Arizona gay man wins fight for death benefits
PHOENIX - A judge has handed a victory 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. The judge quickly issued a ruling in favor of McQuire.
George Martinez was a Vietnam War veteran in the throes of the final stages of cancer when he and his partner of 45 years traveled from Arizona to California to fulfill one of his final wishes and get married. He died two weeks ago, and now his surviving spouse is in the midst of a legal battle over Arizona's ban on gay marriage.
The partner, Fred McQuire, is barred by Arizona from listing himself as a spouse on the death certificate because their same-sex marriage in California isn't recognized here. That has placed McQuire in limbo, unable to receive any death benefits and putting on hold plans to cremate the body.
A judge will hear arguments Friday over whether McQuire's marriage in July to Martinez is valid in Arizona. U.S. District Judge John Sedwick also will consider McQuire's requests to allow a death certificate that identifies McQuire as the surviving spouse.
Lawyers for the state say the ban doesn't violate constitutional protections and asked the judge to reject the request.
The request from the couple from Green Valley, Arizona, was made as part of a lawsuit in which 18 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. The hearing Friday is limited to only McQuire's requests and won't center on the larger issue of whether the ban should be struck down.
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.
State and federal court judges have been striking down bans in more than a dozen states at a rapid rate since a landmark U.S. Supreme Court ruling last year, though a judge recently upheld a ban in Louisiana.
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 Social Security Administration and Veterans Administration.
Attorneys for the state argue that McQuire hasn't suffered irreparable harm because state law lets him get an amended death certificate at some point in the future if he ends up winning the case. They also contend forcing the state to recognize the California marriage wouldn't ensure he gets the benefits since federal law bars him from Social Security benefits because he was married less than nine months before Martinez died.
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 and polyamorous relationships. They contend the ban furthers the state's interest in connecting children to both of their biological parents.