Arizona Federal Court Orders State to Recognize One Same-Sex Marriage on a Death Certificate

In a ruling that eerily echoed one issued little over a year earlier, a U.S. District Court judge has ordered the state of Arizona to issue a death certificate for a gay man identifying him as a married to his same-sex spouse.  The September 12 ruling in Majors v. Jeanes, 2014 U.S. Dist. LEXIS 127942, by Judge John W. Sedwick provided a close parallel to a ruling on July 22, 2012, by U.S. District Judge Timothy S. Black, who ordered the state of Ohio to issue a death certificate under similar circumstances.  In both cases, the couple had gone out of state to marry because their home state did not allow or recognize same-sex marriages and then returned to their home state, where a member of the couple died.  In the Ohio case, however, the couple secured their court order prior to the death.  In Arizona, the couple had joined other plaintiffs in a lawsuit challenging Arizona’s denial of marriage equality, but the surviving spouse filed a motion seeking an order to record his spouse’s death properly after it had taken place.

Represented by Lambda Legal, Fred McQuire argued that his constitutional rights were being violated by the state’s refusal to accord any recognition to his marriage with George Martinez.  The men had lived together as a couple for many years, but they were both in ill health in recent years.  After the Supreme Court’s dismissal of the appeal in the Proposition 8 case and the restoration of marriage equality in California, they decided to go there to get married.  Perhaps they were inspired by the example of the Ohio couple, James Obergefell and John Arthur, whose quick trip to Maryland in a specially chartered plane and wedding ceremony conducted on the airport tarmac during July 2013 received extensive press coverage, as did the subsequent decision by Judge Black to grant a temporary restraining order so that Arthur could die a married man.  But they took quite a while to put their expedition together, undoubtedly complicated by their health problems, and did not get married until July 2014.  Martinez then died on August 28, and the resistance of Arizona officials to issuing a proper death certificate brought on the motion seeking relief from Judge Sedwick.

The state’s first argument in opposition was that the Supreme Court’s 1972 ruling in Baker v. Nelson that a claim for same-sex marriage did not present a “substantial federal question” precluded a ruling in McQuire’s favor.  Judge Sedwick made short work of this argument, opining that the Supreme Court’s decisions in Romer v. Evans (1996), Lawrence v. Texas (2003) and U.S. v. Windsor (2013) had eliminated any uncertainty about whether Baker v. Nelson is still a binding precedent.  Pointing out that less than two weeks previously the 7th Circuit Court of Appeals had ruled that Baker did not block a marriage equality ruling, Sedwick said that the old decision “is not an impediment to consideration of McQuire’s claim.”

In order to grant such a pretrial order, the court must find that the plaintiff is likely to succeed on the merits of his claim, that he is likely to suffer irreparable harm without the relief he is seeking, that a balance of the equities tips in his favor, and that the public interest favors issuing the relief.  In reviewing the four factors, Sedwick was actually signaling the likely outcome when he eventually rules on a motion for summary judgment by the full group of plaintiffs in this case.

Arizona is in the 9th Circuit, where a court of appeals panel heard arguments in marriage equality cases from other states just days before Sedwick’s ruling.  He pointed out that early in 2014 a 9th Circuit panel had ruled that sexual orientation discrimination claims require heightened scrutiny, and the full court had denied en banc review.  He rejected the state’s argument that Arizona’s marriage  law does not discriminate because of sexual orientation, observing that “the reason why couples such as McQuire and Martinez may not marry is precisely because of their sexual orientation.  He rejected the state’s contention that its marriage law was not intended to discriminate against same-sex couples.  “Accepting that as true,” he wrote, “it does not alter the fact that the laws do discriminate.  Evidence of malignant intent might support a higher standard of review, but defendants do not explain why its absence necessarily forecloses use of a higher standard.”  He derided as “circular” the state’s argument that the marriage law was “based upon a biological difference which reflects society’s interest in the capacity to create children” so should not be subjected to heightened scrutiny, pointing out that there is now circuit court authority from the 4th and 10th circuits holding that “marriage laws which discriminate between heterosexual couples and homosexual couples infringe a fundamental right,” so heightened scrutiny would apply in any event.

The state also argued that the 9th Circuit’s heightened scrutiny precedent did not reach the circumstances of this case because it relied on Windsor, in which the Supreme Court did not specify a heightened standard for review for cases “involving laws with a disparate impact on same-sex couples.”  He found this argument unpersuasive, finding that it was as reasonable to infer that Windsor “does imply used of a heightened standard of review in the case before this court as to infer the opposite, and, quoting the 9th Circuit, “there can no longer be any question that gays and lesbians are no longer a group or class of individuals normally subject to rational basis review.”

“Given the wealth of case law holding that state prohibitions on same-sex marriage violate the Constitution,” Judge Sedwick concluded on this point, “the court concludes that McQuire is likely to prevail on the merits.  He also found that McQuire would suffer irreparable injury in the form of dignity harm and the violation of his constitutional rights if Sedwick did not order the state to recognize the marriage for purposes of the death certificate.

However, he rejected McQuire’s example of economic harm in the form of loss of eligibility for social security survivor’s benefits and vetererans’ survivor benefits.  Although the men had lived together as a couple for many years, their actually marriage did not even last two months before Martinez died.  As a result, Judge Sedwick concluded, McQuire could not qualify for spousal benefits because the relevant regulations and statutes require a longer period of legal marriage as a qualification for the benefits.  A couple must be married for at least nine months for a surviving spouse to succeed to social security benefits at the rate received by the decedent, and the qualification period is one year for Veterans’ benefits.   Sedwick did not specifically consider arguments that might be made to persuade federal authorities to award benefits were McQuire to apply for them, and surely there would be equitable arguments to be made.  But that did not really matter to the outcome, because he found that the amount of harm McQuire would suffer from the denial of a proper death certificate was sufficient to support issuing an order in this case.

The state had argued that the balance of harms weighted toward denying relief, but Sedwick disagreed.  He pointed out that the requested order extended only to the issue of the death certificate, and his ruling would be confined to one plaintiff, Mr. McQuire. “Because McQuire’s irreparable harm inheres in a claimed violation of the Constitution — a violation which he is very likely to establish — and because the injunctive relief sought is limited to a single individual, it cannot be said that the balance of the equities favors defendants,” he wrote.  Finally, he concluded that it was probable that the public interest would be advanced by granting relief to the plaintiff.  “Conversely,” he wrote, “it is probable that the public interest would be harmed if no such relief were provided.”

Thus, Judge Sedwick issued an order temporarily restraining Arizona officials from enforce the Arizona Marriage Amendment and statutory marriage laws “and any other Arizona law against recognition of the marriage of Fred McQuire to George Martinez,” and specifically order the prompt issuance of an appropriate death certificate recording Martinez as “married” and identifying McQuite as his surviving spouse.

Such recognition of the marriage does not necessarily mean that McQuire will qualify for the higher level of social security benefits that Martinez’s surviving spouse should receive or the Veterans’ benefits that Martinez earned for his surviving spouse through his military service.  This will turn on the degree of stringency with which federal officials decide to enforce the timing requirements in light of the circumstances of this case.  A ruling on such a pre-trial motion by a district court is not precedential outside the parties to the case.  But the ruling seemed an advance confirmation, if such were needed, that Judge Sedwick is highly likely to rule for the plaintiffs on the merits, if the 9th Circuit does not beat him to the punch by issuing a decision on the Idaho and Nevada cases that would be a binding precedent on Sedwick and the parties in this case.

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