Arizona man claims a victory in same-sex marriage battle

PHOENIX - A judge handed a victory Friday to a gay man who lost his spouse to cancer last month and was denied death benefits because Arizona does not recognize same-sex marriage.

Fred McQuire and George 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 died in late August, but McQuire was unable to receive Social Security and veteran benefits because Arizona bans gay marriage.

McQuire went to court Friday as his lawyers asked U.S. District Judge John Sedwick to let McQuire be listed as Martinez's spouse on the death certificate, which they believed would help qualify him for the benefits. The judge quickly issued a ruling in favor of McQuire.

The ruling Friday was narrowly focused on the question of whether McQuire can obtain death benefits. But the case has illustrated the patchwork of laws on gay marriage across the country as judges have been striking down bans on gay marriage while states like Arizona have remained steadfast in opposing same-sex weddings.

Ohio has a similar ongoing case in which two gay men whose spouses were dying. They 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

In the Arizona case, 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, ruling that McQuire will not be able to succeed in getting Social Security and Veterans Affairs benefits.

Still, Sedwick ruled that McQuire demonstrated that he faced irreparable harm on the basis of the loss of his dignity and status 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.

Without ruling on the larger issues of whether the ban is unconstitutional, the judge said the state's argument that its marriage laws don't discriminate on the basis of sexual orientation lacks merit, pointing out the reason same-sex couples don't marry is because of their sexual orientation.

"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," Sedwick said.

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 index finger.

Martinez was a Vietnam War veteran who died late last month of pancreatic cancer that is blamed on his exposure to Agent Orange. While in the throes of the illness and chemotherapy, he and McQuire traveled to California to get married, calling it "demeaning and unfair" to have to go out-of-state to exchange their vows.

"I feel frightened and worried about what will happen to Fred after I die," Martinez wrote in an August court filing just two weeks before he died. "Although Fred and I are legally married under the laws of California, the fact that the U.S. government honors our marriage while Arizona does not is confusing and stressful."

James Campbell, a lawyer arguing on behalf of the state, said McGuire'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 state's lawyers also make a broad argument that the ban doesn't discriminate on the basis of sexual orientation and instead distinguishes between heterosexual couples and all other relationships, such as same-sex couples. They contend the ban furthers the state's interest in connecting children to both of their biological parents.

The request from the couple from Green Valley, Arizona, was made as part of a lawsuit in which 19 people are challenging Arizona's ban on same-sex marriages. The lawsuit alleges that the ban violates the equal-protection and due-process guarantees in 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.

McQuire's attorneys say the state has disrespected McQuire's marriage by forbidding McQuire from being listed as the surviving spouse, thus causing him financial hardship by blocking his ability to get benefits from the Social Security Administration and Veterans Affairs.