As the fight for same-sex marriage continues to spread across the country, the harsh truth of the cost of court battles is starting to hit some states in their bottom line.
A few weeks back, U.S. District Judge John G. Heyburn II ordered the state of Kentucky to pay $70K in court fees to the two couples who sued the Bluegrass State to have their out-of state marriages recognized.
The AP wrote “Heyburn concluded that the lawsuit brought by two couples who were married in other states or countries over the past 10 years and sought to force Kentucky to recognize their unions was novel and difficult.”
The legal fee ruling was stayed pending appeal, but as every court in the land has struck down same-sex marriage bans, the eventuality of the payment is almost assured.
Similarly, just this past Wednesday, the four couples who sued the state of Idaho to have their marriages recognized ask the courts to reimburse their legal team nearly half a million dollars. $467,000, to be exact, to cover the expenses associated with bringing the law suite this far.
So how much could Virginia have to pay to cover legal fees if and when the ban is struck down?
Norfolk lawyer Mike Hamar said asking for legal fees is normal, but figuring out costs and which court makes the oder to pay can be confusing.
“The big question is whether the court awards them costs or not. Sometimes they do, sometimes they don’t,” said Hamar. “Here in Virginia, you’ve got Olson and Bois, [prop 8 fame, plaintiff lawyers for Bostic V. Rainey] you’ve got guys who bill at probably some ungodly rate – $600 an hour or something. Given their expertise and reputation, I would think it would be a big bill.”
The fight over California’s same-sex marriage ban, Prop 8, was fought by Olson and Bois and came out to over $6 million in legal fees paid for by Americans Foundation for Equal Rights. However, the National Organization for Marriage defended the ban in the case, which lead to its downfall when SCOTUS determined they didn’t have legal standing to defend. Either way, this left no burden on the state to pay the fee.
But that $6 million price tag could be a sign of things to come for the legal fees here in VA as Olson and Bois are the team fighting VA’s ban.
There’s also the cost the state has to pay for the defense team in the Bostic V. Rainey case, which is being covered through the state’s Risk Management Department funds. AG Herring Spokesman Michael Kelly said those exact numbers would be hard to track down because they aren’t billed until after the trial is over.
Rebecca K. Glenberg, one of the VA ACLU lawyers representing all VA same-sex couples in their class action lawsuit against the state’s ban, couldn’t put an exact dollar figure on their legal fees, but said asking for them to be covered is a usual part of the process. “Federal law allows plaintiffs to recover attorney’s fees and costs from the defendants when they bring a successful civil rights case.”
Still, Glenberg stressed it was early in the legal process to be assessing fees, and AG Herring’s decision not to defend the ban could complicate things as well.
“Typically all defendants are liable for the fees, so that would include the state defendant Janet Rainey and the clerk of court,” said Glenberg. “I can’t say at this point how the AG’s change in position would affect a hypothetical fee petition, or how the judge might take it into account.”
But don’t feel too bad, Virginia – we might be yoked with the cost of this fight, but studies show same-sex marriage could bring as much as $60 million to the state after it’s allowed.
