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Legal Insider: Virginia Lawsuit Seeks End to Race Requirement for Marriage Licenses

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

Virginia couples seeking to marry in the Commonwealth of Virginia must still list their racial identity to obtain a marriage license.

In a recent federal lawsuit three couples were denied marriage licenses after refusing to specify their race. The lawsuit was recently filed in the U.S. District Court for the Eastern District of Virginia challenging the requirement. It is about time that Virginia put an end to this requirement.

The Virginia Code, Va. Code Ann. §32.1-267(A), requires that individuals seeking a license to marry must identify themselves according to race. In the lawsuit, these couples have argued that Virginians should not be required to list their race under the 13th and 14th Amendments to the U.S. Constitution. As a practical matter, this requirement is also a problem because Virginia counties have inconsistent and different definitions of race.

For example, in Arlington, where two of the couples tried to obtain their marriage license, the race options were listed as follows: American Indian/Alaskan Native; African American/Black; Asian; Caucasian; Hispanic/Latino; Pacific Islander or Other. Contrast this with Rockbridge County, where the 230 possible race categories include: “White American,” “Aryan,” “Octoroon,” “Quadroon” and “Mulatto.” These types of categories are horribly offensive to many.

The Commonwealth is not alone in this marriage requirement. There are 8 other states that require individuals to identify their race prior to obtaining a marriage license, including Connecticut, Delaware, Kentucky, Louisiana, Minnesota and New Hampshire.

Furthermore, in Virginia, not only do you have to list your racial identity in obtaining a marriage license but if you list it falsely, a person can be guilty of a felony. It is time for Virginia to rescind this archaic law.

Conclusion

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