Constitutional Law

Law student among plaintiffs challenging state law requiring couples getting married to identify race

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A law student at Washington and Lee University who is planning an October wedding is challenging a Virginia law that requires couples getting married to list their race.

Sophie Rogers and her fiance, Brandyn Churchill, are among three couples challenging the law, report the Washington Post, the Richmond Times-Dispatch, the New York Times and the Associated Press. How Appealing notes the coverage.

Virginia is one of eight states with racial identification laws for marriage still on the books, according to the couples’ lawyer, Victor Glasberg. The other states are Alabama, Connecticut, Delaware, Kentucky, Louisiana, Minnesota and New Hampshire.

Glasberg said the suit is a logical next step after the U.S. Supreme Court struck down laws banning interracial marriage in the 1967 case Loving v. Virginia.

In Virginia, lying about race on the application could result in a perjury prosecution, according to the federal lawsuit filed Sept. 5 in Alexandria.

The suit says the requirement burdens the fundamental right to marry in violation of the 14th Amendment right to due process, is compelled speech in violation of the First Amendment, is an unconstitutional violation of the right to privacy, and is a violation of the right to be free of the incidents of slavery guaranteed by the 13th Amendment.

Rogers and Churchill were given a list of more than 200 choices to identify their race, including “Aryan,” “Mulatto” and “Octoroon.” The choices vary by county. Most counties provide five choices that track the list used by the U.S. Census Bureau, and many provide a space for “other” or “mixed.”

The suit claims that the forms use “unscientific, highly controversial, misleading, useless and tainted categories reflecting Virginia’s historical repression of nonwhite persons.”

Kevin Maillard, a law professor at Syracuse University, told the Washington Post that he doesn’t see a compelling reason for the state to collect the data. But he also raised concerns about doing away with racial categorization in the battle against discrimination. Racial data is used by civil rights groups to fight for equality in education, criminal justice and voting rights.

“I think with the deep history of racial strife we have in the United States, these categories are going to remain incredibly important,” Maillard told the Post.

The case is Rogers v. Virginia State Registrar.

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