THE COQUILLE INDIAN TRIBE, SAME-SEX MARRIAGE, AND
SPOUSAL BENEFITS: A PRACTICAL GUIDE
Julie Bushyhead
1
Civil marriage is at once a deeply personal commitment to
another human being and a highly public celebration of the
ideals of mutuality, companionship, intimacy, fidelity, and
family. It is an association that promotes a way of life, not
causes; a harmony in living, not political faiths; a bilateral
loyalty, not commercial or social projects. Because it fulfils
yearnings for security, safe haven, and connection that express
our common humanity, civil marriage is an esteemed institution,
and the decision whether and whom to marry is among life's
momentous acts of self-definition
.
2
INTRODUCTION
The Coquille Tribe, located in Oregon, is the first and only Indian tribe to
codify the definition of marriage as a fundamental right regardless of the
biological sex of the parties.
3
Coquille Tribal Chief Ken Tanner stated, âwe want
1. University of Tulsa College of Law, J.D. expected May 2009. The author would
sincerely like to thank Professor Melissa Tatum, now the Associate Director of the
Indigenous Peoples Law and Policy (IPLP) Program at the University of Arizona James E.
Rogers College of Law, for her guidance and unwavering support in writing this article;
Brian Gilley, Ph.D., assistant professor of Anthropology at the University of Vermont for
his help in understanding a Native American tradition of recognizing âtwo-spiritâ people;
Melissa Cribbins, Esq. and Kay Collins from the Coquille Indian Tribe Legal Services
Department for their assistance helping me understand Coquille law; last, but certainly not
least, the staff and editorial board of the
Arizona Journal of International and Comparative
Law
for their support and thoughtful advice.
The author uses the term âsame-sex coupleâ throughout the article in an attempt to
educate without creating confusion. However, this term is biologically incorrect for some
couples as it presumes that all human beings are either male or female, and may foster
unwarranted societal stigma of inferiority and/or immorality. Furthermore, the use of âsexâ
to refer to gender can be misleading. In fact, there is a distinct difference between a
personâs gender identity and a personâs sexual orientation.
2. Goodridge v. Mass. Depât of Pub. Health, 798 N.E.2d 941, 954-55 (Mass. 2003)
(quoting Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (emphasis added) (internal
quotations omitted)).
3. E-mail from Brian Gilley, Anthropologist and Assistant Professor at the
University of Vermont, to Julie Bushyhead, Student at the University of Tulsa College of
Law (Oct. 16, 2008) (copy on file with author).
510
Arizona Journal of International & Comparative Law
Vol. 26, No. 2
2009
all people to be open to benefits and accepted in our group.â
4
The Tribe tries to
accomplish this goal by recognizing âpeople of different lifestyles.â
5
The
Coquilleâs new marriage ordinance âfinds that the formation, continuity and
recognition [of] domestic relationships are essential to the political integrity,
economic security and the health and welfare of the Tribe.â
6
By enacting this
ordinance, the Tribe demonstrates its appreciation for the importance of
recognizing a coupleâs sincere commitment to one another through the institution
of marriage.
7
The Tribe supports its action to resist discrimination against same-
sex couples by referring to the Tribeâs historic tradition of accepting people with
different lifestylesâânone of [the Tribeâs traditional] mores would have excluded
same-sex relations [or marriage].â
8
Although the federal government impairs any
attempt by tribes or states to completely abolish discrimination against same-sex
couples,
9
the Coquille Tribe is making an effort to promote equality for its
members by granting marriage licenses to couples regardless of biological sex.
10
Same-sex couples married by the Coquille Tribe are in a unique position to
receive equal and respected recognition as âmarriedâ by the Coquille Tribe,
extensive health benefits provided by the Coquille Tribe, and extensive spousal
benefits provided by the Oregon Family Fairness Act if those couples register as
domestic partners in Oregon.
This article will discuss the flaws underlying the majority view
concerning access to marriage, the inherent discrimination against same-sex
couples, and the various spousal rights concerning end of life and estate planning
decisions. In particular, this article will examine spousal rights available to same-
sex couples married by the Coquille Indian Tribe and registered as domestic
partners under the Oregon Family Fairness Act. Part I discusses the United States
view on same sex marriage including the problems with the federal definition,
potential solutions, and the discrimination inherent in those solutions; Part II
4.
The Jefferson Exchange: Gay Rights/Indian Tribes
(Jefferson Public Radio
Broadcast Aug. 26, 2008) (interviews with Ken Tanner and Brian Gilley) [hereinafter
Interview with Ken Tanner and Brian Gilley]. Brian Gilley illustrated this point by stating,
the:
Coquille have made a decision to accept people in their communities . .
. [an] entire group of people who are hidden who could contribute to
community, but ironically the majority of native peoples in the United
States have decided to continue to alienate these potentially productive,
contributing people, so I really admire what the Coquille have done.
Id.
5. Interview with Ken Tanner and Brian Gilley,
supra
note 4.
6. C
OQUILLE
I
NDIAN
T
RIBAL
C
ODE
§ 740.010(2) (2008) [hereinafter CITC].
7.
See
CITC § 740.010(1).
8. Interview with Ken Tanner and Brian Gilley,
supra
note 4.
9. Defense of Marriage Act of 1996, 1 U.S.C. § 7 (2000).
10. CITC § 740.010(3)(b).
The Coquille Indian Tribe, Same-Sex Marriage, and Spousal Benefits
511
discusses same-sex marriage in Indian Tribes, including cultural traditions and the
present tribal views on same-sex marriage. Part III encompasses a case study
involving spousal rights for same-sex couples married by the Coquille Indian
Tribe and registered as domestic partners by the state of Oregon within the end of
life and estate planning context. This includes examining the probate of non-trust
property, probate of trust property, medical decisions, anatomical gifts, disposal of
human remains, guardianships, and health insurance. Part IV provides several
important notes regarding the intended scope of this article.
I. MARRIAGE AND MARRIAGE ALTERNATIVES IN THE UNITED
STATES
The dominant definition of marriage, which largely remains an institution
reserved for individuals of the opposite sex, is subject to strong criticism as it
relies on several problematic assumptions: (1) there is a bright-line between
people who are absolutely male or female;
11
(2) marriage is necessary to promote
or ensure responsible procreation;
12
and (3) marriage promotes social goals of
morality.
13
This portion of the article will discuss why these assumptions are
problematic and why adopting a definition of marriage based upon these
assumptions frustrates any argument favoring marriage as a superior institution
that should be reserved for couples of opposite sex. This section will explore one,
albeit radical, method for alleviating discrimination against same-sex couples.
Finally, this section discusses that while this radical proposal, along with many
others, may present worthy goals for the future, same-sex couples need a practical
understanding to navigate a legal framework that does not recognize their status as
a committed couple.
A.
The United Statesâ View on Marriage
The United States defines marriage, both federally and in most states, as
a union reserved for individuals of the opposite sex.
14
Congress codified this
belief in the Defense of Marriage Act (DOMA) enacted in 1996.
15
Most states
have taken similar legislative action to ban same-sex marriage.
16
However, three
11.
See
infra
text accompanying notes 60-69.
12.
See
infra
text accompanying notes 70-95.
13.
See
infra
text accompanying notes 96-105.
14. 1 U.S.C. § 7 (2000); N
ATIONAL
C
ONFERENCE OF
S
TATE
L
EGISLATURES
,
S
AME
-S
EX
M
ARRIAGE
,
C
IVIL
U
NIONS
,
AND
D
OMESTIC
P
ARTNERSHIPS
,
http://www.ncsl.org/programs/cyf/samesex.htm (last updated May 2008) [hereinafter
S
TATE
S
URVEY
].
15. 1 U.S.C. § 7.
16. S
TATE
S
URVEY
,
supra
note 14.
512
Arizona Journal of International & Comparative Law
Vol. 26, No. 2
2009
statesâ judiciariesâConnecticut, California, and Massachusettsâhave found that
banning same-sex marriage is unconstitutional under their state constitutions.
17
Congress enacted DOMA in response to pending litigation by same-sex
couples who asserted that precluding same-sex couples from marrying in Hawaii
was unconstitutional.
18
The United States House of Representatives stated two
important purposes, among others, for enacting DOMA: to âdefend the institution
of traditional heterosexual marriage,â and to âprotect the right of the States to
formulate their own public policy regarding the legal recognition of same-sex
unions.â
19
Accordingly, DOMA consists of two provisions in the United States
Code: (1) a statutory definition,
20
and (2) a statutory exception to the Full Faith
and Credit doctrine.
21
Prior to the threat of legalized same-sex marriage, the House of
Representatives recognized that the federal government relied on states to define
valid marriages for the purposes of applying federal statutes and regulations that
gave rights and benefits to married spouses.
22
In an effort to preempt questions
concerning the scope of federal benefits to married couples, DOMA defined
âmarriageââa word that in 1996 appeared in over 800 sections of federal lawâas
âa legal union between one man and one woman as husband and wife.â
23
In
addition, this statute defines the word âspouseâ to refer âonly to a person of the
opposite sex who is a husband or a wife.â
24
Based on the federal definition of
âmarriageâ and âspouse,â and unless later amended by Congress, the United
States government does not recognize any marriage falling outside the contours of
the definition above (i.e. same-sex marriage).
25
Consequently, all federal acts and
regulations bestowing spousal benefits will exclude spouses of state or tribal
recognized same-sex marriages.
26
The second provision of DOMA creates an exception to the Full Faith
and Credit Clause of the United States Constitution.
27
As such, the exception
17. Kerrigan v. Commâr of Pub. Health, 957 A.2d 407 (Conn. 2008);
In re
Marriage
Cases, 183 P.3d 384 (Cal. 2008);
Goodridge v. Mass. Depât of Pub. Health
,
798 N.E.2d 941
(Mass. 2003). On November 4, 2008 California voted against allowing same-sex marriage,
although in May 2008, the California Supreme Court held that it was unconstitutional to
discriminate on the basis of sexual orientation.
Marriage Cases
, 183 P.3d 384.
18. H.R. R
EP
. N
O
. 104-664 at 2 (1996),
as
reprinted in
1996 U.S.C.C.A.N. 2905,
2906.
19.
Id.
at 12.
20. 1 U.S.C. § 7.
21. 28 U.S.C. § 1738C (2000).
22. H.R. R
EP
. N
O
. 104-664, at 10.
23. 1 U.S.C. § 7.
24.
Id.
25.
Id.
26.
Id.
27. 28 U.S.C. § 1738C; H.R. Rep. N
O
.
104-664, at 25; Matthew L.M. Fletcher,
Same-
Sex Marriage, Indian Tribes, and the Constitution
, 61 U. M
IAMI
L. R
EV
. 53, 70-71 (2006).
This is why many legal scholars argue DOMA is unconstitutional.
Id.
The Coquille Indian Tribe, Same-Sex Marriage, and Spousal Benefits
513
permits states to refuse to recognize marriages solemnized and legally formed in
other states.
28
Specifically, the provision states:
No State, territory, or possession of the United States, or Indian
tribe, shall be required to give effect to any public act, record, or
judicial proceeding of any other State, territory, possession, or
tribe respecting a relationship between persons of the same sex
that is treated as a marriage under the laws of such other State,
territory, possession, or tribe, or a right or claim arising from
such relationship.
29
Many states have chosen not to recognize marriages solemnized in other states in
addition to adopting the federal definition of marriage.
30
Some states have chosen
to provide domestic partnerships, civil unions, or other civil remedies even where
there is a state constitutional ban against same-sex marriage.
31
B. State Views on Marriage
Pursuant to DOMA, Congress grants states the right to define their own
policy regarding the definition of marriage because this right is domestic and
inherently held by each sovereign state.
32
In looking at marriage and marriage
alternatives, two states permit same-sex marriage: Massachusetts
33
and
Connecticut.
34
As of May 15, 2008, the California Supreme Court held that
denying marriage to same-sex couples is a state constitutional violation.
35
However, on November 4, 2008, California residents voted to ban same-sex
marriage and amend the constitution to reflect the DOMA definition of marriage.
36
Only one state, Rhode Island,
statutorily
recognizes same-sex marriages
performed in other jurisdictions.
37
However, both New York
38
and
28. 28 U.S.C. § 1738C; Fletcher,
supra
note 27, at 70-71.
29. 28 U.S.C § 1738C.
30. S
TATE
S
URVEY
,
supra
note 14.
31.
Id.
32. 28 U.S.C. § 1738C. This statute also grants tribes the right to define their own
policy regarding the definition of marriage.
33. S
TATE
S
URVEY
,
supra
note 14.
34.
Id.
35.
In re Marriage Cases
, 183 P.3d 384 (Cal. 2008).
36. Jessie McKinley & Laurie Goodstein,
Bans in 3 States on Gay Marriage,
N.Y.
T
IMES
, Nov. 6, 2008, at A1.
37. S
TATE
S
URVEY
,
supra
note 14.
38. Martinez v. County of Monroe, 850 N.Y.S.2d 740 (N.Y. App. Div. 2008).
514
Arizona Journal of International & Comparative Law
Vol. 26, No. 2
2009
Massachusetts
39
recently decided to recognize valid same-sex marriages
performed in other states. Four states allow civil unions and extend statutory
benefits, generally reserved for spouses, to partners legally bound by a civil union:
Connecticut,
40
New Jersey, New Hampshire, and Vermont.
41
Two states provide
domestic partnerships extending
all
of the state spousal benefits to domestic
partners: California and Oregon.
42
Four other states provide domestic partnerships
but limit the amount of spousal benefits conferred on domestic partners:
43
Hawaii,
Maine, District of Columbia, and Washington.
44
Finally, approximately seventy-
five municipalities allow same-sex couples to register for domestic partnerships,
even where those municipalities are located in states that ban same-sex marriage
and have no state domestic partnership or civil union laws.
45
Domestic
39. Michael Levenson,
Same-Sex Couples Applaud Repeal
, T
HE
B
OSTON
G
LOBE
,
Aug.
1,
2008,
available
at
http://www.boston.com/news/local/articles/2008/08/01/same_sex_couples_applaud_repeal.
40. Kerrigan v. Commâr of Pub. Health, 957 A.2d 407 (Conn. 2008); S
TATE
S
URVEY
,
supra
note 14. In October 2008, the Connecticut Supreme Court legalized same-sex
marriage finding such a ban unconstitutional.
Id.
41. S
TATE
S
URVEY
,
supra
note 14.
42.
Id.
43.
Id.
44.
Id.
45. Human Rights Campaign, City and County Domestic Partner Registries,
http://www.hrc.org/issues/marriage/domestic_partners/9133.htm (last visited Nov. 11,
2008). The human rights campaign reports that the following municipalities offer domestic
partnership registries: (1) Eureka Springs, Arkansas; (2) Tucson, Arizona; (3) Berkley,
California; (4) Beverly Hills, California; (5) Cathedral City, California; (6) Davis,
California; (7) Laguna Beach, California (8) Long Beach, California (9) Los Angeles
County, California; (10) Oakland, California; (11) Palm Springs, California; (12) Palo Alto,
California; (13) Petaluma, California; (14) Sacramento, California; (15) San Francisco,
California; (16) Marin County, California; (17) Santa Barbara County, California; (18)
Santa Barbara, California; (19) Santa Monica, California; (20) West Hollywood, California;
(21) Boulder, Colorado; (22) Denver, Colorado; (23) Hartford, Connecticut; (24) Broward
County, Florida; (25) Key West, Florida; (26) Miami Beach, Florida; (27) Miami-Dade
County, Florida; (28) West Palm Beach, Florida; (29) Athens-Clark County, Georgia; (30)
Fulton County, Georgia; (31) Atlanta, Georgia; (32) Iowa City, Iowa; (33) Cook County,
Illinois; (34) Village of Oak Park, Illinois; (35) Urbana, Illinois; (36) Lawrence, Kansas;
(37) New Orleans, Louisiana; (38) Boston, Massachusetts; (39) Brewster, Massachusetts;
(40) Brookline, Massachusetts; (41) Cambridge, Massachusetts; (42) Nantucket,
Massachusetts; (43) Provincetown, Massachusetts; (44) Portland, Maine; (45) Ann Arbor,
Michigan; (46) Minneapolis, Minnesota; (47) Kansas City, Missouri; (48) St. Louis,
Missouri; (49) Carrboro, North Carolina; (50) Chapel Hill, North Carolina; (51) Albany,
New York; (52) East Hampton, New York; (53) City of Ithaca, New York; (54) Town of
Ithaca, New York; (55) Rockland County, New York; (56) New York, New York; (57)
Suffolk County, New York; (58) Rochester, New York; (59) Southampton Town, New
York; (60) Westchester County, New York; (61) Cleveland Heights, Ohio; (62) Ashland,
Oregon; (63) Eugene, Oregon; (64) Multnomah, Oregon; (65) Philadelphia, Pennsylvania;
The Coquille Indian Tribe, Same-Sex Marriage, and Spousal Benefits
515
partnership registries may only provide spousal benefits to same-sex couples at a
municipal level depending on state law.
Some states have adopted one or both of the DOMA provisions: (1)
defining marriage as between a man and a woman; and/or (2) refusing to
recognize any same-sex marriages legalized in other states, tribes, etc.
46
Thirty
states constitutionally define marriage as between a man and a woman, including
the states whose residents recently approved a constitutional ban in the November
4, 2008 election: Arizona, California, and Florida.
47
Over forty states have
statutes defining marriage as between a man and a woman.
48
Connecticut,
however, divorced from this trend by recently finding that limiting marriage to
persons of opposite sex is unconstitutional.
49
Currently, five states do not have
statutory
laws prohibiting same-sex marriage: Massachusetts, New Jersey, New
Mexico, New York, and Rhode Island.
50
Until July 31, 2008, the lack of a statutory prohibition against same-sex
marriage in the five states above significantly impacted same-sex couples seeking
marriage in Massachusetts.
51
Massachusetts previously granted marriages to out-
of-state same-sex couples only where that coupleâs state did not ban such unions.
52
In fact, couples from New Mexico and Rhode Island have been successful in
obtaining marriage licenses from Massachusetts.
53
More recently, Massachusetts
Governor Deval Patrick signed a bill on July 31, 2008, repealing the law limiting
marriage in Massachusetts to couples that could legally marry in their home
state.
54
As such, couples from all fifty states are able to successfully obtain a
marriage license in Massachusetts, even though their marriages are not recognized
in their own states of residence.
55
Marriages performed by Massachusetts for out-
of-state couples may only serve to provide recognitionâto show the world they
âhave a right to be married.â However, the law does not offer these couples any
(66) Pittsburgh, Pennsylvania; (67) Travis County, Texas; (68) Salt Lake City, Utah; (69)
Lacey, Washington; (70) Olympia, Washington; (71) Seattle, Washington; (72) Tumwater,
Washington; (73) Dane, Wisconsin; (74) Madison, Wisconsin; and (75) Milwaukee,
Wisconsin.
Id.
46. S
TATE
S
URVEY
,
supra
note 14.
47.
Id
.; McKinley & Goodstein,
supra
note 36.
48. S
TATE
S
URVEY
,
supra
note 14.
49. Kerrigan v. Commâr of Pub. Health, 957 A.2d 407 (Conn. 2008).
50. S
TATE
S
URVEY
,
supra
note 14.
51. M
ASS
. G
EN
. L
AWS
ch. 207, § 11 (1913) (repealed 2008).
52.
See id.
53. David Abel,
Same-Sex Couples in N.M. Allowed to Marry in Mass. Bay State
Agency Clarifies Ruling
, T
HE
B
OSTON
G
LOBE
, July 27, 2007,
available at
http://www.boston.com/news/local/articles/2007/07/27/same_sex_couples_from_nm_allow
ed_to_ marry_in_mass/.
54. M
ASS
. G
EN
. L
AWS
. ch. 207, § 11.
55.
See id.
516
Arizona Journal of International & Comparative Law
Vol. 26, No. 2
2009
benefits unless private employers accept such marriage licenses as valid for
purposes of employee benefits.
56
C. Problems with Federal and State (Majority) Definitions of Marriage
The problems underlying the federal definition of marriage are a result of
societyâs reliance on three main assumptions about gender, procreation, and
morality: (1) there is a bright-line between people who are absolutely male or
female;
57
(2) marriage is necessary to promote and ensure responsible
procreation;
58
and (3) marriage promotes social goals of morality.
59
1. Society Relies on a False Assumption about Gender
The House of Representatives, while hearing testimony in favor of
passing H.R. 3396 (DOMA), relied on a biologically incorrect assertion made by
Amherst College Professor Hadley Arkes that all people are either male or
female.
60
Although the requirement in the majority of states mandates that
marriage is valid only as between persons of opposite sex, there is not always a
bright-line between individuals who are distinctly male or distinctly female.
61
Instead, individuals are born with inconsistencies in the characteristics that define
a person as male/female in terms of gonadal, genital, chromosomal, and hormonal
makeup.
62
In these instances a person is likely characterized as being âintersex.â
63
56.
See
John O. Enright, Note,
New Yorkâs Post September 11, 2001 Recognition of
Same-Sex Relationships: A Victory Suggestive of Future Change
, 72 F
ORDHAM
L. R
EV
.
2823, 2845 (2004) (As of 2004, â7,009 United States private sector companies and colleges
and universities extended benefits to the same-sex partners . . . [and] 210 of all Fortune 500
companies do the sameâ).
57.
See
infra
text accompanying notes 60-69.
58.
See
infra
text accompanying notes 70-95.
59.
See
infra
text accompanying notes 96-105.
60. H.R. R
EP
. N
O
. 104-664, at 12 (1996),
as reprinted in
1996 U.S.C.C.A.N. 2905,
2916 (âAnd to discover the ends of marriage, we need only reflect on this central,
unimpeachable lesson of human nature: We are, each of us, born a man or a woman.â
(quoting Professor Hadley Arkes)).
61. Terry S. Kogan,
Transsexuals, Intersexuals, and Same-Sex Marriage
, 18 BYU J.
P
UB
. L. 371 (2004).
62. In re Heilig, 816 A.2d 68, 73 (Md. 2003) (citing Julie Greenberg,
Defining Male
and Female: Intersexuality and the Collision Between Law and Biology
, 41 A
RIZ
. L. R
EV
.
265, 278 (1999));
see also
Kogan,
supra
note 61, at 384, 391 (defining the seventh
characteristic above as âpsychological sexâ or âbrain sex,â suggesting that a personâs brain
has a more determinate role than genitals, gonads, and chromosomes in defining oneâs
sexual identity).
The Coquille Indian Tribe, Same-Sex Marriage, and Spousal Benefits
517
In other circumstances, individuals are born with consistent characteristics in
terms of gonadal, genital, chromosomal, and hormonal makeup.
64
However, the
inconsistency for these individuals lies within the brain.
65
Where this individual
does not âidentifyâ with the sex determined by the first six factors,
66
this
individual may be characterized as being âtranssexâ and not âintersex.â
67
Courts
have been slow to recognize such incongruence in âtranssexâ individuals because
a personâs sexual identity as defined by neurobiology, or âbrain sex,â is difficult
to prove. However, recent studies support the fact that individuals characterized
as âtranssexâ possess the actual âbrain componentsâ of the gender they identify
with rather than the gender demonstrated by their genitals.
68
Without a clearly
defined bright-line between males and females in all circumstances, any attempt to
define marriage as between a
true
man and a
true
woman is thwarted.
69
2. Society Relies on an Assumption that Marriage is Necessary to
Promote âResponsible Procreationâ
The House of Representatives further relied on testimony by Professor
Arkes to support the argument that H.R. 3396 (DOMA) âadvances the
governmentâs interest in defending and nurturing the institution of traditional
Factors that may be relevant in determining whether a person is characterized as
male or female:
(1) Internal morphologic sex (seminal vesicles/prostate or vagina/uterus/fallopian
tubes); (2) External morphologic sex (genital); (3) Gonadal sex (testes or
ovaries); (4) Chromosomal sex (presence or absence of Y chromosome); (5)
Hormonal sex (predominance of androgens or estrogens); (6) Phenotypic sex
(secondary sex characteristics, e.g. facial hair, breasts, body type); and (7)
Personal sexual identity.
Julie Greenberg,
Defining Male and Female: Intersexuality and the Collision Between Law
and Biology
, 41 A
RIZ
. L. R
EV
. 265, 278 (1999)).
63. Kogan,
supra
note 61, at 371.
64
. Id.
at 398. That is, the biological or gonadal, genital, chromosomal, and
hormonal makeup of that individual is consistent with the designation of either male or
female.
65.
Id.
66. Greenberg,
supra
note 62, at 278 (providing the factors relevant in determining a
personâs gender).
67. Kogan,
supra
note 61, at 398.
68.
Id.
at 399; Milton Diamond,
Biased-Interaction Theory of Psychosexual
Development: âHow Does One Know if One is Male or Female?
,
â
55 S
EX
R
OLES
589, 593
(2006).
69.
See generally
Aleks Kajstura,
Sex Required: The Impact of Massachusetts Same-
sex Marriage Cases on Marriages with Intersex and Transsexual Partners
, 14 C
ARDOZO
J.
L. & G
ENDER
161 (2007).
518
Arizona Journal of International & Comparative Law
Vol. 26, No. 2
2009
heterosexual marriage.â
70
Professor Arkes testified that the United States does not
have an interest in marriage, specifically âencouraging citizens to come together
in a committed relationship,â
except
for the purpose of protecting the nationâs
children.
71
In addition, Professor Arkes testified that, âcivil society has an interest
in maintaining and protecting the institution of heterosexual marriage because it
has a deep and abiding interest in encouraging responsible procreation and child-
rearing.â
72
Finally, Professor Arkes posited that the âgovernment has an interest
in marriage because it has an interest in children.â
73
As illustrated, the United
States relies on a second problematic assumption that marriage necessarily
promotes or ensures âresponsible procreation.â
74
The assumption that marriage is necessary to promote or ensure
âresponsible procreationâ is incorrect for several reasons. First, people can and do
reproduce outside the institution of marriage.
75
Marriage as a religious and/or
legal institution is not a biological prerequisite for engaging in sexual
reproduction. Second, married heterosexual couples do not always âprocreate
responsibly,â or at all.
76
Some couples do not procreate at all as a result of
biological barriers and/or other concerns.
77
Many married heterosexual couples
procreate and raise children irresponsibly, while unmarried couples, heterosexual
or homosexual, procreate and raise children responsibly, and vice versa.
78
Couples, regardless of sexual orientation or legal status, may procreate when they
do not have sufficient income to support a family, or procreate when the domestic
environment is a risk factor for the health and safety of the child(ren).
79
The two
illustrations above demonstrate that quality of parenting has no direct correlation
to sexual orientation or martial status.
80
In other words, both heterosexual and
70. H.R. R
EP
. N
O
. 104-664, at 13 (1996),
as
reprinted in
1996 U.S.C.C.A.N. 2905,
2917.
71.
Id.
72.
Id.
73.
Id.
74.
Id.
75. Dale Carpenter,
Bad Arguments Against Gay Marriage
,
7 F
LA
. C
OASTAL
L. R
EV
.
181, 195 (2005).
76.
Id.
77.
Id.
at 194-95.
78.
Infra
text accompanying note 80.
79.
Id.
80. Charlotte J. Patterson,
Children of Lesbian and Gay Parents
, 15 C
URRENT
D
IRECTIONS
IN
P
SYCHOL
. S
CI
. 241, 243 (2006); Nancy Polikoff,
For the Sake of All
Children: Opponents and Supporters of Same-sex Marriage both Miss the Mark
, 8 N.Y.
C
ITY
L. R
EV
.
573, 582 (2005).
Dr. Michael Lamb, senior research psychologist at the National Institute
of Child Health and Human Development, has done extensive research
on the role of fathers in child development. He testified recently in
litigation challenging Arkansasâs ban on foster parenting by lesbians
The Coquille Indian Tribe, Same-Sex Marriage, and Spousal Benefits
519
homosexual parents have varying degrees of success and failure in raising
children. Accordingly, âresponsible procreationâ is neither dependent on
marriage, nor does it necessarily follow from the incidence of marriage.
The United States asserts that its interest in marriage exists to protect
children
81
âbut protect them from what? Dr. Fiona Tasker conducted a study
considering the affect of same-sex parenting on children.
82
Dr. Tasker agrees with
the findings of other existing research studies that a childâs âoptimal development
seems to be influenced more by the nature of the relationship and interactions
within the family unit than by the particular structural form it takes.â
83
Moreover,
Dr. Tasker observes, âfindings to date indicate that some family processes, such as
the effects of parenting stress, parental conflict, and parental mental illness, have
similar consequences for children across different types of family form,
irrespective of parental sexual orientation.â
84
In other words, it is the quality of
parenting rather than the incidence of same-sex parenting that presents a potential
risk factor affecting the health and well-being of children.
85
In fact, studies
indicate that same-sex parenting is not a risk factor at all and that âbeliefs that
lesbian and gay adults are not fit parents have no empirical foundation.â
86
The
American Psychological Association issued a resolution finding âthere is no
scientific evidence that parenting effectiveness is related to parental sexual
orientation: lesbian and gay parents are as likely as heterosexual parents to
provide supportive and healthy environments for their children.â
87
and gay men. According to the courtâs opinion, he testified that âboth
men and women have the capacity to be good parents and . . . there is
nothing about gender, per se, that affects oneâs ability to be a good
parent.â
Id.
(ellipses in original).
81. H.R. R
EP
. N
O
. 104-664, at 13 (1996),
as
reprinted in
1996 U.S.C.C.A.N. 2905,
2917.
82. Fiona Tasker,
Lesbian Mothers, Gay Fathers, and Their Children
:
A Review
, 26
D
EVELOPMENTAL
& B
EHAV
. P
EDIATRICS
224 (2005).
83.
Id
. at 238 (quoting Ellen Perrin & Comm. on the Psychosocial Aspects of Child
& Family Health,
Technical Report: Coparent or Second Parent Adoption by Same-sex
Parents
, 109 P
EDIATRICS
341, 341 (2002)).
84.
Id
.
85. Patterson,
supra
note 80, at 243.
86. APA Council of Representatives,
Resolution on Sexual Orientation, Parents, and
Children
(2004) (citing Charlotte Patterson,
Family Relationships of Lesbians and Gay
Men
, 62 J. M
ARRIAGE
& F
AM
. 1052-1069 (2000) [hereinafter Patterson 2000]; Charlotte
Patterson,
Lesbian and Gay Parents and Their Children: Summary of Research Findings
,
in
Lesbian and Gay Parenting: A Resource for Psychologists
(Am. Psych. Assân 2004),
available at
http://www.apa.org/pi/lgbc/publications/lgparenting.pdf [hereinafter Patterson
2004]; Perrin,
supra
note 83, at 341-44).
87. APA Council of Representatives,
supra
note 86 (citing Patterson 2000,
supra
note 86; Patterson 2004,
supra
note 86; Perrin,
supra
note 83; Fiona Tasker,
Children in
520
Arizona Journal of International & Comparative Law
Vol. 26, No. 2
2009
Opponents of same-sex marriage argue that raising children in such an
atmosphere âdenies children the combination of mother and father.â
88
Why is the
presence of a male and female parent important? How is a mother or father
defined? Is a father declared a father because he assumes âmanlyâ roles (e.g.,
takes the trash out, fixes the car, mows the lawn, provides majority financial
support, or sets an example for his children)? Or is a father simply a father
because of his male anatomy? Surely not the formerâmany biological fathers fail
at all of the tasks above. In fact, sociologist Judith Stacey asserts, there is no
scientific support for the argument that children experience âoptimal
developmentâ when raised by a male and female parent.
89
Instead, what is
important is that children are exposed to traditional male and female role models
to help a child develop his/her gender identity.
90
One author suggests, even if
traditional dual male/female role models do not exist in the home, âconscientious
gay parents, like conscientious straight single parents, take steps to ensure their
children have male and female role models.â
91
Furthermore, scientific evidence
supports that âthe presence of two parents, irrespective of their gender or sexual
orientation, [is] associated with more positive outcomes for [a childâs]
psychological well-being.â
92
Simply stated, children benefit from quality
parenting; and such quality may exist irrespective of a parenting coupleâs gender
or sexual orientation.
93
Lesbian-led Families: A Review
, 4 C
LINICAL
C
HILD
P
SYCHOL
. & P
SYCHIATRY
153-66
(1999)).
88. Summer Nastich, Note,
Questioning the Marriage Assumptions: The
Justifications for "Opposite-Sex Only" Marriage as Support for the Abolition of Marriage,
21 L
AW
& I
NEQ
. 114, 145 (2003) (citing Katherine Shaw Spaht,
For the Sake of the
Children: Recapturing the Meaning of Marriage
, 73 N
OTRE
D
AME
L. R
EV
. 1547, 1551
(1998)).
89. Polikoff,
supra
note 80, at 581 (citing Judith Stacey,
Legal Recognition of Same-
Sex Couples: The Impact on Children and Families
, 23 Q
UINNIPIAC
L. R
EV
. 529, 533
(2004)).
90. Diamond,
supra
note 68, at 591. This author concludes,
[s]tarting very early in life the developing child, consciously or not,
begins to compare himself or herself with others; peers and adults seen,
met, or heard of. All children have this in common. In so doing they
analyze inner feelings and behavior preferences in comparison with
those of their peers and adults. In this analysis they crucially consider
âWho am I like and who am I unlike?â
Id.
(internal citations omitted).
91. Nastich,
supra
note 88, at 145
(quoting D
AN
S
AVAGE
, T
HE
K
ID
: W
HAT
H
APPENED
A
FTER
M
Y
B
OYFRIEND
AND
I D
ECIDED
T
O
G
O
G
ET
P
REGNANT
,
AN
A
DOPTION
S
TORY
58
(1999)).
92. Ellen C. Perrin et al.,
Gay and Lesbian Issues in Pediatric Health Care
, 34
C
URRENT
P
ROBS
.
IN
P
EDIATRIC
&
A
DOLESCENT
H
EALTHCARE
355, 378-79 (2004).
93. Patterson,
supra
note 80, at 243.
The Coquille Indian Tribe, Same-Sex Marriage, and Spousal Benefits
521
In conclusion, responsibility in procreating and/or raising a child
(including adoption, artificial insemination, children from prior relationship) is not
dependent on heterosexual orientation or marriage.
94
If societyâs only interest in
marriage is protecting children by encouraging responsible procreation, then
society should reward all couples that succeed in responsibly procreating and/or
raising a child.
95
In other words, âif [heterosexual] couples that procreate and
raise children deserve the benefits of marriage, then same-sex couples, unmarried
opposite-sex couples, and single individuals who engage in these activities
deserve the benefits married couples receive.â
96
3. Society Relies on an Assumption that Marriage Achieves Social Goals
of Morality
One author boldly states, â[i]f marriage is the moral foundation of our
society, yet [nearly] half of all marriages end in divorce, then society is on very
shaky moral ground indeed.â
97
While this statistical statement is technically
correct, that about 43-47%
98
of marriages end in divorce, this is not a new
phenomenon.
99
In fact, statistics show that for the past two decades, the rate of
divorce in relation to marriage has remained steady.
100
Whatever the percentage
of divorce, the fact remains that the institution of marriage fails to promote
permanent, monogamous, and heterosexual unions in all instances.
101
Unfortunately, the institution of marriage is not a guarantee for the three factors
94
.
Polikoff,
supra
note 80, at 581 (âResearch conducted over the last fifty years has
firmly established that it is the quality of parenting and of the parent child relationship,
rather than the gender of parents, that predicts healthy childrenâs adjustment.â) (quoting
Stacey,
supra
note 80, at 533).
95.
See
Nastich,
supra
note 88, at 159-60.
96.
Id.
97.
Id
. at 149 (citing 50 National Vital Stat. Rep. 1, at Table 1 (Ctrs. For Disease
Control 2001),
available at
http://www.cdc.gov/nchs/data/nvsr/nvsr50/nvsr50_01.pdf
(indicating that the divorce rate for the twelve-month period ending with January 2001 was
4.1 per 1000 total population, excluding California, Colorado, Louisiana, and Indiana; the
marriage rate for the entire United States for the same time period was 8.5 per 1000).
98. I
NFOPLEASE
.
COM
,
M
ARRIAGES
AND
D
IVORCES
,
1900-2008
(2007),
http://www.infoplease.com/ipa/A0005044.html.
99.
See generally
Robert Schoen & Vladimir Claudas-Romo,
Timing Effects on
Divorce: 20th Century Experience in the United States
, 68 J.
M
ARRIAGE
&
F
AM
. 749
(2006). In addition, variables in marriage produce inconsistencies in the divorce rate. That
is, the divorce rate varies depending on the particular marriage type (i.e. first marriages,
second marriages, third marriages, age of the marriage participants, etc.).
Id.
100. M
ARRIAGES AND
D
IVORCES
,
supra
note 98.
101. Nastich,
supra
note 88, at 128, 150 (citing United States v. Phillips, 52 M.J. 268
(C.A.A.F. 2000)).
522
Arizona Journal of International & Comparative Law
Vol. 26, No. 2
2009
above and is not dependent on maintaining the factors above.
102
For example,
people may remain married even though one spouse has engaged in an
extramarital affair, or, after years of societal pressure and oppression, one spouse
has come to realize his/her âtrueâ gender identity or sexual orientation.
103
Most
importantly, with the accessibility of divorce, couples may marry, divorce, and
remarryâeach time reaping the benefits of marriage.
104
Summer Nastich
recognizes that â[t]his ability to string together permanent, monogamous unions
makes each union non-permanent.â
105
Ultimately, this same author concludes,
â[i]f permanent, monogamous unions deserve reward for their contribution to the
morality of society, then society should reward permanent, monogamous unions,
not marriages.â
106
This point, along with many others, illustrates the need for
social and political change in marriage and marriage alternatives.
D. Struggle Between Changing Policy to Decrease Discrimination and
Adapting to Current Policy for Same-Sex Couples in Need of Practical
Solutions
Activists fighting for equality for same-sex couples are only limited by
their imagination, and the arguments attempting to affect this nationwide
social/political change are wide-ranging. However, one compelling argument
considers abolishing marriage altogether.
107
This argument approaches the
problems of marriage realistically and refuses to adopt the problematic
assumptions posited by traditional marriage proponents.
108
This section discusses
the compelling argument for abolishing marriage and the struggle between
changing policy and adapting to current policy for couples currently in need of
practical solutions.
First, while the overriding argument for marriage is to protect children,
the reality that nearly one-half of marriages end in divorce, and are therefore not
permanent, in and of itself upsets this goal of marriage.
109
Studies show that
102
. Id.
at 128.
103
. Id
. at 150 n.218 (âIn [United States v.] Phillips, the defendant married in order to
receive military benefits that would allow him to live in civilian housing with his male
partner. [52 M.J. 268, 269 (C.A.A.F. 2000)]. It also appears that the defendant's legal wife
and his partner's legal wife may have been involved in a lesbian relationship.
Id.
at 271.â).
104.
Id.
at 150.
105.
Id.
106.
Id.
107.
Id.
at 160-65;
See also
Elizabeth Scott,
A World Without Marriage
, 41 F
AM
. L.Q.
537 (2007).
108.
See
Nastich,
supra
note 88, at 124-32.
109. Sandford M. Portnoy,
The Psychology of Divorce: A Lawyerâs Primer, Part 2:
The Effects of Divorce on Children
, 21
A
M
.
J.
F
AM
.
L. 126, 130-31 (2008).
The Coquille Indian Tribe, Same-Sex Marriage, and Spousal Benefits
523
divorce can have a devastating psychological impact on children.
110
Dr. Sandford
Portnoy concludes that âthe psychological, emotional, and behavioral reactions
cause some years of distress or disorder . . . [and] years of significant adjustment
difficulty.â
111
Further, children born outside of wedlock, often referred to as
illegitimate children, experience social stigma that can be psychologically
harmful.
112
The abolition of marriage might alleviate some emotional distress that
accompanies divorce and harmful social stigmas associated with parents who do
not marry.
113
Second, while some supporters of marriage argue that society has an
interest in encouraging âstable and loving relationships,â the reality is that absent
the institution of marriage, people would continue to engage in loving and stable
relationships.
114
In fact, marriage may encourage unwanted results: it may
encourage people to marry to reap benefits accorded to married persons at the
expense of a loving and stable relationship;
115
it may encourage people to remain
in unhappy relationships often leading to other socially unacceptable behavior
such as adultery, alcohol abuse, and domestic violence;
116
and it may impose
potential physical and psychological risks for children raised by individuals that
do not have a stable and loving relationship.
117
One author presents a solution to
110.
Id.
111.
Id.
112. Polikoff,
supra
note 80, at 591 (citing Brief of American Psychological
Association and New Jersey Psychological Association as Amici Curiae Supporting
Plaintiffs-Appellants at 51-52, Lewis v. Harris, 875 A.2d 259 (N.J. Super. Ct. 2005) (No.
A-2244-03T5)).
113. Nastich,
supra
note 88, at 148
.
114.
Id.
at 138.
115.
Id
. at 150 n.218 (âIn [United States v.] Phillips, the defendant married in order to
receive military benefits that would allow him to live in civilian housing with his male
partner. [52 M.J. 268, 269 (C.A.A.F. 2000)]. It also appears that the defendant's legal wife
and his partner's legal wife may have been involved in a lesbian relationship.
Id.
at 271.â).
116.
Id.
at 140.
Marital distress inevitably touches all members of the family and can
have profound effects on both physical and mental health. Among the
symptoms or situations that may be associated with marital problems
are bodily complaints (frequent headaches, low back pain,
gastrointestinal disorders), depression, anxiety states, alcoholism,
sexual dysfunction, extramarital activity, wife abuse, physical and/or
sexual abuse of children, juvenile delinquency and adolescent suicidal
behavior.
Id.
at 140, n.165 (quoting Michael F. Myers,
Treating Troubled Marriages
, 29
A
M
. F
AM
. P
HYSICIAN
221, 226 (1984)).
117.
See
Nastich,
supra
note 88, at 146 (looking at case law to illustrate that many
children are raised by married individuals in environments where their physical or mental
health is at risk).
524
Arizona Journal of International & Comparative Law
Vol. 26, No. 2
2009
eradicate these unwanted results, â[i]f society truly has an interest in encouraging
stable and loving relationships, then society should encourage people to love, not
to marry.â
118
Further, the same author proposes, â[i]f stable and loving
relationships are truly at issue, society should reward all such relationships
equally.â
119
While abolishing marriage may not entirely eliminate discrimination
against same-sex couples, it would serve to eliminate the inferiority and inequality
inherent in placing marriage on a pedestal for only opposite-sex couples to
reach.
120
While there is immense desire to influence policy in this particular field
of law, couples that struggle with the current definition of marriage need practical
direction in providing for their partners in the event of death.
121
In providing this
direction, it is important to understand four major points: the stateâs role in
defining marriage; the types of laws that benefit same-sex couples; the
discrimination inherent in marriage and various marriage alternatives; and,
specifically for purposes of this article, the rights and benefits associated with end
of life and estate planning decisions.
Civil unions, domestic partnerships (including reciprocal beneficiary
laws), and state validated and/or recognized same-sex marriages offer same-sex
partners/spouses a majority, if not all, of the state statutory benefits accorded to
opposite-sex married couples.
122
However, federal law still denies these partners
important spousal benefits available to opposite-sex surviving spouses such as
Social Security and Veteranâs benefits,
123
and state domestic partnership and civil
union laws discriminately reserve the title of âmarriedâ to opposite-sex couples.
124
Although domestic partnerships and civil unions appear to be a milestone for gay,
lesbian, and bisexual rights, these marriage alternatives âperpetuateâ
125
the societal
distinction between those worthy of marriage and those who are not.
126
In other
118.
Id.
at 142.
119.
Id.
120.
Id.
at 134; Barbara J. Cox,
But Why Not Marriage: An Essay on Vermontâs Civil
Unions Law, Same-sex Marriage, and Separate but (Un)equal
, 25 V
T
. L. R
EV
. 113, 134
(2000) (citing Sylvia Law,
Homosexuality and the Social Meaning of Gender
, 1988 W
IS
. L.
R
EV
. 187, 218).
121. Enright,
supra
note 56, at 2825.
122. S
TATE
S
URVEY
,
supra
note 14.
123. 1 U.S.C. § 7 (2000).
124.
See
Cox,
supra
note 120, at 134.
125.
Id.
at 136 (â[B]y agreeing to separation, we help them perpetuate their view of us
as inferiorâ).
126.
Id.
(â[O]ur societyâs experiences with âseparate but equalâ have repeatedly shown
that separation can never result in equality because the separation is based on a belief of
distance necessary to be maintained between those in the privileged position and those
placed in the inferior positionâ).
The Coquille Indian Tribe, Same-Sex Marriage, and Spousal Benefits
525
words, âseparate but equal . . . [is] inherently unequal.â
127
The Connecticut
Supreme Court in its recent decision in favor of same-sex marriage stated:
[t]he civil union law entitles same-sex couples to all of the same
rights as married couples except one, that is, the freedom to
marry, a right that has âlong been recognized as one of the vital
personal rights essential to the orderly pursuit of happiness by
free men [and women] . . . .
128
Even same-sex marriage possesses unequal qualities for same-sex
spouses who are not protected under federal law.
129
Nastich suggests that same-
sex marriage fails to completely equalize the distinction made against same-sex
couples by observing that society still places the stigma of
the same-sex married
couple
instead of just an equally respected
married couple
.
130
Although same-sex
marriage and marriage alternatives perpetuate inequality, the stateâs extension of
spousal rights cushions the blow.
131
While it is essential for couples to be aware of all the rights available to
them, rights concerning the death of a spouse/partner and the benefits available to
a widower are âcritically important,â especially for same-sex couples who may or
may not be protected pursuant to state law.
132
This article will focus on those
rights that concern end of life and estate planning issues including: right to make
medical decisions (including the right of hospital visitation), priority to make
organ donation decisions, priority in claiming human remains, inheritance through
intestate and testate succession, rights of spousal allowance, homestead allowance,
and income for the surviving spouse (i.e. life insurance, pension benefits, social
security benefits, etc.). Specifically, this article will explore these rights as they
apply to a case study involving same-sex couples married by the Coquille Indian
Tribe in Oregon.
II. TRIBES
Traditionally, many Indian tribes were not concerned with a memberâs
sexual orientation.
133
Instead, those Tribes focused on a personâs contribution to
the community, which was a product of his/her gender.
134
For some Tribes,
127. Brown v. Bd. of Educ. of Topeka, 347 U.S. 483 (1954);
see
Cox,
supra
note 120,
at 118.
128. Kerrigan v. Commâr of Pub. Health, 957 A.2d 407, 416 (Conn. 2008).
129. 1 U.S.C. § 7 (2000).
130.
See
Nastich,
supra
note 88, at 134.
131.
See
Cox,
supra
note 120, at 117.
132. Enright,
supra
note 56, at 2828.
133.
Infra
text accompanying notes 140-44, 158-59.
134.
Infra
text accompanying notes 141-42, 155-57.
526
Arizona Journal of International & Comparative Law
Vol. 26, No. 2
2009
gender identity encompassed more than merely biological sex, but a personâs
spiritual gender identity.
135
Approximately 155 Indian Tribes recognized a group
of people anthropologists refer to as âtwo-spiritâ people.
136
These people could be
modernly described as people who were neither male nor female but a third
gender because they spiritually embodied both male and female genders.
137
The
following section argues that this historic native tradition embraces the biological
reality that not everyone fits into the inflexible gender categories of male and
female. If society holds marriage superior on the basis that marriage is reserved
for people of opposite sex, then the goal of âoppositesâ is thwarted by the
biological reality that some people may be neither male nor female.
138
Societal
education about gender marks the beginning of change in societal views
encompassing gender, sexual orientation, and discrimination.
139
Tribes have the
opportunity to illustrate flaws in restricting marriage to opposite sex couples by
connecting with a historical native tradition of recognizing two-spirit people.
Finally, this section discusses the Tribesâ inherent authority to promulgate laws
regulating domestic relations.
A. Traditional Tribal View on Same-Sex Marriage
Coquille Chief Ken Tanner stated that the Coquille Cultural Committee
performed thorough research in response to several membersâ request to address
the issue of same-sex marriage and spousal benefits.
140
The Committee found that
oral history concerning âlifestyle and tribal methods of relatingâ revealed âno
exclusions for people, in any way, [who engaged] in same sex marriages.â
141
Brian Gilley, a respected anthropologist who has conducted extensive research
concerning âgay identity and social acceptance in Indian countryâ stated that,
âsexuality really wasnât turning the social organization on its head like it was in
Euro-American society.â
142
Gilley attributes this to the fact that for many native
tribes, âwho an individual had sex with was not necessarily the primary concern,
[tribes] were more concerned about a personâs potential contribution to the
community.â
143
Moreover, a personâs role in the community was determined by
135.
Infra
text accompanying notes 146-51.
136.
Infra
text accompanying notes 144-45.
137.
Infra
text accompanying notes 148-52.
138. Greenberg,
supra
note 62, at 275; Marie-AmĂŠlie George, Note,
The Modern
Mulatto: A Comparative Analysis of the Social and Legal Position of Mulattoes in the
Antebellum South and the Intersex in Contemporary America
, 15 C
OLUM
. J.
OF
G
ENDER
&
L. 665, 687 (2006).
139.
See
George,
supra
note 138, at 686; Greenberg,
supra
note 62, at 266-70.
140. Interview with Ken Tanner and Brian Gilley,
supra
note 4.
141.
Id.
142. Interview with Ken Tanner and Brian Gilley,
supra
note 4.
143.
Id.
The Coquille Indian Tribe, Same-Sex Marriage, and Spousal Benefits
527
gender identity, not necessarily biological sex.
144
One native tradition of
recognizing âtwo-spiritâ people, historically practiced in approximately 155
tribes,
145
illustrates the idea that gender identity is wholly separate from sexual
orientation.
146
The name âtwo-spiritâ is an attempt to explain this tribal tradition in the
English language.
147
In fact, most tribes had different names for people who
possessed both a male and a female spirit.
148
These individuals âwere seen as
being able to bridge the personal and spiritual gap between men and women.â
149
This unique gender identity was viewed as a gift from the Great Spirit, which was
also named differently depending on each tribeâs religious practices.
150
The
Navajo Tribe valued two-spirit people because they were âgifted with a more
complex and nuanced understanding of both the masculine and feminine.â
151
They were âseen as making a valuable contribution to the whole,â and as such
were âtreated with respect, even reverence.â
152
Two-spirit people are most clearly
described as people falling into a third gender.
153
Gilley explains that âthis third
gender often embodied a mixture of the social, ceremonial, and economic roles of
men and women.â
154
Two-spirit people were identified through a variety of
methods.
155
Generally, two-spirit people exercised a plethora of âspiritual roles in
the community including serving as healers, ambassadors, teachers, matchmakers,
parents to orphaned children, and mediators of disputes.â
156
Many two-spirit
144.
Id.
145. Jeffrey Jacobi,
Two Spirits, Two Eras, Same Sex: For a Traditionalist
Perspective on Native American Tribal Same-sex Marriage Policy
, 39 U. M
ICH
. J.L.
R
EFORM
823, 834 (2006) (citing W
ILL
R
OSCOE
, C
HANGING
O
NES
: T
HIRD
AND
F
OURTH
G
ENDERS
in N
ATIVE
A
MERICA
, 7 (1998)).
146. Interview with Ken Tanner and Brian Gilley,
supra
note 4.
147. S
UE
-E
LLEN
J
ACOBS
ET AL
., T
WO
-S
PIRIT
P
EOPLE
: N
ATIVE
A
MERICAN
G
ENDER
I
DENTITY
, S
EXUALITY
,
AND
S
PIRITUALITY
, 2 (1997). Native American individuals invented
this term in 1990 during the third Native American/first Nations gay and lesbian conference
in Winnipeg.
Id.
148. B
RIAN
Joseph G
ILLEY
, B
ECOMING
T
WO
-S
PIRIT
: G
AY
I
DENTITY
AND
S
OCIAL
A
CCEPTANCE
IN
I
NDIAN
C
OUNTRY
, 7-15 (2006); R
OSCOE
,
supra
note 145, at 7; T
WO
S
PIRIT
P
EOPLE
: A
MERICAN
I
NDIAN
L
ESBIAN
W
OMEN
AND
G
AY
M
EN
, 23-25 (Lester Brown, ed.,
Routledge 1997) [hereinafter Brown].
149. G
ILLEY
,
supra
note 148, at 11.
150. Brown,
supra
note 148, at xvii and xviii.
151. The Fred Martinez Project,
Two Spirits
, http://www.twospirits.org/film.html (last
visited Nov. 11, 2008) (discussing the documentary
Two Spirits
) [hereinafter Fred Martinez
Project].
152.
Id.
See also
G
ILLEY
,
supra
note 148, at 10; R
OSCOE
,
supra
note 145, at 8; Brown,
supra
note 148, at xxii.
153.
See
G
ILLEY
,
supra
note 148, at 10.
154.
Id.
at 8.
155.
See id.
at 9.
156. Fred Martinez Project,
supra
note 151.
528
Arizona Journal of International & Comparative Law
Vol. 26, No. 2
2009
individuals would âadopt orphans . . . and raise them as their own.â
157
Gilley
points out that âthe structure that we would think of as a family [was] being
replicated without regard to a personâs sexual organs or sexuality.â
158
These two-
spirit individuals were âmembers of [the] community and [were] showing their
usefulness to society and their behavior [reflected] values of [the] community.â
159
As illustrated, gender was a product of a persons role in the community, and âwho
you had sex with was really more up to your preference.â
160
In other words,
sexual orientation was a non-issue.
161
One of the most important lessons we can take from the Native tradition
of recognizing two-spirit people is the existence and importance of a third
gender.
162
This revelation has important applications for attempting to educate
society about gender, affect societyâs views about the goals of marriage, and
encourage equality.
163
This revelation encourages equality by decreasing
discrimination against people who do not necessarily fit into the non-existent
dichotomy of either the male or female gender, and by diverting societyâs focus
from an individualâs sexual orientation to the important role that person plays in
society.
164
Even though people known as two-spirit are a product of many tribesâ
culture and religion, the nature of being two-spirit reflects the biological reality
that gender involves many factors, including âbrain sexâ or âpersonal sexual
identity,â which naturally manifests differently in every person.
165
As a result,
Tribes like the Coquille Tribe can act to educate society about this biological
reality and act as beacons of light to transform the narrow societal views
encompassing gender, sexual orientation, and discrimination.
166
Even if a Tribeâs
impetus for affecting change is a product of tribal traditional culture and
religionâthere are biological truths underlying these traditions.
167
157. Interview with Ken Tanner and Brian Gilley,
supra
note 4.
158.
Id.
159.
Id.
160.
Id.
161.
Id.
162.
See
G
ILLEY
,
supra
note 148, at 8.
163.
See
Greenberg
, supra
note 62, at 266-70.
164.
Id.
;
see supra
text accompanying notes 143, 153, 159-61.
165.
See
G
ILLEY
,
supra
note 148, at 8-9 (Brain Gilley refers to the native tradition as
ânot employ[ing] the gender-binaryâ and to the two-spirit people as âa separate category of
personsâ).
166.
See
Greenberg
, supra
note 62, at 266-70, 275; Andrew Gilden,
Toward a More
Transformative Approach: The Limits of Transgender Formal Equality
, 23 B
ERKELEY
J.
G
ENDER
L. & J
UST
. 83, 121 n.145 (2008).
167.
See
supra
text accompanying notes 60-69.
The Coquille Indian Tribe, Same-Sex Marriage, and Spousal Benefits
529
B. Tribal Sovereignty
Tribal sovereignty represents a tribeâs inherent authority to govern its
people and territories using the âgovernmental and legal systemsâ each tribe
creates or adopts for its own.
168
While the federal government has continually
narrowed tribal sovereignty,
169
tribal governments retain their sovereignty and
authority to self-govern to the extent not limited by Congress.
170
Congress limits
tribal sovereignty by imposing federal laws that divest tribes of âplenary and
exclusive power over their members and their territory.â
171
In spite of federal
limitations, Tribes retain the power to form their own government, determine
tribal membership requirements, legislate, and levy taxes.
172
Among these, tribes
have the âundisturbedâ power to regulate domestic relations affecting tribal
members.
173
Inherent tribal authority over domestic relations permits tribes to âdecide
matters of domestic and family law within Indian Country.
174
For example, tribes
may make laws regarding the testate or intestate succession of a deceased tribal
memberâs property.
175
The American Indian Probate Reform Act (AIPRA)
restricts this power only to the extent that the succession laws concern âtrust and
168. C
OHEN
â
S
H
ANDBOOK
OF
F
EDERAL
I
NDIAN
L
AW
, at xvii (Nell Jessup Newton et al.
eds., 2005) (1940) [hereinafter C
OHEN
â
S
] (stating â[s]elf-government in Indian country . . .
has always been central to Indian peopleâ). C
OHEN
â
S
also states â[i]ndian tribes
consistently have been recognized . . . as âdistinct, independent political communities,â
qualified to exercise the powers of self government, not by virtue of any delegation of
powers, but rather by reason of their original tribal sovereignty.â
Id.
§ 4.01(1)(a) (quoting
Worcester v. Georgia, 31 U.S. 515, 559 (1832); citing United States v. Wheeler, 435 U.S.
313, 323-24 (1978)). In addition, C
OHEN
â
S
states â[t]ribal powers of self-government are
recognized by the Constitution, legislation, treaties, judicial decisions, and administrative
practice.â
Id.
169. C
OHEN
â
S
,
supra
note 168, § 4.01(a)(1)205 (âThe right of tribes to govern their
members and territories flows from a preexisting sovereignty limited, but not abolished, by
their inclusion within the territorial bounds of the United States.â).
170. Fletcher,
supra
note 27, at 66 & n.107 (citing Merrion v. Jicarilla Apache Tribe,
455 U.S. 130, 174 n.24 (1982) (quoting Earl Mettler, A
Unified Theory of Tribal
Sovereignty,
30 H
ASTINGS
L.J. 89, 97 (1978))); United States v.Wheeler, 435 U.S. 313, 323
(1978)); C
OHEN
â
S
,
supra
note 168, § 4.01.
171. C
OHEN
â
S
,
supra
note 168, § 4.01(1)(b) (limits on tribal sovereignty originate
âfrom treaties and statutes [and any federally imposed] limitations must be clearly
expressed according to the Indian law canons of construction.â).
172.
Id.
§§ 4.01(2)(a)-(c).
173.
Id.
§ 4.01(2)(c); Fletcher,
supra
note 27, at 59 (citing United States v. Quiver,
241 U.S. 602 (1916)).
174. Fletcher,
supra
note 27, at 54 (citing
Morton v. Mancari, 417 U.S. 535, 554
(1974)).
175. C
OHEN
â
S
,
supra
note 168, § 4.01(2)(c).
530
Arizona Journal of International & Comparative Law
Vol. 26, No. 2
2009
restricted lands.â
176
In addition, the United States Supreme Court recognizes tribal
authority to grant valid marriage licenses and similarly dissolve tribal
marriages.
177
Given this broad authority, tribes have the power to define marriage
as they choose.
178
As such, even where a tribe adopts a definition of marriage
contrary to the federal or state definitions, the tribe will prevail in defining
marriage as it pertains to the tribeâs members.
179
In other words, âsome Indian
tribes could become islands of nonconforming law in an area where the American
people appear to have spoken with finality.â
180
Of the 562 federally recognized tribes, only a few tribal legislatures have
attempted to more narrowly define marriage and consider the possibility of
legalizing or banning same-sex marriage.
181
Among these, the Cherokee and
Navajo tribes have amended their marriage laws to explicitly define marriage as a
union available only to persons of the opposite sex (i.e. marriage between one
man and one woman).
182
The Coquille Tribe is the only tribe to take legislative
176
.
71 Fed. Reg. 45174 (Aug. 8, 2006) (to be codified at 43 C.F.R. pts. 4, 30); 25
U.S.C. § 2201(4) (2006). The AIPRA defines âtrust or restricted landsâ as:
lands, title to which is held by the United States in trust for an Indian
tribe or individual, or which is held by an Indian tribe or individual
subject to a restriction by the United States against alienation; and . . .
âtrust or restricted interest in landâ or âtrust or restricted interest in a
parcel of landâ means an interest in land, the title to which interest is
held in trust by the United States for an Indian tribe or individual, or
which is held by an Indian tribe or individual subject to a restriction by
the United States against alienation.
25 U.S.C. § 2201(4).
177. C
OHEN
â
S
,
supra
note 168, § 4.01(2)(c) (citing Nofire v. United States, 164 U.S.
657 (1897)).
178.
Id.
179. Fletcher,
supra
note 27, at 59-60.
180.
Id.
Matthew Fletcher is talking about a constitutional amendment to ban same-
sex marriage.
Id.
He comments that even with the passage of a constitutional amendment,
tribes would retain their inherent authority to regulate domestic relations.
Id.
Although
Mr. Fletcher was referring to an âisland of nonconforming lawâ in a national context, it also
applies in a state context where states refuse to recognize and prohibit same-sex marriage.
181. 71 Fed. Reg. at 45174.
182. C
HEROKEE
C
ODE
§ 50-1. The code states:
The institution of marriage between a man and a woman is recognized
in the territory of the Eastern Band and shall be officially solemnized
by any ordained minister or any judicial official of the Cherokee court.
For a marriage to be legally recognized, a couple seeking to marry shall
obtain a marriage license from, and record it with, the register of deeds
in their county of residence. Alternatively, members of the Eastern
Band may elect to obtain a marriage license from, and record it with,
the Cherokee court.
The Coquille Indian Tribe, Same-Sex Marriage, and Spousal Benefits
531
action to allow same-sex marriage.
183
On May 8, 2008, the Coquille Indian Tribe
adopted a Marriage and Domestic Partnership ordinance.
184
The next part of this
article explores the impact of that ordinance.
III. CASE STUDY OF THE COQUILLE INDIAN TRIBE AND OREGON
DOMESTIC PARTNERSHIPS
Same-sex couples married by the Coquille Tribe are in a unique position
to be recognized as âmarriedâ by the Coquille Tribe under the new Coquille
marriage ordinance,
185
receive extensive healthcare benefits from the Coquille
Tribe,
186
and receive all state statutory spousal rights granted to opposite-sex
spouses in Oregon under the Oregon Family Fairness Act.
187
Even though, to an
extent, Coquille married same-sex couples are protected by Coquille law and
Oregon state law, obstacles remain that result from societal discrimination against
same-sex couples. In response, same-sex couples can take a proactive approach to
guard against these inequalities and protect each other during the end of life
events of one spouse.
A. Coquille Ordinance
The Coquille Tribeâs marriage ordinance recognizes that the right to
marry is a fundamental right regardless of biological sex.
188
In approving and
adopting this ordinance, the Coquille Tribe stated that recognizing âcertainâ
domestic relationships regardless of biological sex is âessentialâ to preserve the
âpolitical integrity, economic security, and the health and welfareâ of the Coquille
Id.
183. Email from Brian Gilley,
supra
note 3. Note that some Tribes may practice
same-sex marriage without having a formal written ordinance or regulation authorizing
such a practice; however, the existence of these Tribes has not yet been discovered.
184. CITC § 740.
185.
Id.
186.
Infra
text accompanying note 228.
187.
Infra
text accompanying notes 208-11.
188. CITC § 740.010(3). The code defines marriage as:
[A] formal and express civil contract entered into between two persons,
regardless of their sex, who are at least 18 years of age, who are
otherwise capable of entering a Marriage or a Domestic Partnership (as
provided below), and at least one of whom is a member of the Coquille
Indian Tribe.
Id.
532
Arizona Journal of International & Comparative Law
Vol. 26, No. 2
2009
community and its recognized members.
189
The Tribe exemplifies the meaning of
âpolitical integrityâ by adopting a definition of marriage that intelligently
recognizes the wholly arbitrary requirement that the parties be of opposite sexâ
most assuredly in the face of national, Native and non-Native, opposition to same-
sex marriage.
190
While the Tribe broadly defines domestic relationships, it does place a
few eligibility requirements on the fundamental right to marry.
191
The Tribe
permits marriage where the couple meets three requirements.
192
First, at least one
partner must be a member of the Coquille Indian Tribe at the time the marriage
license is issued and at the time the marriage is solemnized.
193
Second, both
partners must be at least eighteen years of age at the time of marriage.
194
Third,
the partners must not be related by blood, âwhether of the whole or half blood.â
195
Specifically, the couple must not be âfirst cousins or any nearer of kin,â unless
they are cousins by adoption only.
196
In the situation where the partners are
cousins by adoption only, the Tribe does not prohibit their marriage provided the
other two requirements are met.
197
The Tribe specifies that even where a couple
meets the above three requirements, the marriage may be void or voidable in some
situations.
198
The Tribe prohibits marriages where either party to the marriage has a
current spouse or domestic partner living at the time of the marriage.
199
This
would potentially exclude those instances where a couple dissolved their previous
marriage or domestic partnership prior to the marriage in question.
200
The Tribe
also has the power to annul marriages where one of the partners is incapable of
making a marriage contract because of insufficient capacity due to minority or
insufficient ability to understand the nature of the contract.
201
Further, the Tribe
may annul marriages where either party procured consent of the other by âfraud or
force.â
202
In these instances where a marriage contract is voidable, any action by
the Tribe to annul a marriage does not relieve the partners of a âmarriedâ status
189.
Id.
at 740.010(1)-(2).
190. Interview with Ken Tanner and Brian Gilley,
supra
note 4.
191. CITC §§ 740.010(2), 740.030, 740.100.
192. CITC § 740.100.
193.
Id.
194. CITC § 740.100(2).
195. CITC § 740.100(3).
196.
Id.
197.
Id.
198. CITC §§ 740.210, 740.220.
199. CITC § 740.210.
200. CITC § 740.500.
201. CITC § 740.220.
202
. Id
.
The Coquille Indian Tribe, Same-Sex Marriage, and Spousal Benefits
533
for purposes of spousal support and property settlement as required by Tribal
law.
203
The Tribe also provides that it will recognize some marriages and
domestic partnerships from other jurisdictions for the purpose of providing Tribal
benefits.
204
The Tribe limits this recognition to marriages and domestic
partnerships where one of the parties is a member of the Coquille Tribe, both
parties are eighteen (18) or older, the parties are not related by blood (excluding
first cousins by adoption), providing benefits is not prohibited by federal law, and
the parties present âadequateâ proof of their marriage or domestic partnership.
205
While the purpose of recognizing marriages and domestic partnerships involving a
Coquille Tribal member is to provide spousal benefits, this ordinance does not
limit the Tribal Councilâs authority to alter or eliminate the benefits available to
spouses or domestic partners of Coquille members.
206
Just as the Coquille Tribe is making an effort to resist discrimination
against same-sex couples in the community, Oregon is taking steps to recognize
the âlasting, committed, caring and faithful relationshipsâ formed by many âGay
and Lesbian Oregonians.â
207
B. Oregon Family Fairness Act: Domestic Partnerships
Oregon recently enacted a Domestic Partnership law under the Oregon
Family Fairness Act effective February 1, 2008.
208
The legislature recognized that
203.
Id.
204. CITC § 740.030.
205. CITC § 740.030(1)(a)-(e).
206. CITC § 740.030(3).
207. H.B. 2007 § 2(3), 2007 Leg., 74th Sess. (Or. 2007).
208. The following describes the legislative history of the Oregon Family Fairness
Act:
Oregonâs new domestic partner law consists of two separate laws:
House Bill 2007 and Senate Bill 2. House Bill 2007, also known as the
Oregon Family Fairness Act (OFFA), allows qualified samesex couples
to register their domestic partnership in Oregon and, by doing so,
affords the registered domestic partners the same rights and benefits
granted to spouses under Oregon law. OFFAâs original effective date of
January 1, 2008, was postponed pending the outcome of a legal
challenge; however, a federal judge upheld the legislation on February
1, 2008, allowing samesex couples to register their domestic
partnership pursuant to OFFA as of February 4, 2008. Senate Bill 2,
also known as the Oregon Equality Act, prohibits discrimination
against persons based on sexual orientation, including discrimination in
compensation or in terms, conditions or privileges of employment. The
Oregon Equality Act became effective on January 1, 2008.
534
Arizona Journal of International & Comparative Law
Vol. 26, No. 2
2009
same-sex couples in Oregon have relationships, raise children, and participate in
the community just as opposite-sex couples do âdespite long-standing social and
economic discrimination.â
209
Accordingly, the legislature conceded that
â[w]ithout the ability to obtain some form of legal status for their relationships,
same-sex couples face numerous obstacles and hardships in attempting to secure
rights, benefits and responsibilities for themselves and their children.â
210
In
furtherance of Oregonâs interest in promoting âstable and lasting familiesâ
regardless of biological sex, the Oregon Family Fairness Act extends benefits,
protections, and responsibilities to committed same-sex partners, comparable to
those benefits received by married spouses, when those same-sex couples file for
domestic partnership status.
211
C. Relationship of the Oregon Family Fairness Act and Same-Sex Couples
Married by the Coquille Indian Tribe
What does it mean for same-sex couples that obtain a marriage license
from the Coquille Tribe? These couples are in a unique position because of their
ability to obtain benefits under the Coquille Indian Tribe, and in addition, obtain
benefits as Oregon residents.
212
Same-sex couples that obtain a marriage license
from the Coquille Indian Tribe assume the respected status of âmarried.â
213
In
addition, if these couples apply for domestic partnership status under Oregon law,
they are eligible for spousal benefits under Tribal law and Oregon law.
214
In
contrast, other Oregonian same-sex couples that apply for domestic partnership
status under the Oregon Family Fairness Act will not be considered âmarriedâ but
domestic partners.
215
While these couples will enjoy all the benefits afforded to
married spouses under state law, they are denied the equal recognition of being
married.
216
Though the inequality suffered by couples married by the Coquille
Tribe is arguably less than those united by a domestic partnership status under
Oregon law, neither the Coquille couple nor the Oregon couple will be eligible for
federal benefits such as Social Security.
217
If and when other Tribes decide to
The
ODS
Companies,
Oregon
Family
Fairness
Act,
http://www.odscompanies.com/employers/news/080527_offa.shtml (last visited Mar. 12,
2009).
209. O
R
. R
EV
. S
TAT
. § 106, Domestic Partnerships note § 2(3) (2007).
210.
Id.
211.
Id.
§§2(4)-(5).
212. CITC § 740.010â740.100 (2008); O
R
. R
EV
. S
TAT
. § 106, Domestic Partnerships
note § 2(3).
213. CITC § 740.010(3)(b).
214.
See
supra
text accompanying notes 208-11.
215. O
R
. C
ONST
. art. XV, § 5a.
216.
Id.
217. 1 U.S.C. § 7 (2000).
The Coquille Indian Tribe, Same-Sex Marriage, and Spousal Benefits
535
enact laws making marriage available to couples regardless of biological sex, the
result may differ depending on the state marriage/domestic partnership laws where
the Tribe is located. Oregon, like California, enacted a domestic partnership law
extending all statutorily created spousal rights afforded to married spouses to
domestic partners.
218
Whereas, same-sex couples married by a Tribe in Oklahoma
would not enjoy any state or federal benefits; these couples would be reliant on
the Tribeâs extension of benefits alone.
219
VI. PRACTICAL APPROACH TO END OF LIFE, ESTATE PLANNING,
AND PROBATE ISSUES FOR SAME SEX COUPLES MARRIED BY THE
COQUILLE TRIBE: RIGHTS AND BENEFITS, AND OTHER
SOLUTIONS
Before delving into the specific rights and benefits accorded to same-sex
couples married by the Coquille Tribe and registered as domestic partners under
Oregon law, it is important to discuss issues concerning jurisdiction. Specifically,
what law applies to couples married by the Coquille Tribe who are also residents
of Oregon? The answer depends on the specific legal issue in question (i.e.
probate of non-trust property, probate of trust property, guardianship, organ
donation, claiming spouseâs remains, homestead and spousal allowance rights, and
health insurance). Where the Coquille Tribe does not have laws in a particular
area, couples married by the Coquille Tribe who reside in Oregon are Oregon
residents and as a result receive the protections of Oregon law.
220
First, the
Coquille Tribe does not have a probate code or rules regarding inheritance of
either trust or non-trust property.
221
Probate of non-trust property diverts to
Oregonâs state law, while probate of trust property diverts to the American Indian
Probate Reform Act (AIPRA).
222
The Coquille Tribe and its members no longer
possess Indian allotments, and as such the AIPRA does not apply.
223
The Coquille
Tribe has laws regarding guardianships and conservatorships for adults who are
218. O
R
. R
EV
. S
TAT
. § 106, Domestic Partnerships note §§ 9(1)-(11).
219. O
KLA
.
S
TAT
.
A
NN
.
tit. 43, § 3.1 (2001). In addition, Oklahoma does not have any
domestic partnership, civil union, or reciprocal beneficiary laws at the state or municipal
level.
220.
See
O
R
. R
EV
. S
TAT
. § 106, Domestic Partnerships note §§ 2(1), (3).
221. E-mail from Melissa Cribbins, Representative of the Coquille Tribe, to Julie
Bushyhead, Student at the University of Tulsa College of Law (Nov. 10, 2008) (copy on
file with Author) [hereinafter Email from Melissa Cribbins].
222. Douglas Nash & Cecelia Burke,
The Changing Landscape of Indian Estate
Planning and Probate: The American Indian Probate Reform Act
, S
EATTLE
J.
FOR
S
OC
.
J
UST
. 121, 133 (2006).
223. Email from Melissa Cribbins,
supra
note 221; Nash & Burke,
supra
note 222, at
133.
536
Arizona Journal of International & Comparative Law
Vol. 26, No. 2
2009
incapacitated.
224
Oregon law applies to issues regarding organ donation,
225
disposition of human remains,
226
spousal allowance, and homestead rights of non-
trust property.
227
Finally, the Coquille Tribe extends health benefits to non-Indian
spouses married to Coquille Tribe members.
228
While decisions surrounding the failing health and death of a spouse are
unpleasant to confront, taking a preemptive approach may abate some problematic
issues.
229
Such an approach acts to promote compliance with a dying spouseâs
wishes and protect a decedentâs surviving spouse.
230
There are two estate-
planning tools that are extremely important for couples to consider in preparing
for the failing health and/or death of their spouse.
231
These include the living will
(advance directive), and a will.
232
These tools will discuss such spousal rights as
224. CITC §§ 375.001-375.950 (2006).
225. O
R
. R
EV
. S
TAT
. § 97.965 (2007).
226.
Id.
§ 97.130 (2007). In addition to Oregon granting surviving spouses the right to
designate their decedent spouseâs burial arrangements, the Coquille Tribe offers benefits to
surviving spouses for burials. Email from Melissa Cribbins,
supra
note 221.
227. O
R
. R
EV
. S
TAT
. § 652.190 (2007).
228. The Tribe provides health benefits to non-Indian spouses, regardless of biological
sex. These benefits activate after one year of marriage. These benefits apply to couples that
live within the five counties surrounding Coos County. If however the couples move away
from the area, they would be eligible for private insurance paid for by the Tribe. This
Tribal benefit is vitally important for same-sex couples especially where employers or other
insurance providers may refuse to recognize a same-sex spouse as a âspouseâ for purposes
of health insurance benefits. Interview with Ken Tanner and Brian Gilley,
supra
note 4.
229.
See
Patience Crozier,
Nuts and Bolts: Estate Planning and Family Law
Considerations for Same-Sex Families
, 30 W. N
EW
E
NG
. L. R
EV
. 751, 752 (2008).
230.
See id
. at 752, 759.
231.
Id.
at 756, 759.
232.
Id.
While a durable power of attorney might be appropriate as well, Oregonâs
advance directive already includes a durable power for health care (health care proxy).
However, where one spouse becomes incapacitated and is unable to manage his/her
property, the incapacitated spouse may want to designate in advance that his/her spouse
manage the property. Under Oregon law, someone other than the spouse could petition for
guardianship/conservatorship and there is no priority rule stating that Oregon must give
priority to a person nominated in the durable power of attorney. O
R
. R
EV
. S
TAT
. § 125.305
(2007). However, in the event the court takes the spouseâs nomination into consideration,
the spouse should execute a durable power of attorney naming the other spouse as the agent
over the property, and nominating the spouse as the preferred guardian.
In terms of will alternatives, a trust is the safest way to protect the decedentâs assets
from claims where the decedentâs family is particularly âhostileâ to the partnersâ same-sex
relationship. Erica Bell,
Estate Planning for Domestic Partners and Non-Traditional
Families
,
in
T
AX
L
AW AND
E
STATE
P
LANNING
C
OURSE
H
ANDBOOK
S
ERIES
879-920
(Practising Law Institute ed. 2008). However, the necessity of a trust to protect surviving
same-sex partners/spouses diminishes in Oregon because Oregon law treats domestic
partners as spouses for purposes of intestate succession. Therefore, even if the decedentâs
family contested the validity of the will, the surviving partner as the surviving spouse
The Coquille Indian Tribe, Same-Sex Marriage, and Spousal Benefits
537
the right to make medical decisions, priority for a guardianship/conservatorship,
right to make anatomical gifts (organ donation), right to a forced share election
against a will if disinherited, and right to a share of intestate succession where the
decedent spouse dies intestate. The following discussion will focus on the two
estate planning tools as they apply to same-sex couples married by the Coquille
Tribe and recognized as domestic partners under Oregon law. The discussion will
consider the impact of using and not using these tools. Finally, the discussion will
confront other rights and benefits not provided for within these two tools such as
medical benefits to spouses, spousal allowance and homestead rights, and
financial support for a surviving spouse. While the issues above do not explore all
the estate planning tools available to same-sex couples, this discussion serves as
an introduction to the most critical estate planning issues that face same-sex
couples in Oregon.
In Oregon, a living will, or advance directive, has two main goals: (1) to
appoint a durable power of attorney to make health care decisions where the
principle is unable
233
and (2) to dictate health care instructions concerning life-
sustaining treatment.
234
When a partner/spouse is listed as the health care
representative in the first provision, there is no concern as to whether or not same-
sex spouses would be entitled to make those decisions for his/her same-sex
domestic partner under Oregon law.
235
However, even where a spouse fails to
execute an advance directive prior to hospitalization, the other spouse has priority
to make âhealth care decisions,â including decisions regarding life-sustaining
treatment, as a âhealth care representativeâ for his/her spouse (unless a guardian
other than the spouse has been appointed).
236
In accordance with the Oregon
would take priority over the decedentâs other family (other than the decedentâs issue) in
receiving a portion or all of the decedentâs intestate estate.
233. O
R
. R
EV
. S
TAT
. § 127.510 (2007).
234.
Id.
§ 127.531 (2007).
235.
Id.
§ 127.635;
id.
§ 127.505. However, as health-care proxy statutes differ in
other states, there is a concern about whether or not the spouse would have the authority to
make these decisions under other statesâ law if for instance a spouse was injured outside of
Oregon and treated in another state. Therefore, if a couple regularly travels to another
state, they should consider executing an additional and consistent health-care proxy in that
state. Crozier,
supra
note 229, at 755. In addition to designating a health care proxy in an
advance directive (living will), a couple should also consider executing a stand-alone
HIPPA waiver used to ensure that a partner/spouse has access to the other spouseâs medical
information.
Id.
at 756. For more on this estate-planning tool, see
id.
236. O
R
. R
EV
. S
TAT
. § 127.635;
id.
§ 127.505. At first glance, § 127.635 seems to
give a spouse only rights to make decisions regarding life-sustaining treatment. In fact, this
is the statuteâs primary goal, however section 127.635(2) states that a health care
representative may be appointed in the absence of an advance directive. Based on the
definition of âincapableâ in section 127.505(13), a Court may appoint a health care
representative where âin the opinion of the principleâs attending physician, a principle lacks
the ability to make and communicate health care decisions to health care providers.â Under
the definition of âhealth care decisions,â and âhealth care,â defined in sections 125.505(7)
538
Arizona Journal of International & Comparative Law
Vol. 26, No. 2
2009
Family Fairness Act, a domestic partner has the same right as a spouse to make
medical decisions for his/her partner.
237
However, failure to execute an advance
directive could foster several problems for the non-hospitalized spouse.
238
Without an advance directive, the hospitalized spouseâs desires about life
sustaining treatment may be unknown or debated.
239
Although a domestic partner
is protected as a spouse to make decisions about whether to continue or cease life-
sustaining treatment, this decision is unconscionably traumatic for a
partner/spouse.
240
In addition, where there is no advance directive appointing a
health care representative, the family of the hospitalized spouse may attempt to
petition for guardianship, especially if the family disapproves of the coupleâs
same-sex relationships, and if successful, have the ability to make health care
decisions including life-sustaining decisions without consulting the spouse.
241
The
Coquille Tribe specifies an order of priority for appointing a
guardian/conservator.
242
Unlike the Uniform Guardianship and Protective
Proceedings Act, which gives a
spouse
priority for letters of guardianship where
the alleged incapacitated individual has not previously nominated a guardian or
appointed a health care proxy in durable power of attorney, the Coquille Tribe
grants priority to an incapacitated personâs parent.
243
The Coquille Tribal Court
has the authority to appoint someone other than the parent(s) upon a showing that
this preference should be rebutted.
244
The Court may appoint a âconservator
and/or guardian who is most suitable and willing to serve.â
245
In making this
and 125.505(8) these decisions concern consent, refusal of consent, or withholding or
withdrawal of consent to health care which includes âdiagnosis, treatment or care of
disease, injury and congenital or degenerative conditions, including the use, maintenance,
withdrawal or withholding of life-sustaining procedures and the use, maintenance,
withdrawal or withholding of artificially administered nutrition and hydration.â Therefore,
based on reading section 127.635 in conjunction with section 127.505, it would appear that
a spouse has the authority to make all medical decisions for his/her spouse where that
spouse is unable. If the hospitalized spouse did not execute an advance directive, a Court
will evaluate whether or not the principle is incapable and appoint a health care
representative in the order of priority listed in section 127.635. However, if a principle is
incapable (that he/she is unexpectedly faced with a decision regarding life-sustaining
treatment, and he/she is incapable of making the decision pursuant to the definition in
section 127.505), and there is no health care representative, or guardian, the spouse has
priority in making the life-sustaining decision.
237. O
R
. R
EV
. S
TAT
. § 106, Domestic Partnerships note § 9.
238.
Infra
text accompanying notes 233-37.
239.
See
Crozier,
supra
note 229, at 756.
240. O
R
. R
EV
. S
TAT
. § 127.635.
241.
Id
.;
id.
§§ 125.305, 125.315(3).
242. CITC § 375.300.
243. Unif. Guardianship & Protective Proc. Act § 5-310, 8II U.L.A. 362-63 (Supp.
2008).
244. CITC § 375.300.
245.
Id.
The Coquille Indian Tribe, Same-Sex Marriage, and Spousal Benefits
539
determination, the Court may consider factors such as âthe relationship by blood
or marriage of the proposed conservator and/or guardian of the proposed ward.â
246
Therefore, the Court could choose to appoint a personâs parent(s) over a spouse,
or vice versa.
247
In an effort to prevent confusion, disputes, and costly legal
proceedings, executing an advance directive appointing a health care
representative, and/or a durable power of attorney nominating a guardian, are the
most effective ways to ensure that a same-sex spouse has the authority to make all
medical decisions for the other spouse where that person is unable.
248
Although Oregonâs domestic partnership law, pursuant to the Oregon
Family Fairness Act, provides the same benefits to domestic partners as it does to
âmarriedâ spouses for purposes of intestate succession and priority in decision-
making, partners should execute wills in an effort to give specific instruction as to
the disposition of property upon his/her death, his/her wishes for making
anatomical gifts, and his/her funeral or burial wishes.
249
When the testator makes
these decisions in advance, the testator protects his/her partner and family from
unnecessary disputes concerning the decedentâs wishes.
250
The following sections
discussing descent and distribution will be separated into two categories: non-trust
(allotment) property under Oregon Probate Law and trust (allotment) property
under the American Indian Probate Reform Act (AIPRA).
251
As stated earlier, the Coquille Tribe does not have a probate code.
252
As
such, Oregon law applies to the disposition of non-trust property upon a personâs
death, where the person was domiciled in Oregon at the time his/her death.
253
Where a testator elects to dispose of his/her property outside the general
progression of intestate succession, or with more specificity, the testator may
execute a will as long as the will does not disinherit his/her spouse.
254
As a
common law state, Oregon law permits a spouse to take an elective forced share
against the will in the amount of one-fourth of the decedentâs net estate.
255
A
spouse might elect to take a forced share where one-fourth of the decedentâs net
estate would be more than the will devised, if anything.
256
In determining whether or not to execute a will, an individual should
think about his/her decisions regarding anatomical gifts and burial wishes,
246.
Id.
247.
Id.
248.
Supra
text accompanying notes 239-47.
249. Crozier,
supra
note 229, at 759.
250.
See id.
251. The use of âsurviving spouseâ in the following sections is meant to refer to
couples married under Coquille law and registered as domestic partners under Oregon law;
domestic partners under Oregon law; and married spouses under Oregon law.
252.
Supra
text accompanying note 221.
253. O
R
. R
EV
. S
TAT
. § 114.105 (2007).
254.
Id.
255.
See id
.
256.
Id.
§ 114.105(2).
540
Arizona Journal of International & Comparative Law
Vol. 26, No. 2
2009
especially if those wishes are specific.
257
Oregon law provides several ways for a
person to make an anatomical gift: through indicating on a driverâs license,
executing a will, communicating to two adults during terminal illness or injury,
etc.
258
However, where an individual has specific instructions concerning what
organs to donate, a will provision may more effectively serve the spouseâs
wishes.
259
Moreover, in instances where a spouse passes without indicating
his/her desire to make an anatomical gift, a surviving spouse has priority over
everyone in making this decision where the deceased spouse did not have a power
of attorney (health care representative) other than the spouse.
260
Second, a spouse should consider designating his/her burial wishes prior
to death to avoid confusion and family disputes after his/her death.
261
Oregon law
specifies that an individual may direct the disposition of his/her remains by
executing a âwritten signed instrumentâ or by making planned arrangements with
a funeral service.
262
If a spouse fails to specify his/her wishes prior to death, the
surviving spouse shall have first priority to designate the disposition of the
deceased spouseâs remains by executing a written instrument.
263
In the event a spouse dies intestate (i.e. without a will), Oregon law will
treat partners as spouses for purposes of intestate succession.
264
Oregonâs law
permits a surviving spouse to inherit all of the net intestate estate where the
decedent did not have issue (children).
265
If instead the decedent had a surviving
spouse and child(ren), the amount the surviving spouse receives depends on
whether or not the decedentâs child(ren) are also the surviving spouses
child(ren).
266
If the child(ren) are also the surviving spouseâs child(ren), the
spouse will receive all of the net intestate estate.
267
On the other hand, if the
decedentâs child(ren) are not the surviving spouseâs child(ren), then the surviving
spouse will only receive one half of the net intestate estate.
268
The question of
257. Crozier,
supra
note 229, at 759.
258. O
R
. R
EV
. S
TAT
. § 97.957 (2007).
259. Bell,
supra
note 232, at 899.
260. O
R
. R
EV
. S
TAT
. § 97.955 (2007). In all likelihood, the spouse would probably
occupy the position of health care representative for his/her spouse/partner.
261. In addition, it is a good idea to name the surviving spouse as executor of the
estate, expressly appoint that person to make funeral arrangements, make explicit
instructions concerning cremation or anatomical donation, and execute a second separate
written designation giving authorization to the partner to make funeral arrangements for the
deceased partner/spouse. Also, do not forget to put contingency plans such as nominating
an alternate executor and/or person to make funeral arrangements. Bell,
supra
note 232, at
899.
262. O
R
. R
EV
. S
TAT
. § 97.130 (2007).
263.
Id.
264.
Id.
§ 106, Domestic Partnerships note § 9.
265.
Id.
§ 112.035 (2007).
266.
Id.
§ 112.025(1) (2007).
267.
Id.
§ 112.025(1).
268. O
R
. R
EV
. S
TAT
. § 112.025(2).
The Coquille Indian Tribe, Same-Sex Marriage, and Spousal Benefits
541
when a child is also the surviving spouseâs child is particularly relevant and
potentially problematic for same-sex couples in determining the amount of
intestate succession due a surviving spouse.
Through adoption, artificial insemination, etc., same-sex couples may
bear and raise children just like any other couple.
269
Under Oregon law, adopted
children are considered children of the adoptive parents for purposes of intestate
succession.
270
In terms of artificial insemination, Oregon law states,
[T]he relationship, rights and obligations between a child born as
a result of artificial insemination and the mother's husband shall
be the same to all legal intents and purposes as if the child had
been naturally and legitimately conceived by the mother and the
mother's husband if the husband consented to the performance of
artificial insemination.
271
This definition may be problematic even with the application of the Oregon
Family Fairness Act.
272
The typical approach to artificial insemination in same-
sex (specifically female) couples would consider the carrying woman as the parent
of the child to the exclusion of the same-sex partner.
273
In this circumstance, the
partner would be forced to adopt the child.
274
However, the Oregon Family
Fairness Act extends rights afforded to an individual because he/she is married to
domestic partners as if they were married.
275
Arguably, the statute above does not
give rights to the husband solely because he is married.
276
The statute states that a
husband shall have the same rights as if the child had been ânaturally and
legitimately conceivedâ by the wife and husband.
277
Obviously, this poses a
problem for same-sex couples. So the question remains: will a spouse of a same-
sex mother who bears a child through artificial insemination have the same
âresponsibilities, rights and obligationsâ as a husband would in the same situation
particularly for purposes of determining a decedentâs and surviving spouseâs issue
for intestate succession?
278
The Massachusetts Supreme Court suggests that a
269. Nastich,
supra
note 88, at 159.
270. O
R
. R
EV
. S
TAT
. § 112.175 (2007).
271.
Id.
§ 109.243.
272.
Infra
text accompanying notes 273-79.
273. Crozier,
supra
note 229, at 768.
274.
Id.
275. O
R
. R
EV
. S
TAT
. § 106, Domestic Partnerships note § 9.
276.
See id.
§ 109.243.
277.
Id.
278. Deborah L. Forman suggests, in analyzing Massachusetts law which contains
similar language of parental rights for husbands,
If Andrea and Sarah lived in Massachusetts and were to marry there,
Sarah would enjoy the same parental rights as a husband in her position
542
Arizona Journal of International & Comparative Law
Vol. 26, No. 2
2009
child born to same-sex parents through artificial insemination is a legitimate child
of the carrying mother and her partner, just as a husband would be with his
wife.
279
Regardless of whether the decedent spouse executed a will before his/her
death, the surviving spouse may still be entitled to benefits such as wage benefits,
spousal allowance, and homestead rights.
280
First, a surviving spouse has a right
to recover wages earned by his/her deceased spouse but not yet paid for, in an
amount not exceeding $10,000.
281
Second, a surviving spouse has a right to
spousal allowance, which is a benefit granted by a presiding probate court when
the exempt property retained by a surviving spouse is insufficient for his/her care
and maintenance.
282
Finally, a spouse retains âprobate homesteadâ rights to
possess the (non-trust) property until his/her death without threat that the
homestead will be sold to satisfy a lien or judgment against it.
283
As discussed earlier, the Coquille Tribe and its members no longer
possess federal âtrust and restricted lands.â
284
As a result, the AIPRA does not
apply to the descent and distribution of property owned by members of the
Coquille Tribe.
285
However, the AIPRA may find its way into the analysis of
same-sex couple spousal rights when other tribes, whose members own âtrust and
restricted lands,â pass laws allowing same-sex marriage. In these cases, the
AIPRA, as an Act of Congress,
286
discriminates against same-sex spouses by
would. Massachusetts, like most states, provides that a husband who
consents to his wife's artificial insemination becomes for all purposes,
the father of any children resulting from the procedure. Thus, Sarah
would be considered Madeleine's legal parent and would have a right to
seek custody and visitation in the event of a divorce.
Deborah L. Forman,
Interstate Recognition of Same-Sex Parents in the Wake of Gay
Marriage, Civil Unions, and Domestic Partnerships
, 46 B.C. L. R
EV
. 1, 9 (2004).
279. M
ASS
. G
EN
. L
AWS
A
NN
. ch 46, § 4B (1994); Goodridge v. Mass. Depât of Pub.
Health,
798 N.E.2d 941, 956 (Mass. 2003).
280.
Infra
text accompanying notes 281-83.
281. O
R
. R
EV
. S
TAT
. § 652.190 (2007).
282.
Id.
§ 18.395 (2007); U.S. Natâl Bank of Portland v. United States, 188 F. Supp.
332 (D. Or. 1960).
283.
Id.
§ 18.395; Benedict v. Lee, 256 P.2d 507 (Or. 1953).
284. Email from Melissa Cribbins,
supra
note 221.
285.
See id.
286. 1 U.S.C. § 7 (2000).
In determining the meaning of
any Act of Congress
, or of any ruling,
regulation, or interpretation of the various administrative bureaus and
agencies of the United States, the word âmarriageâ means only a legal
union between one man and one woman as husband and wife, and the
word âspouseâ refers only to a person of the opposite sex who is a
husband or a wife.
Id.
(emphasis added).
The Coquille Indian Tribe, Same-Sex Marriage, and Spousal Benefits
543
employing the federal definition of spouse for intestate succession.
287
Moreover,
the AIPRAâs discrimination against same-sex married couples represents the
larger federal inequality created by the Defense of Marriage Act (DOMA).
288
There are over one thousand federal laws that extend benefits to
spouses
289
âspouses that fall under the definition: âonly to a person of the
opposite sex who is a husband or a wife.â
290
Refusal of some benefits such as
Social Security and Veterans benefits are among the most devastating for same-
sex couples, especially lower-income same-sex couples that may not have
established sufficient savings for their elder years.
291
In response, same-sex
couples should take a proactive role to protect each other in the event of oneâs
death.
292
This could include purchasing life insurance plans, modestly spending
287. 25 U.S.C. § 2206(a)(2). The AIPRA specifies that a testator may devise âtrust
and restricted landâ to an âIndianâ or an âIndian Tribeâ that has jurisdiction over the land.
Id.
§ 2206(b)(1)(B). This devise would transfer the land with a âtrust or restricted status.â
Id.
Alternatively, a testator may devise his/her interest in the âtrust and restricted landâ to
someone other than an âIndianâ or the âTribeâ having jurisdiction if the devise is only for a
life-estate in the property.
Id.
§ 2206(b)(2). In this latter situation, a testator could transfer
a life-estate in the land to his/her ânon-Indianâ spouse. Moreover, the statute does not limit
the transfer of a life-estate to spouses. In other words, a testator could transfer a life-estate
in the land to his/her ânon-Indianâ same-sex spouse, as this person would qualify as âany
personâ under the provision. If the deceased spouse did not execute a will regarding the
disposition of âtrust or restricted property, any trust or restricted interest in land or interest
in trust personalityâ is distributed according to the AIPRA rules for descent and
distribution.
Id.
§ 2206(a)(1). Under the AIPRA, where the decedent does not have any
eligible heirs, the surviving spouse receives âall of the trust personality of the decedent and
a life-estate without regard to waste in the trust or restricted lands of the decedent.â
Id.
§
2206(a)(2)(A)(iv). However, where the surviving spouse is a non-Indian, there are some
exceptions concerning trust personality.
Id.
§ 2206(b). As shown earlier, a same-sex
surviving spouse will not receive the benefits of intestate succession. Accordingly, a same-
sex couple should consider executing a will that devises a life-estate to the surviving
spouse. Without this protective measure, the AIPRA will not protect a same-sex surviving
spouse by granting a âprobate-homesteadâ and allowing the spouse to continue residing on
the âtrust and restricted landâ for the remainder of his/her life. The AIPRAâs discrimination
against same-sex married couples represents the larger federal inequality created by the
Defense of Marriage Act (DOMA).
288. 1 U.S.C. § 7.
289. Jacobi,
supra
note 145, at 832.
290. 1 U.S.C. § 7.
291. L
AWRENCE
A. F
ROLIK
& A
LISON
M
C
C
HRYSTAL
B
ARNES
, E
LDER
L
AW
: C
ASES
AND
M
ATERIALS
151 (2007) âPersonal savings, Social Security, and employer-sponsored
benefits are sometimes referred to as the âthree-legged stoolâ of retirement income.â
Id.
at
160. Unfortunately, in 2005 the average percent of disposable income that Americans
saved was almost zero.
Id.
292. Crozier,
supra
note 229, at 752.
544
Arizona Journal of International & Comparative Law
Vol. 26, No. 2
2009
and aggressively saving, and researching employers that offer employee benefits
to spouses/partners regardless of biological sex, etc.
293
V. CONCLUSION
Part I of the article illustrated that marriage is desirable as a symbolic
institution recognizing a coupleâs âdeeply personal commitment,â
294
and as an
institution providing spousal rights and imposing spousal obligations. However,
the assumptions upon which many same-sex marriage opponents rely, in
supporting marriage as a superior union reserved for opposite-sex couples, invite
criticism due to either a lack of conclusive evidence or a blatant misstatement of
the truth. Of these: the clearest is the gender assumption. The fact that gender
does not always fit into dichotomous gender categories frustrates many of the
propositions favoring marriage as a union between only a man and a woman.
Second, âresponsible procreationâ is not dependent on marriage or heterosexual
parents, nor is it guaranteed because a parenting couple is heterosexual and
married. Studies reveal that it is the quality of parenting, not sexual orientation or
marital status, which has an impact on the âadjustment, development, and
psychological well-being of children.â
295
Finally, the policy goals of encouraging
permanent, monogamous, and heterosexual
296
unions are not necessarily achieved
by limiting marriage to opposite-sex couples.
Part II presented an important lessonâthe existence of a third gender. A
historic native tradition recognizing two-spirit people embraces the biological
reality that not everyone fits into the inflexible gender categories of male and
female. This lesson serves to educate society about gender and the role anatomy
and physiology play in defining a personâs gender identity and sexual orientation.
If nothing more, this lesson illuminates one simple truth: we are people first. If
society views gender and sexual orientation as a biological reality, and something
other than deviance, society might find enlightenment concerning the arbitrary
prejudice against people falling outside the dichotomous gender categories and,
similarly, couples described as homosexual. In fact, society might find, as
293. For a discussion of how spousal benefits are impacted by ERISA and the
application of DOMA, see
Janice Kay McClendon,
A Small Step Forward in the Last Civil
Rights Battle: Extending Benefits Under Federally Regulated Employee Benefit Plans to
Same-Sex Couples
, 36 N.M. L. R
EV
. 99 (2006); Jill Louise Ripke,
Employee ERISA
Benefits after Goodridge v. Public Health: Do Same-Sex Marriages Qualify as Legal
Marriages under Employer Created ERISA Plans?
, 31 J. C
ORP
. L. 267 (2005).
294. Goodridge v. Mass. Depât of Pub. Health,
798 N.E.2d 941, 954-55 (Mass. 2003).
295. Patterson,
supra
note 80, at 243.
296. Note that the condition or lifestyle of heterosexual orientation relies on the
gender assumption above: that all people fit into the male and female gender categories.
The condition of being heterosexual implies opposites: male as opposite to female. This
line may not be so clearly defined in all instances.
The Coquille Indian Tribe, Same-Sex Marriage, and Spousal Benefits
545
evidence supports, that gender and sexual orientation do not threaten the
institution of marriageâan institution that âis at once a deeply personal
commitment to another human being and a highly public celebration of the ideals
of mutuality, companionship, intimacy, fidelity, and family.â
297
Part III examined a practical approach for Coquille same-sex couples
dealing with spousal rights, related to end-of-life and estate planning decisions, in
a system that is undoubtedly resistant to change. These couples are in a unique
position to receive equal and respected recognition as âmarriedâ by the Coquille
Tribe, extensive health benefits provided by the Coquille Tribe, and extensive
spousal benefits provided by the Oregon Family Fairness Act if those couples
register as domestic partners. Unfortunately, Oregonâs constitutional ban against
same-sex marriage prevents most Oregon same-sex couples from obtaining the
status of âmarriedââa fundamental right discriminately put on a pedestal as a
privilege for opposite-sex couples in Oregon.
298
How does the Coquilleâs action to embrace loving, committed
relationships regardless of a coupleâs biological sex affect same-sex couples in the
United States? Brian Gilley suggests that it is incorrect for advocates to
â[appropriate] what the Coquille Tribe has done as a political statement of gay
rights.â
299
Instead, the Coquille tribe is âsimply [recognizing] people of different
lifestylesâ consistent with the Coquilleâs cultural tradition.
300
Depending on the
cultural history of other tribes, the Coquilleâs new marriage ordinance might
inspire tribes to legislate in a manner that embraces tribal tradition. It is difficult
to predict whether other tribes will embrace their cultural traditions; however, the
Cherokee and Navajo tribes have already demonstrated their stance
against
same-
sex marriage.
Finally, because this article encourages the overall goal of defending and
protecting human rights, it is necessary to consider same-sex marriage in the
larger context of Native rights. While same-sex marriage is an important and
highly publicized issue, Native societies combat far more devastating challenges,
which receive far less attention.
301
Gilley takes issue with the fact that because of
same-sex marriage, this is probably âthe only time that the Coquille Tribe has ever
gotten any attention from advocates.â
302
He is concerned that advocates only pay
attention to tribes âwhen it helps them romanticize their position.â
303
He agrees
with advocates that the Coquille Tribe is setting a great example for encouraging
âthe overall goal of equality,â but finds it problematic when those same advocates
297.
Goodridge
,
798 N.E.2d at 954-55.
298. O
R
. C
ONST
. art. XV, § 5a;
see
Cox,
supra
note 120, at 134.
299.
See
Cox,
supra
note 120, at 134.
300.
Id.
301. Fletcher,
supra
note 27, at 55.
302. Interview with Ken Tanner and Brian Gilley,
supra
note 4.
303.
Id.
546
Arizona Journal of International & Comparative Law
Vol. 26, No. 2
2009
ignore crucial issues affecting Native peoples such as diabetes and socioeconomic
isolation.
304
304.
Id.