States that adopted legal bans on same-sex marriage have been required to pay out an estimated $13.5 million to date to cover the legal fees of the people who challenged the laws. The number may rise as additional cases are settled.
The fees are a consequence of the Supreme Court’s 2013 Windsor decision, which struck down parts of the 1996 Defense of Marriage Act. The 1996 law, signed by President Bill Clinton, had allowed states to refuse to recognize same-sex marriages conducted in other states. The court’s ruling prompted numerous civil rights lawsuits in the states that had adopted such provisions. In 2015, the Supreme Court ruled that gay marriage was a legal right.
Federal civil rights law allows winning plaintiffs to request that their legal fees be covered by the losing party, provided that the amount is “reasonable.” A survey of the litigation by the National Law Journal found 41 cases in 25 states that resulted in payment to plaintiffs’ attorneys. In six states — Indiana, Kentucky, Michigan, Ohio, Pennsylvania and Wisconsin — the fees exceeded $1 million. All of those states except Kentucky settled out of court.
The largest payout agreed to was $1.9 million in a Michigan case brought by the American Civil Liberties Union.
A Tennessee case involving a $2 million fee request is ongoing. Cases involving fee requests in the six-figure range are also ongoing in Texas, Alabama and Michigan.
