Three Virginia couples are challenging the constitutionality of a state law that requires they identify their race to be able to obtain a marriage license.
In a lawsuit filed Thursday in federal court in Alexandria, the couples claim that Virginia is one of eight states requiring people seeking a marriage license to include their race on the form, “using unscientific, highly controversial, misleading, useless, and tainted categories reflecting Virginia’s historical repression of non-white persons.”
The suit was brought against the Virginia State Registrar and the clerks of the Arlington and Rockbridge circuits, where the plaintiffs applied to be married but could not get a license after refusing to state their race, according to the 31-page complaint.
Michael Kelly, a spokesman for Attorney General Mark Herring, wrote in an email Friday that, “Although it’s not readily apparent why state law requires the collection of this data on the marriage license application, we will examine the complaint closely and carefully to determine how best to proceed.”
Kelly added that Herring is committed to equality and justice, including during Virginia’s same-sex marriage case, and that Chief Deputy Attorney General Cynthia Hudson is also chairing Gov. Ralph Northam’s commission to examine racial inequity in Virginia law.
Victor M. Glasberg, a civil rights lawyer in Alexandria, who filed the suit, said the law in question has been around in some form since at least the 1920s. The suit states that in 1912 the Virginia General Assembly established the Bureau of Vital Statistics that would be led by Walter Plecker, who died in 1947.
The plaintiffs allege that, “Plecker made it his mission to secure proper enforcement of Virginia’s law banning the marriage of whites and non-whites.”
“Comparing his work in 1943 to that done in Nazi Germany, Plecker avowed that ‘Hitler’s genealogical study of the Jews is not more complete,’ ” according to the suit.
Brandyn Churchill and Sophie Rogers applied for a license in Rockbridge Circuit Court last week and said they were given a list of approved races that included American, Aryan, Blanc, Hebrew, Islamic, Israelite, Jew, Mestizo, Mulatto, Nordic, Octeroon, Quadroon, Red, Teutonic and White American.
“Fifty-two years after the Supreme Court struck down laws preventing the marriage of white and non-white persons, the Commonwealth of Virginia continues to require its residents, including plaintiffs, affirmatively to label themselves, against their will, according to categories rooted in a malignant statutory scheme working to the detriment of non-white persons,” the lawsuit claims.
The plaintiffs contend that clerks of the circuit courts enforce the law “as they see fit, using inappropriate categories duly made available by the Virginia Department of Health and Human Resources, and other, more offensive, categories as well.”
“The requirement reflects a regulatory scheme embodied in the Virginia Racial Integrity Act of 1924, originally called ‘An Act to Preserve the Integrity of the White Race.’ The requirement to identify by ‘race’ uses terms grounded in ignorance and bigotry, not in science,” the suit maintains.
The plaintiffs are Churchill and Rogers, engaged to be married next month in Fincastle; Ashley Ramkishun and Samuel Sarfo, who hope to marry in Arlington; and Amelia Spencer and Kendall Poole, who hope to marry in Virginia.
Only Connecticut, Delaware, Kentucky, Louisiana and Minnesota also require racial identification when applying for a marriage license. New Hampshire requires the clerk of court to fill in the race applications. Alabama does not have an application form, but parties seeking to marry must fill out an Alabama Marriage Certificate that requires they identify their race. The remaining 42 states and the District of Columbia do not include any such express statutory mandate, the suit says.
The plaintiffs complain that, among other things, there is no uniformity among Virginia courts on the proper terminology to designate race on marriage license applications, although the courts all track the federal scheme.
Henrico and Chesterfield counties’ online forms show the racial options given are for American Indian/Alaska Native, Asian/Pacific islander, black/African American, Hispanic, white/caucasian, and “other.”
The Arlington Circuit Court Clerk, where plaintiffs Spencer, Poole, Ramkishun and Sarfo inquired about marriage licenses, the choices for race are: American Indian/Alaskan Native; African American/Black; Asian; Caucasian; Hispanic/Latino; Pacific Islander; Other.
In Fairfax, there is no category for Alaskan Natives, Latinos, Pacific Islanders or Others, but there is reference to Asian Indians and Asians, and also mixed. In Alexandria, categories include Caucasian as well as white but not Latino or Pacific Islander. Other categories include unknown and mixed.
Rockbridge Circuit Court, where Rogers and Churchill sought a marriage license, lists 230 approved races.
The circuit court clerk submits a copy of each marriage license application to the state registrar, which reported that in 2013, the most year figures are available online, 40,948 white people, 9,702 black people, 4,255 “other” people and 243 “unknown” people were married.
“Since plaintiffs refuse to designate their ‘race’ on the mandatory marriage license application, their local circuit court has, in accordance with state law, denied them a license to marry. As a result, in order to marry, plaintiffs, like the Lovings 61 years ago, must acquiesce in an unjustified, offensive and unconstitutional intrusion into their private lives, or, regardless of their desire to be married in Virginia, look elsewhere to get married,” the suit says.
The Lovings were a Virginia couple whose lawsuit would become the basis of the landmark Supreme Court case that overturned laws banning interracial marriage.
The suit asks that the state law in question be declared unconstitutional and that the state be barred from enforcing it and to allow the plaintiffs to obtain marriage licenses without asking them their race.
A motion for a temporary restraining order has been set for Oct. 4, before U.S. District Judge Rossie D. Alston Jr. in Alexandria.