So, weeks away from their planned Oct. 19 wedding at a barn in Fincastle, Va., the couple is challenging the law in Virginia federal court. Joined by two other engaged couples, they argue the law is a racist holdover that has no place in modern marriage.
The suit is part of both efforts to scrape away vestiges of segregation in Virginia and to move away from institutional categorization in both race and gender. The plaintiffs say people should be free in their personal lives to identify by race but shouldn’t be forced to, under the First, 13th and 14th amendments. But the lawsuit raises a more challenging question: Can the government address discrimination without labels created from it?
“I am not proposing we stop talking about race altogether,” Rogers, 22, said. “Not only does this type of law not promote or further this important conversation, it doesn’t seek to.”
In a letter, their attorney, Victor Glasberg, asked Democratic Gov. Ralph Northam to “get on the right side of history” and decline to defend “tainted categories reflecting Virginia’s historical repression of non-white persons.”
Spokespeople for the governor and attorney general did not have an immediate comment.
Rogers heard about the plans to challenge the law from a professor at Washington & Lee University, where she’s in her second year of law school and where Churchill, 27, got his undergraduate degree. The school has been confronting its own Confederate past, in a state where both Northam and the attorney general have recently admitted dressing up in blackface.
As people of European descent — white, or “peach-pink,” per the lawsuit — Rogers and Churchill felt this was a small way to contribute to that reckoning.
“A lot of these issues are structural. They’re complicated,” Churchill said. “The history of the law is deeply offensive as are the categories. This is an example of a reform we could have an impact on and move the ball forward a little bit.”
In Arlington, where plaintiffs Ashley Ramkishun and Samuel Sarfo tried to apply for a marriage license, a clerk told them if they didn’t want to identify by race they would have to choose “other.”
“When I have to put down my race, most of the time I’m kind of forced to stick myself in a box I don’t necessarily fit in. . . . I’m not Asian, I’m not American Indian, I’m not black, I’m not white,” said Ramkishun, 26, who is of Asian Indian and Guyanese descent. “We don’t want to put ‘other’ because we’re not ‘other. ’ We are human beings.”
Sarfo, 32, is from Ghana and likewise avoids racial categorization, saying, “It doesn’t capture anything for me.”
Forms for marriage licenses in Virginia vary by county, but most offer about five options, generally echoing federal guidelines used by the U.S. Census Bureau: white, black or African American, American Indian or Alaska Native, Asian and Native Hawaiian or other Pacific Islander. Many offer choices of “other” or “mixed.”
The lawsuit quotes the judge who cited racial categories when he banished the Lovings from the state. The Virginia couple, a white man and a black woman, ultimately successfully challenged the ban on interracial marriage in the Supreme Court.
“Almighty God created the races white, black, yellow, malay and red, and placed them on separate continents,” the judge wrote in 1966. “The fact that he separated the races shows that he did not intend for the races to mix.”
“Vital statistics” are still listed on the state website, where all marriages are sorted into white,” “black,” “other” and unknown.
Similar racial requirements for marriage licenses are enshrined in code by only a handful of other states, although in many more states, county forms demand a racial identity without any law to back up the query.
Glasberg, who moved to Virginia to work with one of the attorneys for the Lovings and tried unsuccessfully on his 1981 marriage license to label himself “human,” has wanted to challenge the law for years.
“The requirement to identify by ‘race’ uses terms grounded in ignorance and bigotry, not in science,” he writes in the complaint filed in federal court in Alexandria. “We are free to define ourselves as we wish.”
The Supreme Court has struck down laws discriminating based on race, but not racial categories as themselves unconstitutional, and Glasberg believes he is the first to challenge the collection of racial data on marriage licenses.
In the suit, he sketches the shameful history of that requirement.
Virginia passed the Racial Integrity Act in 1924. On a birth certificate or marriage licenses, each person was identified as “white” or “colored,” and the act said the two should never mix. Support for the law was driven by Walter Plecker, registrar of the state’s Bureau of Vital Statistics and an indefatigable racist. After prodding the law’s passage, Plecker took it upon himself to investigate “white” marriages he deemed suspicious and threatened midwives and new mothers with marital data. In a 1943 letter bragging of the thoroughness of his records he told a federal official, “Hitler’s genealogical study of the Jews is not more complete.”
Under Virginia’s law, people with one-sixteenth or less Native American blood were allowed to call themselves “white” — a concession to the legacy of John Rolfe and Pocahontas that infuriated Plecker. He claimed there were no true American Indians left in Virginia and all were “colored,” a decree that impedes tribal recognition to this day.
The suit cites former Census Bureau director Kenneth Prewitt, who argues that our racial categorization needs to evolve.
“I want to stop discrimination, but I don’t want to do it with categories that are not really nuanced enough,” said Prewitt. “I wish we could get past the five races. It’s inchoate; it doesn’t really capture the complexity of our democracy at all.”
Kevin Maillard, a law professor at Syracuse University who has studied interracial marriage, said that while researchers might use the data, “I don’t know what the compelling reason that the state would have in retaining tracking of those categories would be.”
But he was skeptical of an effort to move away from race altogether.
“I think with the deep history of racial strife we have in the United States, these categories are going to remain incredibly important,” Maillard said. “My mother is racially mixed, but she considers herself a black person.”
Civil rights groups rely on government data to investigate inequality in schools and the criminal justice system and challenge voting restrictions.
“We need data on who people are to see if there are patterns,” said Myrna Pérez of the Brennan Center for Justice.
Glasberg argues that “while it is imperative to be aware of ‘race’ to extirpate racism, it is unnecessary to continue to racialize groups victimized by racism.” Discrimination laws, he noted, protect groups we don’t consider “races,” including Arabs and Jews.
The lawsuit’s aims are more modest. But if it drags on past next month, Churchill said he and Rogers “will have some complicated conversations” about their wedding.
Ramkishun and Sarfo are in less of a rush; they’ve been engaged for two years already and aren’t planning a ceremony until sometime next year. They would like to get married in Virginia, where they met working at the Abercrombie & Fitch in the Fashion Centre at Pentagon City. But Sarfo said he doesn’t understand why Virginia doesn’t simply change the law.
“If you’re really saying you’ve come that far, why not use common sense?” he said. “Just get rid of the question or make it optional, knowing exactly why it was put on there in the first place.”