Obergefell vs. Hodges that the 14th Amendment requires states to license and recognize same-sex marriage. The legislation to rescind the prohibition of same-sex marriage explicitly acknowledges that the Navajo Nation recognizes the Supreme Court's ruling in Obergefell v. Hodges, which stated that, "(t)he right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, couples of the same sex may not be deprived of that right and that liberty."

“The Navajo Nation understands that it has inherent powers to govern domestic relations and is not bound by the decision in Obergefell v. Hodges,” stated the legislation. “However, the Navajo Nation, through this legislation, is uniformly recognizing all marriages for any tribal member to marry any person of their choice within the Navajo Nation."

Several tribes in Arizona have legalized same-sex marriage, including the Ak-Chin Indian Community, Salt River Pima-Maricopa Indian Community, the Fort McDowell Yavapai Nation, the Pascua Yaqui Tribe and the White Mountain Apache tribe.

After a two-year battle to legalize same-sex marriage in the Ak-Chin Indian Community, a court ruled that same-sex couples have a fundamental right to marry under the constitution of the Ak-Chin community and the Indian Civil Rights Act of 1968. This ruling was seen as a potential precedent that could be applied to other tribal members who wished to legalize same-sex marriage within their respective tribes.

“Our Navajo government discriminates because we don't have this law in place that rescinds this section of the code,” said council delegate Carl Slater. “We are actively discriminating by not having those property rights, those other rights, explained earlier.”

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'We cannot enforce our personal values' on people

The Navajo Nation Bill of Rights states “The Navajo Nation Council shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” similar to the wording in the First Amendment of the U.S. Constitution, and known as the establishment clause.

While the practice of separating church and state is supposed to be followed, it is often not strictly observed. During the public comment period, those opposed to recognizing same-sex marriage cited religious reasons for their objections, often referencing Bible verses. Various churches, including the Church Rock Christian Reformed Church, San Juan Baptist Association, and the Hardrock Community Church, also presented reasons for voting against the legislation.

“We are in opposition,” wrote Donna Nez, who said she and her husband are pastors at Hardrock Community Church. “We are already in a crisis situation in our communities with all kinds of unauthorized practice. To allow this legislation to pass will be like allowing it to be sold on Navajo land. This is not the teaching of our elders. We believe the Bible is God’s standard.”

Slater said if the 2005 law isn't rescinded, he sees it leading to a public health issue. He said data presented during the previous administration when the legislation was discussed revealed that young LGBTQ people in the Navajo Nation experience significantly higher rates of suicidal thoughts compared to other young people.

Slater attributed this to a sense of non-acceptance within their society, government, and feeling like they don't have a place within the Four Sacred Mountains, especially on the Navajo Reservation.

“I hope that we think about this issue not just from our traditions, values, or religion. We can not enforce our personal values within this legislation and that is not what is taking place with this legislation,” he said. “No one is going to be compelled to perform any ceremony or recognize someone else's relationship. It is about the relationship between the couple and the Navajo Nation government.”

Council Delegate Rickie Nez bluntly said he does not support this legislation and it's not because he hates people. He said there were only a few people who commented in favor of this legislation and over 200 opposing comments, and if people truly wanted this to pass, more supporting public comments would’ve been made.

“People have to respect my religion as well, and my way of life,” said Nez. “I am a god-fearing person.”

Although the legislation had gone through each committee, the council voted to do what it usually does when controversial bills come before them: table it for a future work session. Newton said delegates are going to vote based on their religion, or data and statistics, or how their constituents tell them to vote no matter what.

“What I am asking today is we vote for what is right,” said Newton to her colleagues. “Right now, we know those who are in same-sex marriages aren’t being treated equally. We are mixing religion, tradition and culture with a legal document.”

Arlyssa Becenti covers Indigenous affairs for The Arizona Republic and azcentral.com. Send ideas and tips to arlyssa.becenti@arizonarepublic.com.

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This article originally appeared on Arizona Republic: Navajo voters could be asked to decide same-sex marriage issue