- Associated Press - Thursday, February 21, 2019

PIERRE, S.D. (AP) - South Dakota’s Supreme Court ruled this week against a retired police official seeking state retirement system survivor benefits after her wife, a former police captain, died of cancer.

The high court said in a Wednesday opinion that retired Rapid City officer Debra Anderson isn’t entitled to the benefits because she and former Capt. Deb Cady weren’t married before Cady retired in 2012 with breast cancer.

Anderson argued the couple would have been married earlier if not for the state’s prohibition against gay marriage. Attorney James Leach said he’s “very disappointed” the high court rejected Anderson’s appeal.

The couple had been together for many years when Cady retired, but weren’t married because it wasn’t legal in South Dakota at the time. They married in 2015, when the U.S. Supreme Court legalized gay marriage nationwide, and Cady died two years later.

A 1996 law passed by the South Dakota Legislature and a voter-approved 2006 constitutional amendment banned gay marriage.

“The South Dakota law that forbade same-sex marriage was unconstitutional, and as a result Deb Anderson is entitled to benefits as a surviving spouse, just as she would be if she were a man,” Leach said in an interview in January, shortly before oral arguments before the court.

But the state contended Anderson was asking the court to create a marriage in 2012 when one didn’t exist. Retirement system attorney Robert Anderson argued to justices that if Cady and Debra Anderson had gotten married in a state that allowed same-sex marriage before Cady’s 2012 retirement, then “today we would not be in this courtroom.”

According to a court document, the couple discussed getting married when Massachusetts legalized gay marriage in 2003 and hoped it would be an option for them when Iowa legalized it in 2009. That year, Cady surprised Anderson with matching rings.

“We agreed that we would marry,” Anderson previously testified, according to the document. “But for us it was going to have to be when it was either recognized by the State of South Dakota, which is where we resided and worked, or by the Federal Government, you know, as a nation as a whole.”

The Supreme Court opinion says Anderson isn’t entitled to the survivor benefits under South Dakota law, which in part defines a spouse as someone married to a retirement system member before they stopped working.

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