Twenty-five states that unsuccessfully defended same-sex marriage bans in federal court have agreed or been ordered by a judge to pay more than $13.5 million in legal fees to the challengers.
The U.S. Supreme Court’s 2013 decision in U.S. v. Windsor—striking down a key provision of the Defense of Marriage Act—opened the floodgates to lawsuits challenging state marriage bans as unconstitutional. There was a flurry of litigation in federal courts leading up to the high court’s decision in June in Obergefell v. Hodges declaring a national right to same-sex marriage.
The legal bills have steadily come due.
Payouts to plaintiffs’ lawyers, who largely represented their clients pro bono, so far ranged from $4,500 to $1.9 million. And there’s more to come. Fee petitions are pending in four states, including a $2 million request in Tennessee. In other cases, the lawyers are still fighting over how to apply Obergefell, delaying a discussion about fees.
Under federal civil rights law, winning plaintiffs are entitled to “reasonable” fees for their lawyers. Most states reached settlements with plaintiffs lawyers in the federal same-sex marriage cases, but a few objected to fee requests and left it up to a judge to decide. The National Law Journal identified at least 41 federal cases with a fee award or settlement to date.
There were seven-figure settlements and court-ordered fee awards in six states. Indiana, Michigan, Pennsylvania, Ohio and Wisconsin reached agreements with plaintiffs’ lawyers. In Kentucky, a judge ordered the state to pay $1.1 million.
States that settled avoided potential court-ordered enhancements that could have added hundreds of thousands of dollars to the final bill. In Ohio, lawyers had asked for $1.1 million plus a 50 percent enhancement—an additional $550,000. They took home $1.3 million.
In Pennsylvania, where the state agreed to pay $1.5 million in fees, the American Civil Liberties Union cut its fees by approximately 30 percent, according to Witold Walczak, legal director of the ACLU of Pennsylvania.
After a federal judge struck down the state’s same-sex marriage ban, Pennsylvania Gov. Tom Corbett announced he wouldn’t fight the decision. Walczak said that the 30 percent fee reduction was “pretty generous, but we were thankful that they didn’t appeal and that we had actually won.”
Plaintiffs lawyers in same-sex marriage cases typically billed hourly rates that ranged from $130 for junior associates to $500 for experienced counsel. In a few cases, the lawyers were more expensive.
Lawyers from big law firms didn’t always take home the money they billed—they often agreed to give their fees to a public interest group—but public court documents in these cases shed light on their billing practices.
Timothy Bishop, a partner at Mayer Brown, claimed an hourly rate of $980 for his work in the Wisconsin case. That was Bishop’s regular rate at the time, according to court papers. Another Mayer Brown partner involved in the case, Hans Germann, billed an hourly rate of $705.
Jenner & Block partner Paul Smith, chairman of the firm’s appellate and Supreme Court practice, billed an hourly rate of $789 in 2014 for his work in a marriage case in West Virginia, down from the $1,100 he charged at the time, according to billing records filed in court.
Other top billers were Stanford Law School professor Jeffrey Fisher, who claimed an hourly rate of $750 for work in Kentucky; Perkins Coie partner Paul Eckstein, who billed $695 for work in Arizona; and James Esseks, director of the ACLU’s Lesbian Gay Bisexual Transgender and HIV Project, who billed $700 for his work in Ohio.
Lawyers didn’t have to disclose rates if they reached an early settlement.
Virginia agreed to pay $520,000 to Gibson, Dunn & Crutcher and Shuttleworth, Ruloff, Swain, Haddad & Morecock. The law firms presented the commonwealth with billing records that totaled $1.7 million, according to court papers, but they were not public. Gibson Dunn partner Theodore Olson, who in recent years reportedly charged at least $1,800 an hour, helped lead the plaintiffs’ legal team in that case.
In May 2014, the late U.S. District Judge John Heyburn II awarded lawyers in a Kentucky same-sex marriage case $70,778, a sum that included a $10,000 “bonus.”
Heyburn wrote that the lawyers in the “difficult, unpopular” case deserved the extra money, citing their “modest” billing records and litigation success.
Other lawyers weren’t so lucky. After Heyburn died in April, U.S. District Judge Charles Simpson III took over. He awarded plaintiffs’ lawyers $1.1 million in fees and costs on Jan. 13, but rejected their request for a 75 percent enhancement.
“Courts only award this enhancement when an exceptional factor is present, such as when counsel cannot be obtained without a potential for upward adjustment or counsel takes a significant risk in undertaking the litigation,” Simpson wrote. “That was not the case here.”
U.S. District Judges Terence Kern in Oklahoma and Orlando Garcia in Texas also denied plaintiffs’ lawyers requests for extra fees.
A fee award tends to signal the end of litigation, but in three cases lawyers are appealing a judge’s order.
In Texas, Attorney General Ken Paxton is challenging Garcia’s order in November awarding plaintiffs $605,672 in fees and costs. The award was less than the $740,996 that the plaintiffs sought, but the state had argued that the fee request was “excessive” and should be “reduced substantially.”
In two cases in Alabama and Michigan, lawyers for same-sex couples are appealing orders denying requests for fees. The judges in those cases found that the plaintiffs’ claims became moot after the Supreme Court’s decision in Obergefell and, as a result, the plaintiffs weren’t “prevailing parties” entitled to fees.
Lawyers at Magleby Cataxinos & Greenwood in Salt Lake City won an early post-Windsor court ruling in late 2013 that declared Utah’s same-sex marriage ban unconstitutional, which the U.S. Court of Appeals for the Tenth Circuit upheld. The firm went largely unpaid for the work, and by choice.
Magleby partner Peggy Tomsic said that given public opposition in Utah to same-sex marriage when they first took the case, the lawyers decided they wouldn’t seek fees so that no one could argue Utah taxpayers were footing the bill or that the case was about money.
“We believed that even though we had a shot at winning at some point in the process … people still had to live in their communities and be accepted and educate people,” Tomsic said. Her firm took an $800,000 loss, including $400,000 that she personally would have earned. The lawyers were hoping for donations to cover some of the fees, but Tomsic said they received minimal contributions.
“We all just tightened our belts,” she said.
Victorious lawyers in a handful of cases chose not to seek fees, including Roberta Kaplan, a partner at Paul, Weiss, Rifkind, Wharton & Garrison who argued the Windsor case in the Supreme Court and then represented plaintiffs who challenged Mississippi’s marriage ban.