PIERRE | After hearing oral arguments Tuesday, the South Dakota Supreme Court is set to decide whether a former Rapid City police officer is allowed to collect the survivor benefits of her late wife, whom she married soon after same-sex marriage became legal but after her spouse retired from the police force.

The lawyer representing the retired officer argued that the 2015 U.S. Supreme Court decision legalizing same-sex marriage is retroactive and the couple would have been married at the time of retirement if the state allowed it. But a lawyer for the South Dakota Retirement System said a court can’t retroactively create a marriage.

Debra Anderson, 64, worked as an officer with Rapid City Police Department for 25 years, according to a brief submitted by James Leach, her lawyer. Anderson met her wife, Deborah Cady, in 1986 and they lived together and considered themselves a married couple from 1988 until Cady’s death in 2017.

Anderson as well as the current and former chiefs of the police department previously testified that they were treated as a married couple by the police force, according to the brief.

“This isn’t a gimmick. This isn’t an attempt to create attention for gay rights. This is truly two women that have decades of service that are simply trying to be treated fairly. Nothing more. Nothing less,” Chief Karl Jegeris is quoted as saying in the brief.

Cady served as a captain — the highest rank below the chief — and retired in 2012 after 26 years with the police department to treat her breast cancer, the brief says. The pair married 23 days after the Supreme Court legalized same-sex marriage in 2015 with the landmark Obergefell v. Hodges case.

Because they were not legally married at the time of Cady’s retirement, the South Dakota Retirement System ruled in December 2017 that Anderson was not eligible to receive her benefits, the brief says. Judge Gordon Swanson of the 4th Judicial Circuit agreed in June 2018.

But Leach argued to the five justices that Obergefell was retroactive, and Anderson and Cady would have been married if South Dakota had not unconstitutionally banned same-sex marriage.

It’s “very clear” that Supreme Court rulings overrule and apply retroactively to past laws, he said. He also said that other courts have specifically ruled that Obergefell is retroactive.

Anderson and Cady “unquestionably would have been married” if the law allowed it, Leach said. He said the pair wore matching rings and acted as a married couple, with Anderson caring for Cady until she died.

Leach said the pair considered getting married in another state but didn't to avoid bringing “disrepute” to the police department, because they pledged to uphold the state constitution — which banned same-sex marriage — and because the marriage would be an “act of absolute meaninglessness” with no legal power in South Dakota.

Robert Anderson, a lawyer representing the retirement system, did not focus on whether Obergefell is retroactive but said it’s impossible for the court to retroactively create a marriage that did not happen before Cady’s retirement.

You can’t “create something that did not exist,” he said.

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Robert Anderson said the retirement system would have granted Debra Anderson benefits if they had been married in another state.

“We wouldn’t be in this courtroom,” he said.

But while Robert Anderson said courts have retroactively recognized same-sex common law and out-of-state marriages, he hasn’t found a case that recognized a marriage before a couple married.

He said no one has “questioned the sincerity” of Debra Anderson and Cady’s relationship, but it’s “speculative” to guess whether they would have married if South Dakota law allowed it.

“The parties had a choice” to get married elsewhere, Anderson added. While the marriage wouldn't have been recognized in South Dakota, he said, the couple wouldn’t have been criminalized for their marriage and wouldn't have faced repercussions at work since the police department was tolerant of their relationship.

Leach called Anderson’s framing of the legal issue “fundamentally egregious” and said he’s not asking the court to retroactively create a marriage.

What’s at issue, he said, is whether South Dakota’s old unconstitutional laws banning same-sex marriage can continue to damage people and deny them benefits.

Speaking after the hearing, Robert Anderson said even if the retirement board had wanted to grant Debra Anderson her spouse’s survivor benefits, the agency could not because it must follow the law.

“They had no choice” but to deny the benefits, he said.

Debra Anderson, who lives in Rapid City, declined to comment.

Leach said the retirement system shouldn’t be worried about having to unexpectedly spend money on other same-sex couples in situations like Anderson and Cady because no other similar couples have applied for benefits.

But even if they did, he said, “so be it. The law is that we no longer discriminate against people for marrying people of the same gender.”

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