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Op-Ed: Taxpayers hit with legal fees in states that fought gay marriage

A thank-you note, that is, in the form of a huge bill from the attorneys who beat them, AlJazeera America reports.

Many states were on the wrong side of same-sex marriage and fought against it, and now, under a 40-year-old federal law which states that the court “in its discretion, may allow the prevailing party … a reasonable attorney’s fee as part of the costs.”

Perhaps Michigan attorney Dana Nessel said it best:

“It’s the price governments pay for defending bigotry.”

As AlJazeera notes, defeat won’t come cheaply, or likely easily. No doubt there’s going to be more legal dust-ups.

Now Michigan has been hit with a $1.9 million demand from attorneys for April DeBoer and Jayne Rowse, plaintiffs whose case is one of four that went to the Supreme Court and was decided in June. The state is trying to figure out its response to this case, and meanwhile Kentucky, home of zealot Kim Davis, is also involved and has been hit with a $2.1 million bill. Also in line are South Carolina, which has been ordered to pay $130,000, and Florida’s attorney general, Pam Bondi, is on the hook for $700,000, the Tampa Bay Times reports.

A number of states have struck agreements, fortunately. Pennsylvania settled for $1.5 million, Wisconsin for $1.05 million, Virginia for $580,000, Oregon for $132,000, Utah for $95,000, Colorado for $90,000, and North Dakota for $58,000. The range in prices reflects the length of the battles or their intensity, AlJazeera notes.

Perhaps Pennsylvania and Michigan were in a fighting mood.

“This is exactly what Congress created this law for,” said Miami-based attorney Stephen Rosenthal, who fought Florida’s ban. “It’s a recognition that people need lawyers to fight the government, which has lots of lawyers, when they feel their civil rights are being violated. To encourage lawyers to take these cases, you need to provide the potential to get paid in the end.”

AlJazeera reports that attorneys general of Michigan, Florida, South Carolina and South Dakota didn’t respond to requests for comment.

For years, same-sex marriage was banned in Florida, and Bondi has objected to a motion concerning legal fees from lawyers representing gay couples seeking to have their marriages recognized in Florida, the Tampa Bay Times reports. So she wrote that since Florida voluntarily dismissed its appeal after the U.S. Supreme Court legalized same-sex marriage nationwide, the state shouldn’t have to cover the cost of the lengthy appeals process, even though Florida initiated this in the first place.

Attorneys who defeated the marriage ban say they haven’t come up with the exact amount they are owed, but one attorney suggested it could be in the neighborhood of $500,000.

“It’s ludicrous,” said Elizabeth White, a Jackson civil rights attorney who helped bring forward one of the cases that challenged Florida’s gay marriage ban, per the Times. “Quite frankly, the state vigorously litigated this. Now they’re saying, ‘We lost, but we don’t want to pay.”

When a federal judge in Tallahassee struck down the state’s gay marriage ban last year, the Attorney General’s Office took the route used by many other Southern states and kept fighting. It filed an appeal to the ruling with the 11th U.S. Circuit Court of Appeals in Atlanta. When judges there refused to delay the lower court’s decision from taking effect, the state appealed once again, bringing the case before the U.S. Supreme Court. Needless to say, it lost there as well.

Every time the state filed an appeal, lawyers for same-sex couples fought back.

Even so, on Aug. 10, Bondi wrote the opposing lawyers “are not entitled to appellate attorney’s fees.” She didn’t contest the likelihood that the state will have to reimburse attorneys for their work at the lower level. The Times reports that a spokesman for her office declined to comment.

“It really is the height of hypocrisy to argue we shouldn’t be entitled to fees when they put us through this,” Rosenthal said. He and the ACLU of Florida represented a group of Miami plaintiffs in the case.

“They knew full well that if they lost, that they and, frankly taxpayers, would be on the hook for paying for their unwise legal defense of an unconstitutional law,” he said.

Kentucky taxpayers are now finding out how expensive it can be when a state is on the losing end of a battle, The Lexington Herald-Leader reports.

Regardless of where their sentiments lie, Kentucky residents have now been stuck with $2,351,297 bill, largely because Governor Steve Beshear doesn’t know which part of no he doesn’t understand. His argument is that Kentuckians deserved “finality and understanding of what the law is,” so he hired lawyers to defend the state’s ban on gay marriage. For two years.

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Understanding came at a steep price. When the U.S. Supreme Court struck down Kentucky’s ban on same-sex marriage, attorneys who successfully represented the same-sex couples submitted a bill for more than $2 million in legal fees, court costs and other related expenses, the Leader reports. And, according to federal civil rights law, the losing party — Kentucky — is stuck with the tab.

As for those private attorneys whom Beshear hired to handle the state’s appeal, their contract is for $260,000. So far, $231,348 has been paid as of July 20, state records say.

The total cost to taxpayers? $2,351,297.

In late August, Beshear said he planned to challenge the invoice he received.

“The key word here is ‘reasonable,’” he said in a statement, AlJazeera reports. “We will be contesting those amounts as unreasonable. Until these issues are resolved, we will not know the overall cost.”

In Tulsa, Oklahoma, a similar argument has been used. In this case, attorneys objected to the original $368,000 bill and complained that the litigants “used a Howitzer to kill a gnat.” The judge wasn’t particularly moved by that sentiment, and merely dropped the reimbursement to a total of $298,000.

South Carolina has also complained, appealing to U.S. District Judge Richard Gergel that the $135,000 requested was too high. He was also seemingly unmoved and reduced the feels slightly, to $130,000. In his order he wrote that the state “cannot engage in a no holds [barred] defense and then complain the opposing counseling spent too much time responding.”

“The defense [of the state’s marriage ban] mounted was undertaken with as much skill and passion as was provided in any state, but the natural and predictable consequence of mounting such a vigorous defense was that it required opposing counsel to expend considerable time addressing the issues raised,” Gergel wrote in his order.

South Carolina Attorney General Alan Wilson contended that paying the legal fees would punish state prosecutors for doing their jobs in defending the state constitution, until the Supreme Court issued its 5-4 ruling for same-sex marriage in late June, The Associated Press reports.

Gergel wrote that fee awards aren’t about punishment. Instead, they are about compensating attorneys who bring civil rights cases and win them.

“This complete litigation victory has benefited themselves and thousands of other same-sex couples in South Carolina,” he wrote.

The fight for marriage equality has unfortunately been a long battle because of bigoted people with hardened hearts, and it looks like now they — and the rest of us — will be paying for their bigotry.

Something to keep in mind when thinking of the GOP and the coming presidential election in 2016.

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