Federal judge orders Ariz. to recognize deceased man’s same-sex marriage

Fred McQuire and George Martinez

Fred McQuire and George Martinez Lambda Legal

Fred McQuire and George MartinezLambda Legal

Fred McQuire (left) and George Martinez

Updated: 8:45 p.m. MST

PHOENIX — In a ruling that calls into question Arizona’s same-sex 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.

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.

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