A federal judge held on Friday that marriage equality is protected by the Constitution and the state of Arizona may no longer deny equal marriage rights to same-sex couples. Shortly after this decision, Attorney General Tom Horne (R) announced that he would not appeal it, effectively halting the state’s resistance to equality.
Horne’s statement explaining his decision not to appeal the case, however, is almost as significant as the decision itself. According to Horne, the case against marriage equality now stands on such weak legal grounds that he would violate his ethical duties as an attorney if he pursued this case any further:
Lawyers live under a rule called Rule 11, which provides that it is unethical for a lawyer to file a pleading for purposes of delay rather than to achieve a result.
The probability of persuading the 9th circuit to reverse today’s decision is zero. The probability of the United States Supreme Court accepting review of the 9th circuit decision is also zero.
Therefore, the only purpose to be served by filing another appeal would be to waste the taxpayer’s money. That is not a good conservative principle.
The “Rule 11” that Horne refers to is rule 11 of the Federal Rules of Civil Procedure. That rule requires attorneys to certify that their court filings are “not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation,” and that the legal arguments presented in the filing are not frivolous. Lawyers who violate rule 11 face sanctions, including, potentially, “an order to pay a penalty into court.”
So Horne is effectively saying that the legal arguments supporting marriage discrimination are so weak, at least in the nine states overseen by the United States Court of Appeals for the Ninth Circuit, that he risks formal sanctions if he continues to present these arguments to a court.
(HT: Josh Blackman)