A federal judge will decide whether Kentucky taxpayers will pay all, a portion of or more than the $2.4 million bill submitted by the lawyers who successfully challenged the ban on same-sex marriage here.
But it's Kentucky's elected executives who decide whether to take the costly risk of defending our laws through the appellate courts once they have been struck down. And that's something voters should keep in mind as the November election draws closer.
Political decisions about legal matters can be futile and very costly. So, when a candidate shouts red-meat promises to appeal, defend, nullify and throw out on the campaign trail the result, if elected, could mean taxpayers get the bill.
It is increasingly clear that Attorney General Jack Conway made the right decision when — after defending Kentucky's law federal district court — he decided not to appeal an unfavorable ruling.
U.S. District Judge John G. Heyburn II, a Republican appointee, left little wiggle room in his decision striking down Kentucky's ban. "In the end, the Court concludes that Kentucky's denial of recognition for valid same-sex marriages violates the United States Constitution's guarantee of equal protection under the law," he wrote.
With same-sex marriage already legal in many states, the question in Kentucky was whether all marriages legally entered into in other states would be recognized here.
Heyburn, who died in April, acknowledged that public opinion in Kentucky was probably at odds with his ruling and so offered a clear, detailed explanation for it, both legally and in terms of the impact on opposite-sex marriage and the children of same-sex unions.
Heyburn awarded the plaintiffs' lawyers $70,778 in legal fees and costs plus a bonus of $10,000, because they "undertook a difficult, unpopular case and achieved remarkable success."
Everyone knew this case would wind up at the United States Supreme Court. Astute observers knew that, based on previous Supreme Court decisions as well as those of federal district and circuit courts, Kentucky was likely to lose.
Attorneys, like Conway, with experience taking cases to the Supreme Court, knew it's an expensive and demanding effort.
Gov. Steve Beshear chose to appeal, saying Kentuckians deserved "finality and understanding of what the law is."
Conway has been vilified for his decision not to appeal Heyburn's ruling. Most recently, supporters of the ban on same-sex marriage have argued that Conway followed his conscience but Kentucky county clerks refusing to issue marriage licences to same-sex couples are not allowed to follow theirs.
But here's the difference: Conway did his job as attorney general, exercising sound judgment based on legal precedent, to serve the state's interests.
The clerks, who are charged with upholding the law, are refusing to do that based on their personal religious beliefs.
If Kentucky's appeals had ended with Conway's decision we wouldn't be out the $231,348 already paid to private attorneys to unsuccessfully defend the law, much less whatever portion of the $2 million-plus billed by the winning attorneys we wind up paying.