Legal fight over Kentucky's same-sex marriage ban could cost taxpayers $2.3 million

Gov. Steve Beshear hired lawyers to defend the state of Kentucky's ban on gay marriage for two years in the federal courts, arguing that Kentuckians deserved "finality and understanding of what the law is."

Understanding can be expensive. Two months after the U.S. Supreme Court struck down Kentucky's ban on same-sex marriage, teams of attorneys who successfully represented the same-sex couples have submitted a bill for more than $2 million in legal fees, court costs and related expenses. Under federal civil rights law, the losing party — in this case, the state of Kentucky — gets stuck with the tab.

The private attorneys whom Beshear hired to handle the state's appeals have a $260,000 contract, of which $231,348 had been paid by July 20, according to state records.

Total cost to taxpayers: $2,351,297.

In a statement Monday, Beshear said he would challenge the plaintiffs' legal bill as "unreasonable." U.S. District Judge Charles R. Simpson III gets the final say.

So far, courts have sympathized with the couples' lawyers. Last year, U.S. District Judge John G. Heyburn II, who died in April, awarded the lawyers $70,778 in legal fees and court costs for the early stage of their fight in district court. On his own initiative, Heyburn tossed in a $10,000 bonus, saying the lawyers "undertook a difficult, unpopular case and achieved remarkable success." That award was put on hold pending the appeals.

In their filing Friday in U.S. District Court in Louis ville, nine attorneys for the same-sex couples specified who worked how many hours as two separate lawsuits — Bourke vs. Beshear and Love vs. Beshear — wound their way through the district court, the 6th Circuit U.S. Court of Appeals and the U.S. Supreme Court.

Lawyers from the Louis ville firms of Clay Daniel Walton and Adams, and the Fauver Law Office led the challenge of Kentucky's ban on same-sex marriage, assisted by the ACLU and the Stanford Law School Supreme Court Litigation Clinic. They worked long hours without pay and underwent severe scrutiny, including some harassing calls and mail to their homes and offices, the lawyers said.

Someone threw a bottle of water at one of the couples' attorneys, Dawn Elliott, in Trimble County. Another, Laura Landenwich, received a crudely drawn religious, anti-gay comic book at her home. The comic's first panel showed the Grim Reaper waving a bony hand and saying, "Hi there!"

"It's not that bad when that sort of thing comes to the office, but it's a little different when someone takes the time to send it to your home," Landenwich said Monday.

The lawyers asked for nearly $1.16 million in fees and costs, brought to $2.09 million by a "fee enhancer" that recognizes the challenges they faced and the degree of their success.

"In this case, plaintiffs prevailed on all of their claims as argued in the appellate courts, and received the precise relief sought by their clients, without qualification or reservation of any kind," the couples' attorneys wrote.

"This case, which has often been referred to as the 'most important civil rights case in a generation,' will also have a profound effect on the rights of gay men and lesbians well into the future, both in the United States and internationally, the lawyers wrote, "It is almost impossible to speak of the case in terms that do not sound hyperbolic, but to label it a 'total victory' is not unwarranted."

Beshear acknowledged the state must pay "reasonable attorneys' fees" to the victors.

"The key word here is reasonable," Beshear said in a statement. "We will be contesting those amounts as unreasonable. Until these issues are resolved, we will not know the overall cost."

Beshear hired the Ashland firm of VanAntwerp Attorneys to represent Kentucky during the appeals. Attorney General Jack Conway initially represented the state, but he dropped out of the case in March 2014 after Heyburn sided with the couples and ruled that Kentucky's ban was arbitrary and unconstitutional.

"From a constitutional perspective, Judge Heyburn got it right, and in light of other recent federal decisions, these laws likely will not survive on appeal," Conway said at the time. "We cannot waste the resources of the office of the attorney general pursuing a case we are unlikely to win."

This story was originally published August 24, 2015 at 9:50 AM with the headline "Legal fight over Kentucky's same-sex marriage ban could cost taxpayers $2.3 million."