State argues against paying legal fees in gay marriage case

COLUMBIA, S.C. (AP) — South Carolina shouldn’t have to pay legal fees for a couple who challenged its gay marriage ban because that state was merely defending its law, the state’s top prosecutor argued Wednesday.

Judges can order losing parties to pay opponents’ fees, especially in civil rights cases. But in papers filed Wednesday, state Attorney General Alan Wilson said the state shouldn’t have to do so in this case because prosecutors were merely doing their jobs — upholding the law as it stood before the U.S. Supreme Court issued its marriage ruling in late June.

“To award attorneys fees against the State would retroactively punish it for not abandoning its defense of the South Carolina Constitution, even through existing Supreme Court precedent then permitted such a defense,” Wilson wrote. “The State faithfully defended its law while allowing time for the nation’s highest Court ultimately to settle the constitutional question, in a 5-4 decision which overturned its own precedent and thousands of years of history.”

Colleen Condon and her partner, Nichols Bleckley, sued last year to get a marriage license. They have asked to be reimbursed $153,000 in legal costs, a figure that includes 446 hours of work by seven attorneys.

Lawyers for another couple who sued over the ban are also seeking reimbursement. Highway Patrol Trooper Katherine Bradacs and U.S. Air Force retiree Tracie Goodwin sued almost two years ago to have the state recognize their marriage performed in Washington, D.C.

Earlier this week, their attorneys filed notice seeking almost $92,000, including nearly $88,000 for 265 hours of time devoted to the case by three attorneys, as well as paralegal fees and other court expenses.

Wilson’s response pertains only to Condon and Bleckley.

Although a 4th U.S. Circuit Court of Appeals decision cleared the way for gay marriages in South Carolina and other states in the circuit last year, Wilson appealed, arguing a decision by another circuit upholding gay marriage bans would have to be resolved by the Supreme Court.

The 4th Circuit combined the South Carolina cases and put requests for attorney fees on hold until a Supreme Court decision was made.