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States May Have To Pay Millions For Fighting Same-Sex Marriage Cases

Peggy Lowe

Doug Bonney keeps the envelope close by, tucked on top of the left side of his desk, about an inch thick and marked with his own handwriting: “Marriage Equality Case.”

Bonney, the legal director of the ACLU of Kansas, keeps it handy because he’s been busy filling it up. Over nearly five months, Bonney has represented two gay couples in their case against the state, who have succeeded, little by by little, in overturning the ban on same-sex marriage.

“Already we have 88 documents filed in the district court file which is a tremendous number even for a case that’s a couple years old. We have four appeals pending at the 10th Circuit (Court of Appeals). The case has already been to the U.S. Supreme Court,” he said. “I have lots and lots of time slips and lots of time recorded.”

Bonney’s keeping careful track of all that work in hopes that, if he wins the case, he’ll be paid for his time and expenses. Under a law passed in 1976, the winner of federal civil rights cases can get attorneys’ fees from the losing side.

Credit Peggy Lowe / KCUR
Doug Bonney, legal director of the ACLU of Kansas, keeps this envelope close by on his desk. It contains his time slips counting his work on a gay marriage case against the state.

Those fee awards are piling up across the country, putting several states that have unsuccessfully defended gay-marriage bans on the line for potentially large payouts. According to a review by the National Law Journal, dozens of pending decisions could make states liable for millions.

“We could easily see these amounts go up into the multi-million dollars, maybe even tens of million dollars at the rate they’re going,” said Zoe Tillman, a National Law Journal reporter.

The fees, which haven’t been awarded yet because they are on appeal, range from $1.2 million in Wisconsin to $80,000 in Kentucky. A survey by KCUR shows roughly $3.8 million in potential fee payouts.

Already, a judge has awarded the ACLU of Missouri nearly $185,000 for two gay marriage cases it has won. In Kansas, if the couples win, Bonney guesses that attorneys’ fees could costs the state in the hundreds of thousands of dollars.

Kansas Attorney General Derek Schmidt’s office declined comment for this story.

Missouri Attorney General Chris Koster has attempted to minimize duplicative litigation and reduce costs by asking higher courts to postpone action until after the U.S. Supreme Court makes its decision on a gay marriage case, which is expected in June, said Eric Slusher, Koster’s spokesman.

“A legal challenge to a voter-approved provision of the Missouri constitution – regardless of subject matter – demands thorough review,” Slusher said.

Many states are fighting judges’ decisions on the awarding of fees, said the National Law Journal's Tillman.

“A few states have gone to court and said that the amount of money that’s being claimed is unreasonable and that they were working to enforce the laws on the books and the taxpayers shouldn’t be punished for that,” she said.

Barbara Glesner Fines, associate dean of the University of Missouri-Kansas City law school, said the federal law creates an incentive for people to bring lawsuits that benefit the public.

“There are some kinds of situations where we want people who are on the ground, being affected by behavior that has a public impact, beyond just their own, to be able to bring lawsuits to challenge that behavior,” she said. “And that’s especially so when it’s government action.”

Costs aren’t the most important factor in a prosecutor’s decision to appeal, said Glesner Fines.  A prosecutor must serve his clients, which are the state’s residents, she said.

“The attorney general has to step in the shoes of the citizenry and say, ‘How important is this to you? How strongly do you feel about that?,’” she said. “And there’s a political calculus that goes into that, of course.”

To see a timeline of marriage equality cases in Kansas and Missouri, click here.

I’m a veteran investigative reporter who came up through newspapers and moved to public media. I want to give people a better understanding of the criminal justice system by focusing on its deeper issues, like institutional racism, the poverty-to-prison pipeline and police accountability. Today this beat is much different from how reporters worked it in the past. I’m telling stories about people who are building significant civil rights movements and redefining public safety. Email me at lowep@kcur.org.
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