A Lexington couple who refused to fill in the race question on their marriage license application are delighted that action taken by Virginia Attorney General Mark Herring will allow them to marry next month as planned.
But that doesn’t mean the end of a federal lawsuit they and two other couples filed challenging the constitutionality of a state law that directs circuit court clerks to collect such information.
“Fantastic news! Applicants will no longer be required to list their race in order to marry. This is a step in the right direction. ... Now we can get our license,” Brandyn Churchill said Friday night on Twitter.
Churchill can now marry his fiancé, Sophie Rogers, on Oct. 19. The pair were one of three couples who filed suit in federal court in Alexandria on Sept. 5 challenging the requirement that they racially categorize themselves to qualify for a marriage license.
On Friday, Herring sent a memo to clerks around the state that said while clerks are required to collect race and other personal data, there is no specific requirement that the applicants have to give it, nor does the law spell out what happens if they do not.
“It is my conclusion that [the law] does not require a clerk to refuse to issue a marriage license when the applicant declines to identify his or her race, and that clerks should issue a license regardless of an applicant’s answer or non-answer to that inquiry,” Herring wrote.
A new marriage form has been sent to the clerks that makes it clear applicants can decline to answer the question about race.
While happy they can now marry, Churchill also posted on Twitter that: “We will continue to challenge the constitutionality of the statute and have heard from legislators hoping to strike it from the VA code entirely. Step by step.”
Victor M. Glasberg, a civil rights lawyer who filed the suit for the couples, on Saturday said, “This is a welcome first step. Now all we need to do is to get rid of the statutory command.”
“I’m not too sure about the actual legality of [Herring’s] directive, but it is welcome pending a proper conclusion of the case,” Glasberg said.
The suit alleges that in Virginia, the question “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 race question on Virginia’s marriage license application was taken out of the state code by the General Assembly in 2003 and was reinstated in 2005. At least one state legislator plans to introduce a bill in the upcoming General Assembly session to have the question struck again.
In an email to Virginia Supreme Court officials, director and state registrar of the Division of Vital Records Janet Rainey said she asked Herring earlier this week to clarify the requirements of the law.
Herring, in response to questions from the Richmond Times-Dispatch, said in a statement Friday, “We were happy to help quickly resolve this issue and get these couples what they asked for.
“These changes will ensure that no Virginian will be forced to label themselves in order to get married,” he said. “I appreciate the courage these couples showed in raising this issue, and I wish them all the best in their lives together.”