|picture not retouched of jan Brewer|
In a ruling that calls into question Arizona's gay marriage ban, a judge handed a victory Friday to a gay man who lost his spouse to cancer last month and was denied death benefits because the state prohibits same-sex unions.
U.S. District Judge John Sedwick allowed Fred McQuire to be listed on his spouse's death certificate, marking another development in the national debate over gay marriage as state and federal judges across the country have struck down bans in more than a dozen states at a rapid rate since a landmark U.S. Supreme Court ruling last year. UPDATE
Friday's decision only applied to McQuire, but the judge signaled that Arizona's gay marriage ban may not hold up after he hears a broader challenge to the constitutionality of the law.
"The court has not yet decided whether there is a conflict between Arizona law and the Constitution, but the court has decided that it is probable that there is such a conflict that Arizona will be required to permit same-sex marriages," said Sedwick, who was nominated to the federal bench in 1992 by President George H.W. Bush.
A death certificate listing McQuire as the surviving spouse of George Martinez was issued late Friday afternoon at a state records office in Tucson, one of McQuire's lawyers said.
McQuire and Martinez were partners of 45 years who got married in California this summer, fulfilling one of their final wishes as they both dealt with serious health issues. Martinez, a Vietnam War veteran, was in the throes of pancreatic cancer blamed on exposure to Agent Orange when they got married, calling it "demeaning and unfair" to have to go to another state to exchange their vows.
Martinez died in late August, but his spouse was unable to receive Social Security and veteran benefits because Arizona bans gay marriage.
Sedwick quickly issued an order granting McQuire's request to be listed on Martinez's death certificate as the surviving spouse, which McQuire hoped would qualify him for the federal benefits. But Sedwick said federal regulations unrelated to the legality of gay marriage mean McQuire will not be able to succeed in getting the benefits.
The request from the couple from Green Valley, Arizona, was made as part of a lawsuit in which 19 people are challenging the state's ban on same-sex marriages. The lawsuit alleges that the ban violates the U.S. Constitution.
Arizona lawmakers approved a state law barring same-sex marriages in 1996. Seven years later, an Arizona appeals court upheld the constitutionality of the law. Voters in 2008 amended the Arizona Constitution to include a ban.
Cathi Herrod, president of the Center for Arizona Policy, which led a coalition of groups that pushed for the 2008 law, said in a statement that the decision was driven by politics, not constitutional law. She said Sedwick "has joined the judicial stampede of other lower federal judges who have tried to override or ignore marriage laws based on no precedent other than their own political bias."
Ohio has an ongoing case that's similar to the McQuire situation. Two gay men whose spouses were dying sued to win the right to be listed as the surviving spouses on their husbands' death certificates and for their spouses to be listed as having been married. A ruling on this case is pending before the 6th U.S. Circuit Court of Appeals.
Before the ruling, McQuire, 69, wiped away tears as he talked outside court about the disappointment of being told by government officials that he wasn't considered Martinez's lawful husband. He said he was expecting that kind of reaction, but it still hurt deeply. "It doesn't make it easier," McQuire said.
"George would have loved to have been here today," McQuire said outside court, still wearing a gold and diamond wedding ring on his left hand.
McQuire issued a written statement after the ruling was handed down. "No one else should have to deal with the pain and humiliation of not being able to take care of something as simple and sensitive as a death certificate for their spouse," he said.
"George would have been thrilled with this outcome. All he ever wanted to do was take care of Fred and Judge Sedwick's order will make sure his last wish is fulfilled," said Lambda Legal attorney Jennifer C. Pizer, who argued the case in court for McQuire.
James Campbell, a lawyer arguing on behalf of the state, said McQuire's request should be rejected, arguing that he can always have the death certificate amended if the courts overturn the ban on same-sex marriage. Campbell also said granting this request would open up the doors for others to make similar requests.
The judge had sided with the state in ruling that McQuire hadn't shown irreparable harm based on the financial consequences of not having his marriage recognized in Arizona. But he ruled that McQuire demonstrated that he faced irreparable emotional harm because his marriage wasn't recognized in Arizona while he was the midst of his grief.
“McQuire likely faces irreparable emotional harm by being denied this dignity and status as he grieves Martinez’s death," the judge wrote.