Alia Beard Rau

The Republic | azcentral.com

U.S. District Court Judge John Sedwick ruled today that Arizona must recognize the marriage of one Arizona couple.

Fred McQuire sought an emergency order for the state to recognize his marriage so he could be named as spouse on his partner's death certificate.

The order applies only to McQuire and his partner%2C not to any other Arizona couple.

Fred McQuire has found a little peace, maybe the first he's had since his partner of 45 years died late last month of pancreatic cancer.

A U.S. District Court in Arizona ruled Friday that the state must recognize the California marriage of McQuire and George Martinez, allowing McQuire to list himself as spouse on Martinez's death certificate.

Theirs is now the only legal marriage of a same-sex couple in Arizona.

While the narrow ruling is only a small development in a nationwide trend toward allowing same-sex couples to marry, it's still imporant, attorney Dan Barr said. Barr is among the attorneys representing McQuire and other same-sex couples in one of two Arizona lawsuits challenging the state definition of marriage as only between a man and a woman.

"It matters to Fred. He's going to get a death certificate," he said. "Does it matter in the long run? It gives a pretty good signal."

Judge John Sedwick, in his 14-page emergency motion, was blunt about the future of Arizona's 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 so that Arizona will be required to permit same-sex marriages," Sedwick wrote.

He went on to say the state's argument that Arizona's law doesn't discriminate is without merit. "The reason why couples such as McQuire and Martinez may not marry is precisely because of their sexual orientation," he wrote.

Sedwick's opinion is important: He is the judge who will decide both Arizona lawsuits challenging the definition of marriage. Briefs are still being filed in the case McQuire is part of. Sedwick could rule at any time in the other case, although many believe he'll wait until the 9th U.S. Circuit Court of Appeals issues its opinion on related cases from other states.

The 9th Circuit last week heard arguments in cases out of Idaho, Nevada and Hawaii. This circuit of judges, which has authority over Arizona, is largely considered the most liberal in the nation. Any 9th Circuit ruling would apply to Arizona.

The 9th Circuit could issue its ruling at any time, as well, or it could wait to see what the U.S. Supreme Court does. The high court will decide whether to hear arguments in one or more cases from other states during its closed-door conference hearing Sept. 29. If it takes a case, a ruling would come next summer.

The main reason for McQuire and Martinez to file an emergency request is that they couldn't wait that long.

McQuire and Martinez, of Green Valley, were both disabled Vietnam-era veterans. Martinez worked as a deputy clerk for the state court system for more than 30 years. Three years ago, he was diagnosed with prostate cancer — later determined to be caused by exposure to Agent Orange during his time in Vietnam.

In June, Martinez was diagnosed with pancreatic cancer and given months to live. They traveled to California to get married and filed their emergency request to Sedwick.

On Aug. 28, Martinez died.

McQuire, 69, went forward with the request and was in court Friday for arguments.

Even though Martinez is dead, the issue matters more than ever, McQuire said. He desperately didn't want to receive a death certificate that described Martinez as "never married" and listed no surviving spouse.

"George will be very proud of me being here," McQuire, who uses a cane and has hand tremors related to Parkinson's disease, said during the hearing Friday morning. "I need to let people know I was married. George was my life partner for over 40 years. We loved each other, and he would love to have my name on his death certificate."

Upon hearing news of the ruling, McQuire headed from Phoenix to Tucson to get the certificate.

But the emergency order won't help McQuire financially. Federal law requires him to have been married to Martinez for at least nine months to qualify for his Social Security benefits and one year to qualify for veteran benefits. With Martinez's benefits, McQuire would have had a monthly income of $4,000. Without it, his benefits alone total $1,300.

He said his pension doesn't allow him to stay in the home they shared.

"I'm going to lose the house," he said. "At this point, I don't know what tomorrow brings."

But McQuire said his emergency request, and his part in the lawsuit, is about more than his relationship.

"People are being denied their rights of survivorship, their dignity, their right to live the rest of their lives in the way their spouse would want them to live," he said.

The Christian legal group Alliance Defending Freedom represented the state in the hearing. It argued that while McQuire's situation is "unfortunate," his legal teamdidn't prove the irreparable harm required for such an emergency request. The harm, it said, would be to the state of Arizona and the sanctity of marriage.

"The integrity of the state's marriage definition, which has existed since the state's inception, is of the utmost importance," attorney James Campbell said. "It can't change it, not even for one person."

Campbell during the hearing said a ruling granting McQuire's request would send the message that Arizona's marriage policy "isn't very important."

"It would open the doors for others to make similar requests," he said.

Attorney Jennifer Pizer, with the national gay-rights legal group Lambda Legal, said McQuire's case was about dignity.

"He's trying to honor his late husband's wishes," she said. "We don't want that death certificate issued improperly."

She dismissed the state's argument.

"The people of Arizona have no interest in the enforcement of unconstitutional laws," she said. "We are making a request on behalf of one individual. The impact on the rest of the state is negligible at most."

Sedwick agreed, particularly with the dignity argument.

"McQuire likely faces irreparable emotional harm by being denied this dignity and status as he grieves Martinez's death," Sedwick said in his ruling.

A conservative advocacy group, the Center for Arizona Policy, has led Arizona's fight to preserve its definition of marriage.

Organization President Cathi Herrod said the arguments for overturning the definition have been emotional and political, not Constitution-based.

"This is far from over," she said. "We will now hope the courts defer to the Supreme Court and await their final ruling."

On the beat

Alia Beard Rau covers the Arizona Legislature, the budget and state government. She is also covering the legal challenges to Arizona's definition of marriage.

How to reach her

alia.rau@arizonarepublic.com

Phone: 602-444-4947

Twitter: @aliarau