PHOENIX — In what could be the first crack in the state’s ban on gay marriage, a federal judge on Friday ordered the state to issue a death certificate for George Martinez listing Green Valley resident Fred McQuire as his legal spouse.
Judge John Sedwick rejected arguments by a Christian law firm representing the state that the “public interest” of Arizona in enforcing its marriage laws would be harmed by requiring Arizona to recognize that the pair were legally married in July in California. Martinez died in Arizona the next month.
Sedwick was careful to specify his ruling is limited to McQuire and does not mean other Arizona couples legally married elsewhere are entitled to have their unions recognized here. That fight remains for another day.
The judge is currently considering two other suits seeking to overturn the state law and the 2008 voter-approved constitutional amendment defining marriage as solely between one man and one woman.
But the judge, to be able to grant McQuire’s request for the emergency order, had to conclude McQuire was likely to succeed after a full-blown trial to void Arizona’s refusal to recognize his marriage legally performed elsewhere.
However, Sedwick, in his 14-page ruling, went even further.
The judge said he has not yet decided the underlying claim in both lawsuits that there is a conflict between the Arizona ban and the rights of individuals under the U.S. Constitution.
“But the court has decided that is it probable that there is such a conflict so that Arizona will be required to permit same-sex marriages,” Sedwick wrote.
He acknowledged the public interest in state officials complying with state laws like this one. But that, the judge said, is not enough. “The public also has an important interest in those same officials’ compliance with the highest law of the land, the United States Constitution,” the judge continued.
“Where discharging state law runs afoul of the United States Constitution, the interest of the public necessarily lies in compliance with the higher law.”
In ordering the state to recognize McQuire as the legal survivor, Sedwick said he considered arguments by the state that its marriage laws do not discriminate on the basis of sexual orientation.
“Yet the reason why couples such as McQuire and Martinez may not marry is precisely because of their sexual orientation,” he wrote. “This argument lacks merit.”
And he dismissed the contention that the laws were not intended to discriminate against same-sex couples.
“Accepting that as true, it does not alter the fact that the laws do discriminate,” the judge said.
The possibility that Friday’s ruling could ultimately lead to voiding the state’s gay marriage ban did not go unnoticed by James Campbell, an attorney with the Alliance Defending Freedom, composed of what it calls “Christian attorneys and like-minded organizations” that was allowed by Attorney General Tom Horne to defend the law.
“By issuing a temporary restraining order ... it would necessarily send a message that the judge thinks that the laws are likely unconstitutional,” Campbell said after the hearing but before Sedwick ruled. And that, he said, “shrouds (Arizona’s) marriage laws in constitutional uncertainty.”
Sedwick’s ruling is unlikely the final word, not only for McQuire but for others challenging the law.
Horne said after the decision that his office has an obligation to defend both the law banning same-sex marriage, which dates to the first days of statehood, as well as the 2008 constitutional amendment.
The entire issue ultimately could be decided by the U.S. Supreme Court. It is scheduled to announce next month which marriage cases from other states it will review, with a final, nationwide-binding ruling on the issue next year.
McQuire said he sought the order for several reasons.
“I just need to let people know that I am married and George was my lifetime partner of over 40 years,” he said. “We loved each other.”
And McQuire said while the victory of having his out-of-state marriage recognized in Arizona may come a bit late for him, he hopes it will help others.
“It’s very important because people are being denied their rights of survivorship, the rights of dignity, the right to make the rest of their lives in a way their spouse would want them to live,” he said.
Campbell argued that requiring Arizona to recognize McQuire’s California marriage to Martinez would cause “irreparable harm” to the state. And he said granting even a small exception like this would undermine the state’s entire policy.
“The integrity of the state’s marriage definition, which has existed since the state’s inception, is something of the utmost importance to the state,” Campbell argued.
“That is true only to the extent those laws are constitutional,” responded Jennifer Pizer, the attorney for Lambda Legal Defense and Education Fund, which represents McQuire and other gay couples and survivors seeking to void the Arizona law.
Despite Friday’s order, it looks like McQuire will lose the house he shared with Martinez and had hoped to save with a recognition of his marriage.
Pizer said one reason McQuire wanted the marriage recognized is to get veterans and Social Security benefits due to Martinez’s spouse. She said without those, McQuire, who turns 70 next week and whose own pension is less, cannot afford the house. But she said Social Security requires a couple to have been married for nine months to have it recognized; for veterans benefits, the waiting period is a year. Pizer said that’s designed to preclude “sham” last-minute marriages of people who are dying.
Pizer said she intends to challenge those time restrictions, at least as it applies to McQuire and those in similar situations in Arizona.
She said they have been together for 45 years, living as spouses, with only the Arizona law preventing them from getting married years earlier.
Friday’s ruling drew a blast from Cathi Herrod, president of the Center for Arizona Policy, which was instrumental in pushing the 2008 ballot measure. She sat through the hearing.
“This decision was driven by politics, not constitutional law,” Herrod said in a prepared statement. “Arizona has become the latest victim of a politically driven judiciary.”