Same-sex marriage is legal in almost all of Arizona — but maybe not in Courtroom 680 at Pima County Superior Court.
Time has stood still there since Oct. 17, the day a federal court ruling struck down relevant state laws and same-sex marriages began in Arizona. But four months later, the judge who occupies Courtroom 680, Sean Brearcliffe, seems to defy their existence.
On Feb. 17, Brearcliffe ruled that Tucsonan Martha A. Morris, 67, and her estranged wife, Vicki M. Sullivan, 64, now of Maine, could not be divorced.
Brearcliffe’s fundamental reason for denying the divorce: Neither a federal trial court nor the 9th U.S. Circuit Court of Appeals sets precedents he must follow.
”The general rule,” Brearcliffe wrote, “is that the Supremacy Clause of the United States Constitution (U.S. Const. art. VI, cl. 2) does not require state courts to follow precedent from either federal trial courts or Circuit Courts of Appeal interpreting the United States Constitution.”
He not only denied the petition for divorce, but he said it would be dismissed “with prejudice” — meaning without opportunity for appeal — unless Morris either agreed instead to do an annulment or request a stay. She requested a stay and got a Southern Arizona Legal Aid attorney, Anthony Wisz, to represent her.
Another attorney who’s been active in supporting same-sex marriage in Tucson, Ron Zack, told me he found Brearcliffe’s ruling “bizarre.”
“He’s making it sound as if he has no choice. I don’t think that’s the case at all,” Zack said. “From reading his point of view, we shouldn’t be issuing marriage licenses here” to same sex-couples.
This should have been one of the simplest possible divorce cases for a family-law judge like Brearcliffe, who was appointed by then-Gov. Jan Brewer in 2013.
In fact, it would have gone through the default proceedings and never gone before a judge for individual proceedings had it involved a man and a woman, Wisz said. But because it involved a same-sex couple, it was shunted to a judge for individual attention.
Morris and Sullivan had been living together in Tucson for about three years when they married in Vermont in 2010, Morris said. After returning here, they lived together for about two more years but then separated. The couple have no kids, no shared property and no claims of alimony.
When I asked Morris why she was getting a divorce, she said: “She lives in Maine and I live here, for one thing. For another thing, we don’t want to be together.”
In other words, it was simply a marriage that needed to be legally terminated to ensure there were no complications. It happens.
But Brearcliffe wouldn’t do it. Instead, he mentioned two options: One, they could go to Vermont for the divorce — but, of course, neither of them lives there. Two, he said, Morris could opt for an annulment. She considered it, but decided that wasn’t right.
”I don’t care if there’s some notoriety,” she told me, referring to publicity like this column. “This is wrong. If the circuit judge says we can get married, then we can certainly get divorced.”
In any case, Brearcliffe apparently found this to be suitable legal terrain for a last stand on the issue of same-sex marriage. Gay weddings commenced here Oct. 17.
Tracing his opposition is, of course, tricky, without the judge explaining it to me himself. He did not respond to a pair of emails asking four questions. When he was picked for the court, the Star noted he is a member of Grace Evangelical Lutheran Church. It is part of the Wisconsin Synod, a conservative branch of Lutheranism that opposes same-sex marriage.
In denying the divorce, he ruled first that Arizona has established in law and its constitution a “strong public policy” against same-sex marriage. This permitted him to say that Arizona need not recognize the marriage in Vermont.
Then he said he was not bound by the U.S. District Court ruling that Arizona’s ban on same-sex marriage is unconstitutional, nor by the 9th U.S. Circuit Court of Appeals ruling on which that decision was based. Only an Arizona appeals court, the Arizona Supreme Court or the U.S. Supreme Court may set a precedent he must follow, Brearcliffe said.
Displaying a staggering sense of irony — or staggering ignorance of it — Brearcliffe wrote: “Where a matter has been resolved by an appellate court, a trial court is bound by it.”
A state appeals court is what he meant, of course. Not a federal appeals court.
Of course, this case isn’t just about case law or legal principles — it’s about people. In this case, it’s about two people who had something good until it went bad. A lot like many straight couples. And it’s about messing up a procedure that should have been simple.
When I reached Sullivan in Maine, she told me in her New England accent: “They ought to get their ducks in a row. One person says one thing, one says another. It’s very confusing to the common person.”