In what can only be described as the most bizarre press release ever to cross a desk in a long time, Arizona Attorney General Tom Horne issued one on Monday “to prevent anyone from jumping to the conclusion that the appeal is more significant than it is.”
In that release, the Attorney General’s Office announced that on Monday, it filed a technical appeal, to provide the state with protection from attorneys’ fees in certain circumstances, in the same-sex marriage case. The appeal is not significant: it does not affect the injunction, licenses will be issued for same-sex marriages, same-sex marriages will continue to be recognized, and nothing will change except this protection from attorneys’ fees under certain circumstances.
The District Court has before it claims for attorneys’ fees by the plaintiffs.
The United States Court of Appeals for the Sixth Circuit recently issued a decision in DeBoer v. Snyder, upholding the constitutionality of traditional marriage laws in four states and creating a circuit split. The plaintiffs in the consolidated DeBoer cases filed petitions for certiorari review by the Supreme Court. This creates a possibility that the United States Supreme Court will grant a writ of certiorari in the current term to address the issue that it recently declined to review (in the absence of a circuit split) in cases arising from contrary holdings by the Fourth, Seventh, Ninth and Tenth Circuits. Consequently, there is now a possibility that the Supreme Court will conclude that the kind of traditional marriage laws that Judge Sedwick found unconstitutional in our cases are, in fact, constitutional.
If the United States Supreme Court were to rule in that way, that would change the circumstances in much of the country, including Arizona, but that would be true with or without an appeal. Where the appeal becomes necessary is that if the United States Supreme Court were to rule in that way, attorneys’ fees would not be payable by the state to the plaintiffs, and that issue can only be protected with an appeal.