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W.Va. county clerks play it safe on gay marriage

CHARLESTON, W.Va. — After a federal appeals court declared Utah’s ban on same-sex marriage unconstitutional, some county clerks in neighboring Colorado — covered by the same federal circuit — began issuing marriage licenses to gay and lesbian couples.

But a day after Virginia’s same-sex marriage ban met a similar fate, Fayette County Clerk Kelvin Holliday said he couldn’t imagine that any county clerk in West Virginia would follow a similar path. He believes no West Virginia clerk would issue a marriage license to a same-sex couple until this state’s ban is struck down.

“I’m a solid Democrat, but I want to be a follower, not a leader, in this,” Holliday said Tuesday.

On Monday, the 4th U.S. Circuit Court of Appeals upheld a federal judge’s rejection of Virginia’s longtime ban on same-sex marriage, saying that “Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.” Along with Virginia, the 4th Circuit covers Maryland, North Carolina, South Carolina and West Virginia.

U.S. District Judge Robert C. Chambers, who is considering three couples’ challenge to West Virginia’s same-sex marriage ban, said in June that he was waiting for the 4th Circuit decision before proceeding in the case before him.

While the ruling doesn’t immediately change anything in West Virginia, clerks could begin issuing licenses to gay couples, citing Monday’s opinion, said one of the lawyers representing the plaintiffs in West Virginia’s case.

But any clerks who did so “would be sticking their necks out,” said Beth Littrell, an attorney with Lambda Legal, a national civil-rights organization that filed the lawsuit on behalf of the West Virginia couples.

“They [county clerks] could read the ruling and interpret it as ‘It’s my job to uphold the Constitution.’” Littrell said.

 That’s what happened in Colorado following a ruling from the 10th U.S. Circuit Court of Appeals upholding a lower court’s decision that Utah’s ban is unconstitutional. Late Tuesday afternoon, the Colorado Supreme Court ordered county clerks in that state to stop issuing the same-sex marriage licenses.

“I think I better follow the law,” Holliday said.

Monongalia County Clerk Carye Blaney agreed. “There’s a lot of things I would do if I was interpreting [the law] myself,” she said with a laugh. “We still have to uphold what our rules and regulations are so it’s uniform across our state…

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