In his short story “Requiem for a Nun,” the author William Faulkner penned the famous line about his native South that speaks volumes to this day: “The past is never dead. It’s not even past.” Three Virginia couples seeking to obtain marriage licenses in the commonwealth have shined a light on a vestige of this state’s segregationist past still alive and well in the law and are fighting to erase almost a century of racism from the statutes.

Fifty-two years ago, a landmark U.S. Supreme Court struck a blow against one of the pillars of American apartheid laws when the justices ruled unanimously that miscegenation laws banning a person from marrying outside his or her race. These so-called “race-mixing marriage” laws violated two central tenets of the Fourteenth Amendment: the Due Process and Equal Protection clauses.

Writing for the court in Loving v. Virginia, Chief Justice Earl Warren quickly and powerfully cut to the heart of the matter before the justices:

“There can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conducted if engaged in by members of different races. … There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause. …

“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.”

Richard Loving and Mildred Jeter were two young people from Caroline County who just happened to fall in love in the late 1950s. Mildred became pregnant in 1958, and the couple slipped away to Washington, D.C., to marry because they couldn’t in their home state. Once back home in Caroline County, they tried to live quietly, but within days sheriff’s deputies, based on an anonymous tip, burst into their home at night and found the couple asleep in their bed.

Convicted of violating Virginia’s laws banning interracial sex and marriage, the court ordered them to leave the state and not return for 25 years, whereupon they moved to Washington. Lonely and unable to visit their family and friends, in 1964, they appealed to U.S. Attorney General Robert F. Kennedy for advice on where to turn; Kennedy referred them to the ACLU which took up their case. The federal trial court ruled against them, an appellate panel reversed and remanded, and finally the Supreme Court struck a blow for freedom, liberty and simple love.

But still lurking in the Code of Virginia are bits and pieces of the Virginia Racial Integrity Act of 1924 — originally named “An Act to Preserve the Integrity of the White Race.” Walter Plecker, the head of the Bureau of Vital Statistics, used it and other laws to enforce the wall of separation between the races, including the issuance of marriage licenses.

And despite the 1967 Loving ruling, some circuit court clerks’ offices are still enforcing bits and pieces of the law still on the books.

Last month, Brandyn Churchill and Sophie Rogers applied for a marriage license in Rockbridge Circuit Court. Virginia’s license includes a box to tick for the race of the applicants, and the couple said they were given a list of “approved” races that included, among many others, American, Aryan, Blanc, Hebrew, Israelite, Jew, Mestizo, Mulatto, Nordic, Octeroon, Quadroon, Red, Teutonic and White American. Two other couples had similar experiences when applying for licenses in Arlington County. Staff in the clerks’ offices refused to issue licenses when the couples refused to check which race they were.

Attorneys for the three couples have filed suit to strike this requirement from Virginia law. In their research for the suit, they’ve discovered there isn’t even a single list of “approved” race categories or uniform enforcement. And like three-quarters of a century ago, the clerks’ offices still report the data to the state registrar annually. In Rockbridge County, for example, in 2013 — the most recent year available online — 40,948 white people, 9.702 black people, 4,255 “other” people and 243 “unknown” people received marriage licenses.

In 2019, there is no reason whatsoever for the state to be collecting such data, much less for local court officials deciding willy-nilly to deny marriage licenses for refusal to check the “race box.” The first hearing in federal court is set for Oct. 4 in Alexandria. We urge — and fully expect — lawyers for the commonwealth to accede to an enforcement injunction, followed by action from the governor and General Assembly to expunge this odious law from the Code of Virginia. Justice, liberty and love demand it.

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