Same-Sex Marriage

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A same-sex couple from Arizona was married in California before one of the two men died. A federal judge has given the survivor the rights to benefits from the deceased partner, even though Arizona does not recognize same-sex marriage. Dan Barr, an attorney who represented the couple, will talk about the case.

Ted Simons: Good evening, and welcome to "Arizona Horizon." I'm Ted Simons.

Ted Simons: A federal judge ruled Friday that Arizona must recognize the marriage license of a same-sex couple married in California. Here to tell us much more about this case is attorney Dan Barr of the law firm Perkins Coie. Barr is representing the surviving spouse in the case. Good to see you again.

Dan Barr: Thanks for having me.

Ted Simons: This was an emergency order from the judge. Before we get to what the judge decide and why it was an emergency order and what that means, talk to us about this couple.

Dan Barr: Well, George Martinez and Fred McGwire were two people in the Air Force, served in the Vietnam era; they met in Tucson in 1969. And they had a 45-year relationship living in the Tucson area, eventually living in green valley. Recently George started suffering from cancer, cancer that was -- He got from being exposed to Agent Orange in Vietnam. And the cancer became very aggressive. Pancreatic cancer in particular. And when it became so aggressive that it was clear that he was going to pass away, we decided to move for an emergency order to get the judge to declare their marriage was valid on their Arizona law. I should back up a little bit. They went and got married earlier, within the year after the Windsor decision was decided. Before the Supreme Court decided the Windsor case, they saw no point to getting married because neither the federal government nor the state of Arizona would recognize their marriage. When gay marriage became legal in California, they went there and they got married, and celebrated their wedding there.

Ted Simons: And by celebrating their marriage in California, obviously applies in California. Come to Arizona, doesn't apply here. Talk to us about now the legal aspects of all this.

Dan Barr: Well, after the Windsor decision, they were able to get federal benefits, even living in Arizona. They became plaintiffs in the case, challenging the Arizona same-sex marriage ban, and when it became clear that George was failing, we filed for a temporary restraining order seeking the court to immediately recognize their marriage as valid for several reasons. One for the dignity of both George before his death, and if he didn't survive, for Fred, to get a death certificate listing him as the -- George's spouse.

Ted Simons: Indeed. And did not want it to say no surviving spouse on that death certificate.

Dan Barr: Correct. He wanted acknowledgment of a 45-year relationship.

Ted Simons: And as far as benefits, the couple has a home in -- Had a home, I think they still --

Dan Barr: In green valley.

Ted Simons: And that obviously would be in jeopardy without those benefits.

Dan Barr: Correct. Now, the court hasn't ruled that he gets those benefits, but he can now apply for those benefits. There's an argument that he's not entitled to them because they weren't married long enough, and then they'll bring a constitutional claim saying well, it was pointless for us to get married beforehand.

Ted Simons: Right. OK, so the state, their side of the case, they say this is an unfortunate situation regarding these two gentlemen, but there was no irreparable harm and thus no need for an emergency order. What did the judge say to that?

Dan Barr: The judge rejected that, saying the affront to Fred's dignity was irreparable harm and the denial after constitutional right is an irreparable harm.

Ted Simons: And the state also argued the real harm was to the state, and to the sanctity of marriage. Again, the judge's response.

Dan Barr: The judge rejected that, saying that the state's law is discriminatory, and second, saying just merely recognizing this one marriage could not do any harm whatsoever to the state.

Ted Simons: Is it unusual, though, for a judge to just rule on something in this one case?

Dan Barr: No, it's happened in several of the same-sex marriage cases throughout the country. And usually in circumstances like this where someone is dying, or has died, and mediumiality relief is necessary. In Fred's case, he not only is suffering the loss of his spouse and 45-year partner, but Fred is in pretty bad physical condition as well. He has advanced Parkinson's, and really needs the court to step forward now and he can't really afford to wait for nine months from now when the U.S. Supreme Court may decide this issue.

Ted Simons: And so what happened as soon as the judge made this order?

Dan Barr: Fred went down to Tucson and got a death certificate issued. It took five hours for the state of Arizona to do it, but eventually he got a death certificate issue fortunately -- Shortly before 5:00 p.m. Friday.

Ted Simons: It's interesting, the same judge, obviously again, this applies to this couple and none other, but the same judge is looking at Arizona's marriage law in total, correct?

Dan Barr: Correct. And he made pretty clear where he's going to go. I'll just say this is from the opinion of the court, the court has not yet decide first degree there's a conflict between Arizona law and the constitution, but the court has decided that it is probable that there's such conflict so Arizona will be required to permit same-sex marriage.

Ted Simons: Right.

Dan Barr: So the handwriting is on the wall.

Ted Simons: OK. With the handwriting on the wall, tell us a timetable to read that handwriting, or to write that particular --

Dan Barr: Well, a week ago the ninth circuit heard oral argument in three same-sex marriage case, one from Nevada, one from Idaho, and one from Hawaii. And the ninth circuit will probably have an opinion out I would guess by the end of the month. That opinion will apply to all the states in the ninth circuit, which Arizona is a member. I would imagine at that point the judge handling the two same-sex marriage challenges here in Arizona will follow that opinion. You can see from the opinion he issued on Friday, he's already there. And I expect the ninth circuit will also rule that same-sex marriage bans are unconstitutional.

Ted Simons: So basically the ninth circuit will have these bundle of cases, these three cases will be bundled together and the ninth circuit -- When are we suggesting this is --

Dan Barr: The oral argument was last Monday, and the way these cases are moving so quickly, I expect the ninth circuit will probably have an opinion by the end of the month, early October, maybe within the week. The seventh circuit recently issued an opinion nine days after having oral argument in the same-sex marriage challenge regarding the Indiana and Wisconsin cases.

Ted Simons: Now, what are the odds of this particular case actually going to ninth as well, and then one of these cases perhaps this one, perhaps as a bundle, goes to the Supreme Court?

Dan Barr: There are already three cases at the U.S. Supreme Court. There's a case from Utah, there's a case from Virginia, and there's a case from Oklahoma. Those cases have been fully briefed. Back off. The reply briefs are due I think within a few days. And the Supreme Court will probably decide as early as September 29th whether to grant the CERT petitions. If it does at that time or at a later conference in early October, those cases will be heard late this year early next year and the Supreme Court will have a decision sometime probably late June.

Ted Simons: And we've talked a lot about the Supreme Court on the program. We do with professor bender, and with you and others. It sounds as though this is obviously a Kennedy court, what Kennedy decides usually swings things one way or the other, it sounds like prior to this now, if past history is proof of future performance, he seems to side with gay marriage, Gay rights.

Dan Barr: Justice Kennedy has written all three gay marriage opinions by the Supreme Court. He wrote the Romer opinion, he wrote the case out of Texas, and he wrote the Windsor case. In writing the Windsor opinion, once which was set out, that set off all these federal courts from all over the country striking down the gay marriage ban. So the issue is now been put squarely in front of him, and nobody has any illusions that's going to be Justice Kennedy who decides whether the gay marriage bans survive or not.

Ted Simons: Last question on this, and we're trying to get someone on, we're working on that to get the other side, but as far as the other side is concerned, are we seeing a state attorneys general showing up for these cases, what is the other side arguing?

Dan Barr: Well, they're running out of things to say. At the ninth circuit last week, none of the attorney generals offices for those three states actually appeared to give argument. It's all these private religious groups and the same thing happened here in Arizona, where the attorney general's office is nominally involved in this case, and they had a lawyer show up at the argument, but the briefing is being done by this group the alliance defending freedom, which is a Scottsdale group, and they were doing the oral argument, and I think it speaks for itself when the attorney general's offices are not actively defending these marriage bans.

Ted Simons: Real quickly, last question -- As far as the Supreme Court case, if it gets to the Supreme Court, will it be a state's rights issue, a personal liberty issue?

Dan Barr: Well, it's going to be an equal protection issue. It's going to be substantive due process. I'm sure the side seeking to defend the same-sex marriage bans will be arguing states' rights issues.

Ted Simons: OK. Dan, good to have you here.

Dan Barr: Thanks for having me.

Dan Barr:Attorney, Perkins Coie;

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