The new guidance comes about a week after three couples filed a federal lawsuit alleging the required disclosure of race is unconstitutional because it violates the First, 13th and 14th amendments.
“We were happy to help quickly resolve this issue and get these couples what they asked for,” Herring said in his statement. “These changes will ensure that no Virginian will be forced to label themselves to get married.”
The plaintiffs, however, said in interviews Saturday that they do not see the issue as “resolved.” Though appreciative of the new guidance, the couples and their lawyer said they plan to continue pressing the case.
“It’s a good first step, but as far as we know the case is still going to go forward and we’re hoping the judge doesn’t declare it moot,” said Ashley Ramkishun, one of the plaintiffs. “It doesn’t resolve the fact that there’s still a law in place in Virginia — the state could change its mind at any point in regards to whether the race question is optional or not.”
Victor Glasberg, the couples’ lawyer, said in an interview Saturday that he thinks it unlikely the judge, Rossie D. Alston Jr., will seek to dismiss the suit. But if he does, Glasberg will appeal the dismissal. Glasberg discussed Herring’s new instructions with the plaintiffs over the weekend, and none of them want to back out, he said.
Glasberg quoted verbatim the text of the Virginia statute, still on the books, that mandates the disclosure of race. It declares in part that, “for each marriage performed in the Commonwealth, a record showing personal data, including but not limited to age and race of the married parties . . . shall be filed with the State Registrar.”
Glasberg vowed to continue with the litigation until that law is ruled unconstitutional and stricken from the record.
Herring’s guidance “is welcome, it’s much appreciated, and it’s the right thing to do as an initial response,” Glasberg said. “But the statute is obnoxious and . . . we need to get rid of the statute.”
Although marriage license forms in Virginia can vary by county, the majority offer five options for racial identification: white, black or African American, American Indian or Alaska Native, Asian and Native Hawaiian or other Pacific Islander. Some also include the denominations “other” or “mixed.” Filling out the form with false information counts as a felony.
The mandated disclosure of race is a legacy of Virginia’s ban on interracial marriage, established almost 100 years ago and struck down by the Supreme Court in the famous case Loving v. Virginia. Glasberg and the couples argue the law is a racist holdover and a lingering symbol of segregation that has no place in today’s society.
While people should be free to identify by race, they should not be forced to do so, the couples say.
“The requirement to identify by ‘race’ uses terms grounded in ignorance and bigotry, not in science,” reads the lawsuit, filed in federal court in Alexandria. “We are free to define ourselves as we wish.”
Glasberg previously told The Washington Post that he believes his suit is the first to allege the collection of racial data on marriage licenses is unconstitutional. Though the Supreme Court has ruled against laws that discriminate based on race in the past, it has never judged racial categories to be in violation of the constitution.
Brandyn Churchill, another plaintiff, said he is just as determined as Ramkishun to proceed with the lawsuit. But Churchill added that the new policy — its release happened to coincide with his fiancee Sophie Rogers’s 23rd birthday Friday — came as a big relief.
Churchill and Rogers are planning to wed on Oct. 19. The couple hit a serious roadblock when they applied for a marriage license in Rockbridge County and were told they could not say “I do” unless both selected their races from a list that included the labels “Aryan” and “Octoroon.” Unwilling to obey, Churchill and Rogers decided to join the lawsuit instead, leaving the fate of their wedding in limbo.
“We will still continue to fight, but this was a welcome first step, in part because now we can get married,” Churchill said Saturday. “In that sense, the Commonwealth just gave Sophie a little bit of a birthday present.”