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.”

In February, U.S. District Judge Arenda Wright Allen ruled that Virginia’s same-sex marriage ban was unconstitutional because it violated the guarantees of equal protection and due process. Lawyers for two circuit court clerks, whose duties include issuing marriage licenses, appealed the decision after Virginia’s new attorney general declined to defend the state’s ban.

Defense attorneys have 21 days to request a stay or ask that all 14 judges in the 4th Circuit rehear the case, as opposed to the three-judge panel that made the 2-1 decision Monday.

“The arguments are almost identical in terms of the reasons that same-sex couples are denied their civil rights when they are not allowed to marry the person they choose. The arguments on the other side are exactly the same,” Littrell said of the case in West Virginia.

The plaintiffs in West Virginia — two Huntington couples and one St. Albans couple who sued the county clerks in Cabell and Kanawha counties — plan to ask Chambers to lift the stay and immediately rule on their case, or at least bring the 4th Circuit’s decision to his attention, Littrell said.

Monroe County Clerk Donnie Evans, who serves as president of the state’s Association of Clerks, also said he wouldn’t issue a license until state law changes — but because it looks like it will, the clerks association needs to discuss the issue.

“We’ve had general discussions, but nothing formal or on the record,” Evans said, “and things are happening pretty fast.”

Reach Kate White at, 304-348-1723 or follow @KateLWhite on Twitter.

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