Gay marriage attorneys want Tennessee to pay $2.3M

The attorneys who defeated Tennessee's ban on gay marriage say the state owes them more than $2.3 million for their time on the case.

Court filings show the 19 attorneys who worked on the case clocked 5,974 hours. Given their average hourly rate of $390 per hour, they say their fees and costs exceed $2.3 million. They also want repayment of $65,555 of expenses.

The state would be on the hook for those costs if a judge orders the fees to be repaid.

Lawyers in the Tennessee Attorney General's Office, which defended the state's definition of marriage as one man and one woman, have until Dec. 9 to respond in court to the request for fee repayment.

Harlow Sumerford, a spokesman for the attorney general, said Tuesday the requested amount is much higher than in other states involved in the case, and only one of the four states - Michigan - incurred the additional costs of a trial.

"While our office is unable to comment on much of the pending litigation, I will point out that the dollar amount being requested is significantly greater than in the other Sixth Circuit states involved in the same-sex marriage case," he said. "For instance, the state of Michigan paid $1.9 million in attorney fees. The state of Ohio paid $1.3 million in attorney fees and the state of Kentucky is being asked to pay $1.2 million in attorney fees."

The state and the attorneys challenging the gay marriage ban could settle out of court for a final dollar amount, or federal Judge Aleta Trauger will decide how much money the state must pay.

Federal law allows for attorneys who win certain types of cases, including those involving civil rights, to recoup a reasonable amount of their fees. Requests for fees are routinely made after cases are decided.

"We worked for two years on this case and we were successful," said Abby Rubenfeld, a Nashville attorney who led the case. "All the attorneys for the state of Tennessee got paid while they worked on it, so we should be paid, too."

The attorneys filed the case in Trauger's court in Nashville on Oct. 21, 2013. It wound through the court system, eventually joining with similar ones from three other states and landing before the U.S. Supreme Court in April.

In June, the nation's top court ruled in Obergefell v. Hodges that same-sex marriage was legal nationwide and laws banning those marriages were unconstitutional.

"The Supreme Court has instructed that 'the most critical factor' governing the reasonableness of a fee award 'is the degree of success obtained,'" the court filing reads. "Plaintiffs' success in this case was not obtained in degrees. It was success in whole that enriched the lives of countless same-sex couples and furthered the American commitment to equality and justice under the law."

The attorneys argue in a court documents that the hourly rate of $390 is much less than some lawyers would make in other cases. Court papers say Doug Hallward-Driemeier, the Washington, D.C., attorney who argued the case before the Supreme Court on behalf of the couples, would normally earn $955 per hour for work on similar cases.

They also say they are not charging for all the hours they worked, nor the time spent by paralegals or other office staff.

"The unique complexity of this case should accordingly be given significant weight when determining whether the number of hours requested are reasonable," the filing reads.

Three Tennessee couples who were named in the case were represented by a team of attorneys, including: Rubenfeld of Nashville, Bill Harbison, Phillip Cramer, Scott Hickman and John Farringer of the firm Sherrard & Roe in Nashville: Maureen Holland of Memphis; Regina Lambert of Knoxville; seven staffers at the Washington, D.C., firm of Ropes & Gray; and five staffers at the National Center for Lesbian Rights, a legal advocacy group based in California.

Read the full filing in support of the request here.

Reach Stacey Barchenger at 615-726-8968 or on Twitter @sbarchenger.