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Still Loving In Virginia

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LOVEwork sign in Richmond, Virginia (part of a series to commemorate 50 years of the "Virginia is for lovers" slogan).
Photo by Will Fisher.

Virginia is the state where a law enshrining prejudice against interracial marriage was overcome by modern concepts of equality, liberty and privacy. So it seems fitting, if surprising, that Virginia is once again at the heart of a dispute over race and marriage.

Attorney Victor M. Glasberg filed suit on behalf of three couples who want to marry in Virginia, but who do not wish to select a racial background from a list of possible choices ranging from out-of-touch to outright racist. State law requires that couples list their race, though counties determine the particular terms on offer. The couples reported that they could not apply for marriage licenses without answering the question of each spouse’s race, despite the fact that the answer could have no bearing on the legality of their marriage. “The clerk tried to fill out the application without the race question filled for us but the computer wouldn't let her,” Sophie Rogers, one of the plaintiffs, told the BBC. Glasberg, who married in Virginia himself in 1981, asked to put “human” in the race category but wasn’t permitted to do so.

In a letter to Gov. Ralph Northam, Glasberg observed that he came to Virginia in part to work with Philip Hirschkop – the lawyer who took on Mildred and Richard Loving as clients in the 1960s. In the landmark case Loving v. Virginia, the Lovings appealed their conviction under Virginia’s Racial Integrity Act of 1924. The couple had been sentenced to a year in prison for marrying, because he was white and she was black. The case reached the U.S. Supreme Court, which struck down all laws barring interracial marriage. Loving rightly opened the door for Americans to marry as they liked, regardless of race or ethnicity. The couple’s story was dramatized in the 2016 film “Loving” and was a touchstone in the recent fight for same-sex marriage equality.

As Glasberg has noted, Virginia’s rule that couples disclose their race on their marriage records is a vestige of the 1924 law that Loving overturned. A spokesman for the attorney general of Virginia, Mark Herring, said it was “not readily apparent why state law requires the collection of this data on the marriage license application.”

Glasberg argues that the information is entirely irrelevant and that there is no reason the state should compel anyone to provide it. “They could just as well ask you for your grandmother’s maiden name or your religion or when you were baptized or circumcised,” he said. Some of the plaintiffs expressed dismay or confusion, not only that Virginia’s suggested categories include terms that should have been long ago consigned to history, but that the state offers no way to decline to answer the question outright.

While the plaintiffs in the current case are acting on principle, there is a practical side to the litigation as well. The case illuminates the fuzzy definition of who belongs to what “race” in a modern world where everyone is an amalgamation of generations of someones. Since the concept of race is human-made, even people who might not object to Virginia’s requirement on principle could run into unexpected practical pitfalls.

It is a crime in Virginia – specifically, a Class 5 felony – to swear to a false statement on a marriage license or other official document. Suppose someone who considers herself Native American due to family lore or tradition identifies as such on that document, only to later have that claim challenged on the basis of genetic testing or lack of tribal membership? Such things can happen. Many American families believe that their family tree includes Native American (often Cherokee) lineage. Some do, but a belief in Native American ancestry is much more common than actual genealogical or genetic evidence of such ties. A genuinely misguided picture of one’s own heritage could lead a bride- or groom-to-be to inadvertently break the law.

Racial identity is central to many people’s sense of self, but the popularity of DNA testing kits has also thrown a harsh light on the potential complications. Some individuals unexpectedly learn that stories their parents told were incorrect or incomplete. Others have discovered that their test results have shifted as testing companies gather more data, or that results vary between different companies. Whether genetic testing is involved or not, the question of race is straightforward for some but fraught for many others. Even the U.S. Census Bureau, which has legitimate reasons to ask about respondents’ race, has struggled to offer choices that comprehensively reflect American identities.

Consider the possibility that two people state that they are white on a marriage license, even if not all their parents or grandparents would have done the same. The couple’s child may describe her identity differently as she learns about her heritage. What happens if that child indicates a nonwhite identity one day, perhaps to qualify for some sort of preference or benefit? And if the couple has two children, what happens if those children choose to describe themselves as different races? Have we really not gotten far beyond such crass and unconscionable characterizations as “octoroon”? This is a word I don’t believe I have ever had reason to write or utter until now, and I hope I never have such occasion again – but it is one of the options some Virginia counties still offer to those seeking a marriage license.

As long as race plays any part in the way we identify ourselves and our neighbors – and it clearly still plays a significant part in many ways – governments will want to collect demographic and other statistical data. Fair enough. But can a government defend a demand, as opposed to a request, for such information as a prerequisite to engage in what Loving v. Virginia recognized as the fundamental right to wed? I don’t think so.

One possible outcome of the current litigation is that government officials won’t even try to defend the existing statute pending its modification or repeal by the Virginia Legislature. This may not be far-fetched. As Glasberg noted in his letter to the governor, he is suing the Virginia State Registrar, the Arlington Circuit Court clerk and the Rockbridge Circuit Court clerk purely in their official capacities. “I do not believe any of them supports the statutory requirement at issue,” he wrote. In the meantime, the courts could handle the matter by issuing injunctions against enforcing the statutory requirement that applicants disclose their race. Someone who wants to identify as a member of the “human” race should have every right to do so and would not be making a false statement in the process.

Virginia is not the only state to still demand racial classifications on marriage license. Seven others retain this pointless rule, which serves only as a reminder of the rights historically denied to many Americans. It would be nice if Virginia could lead the way in – or at least not be among the very last to move toward – removing race-based requirements from the marriage process.

Editor's Note: An earlier version of this post incorrectly stated that responding falsely to Virginia's race question on a marriage license was a Class 4 misdemeanor, rather than a Class 5 felony. Thank you to the reader who alerted us regarding the error.

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