The private lawyers who won the historic Charleston gay marriage lawsuit against Attorney General Alan Wilson have filed a petition in federal court seeking $152,709 in attorneys’ fees.
Their fees, if approved by the courts, would presumably be paid by S.C. taxpayers out of the state’s general fund.
The fees would not go to the winning lawyers but, as those lawyers decided, to the gay rights groups that hired them to sue Wilson. Those groups are Lambda Legal Defense and Education Fund and the S.C. Equality Coalition, according to one of the lawyers, Malissa Burnette of Columbia.
Paying taxpayer dollars to gay rights groups would put Wilson – an avowed opponent of such rights, at least when it comes to same-sex marriage – in the unusual position of having gambled he could stop gay marriage in South Carolina, but losing in such a way that results in public money going to gay causes.
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“It is sweet irony that the Attorney General is likely to generate money for LGBT causes,” said the Rev. Neal Jones, whose Unitarian Universalist Church has long been a supporter of equal rights for gays and lesbians. “You can’t make this stuff up.”
Wilson’s spokesman, J. Mark Powell, said Thursday, “We are reviewing the motion. Our response is not due until Jan. 7.”
One reason Wilson continues to fight on, his legal filings have said, is a mid-November 6th U.S. Circuit Court of Appeals decision in the Midwest, which basically says that states have the right to determine which sexes can get married to each other. However, some three dozen other federal court decisions – including four other Courts of Appeals – have clearly said that states cannot pass laws prohibiting gays from marrying each other.
The U.S. Supreme Court has not yet said whether it will take up the 6th Circuit case.
U.S. District Court Judge Richard Gergel’s decision, later upheld by a three-judge panel of the 4th Circuit Court of Appeals, deemed South Carolina’s Defense of Marriage law unconstitutional and opened the door for gay marriages to begin.
After Gergel has reviewed the fee request, and Wilson’s response, he will make a decision on how much to award the winning attorneys.
Not only did Wilson lose, but he lost big, the fee request says: South Carolina’s same-sex marriage ban has been struck down, “marriage licenses are being issued to, and marriages are taking place between, same-sex couples for the first time in history.”
Meanwhile, since Wilson continues to defend South Carolina’s same-sex marriage laws in several other cases in the state’s federal district courts, as well as in higher federal courts, the legal-fee requests still to come could be sizeable.
Thus, if Wilson loses all the cases, as legal experts say he will, the $152,709 fee would only be the first of many such payouts.
Federal law provides that the loser in such cases involving basic constitutional rights is subject to paying the legal fees of the winning plaintiffs. The reason for such a provision is that in cases involving basic constitutional rights that the states are unwilling to recognize, citizens must hire lawyers who act as “private attorneys general” to enforce basic rights, according to the fee request.
Wilson has said that his court efforts to stop same-sex marriage in South Carolina would cost taxpayers little money except for the legal work done by his staff. He has not released the number of hours his staff – mostly top lawyers – have spent on the case.
The 25-page fee petition was submitted late Wednesday night to the Internet-based federal court filing system. It says seven lawyers worked approximately 446 hours at hourly rates ranging from $175 to $400. The $152,709 only covers the lawyers’ fees as of Wednesday and does not include any billings for additional time they continue to spend battling Wilson as he fights on.
Burnette said in a statement, “The State’s adamant defense of SC’s unconstitutional same-sex marriage ban has forced the Plaintiffs’ attorneys to spend over 446 hours seeking the State’s compliance with the law over the past two months. ... When will the Attorney General stop wasting taxpayer money?”
In his decision, Gergel put gay marriages on hold until Nov. 20, giving Wilson time to appeal to higher courts. Wilson filed notices of appeal and requests for stays in both the 4th U.S. Circuit Court of Appeals and the U.S. Supreme Court. Wilson was rebuffed in both high courts.
On Nov. 18, a three-judge panel of the 4th U.S. Circuit Court of Appeals unanimously turned down Wilson’s request to extend Gergel’s deadline.
On Nov. 19, the S.C. Supreme Court released the state’s probate judges to process marriage applications from same-sex couples.
The first legal same-sex marriage took place that day. The next day, same-sex couples began getting applications and being married in earnest across the state.
No one is keeping tabs on the number of such marriages.
But Richland County probate Judge Amy McCulloch said Wednesday that her office has issued 80 marriage licenses to same-sex couples since same-sex marriage became legal in South Carolina.
“We are glad for the increased revenue,” McCulloch said. A marriage application and license cost $42.50, so the county has made $3,400 off same-sex marriages to date.
In Lexington County, Probate Judge Dan Eckstrom said he isn’t keeping count of same-sex marriages. But he added, “My staff tells me that the number can probably be counted on one hand.”
Besides Burnette, winning lawyers include Vickie Eslinger and Nekki Shutt of Columbia, and Elizabeth Littrell of Atlanta.
Lawyers in another successful South Carolina same-sex marriage lawsuit – involving the Lexington County couple of Katherine Bradacs and Tracie Goodwin – have not yet filed their request for fees yet with U.S. Judge Michelle Childs.
Last month, Childs ruled over Wilson’s objections that South Carolina had to recognize the out-of-state marriage of Bradacs and Goodwin, who were legally married in 2012 in the District of Columbia.