Attorney Neel Lane isn't asking the state for much but compliance with the law—and $741,000 in attorney's fees and costs, which Attorney General Ken Paxton has suggested he doesn't owe.
Lane represented a lesbian couple in their fight against Texas's ban on same-sex marriage in February 2014. U.S. District Judge Orlando Garcia ruled in the couple's favor, calling the state's same-sex marriage ban unconstitutional. His decision was put on hold while the state appealed But that appeal never got past opening arguments. When the Supreme Court legalized gay marriage in all 50 states this past June, the Fifth Circuit Court of Appeals lifted Garcia's stay and affirmed his decision. Lane and his clients took that as an official W. And so last week, Lane filed a motion to declare his entitlement to attorneys' fees as the prevailing party.
But in a meeting with Lane and his team, Paxton apparently said that the state lifted its ban on gay marriage because of Obergefell v. Hodges—not the February 2014 case, DeLeon v. Perry. And so no awards for Lane. “He can continue to resist and battle if he wishes,” Lane said of Paxton, “but he's going to lose.”
University of Houston Law Professor Peter Linzer would have to agree. Linzer said that, even if the state conceded with the plaintiffs following the Supreme Court ruling, and even if the state lifted the gay marriage ban specifically in response to the Supreme Court ruling, that doesn't change anything about Lane's victory in 2014. “The fact remains: These people brought the case before it was clear case law,” Linzer said. “They put themselves on the line. They put money on the line. And they won.”
Lane and the plaintiffs filed the suit as a violation of the couple's Fourteenth Amendment rights—and a federal law passed in 1976 notes that the prevailing party in civil cases like that have a right to attorneys' fees and costs. “The attorney's fees provision is there to protect people who go to court who try and vindicate constitutional rights and are successful,” Linzer said. “They did all those things."
Across the country, any same-sex marriage bans in effect—or any same-sex marriage cases pending appeal—were either reversed or dismissed. Attorneys who fought those battles have already been awarded such fees. In West Virginia, the state paid attorneys almost $100,000. Tulsa County in Florida paid attorneys almost $300,000. In South Carolina: $135,000 to attorneys. North Dakota: $58,000. And even in Louisiana, where a 2004 ban on gay marriage was upheld in January in U.S. district court—the Fifth Circuit Court of Appeals ordered the district judge to reverse his ruling following Obergefell, and attorneys told the Times-Picayune they would be getting their $330,000 from the state. Attorneys in Kentucky aimed a little higher: They've asked for $2 million.
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This isn't the first time Paxton has been obstinate in complying with any gay-marriage-related requests following the Supreme Court ruling. Last month, Paxton faced contempt of court after telling John Stone-Hoskins, whom Lane represented, that he couldn't get his husband's death certificate amended to reflect their marriage, because Obergefell didn't apply retroactively. That argument didn't go very far. Now, after promising to comply with Obergefell, he's trying to tell an Austin woman that she can't claim a portion of her deceased spouse's estate because their marriage wasn't legal while she was alive. If this indicates anything, it's as either that Paxton is relentless or entirely unconcerned about paying winning parties their legal fees.
Judge Garcia will decide whether to grant Lane and his team the fees, and can also choose to raise or lower the amount as well. In the motion Lane filed with Garcia's Western Texas district court, he noted that financial gain was not the purpose of filing the suit in the first place, and that even though his firm's hourly rates (up to $500) might seem high, their task was just as elevated.
“Our task on behalf of our clients was to attack and uproot unjust laws that were tightly embraced by the entire elected state-wide leadership of Texas,a state with virtually unlimited resources to defend those unjust laws,” he wrote. “Had the State of Texas not deprived our clients of their constitutional rights, they in turn would not have had to engage attorneys, and this motion for attorneys' fees and costs would have been unnecessary.”
A spokesperson with the attorney general's office said they would be filing a response to Lane's motion soon. The state has until early October.