Attorney General Tom Horne Will Not Appeal Same-Sex Marriage Ruling

Phoenix (Friday, October 17, 2014) – Attorney General Tom Horne is today issuing the following statement:

“A number of Attorneys General have refused to defend laws defining marriage as between a man and a woman. I have not been among that group. I have fought to defend the laws as passed by the voters of Arizona, which I believe is the duty of the Attorney General.

Both the Federal District Court and the 9th Circuit Court of Appeals have ruled against us, and the United States Supreme Court has shown an unwillingness to accept review in the case of three other circuits in essentially identical circumstances.

The decision I make today has to be based on legal considerations rather than policy considerations. I believe the first duty of the Attorney General is to be a good lawyer.

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.

I have decided not to appeal today’s decision, which would be an exercise in futility, and which would serve only the purpose of wasting taxpayers’ money.

I am issuing a letter today to the 15 county clerks of court with the directive that based on today’s decision by the Federal District Court, they can issue licenses for same sex marriages immediately.”

Several same-sex couples filed a federal lawsuit in January, 2014, seeking a court order declaring Arizona’s traditional marriage laws unconstitutional and enjoining Arizona officials from enforcing those laws. The Attorney General’s Office defended Arizona’s marriage laws, including Arizona’s state constitutional provision that defines marriage exclusively as “a union of one man and one woman.” 

After the Connolly lawsuit was filed, federal courts in other parts of the United States ruled that similar traditional marriage provisions in other states were unconstitutional. That led the States in those cases to petition the United States Supreme Court to review and overturn those rulings. On Monday, October 6, the Supreme Court declined to review those cases, leaving the lower federal court decisions in effect. The following day, consistent with rulings by the other federal appellate courts, the United States Court of Appeals for the Ninth Circuit filed an opinion in Latta v. Otter, holding that traditional marriage laws in Nevada and Idaho were unconstitutional. Because Arizona is in the Ninth Circuit, Judge Sedwick asked the Attorney General and the plaintiffs in the Connolly case to file briefs no later than October 16, addressing whether the Latta decision controlled the outcome of the Arizona case. 

The Attorney General’s Office filed a brief on October 16 advising the Court that the Latta decision is not yet considered final under Ninth Circuit case law, and requesting that Judge Sedwick refrain from issuing any ruling based on Latta until it becomes final. Despite the Arizona Attorney General’s request, U.S. District Court Judge John Sedwick issued an order and injunction declaring Arizona’s traditional marriage laws unconstitutional and prohibiting Arizona officials from enforcing the Arizona laws that ban marriage between persons of the same sex.