Here’s the thrust of Horne’s unexpected argument: Under Rule 11 of the Federal Rules of Civil Procedure, attorneys must certify that any motions they file are “nonfrivolous” and aren’t designed to “cause unnecessary delay.” If you violate that rule, you might face sanctions—a pretty embarrassing and sometimes expensive penalty. For months, the conventional wisdom dictated that states could appeal gay marriage rulings without stumbling on Rule 11; the Supreme Court, after all, has yet to issue a definitive ruling on the matter.
But all that changed over the last few weeks, as the justices have swatted away every single request to rule on gay marriage bans. So extreme is the court’s laissez-faire attitude that it refuses to stay lower courts’ pro-gay rulings, allowing couples to wed immediately. After a district court struck down Arizona’s gay marriage ban last Friday, Horne seems to have surveyed this trend and decided that, by not speaking, the court had spoken—and any appeal would be utterly useless. The judicial expansion of marriage equality, Horne suggested, is so emphatic and irreversible that an appeal of the district court’s judgment might be seen as a frivolous delaying tactic, in direct violation of Rule 11.
Is this really true? Are legal defenses of marriage bans really “frivolous” at this point? Admittedly, Arizona is a somewhat special case: It falls within the 9th Circuit, which has created the strongest legal protections for gays and lesbians of any circuit in the country. The Supreme Court’s behavior of late, moreover, suggests that it let stand the 9th Circuit’s recent marriage equality ruling. Even if defending Arizona’s ban isn’t legally frivolous, then, it’s functionally futile and politically pointless.