Those were among the more than 200 categories that Brandyn Churchill and his fiancee Sophie Rogers were given to choose from as their race when they went to apply for a marriage license in Rockbridge County, Virginia, last week. And that, to them, was a vestige of an ugly history, a time when Virginia and other states used to prohibit people from marrying across racial lines.
“We’re looking and we see Aryan, Mulatto, all these terms that are not only outdated, but deeply offensive,” Churchill, 27, said about the list that county officials gave them. “How is that on a government document in 2019?”
With their planned wedding only 1 1/2 months away, Churchill and Rogers left without getting a marriage license, because they refused to list their races on their application. They are now among the plaintiffs who sued the state of Virginia in federal court last week, seeking to end the requirement.
“I don’t think it’s within the state’s power to force someone to compel themselves to select a category,” Churchill said.
Virginia was the state where Mildred Jeter, a black woman, and Richard Loving, a white man, were prosecuted and sentenced to a year in jail for violating a state law against marriage between whites and nonwhites. Their appeal eventually went to the U.S. Supreme Court, which, in 1967, struck down all laws barring interracial marriage.
A spokesman for Mark Herring, the attorney general of Virginia, wrote in an email to The Richmond Times-Dispatch that it was “not readily apparent why state law requires the collection of this data on the marriage license application,” and that the state would examine the lawsuit and determine how to proceed.
In the complaint, Victor M. Glasberg, the lawyer for the plaintiffs, argues that the requirement violates constitutional protections of free speech, due process and privacy.
The Constitution’s due-process protections mean that the government cannot restrict a fundamental right like marriage “by forcing somebody to do something or say something that is inconsequential and irrelevant” in order to exercise it, Glasberg said.
He said there was no valid purpose in demanding to know someone’s race before allowing them to marry. “They could just as well ask you for your grandmother’s maiden name or your religion or when you were baptized or circumcised,” Glasberg said.
The law violates free-speech protections, he said, because “the government cannot compel you to say things you don’t want to say unless there’s abundant good reason for it.”
Messages seeking comment from Herring, the attorney general, that were left with members of his staff were not immediately returned Sunday.
The lawsuit identifies seven other states where race must be specified on marriage license applications or certificates: Alabama, Connecticut, Delaware, Kentucky, Louisiana, Minnesota and New Hampshire.
Glasberg said that for him, the lawsuit was deeply personal. He said he wrote a paper in law school in 1976 about the requirement to reveal one’s race on a marriage license application. When he and his wife went to get their license at a court in Alexandria, Virginia, in 1981, they asked if they could list “human” as their race, he said, and when they were told they could not, they wrote “white” in quotation marks.
Churchill said that he and his fiancee would both be considered white. The lawsuit identifies him as of English, Scottish and German heritage, and Rogers’ roots as Irish, German and Polish. The filing says they both have “peach-pink skin.”
Churchill said that he had no problem with someone wanting to identify their race, and that he realized the importance of continuing to confront difficult issues of race in this day and age. But forcing people to select a race whether they wanted to or not was a step too far, he said.
Churchill and Rogers are scheduled to marry on Oct. 19, and he said they plan to have a wedding ceremony that day in any case. Whether they will officially have a marriage license that day remains an open question, but he said he was hopeful that the state would act before then to change the law.
Though Virginia requires that applicants specify their race when applying for a marriage license, the state leaves it up to individual counties to draw up their own lists of choices.
Churchill and Rogers said they were taken aback by the long list that Rockbridge county officials gave them. Many of the choices were nationalities, like Korean, German or Honduran. And some were obscure, outdated classifications like Quadroon and Octoroon that refer to the fraction of African ancestry in people of mixed race — a common basis for discrimination in previous eras.
“It was born out of a place of deep bigotry,” Churchill said of the marriage-license race requirement. “It’s apparent why they started it. It’s not apparent why we’re doing it in 2019.”
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