Disregard that Law

by Dick Hall-Sizemore

Well, Virginia made the national headlines again last week and over the weekend.  This time it was over the requirement that couples applying for a marriage license list their race on the application. And Attorney General Mark Herring was the hero, saying that, despite what the law said, the couples did not have to do that.  (NYT, WP, RTD, as well as all the networks).

On the face of it, the state could make a case that gathering information about the race of people getting married serves a legitimate purpose by providing data for state demographers and sociologists. But, because “race” can be a vague concept and applicants self-identify their race, any data collected has become meaningless. Apparently, each county can compile its own list of categories from which applicants choose.  According to newspaper reports, Rockbridge County had a list of  approximately 200 “races”, including American, Aryan, Hebrew, Islamic, Mestizo, Nordic, Teutonic, Moor, and White American.

Most people will dismiss this whole episode as somewhat silly, at best, or another  holdover from the state’s problematic past. However, the story involves a much more serious, and worrisome, issue.

The Attorney General has apparently decided that he can overrule a law he feels is wrong. I am anxious to see his legal rationale in telling couples they do not have to list race on their marriage applications. No official Attorney General’s opinion has been posted on the office’s website nor does the website list any news release on this subject.

Before looking at what the Attorney General did say publicly, let’s look at what the law says:

  • 32.1-267—“For each marriage performed in the Commonwealth, a record showing personal data, including but not limited to age and race of the married parties, the marriage license, and the certifying statement of the facts of marriage shall be filed with the State Registrar as provided in this section.” [Emphasis added]
  • 20-16—“The clerk issuing any marriage license shall require the parties contemplating marriage to state, under oath, the information required to complete the application for marriage license.” [Emphasis added]

In his comments, Herring, at best, does what people hate about lawyers—gets real picky and ignores the commonsense meaning of words. At worst, he simply overrides a statute he finds obsolete or inconvenient. (Just to be clear, I am basing my comments on media reports. I could not find a copy of the memo Herring sent to clerks and the media.) Let’s parse those comments:

  • No specific requirement that applicants have to provide information about race—But, there certainly is such a requirement. Sec. 20-16 says that clerks shall require the applicants to state the information required to complete the application, and, Sec. 32.1-267 explicitly says that race shall be recorded on the application.
  • “…law does not require a clerk to refuse to issue a marriage license when the applicant declines to identify his or her race.’’—He is correct. But, common sense tells one that a person refusing to provide the required information is not entitled to the license. If that is not the case, look at the position in which it puts the clerks. The law requires the clerks to submit to the State Registrar [of Vital Statistics] a record showing the information concerning the marriage, including the race of the parties. If the clerks cannot compel the parties to provide the information, how can the clerks comply with the requirement placed upon them? Now, let’s follow the Attorney General’s argument to its logical conclusion. If the applicants can refuse to provide information about their race, doesn’t that logic also apply to other information on the application, such as age or even name?

Disclosure: I am not a lawyer. However, I have spent a career spanning more than 40 years drafting and interpreting statutes in both the legislative and administrative branches. I feel as if I am on solid ground in my comments, especially in light of the reported comment of the lawyer representing the plaintiffs challenging the statute, “I’m not too sure about the actual legality of [Herring’s] directive….”

My Soapbox—The requirement may be unnecessary; it may even be offensive. But it is the law. It is up to the legislature to change or repeal the law or the courts to declare it unconstitutional. Everyone should be deeply worried when an elected official, especially an Attorney General, chooses to override a statute for political reasons.

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26 responses to “Disregard that Law

  1. I suppose everyone who is up in arms about the issue of race on the Virginia Marriage license is going to boycott the 2010 Census short form when they receive it what with two of the questions asking about your race/ethnicity?

    • You mean 2020 Census right?

      This is another embarrassing episode for Virginia.
      It is not something the voters knew anything about. We find out about from the New York Times political bashing rather than fixing by ourselves. Thanks a lot. I have to get my NY marraige license out to see if they asked me my race (but my spouse will kill me if so).

  2. Dick in 100% correct. Everyone advocating ignoring the law for supposed social justice or other “good” causes is essentially advocating for social injustice. This is just as true for sanctuary cities or counties or immigration or detention of anything else someone believes is unjust,as it for for questionnaires.

    The Gandhi-King activism based on violating the law was coupled with an understanding and intent that the violator was voluntarily accepting the consequence all the more to highlight the undesirability of the law.

    Pandering for votes by inflaming emotions notwithstanding, why is this not blindingly obvious?

  3. Dick is 100 percent correct. Herring was off base, exceeding his authority. But the truth is no judge will invalidate any marriage performed despite that line on the questionnaire remaining blank (that’s the risk). And there is zero compelling state interest to ask the question. It will be cleaner if the GA just repeals the requirement ASAP. If I were the plaintiffs, I would not drop the lawsuit until then.

    Mentally I’m back in freshman anthropology class, doing the first segment of the first semester, when the prof (he didn’t survive long at W&M) was making the case that there is no such thing as race, it has no scientific basis, it is simply a human social construct with no biology behind it. We are a single species with a handful of overblown adaptive genetic variations.

  4. Can a judge refuse to convict on that basis? Does a judge have the authority to ignore the law?

    what about the dozen or more dumb laws that are still on the books?

    are police and judges that refuse to enforce them – ” exceeding their authority”?

    come on guys – is this a REALLY partisan question?

  5. so if Herring said that this law could be ignored:

    Code of Virginia
    Table of Contents » Title 18.2. Crimes and Offenses Generally » Chapter 8. Crimes Involving Morals and Decency » Article 3. Commercial Sex Trafficking, Prostitution, Etc. » § 18.2-344. Fornication

    § 18.2-344. Fornication.
    Any person, not being married, who voluntarily shall have sexual intercourse with any other person, shall be guilty of fornication, punishable as a Class 4 misdemeanor.

    Code 1950, §§ 18.1-188, 18.1-190; 1960, c. 358; 1975, cc. 14, 15.”

    He would be “exceeding his authority” but if the State and Country prosecutors decline to prosecute – they would not be “exceeding their authority”?

    • Prosecutors have discretion. Exercising discretion to prosecute or not is quite a bit different than the Attorney General directing clerks of court to take action that is in conflict with an existing statute.

      And I did not intend this to be a partisan issue. We are seeing executives from both parties and at different levels of government asserting they have power to order certain actions be done or legal provisions ignored because they feel their policy is better. To me, it smacks of arrogance, which can be dangerous in a politician.

  6. Larry, what is your point?

  7. My – non-partisan point is that the AG is like the head Prosecutor for the state and not unlike other prosecutor offices where their head prosecutor direct their entire staff to not prosecute certain offenses still on the books, he probably has some level of discretion as well … and while I’ll admit that from a technical point of view – he exceeded his authority – it’s done now and has been in the past for laws still on the books that the legislators have yet to repeal and there are dozens of such laws in Virginia that legislators have had decades to undo and even though every year – they find the time to write some really frivolous new laws, they never seem to get around to dealing with issues like this so at some point – someone has to take the bull by the horns and do it.

    And with all these newly formed justice and fairness groups, they could actually challenge Herring in court for exceeding his authority – and you know what – if some folks really feel that way – they should because if he (or others) really have grossly exceeded their authority – then the checks and balances should be brought to fore.

    any questions?

    😉

    • This is one of the primary misconceptions about the Office of the Attorney General in Virginia. The Virginia AG is not the head prosecutor. The main responsibility of the office is to provide legal services to state agencies, including representing them in court when they are sued. The AG also represents the state in civil actions–suing corporations on behalf of the state, e.g. PurduePharma, or the federal government. Other major functions are investigating Medicaid fraud; representing consumer interests, including in SCC actions; and providing legal opinions to state and local officials. In some situations, the AG’s office participates, with local Commonwealth’s attorneys, in criminal prosecutions, but such situations are limited.

      • but like the others – he does have discretion is his advice to state agencies, no? I would agree there is a line he/she cannot cross where it’s clear they’ve exceeded their authority to the point where the law itself can be used in a challenge against his decisions – and perhaps when faced with the prospect of his office having expend resources to defend this law – he chose not to – like a lot of prosecutors might for laws on the books that they choose to not pursue against people.

        I just don’t think this is one of those bright-line issues except in the minds of partisans (both sides).

    • In reviewing individual cases, a prosecutor has considerable discretion in deciding whether to prosecute and, if so, what charges. It becomes a lot more complicated when a prosecutor decides she/he won’t prosecute anyone for certain crimes without more. It’s one thing to stop prosecution when the Supreme Court strikes the same or similar statute as unconstitutional. For example, it would be proper to stop prosecuting a statute prohibiting state or local officials for marrying people of the same sex after SCOTUS struck down state bans on gay marriage. I’d be hesitant to stop prosecutions based on a decision of a trial court in which I had not participated. I’m not sure what a prosecutor should do when an Attorney General’s opinion casts doubt on a specific criminal statute since those opinions are advisory and not binding.

      When a prosecutor simply decides on his/her own volition that a specific offense will not be prosecuted irrespective of the facts, we face a constitutional crisis. There is nothing in the federal or state constitution that permits a prosecutor to decide what laws shall be enforced or what will not. This power belongs to Congress and the General Assembly. Herring is, of course, not alone in exceeding his constitutional authority. But he is dangerous to our constitutional and legal rights.

    • Larry:

      As Dick describes the Attorney General is not the chief prosecutor for the state. It is the Commonwealth’s Attorneys. You read this blog daily and study the politics of Virginia. Yet you didn’t know that. This is exactly what the remnants of the Byrd Machine still operating in Richmond want.

      They key to the Byrd Machine’s control of Virginia was its control of the constitutional officers – Sheriff, Commonwealth’s Attorney, Clerk of the Court, Treasurer and Commissioner of Revenue. How did they control Virginia? Let’s take an example. In the 1945 primary for Lieutenant Governor Charles Fenwick got the most votes. However, he was not the Byrd MAchine’s man. So the Clerk of Court in Wise County (where Fenwick outpolled his opponent 3,307 to 122) claimed that someone stole the poll books showing who voted. So, he threw out the Wise County votes.
      Fenwick’s 572 vote victory became a defeat.

      But it wasn’t just constitutional officers which empowered the Byrd Machine. As rural areas depopulated and urban and suburban areas increased in population the redistricting did not create districts of equal populations. Since Harry Byrd’s power base was rural Virginia the Imperial Clown Show in Richmond supported Byrd by creating districts where a few people could elect a General Assembly member in rural Virginia while a lot of people could elect a single General Assembly member in urban and suburban Virginia. In other words, it was not “one man, one vote”. Now, do you think the elected representatives in Richmond came to their senses and said, “This is unfair”? Of course not. The Richmond elite would have perpetuated this abomination forever. As always, the US Supreme Court rescued Virginians from the corruption of their own state government.
      SCOTUS threw out the same practice in Alabama and it tipped over the Clown Show in Virginia too. As I recall – that Supreme Court case was decided in 1964. All bow to the statue of Harry F Byrd as you pass by it in Richmond. Hero of the Richmond elite – then and now.

      Anti-union activities were also part of the Byrd Machine. In 1946 VepCo employees threatened to strike. The Byrd Machine governor – Governor Tuck – threatened to draft Vepco employees into the “land and naval forces of Virginia” – whatever the hell that meant. The strike was settled before the linemen could be impressed into the Virginia Navy.

      You have to study this stuff, Larry. Virginia has long been one of America’s most corrupt states. However, most other states took action to limit political corruption. Virginia never did (other than when forced to by the US Supreme Court). Other states became less corrupt. Virginia didn’t change. Relatively speaking, Virginia became steadily more corrupt until today, in my opinion, Virginia is America’s most corrupt state.

      As Texas born historian and political scientist V.O. Kelly wrote … Virginia after World War II is a “museum of democracy” housing all the symbols of government by the people, but none of the substance.

  8. There IS a strong counter argument to the issue of counting “race” and it’s obvious. For instance, when we look at SOLs scores or a wide range of other demographic factors – we DO very much categorize by race – White, Asian, Hispanic, Native Americans, African Americans, etc.

    So even though the person is not filling out a form and designating race someone who is tabulating data – is…

    no?

    So no parent fills in a form identifying their race but someone in the school system apparently does and apparently it’s procedure they follow.

    no?

  9. I get all the arguments pro and con for reporting racial data in marriages. But let me put in a plug for the academic value of the data.

    Here’s the website where you can view the marriage statistics reported by the Virginia Department of Health.

    The data breaks down marriages by age, race (black, white and other) and locality for the years 2000 through 2013. I’d like to see more current data, but still this is great stuff. We can track single-sex marriages and spot trends such as the apparent decline in the number of “white” brides each year. One of the more interesting data points would be interracial marriage. My hunch is that inter-racial marriages are increasing in frequency — something I would see as a positive development — but the data is not made available that way on the website.

    Anyway, asking for racial identity provides a cornucopia of sociological insight. Perhaps we should amend the law to make the reporting of racial identification voluntary. But as a policy wonk, I would hate to lose the data/

  10. re: ” We can track single-sex marriages and spot trends such as the apparent decline in the number of “white” brides each year.”

    that’s true but the “analysis” I’ve seen on some of this stuff is nothing short of pure wild-assed speculation based on little more than folks own biases… that’s the big downside of the internet and availability of data – everyone becomes a “scientist”… who knows how to do statistical analysis and other sciences… no degree needed.. no training needed.. just look for a correlation in the data and go from there!

  11. This is surreal. Of course we keep track of people by categories — categories often irrelevant to the government service being rendered at the time, simply to: keep track of the numbers in each category. Why? Because the numbers in those categories may help us predict future behavior, future needs for services. If it weren’t for this predictive potential there’d be no excuse for gathering the data. What future use to the State is data on the number of mixed race marriages? None, that I can see, except perhaps to prove the point that as a society we’ve moved on. So drop it! But, ahah, there’s a State law that says we must keep track of this data even if it’s unneeded and useless. I’m with Rockbridge County there: nullify one bureaucratic stupidity with another, and have a good laugh while you’re at it.

    Can the AG nullify such a law unilaterally? Of course not. But he can declare a law unenforceable (and therefore ignorable) by declaring it, in his considered opinion, unconstitutional. And I suppose that includes not only laws that imposed a plainly unconstitutional requirement (like the old law forbidding miscegenation) but laws whose only purpose was to implement the unconstitutional requirement. And I’ll give him the benefit of the doubt as to whether requiring me to declare my race on a marriage certificate was “only” to implement that requirement, or still has some other legitimate data collection purpose today.

    So, go on, tell me what that other legitimate purpose is. I dare you. Double dare you.

    Crickets, folks! So why bring it up? It’s not to catalog every requirement in the Code of Virginia that’s become a “dead letter” law — there are pages and pages of those. It’s not to shame the clerks of court out there who have enforced this requirement of the law because, well, that’s what clerks of court do. No, what you have done is try to embarrass Herring for relieving ordinary folks who just want to get married from answering a question that bothers some of them, a question whose original purpose was unconstitutional and is now without a purpose.

    Thank you, Mr. Herring.

    • “And I’ll give him the benefit of the doubt as to whether requiring me to declare my race on a marriage certificate was “only” to implement that requirement, or still has some other legitimate data collection purpose today.

      So, go on, tell me what that other legitimate purpose is. I dare you. Double dare you.”

      The man claims to be the Attorney General of Virginia whose oath is to uphold the law of the Commonwealth but here and most everywhere else recently he acts like a cheap and third rate demagogic politician who will do anything, create any new con-artist show, to get black votes and to signal his nihilist progressive virtue and tactics that now run rampant on the left wing of the Democratic party acts, to demagogue false and contrived issues so as widen ever further divisions and acrimony between citizens. He does this gratuitously but with deeply corrupt purpose to serve his private interest at horrible public expense. He fools citizens. And hopes they will jump aboard and cheer their own virtue and superiority too. But Herring the instigator and Va AG is worse. He pretends that race should not be an issue here in this one particular long obsolete case (an accepted no brainer) while he ignores all other cases of bad law that do real damage and harm to everyone involved.

      In practical effect, like Backface Northam, Herring in fact obsesses over race in every step and gesture he takes, all intentionally designed to gain personal political advantage by demagogue issues in order to win the next election for governor of Virginia. This instant, in practical affect, is no different from Northam’s scare redneck truck video played in the last Va. governor election cycle. It is race baiting of the worse sort to win critical black votes for Herring.

      At the very same time, of course, this awful law on the books should be changed along with almost all these awful and toxic laws in the books that require all of us to declare our race in order for a corrupt government to judge us, treat us differently and use us for political advantage, pitting us one against the other for the benefit of craven politicians like blackface Herring and Northham, all on the basis of a construct that is false, bogus, and toxic in most all but a few limited cases.

  12. Clerks of Court are elected. They don’t work for the Attorney General any more than a Republican delegate works for the RPV. As for constitutionality – is it unconstitutional to ask for a person’s race on a government form? I don’t know but I doubt it.

    Herring seems to be morally correct but procedurally in error.

    If all the counties and cities in Virginia have different definitions of race it seems hard to imaging what statistical value requiring race on a marriage application serves. It sounds like a holdover from the Byrd Machine.

    Given Herring’s interest in blackface I imagine he considers himself race-fluid. Perhaps that’s why this so troubles him.

    Up next – why does the state ever need to know the sex (gender) of a citizen?

  13. “Relatively speaking, Virginia became steadily more corrupt until today, in my opinion, Virginia is America’s most corrupt state.”

    That is A VERY BIG conclusion that is based on what exactly??

    “As Texas born historian and political scientist V.O. Kelly wrote … Virginia after World War II is a “museum of democracy” housing all the symbols of government by the people, but none of the substance.”

    True, he wrote that . . . 80 years ago

    • 2019 – 80 = 1939. Would be kind of hard for VO Key (My mistake with the typo on the comment) to have been discussing Virginia after World War II in 1939.

      Take campaign contribution limits at the state level. Only four states allow unlimited campaign contribution limits. In news that should surprise nobody Virginia is one of those four. When do you think the other 46 states enacted their campaign contribution limits? 1789? Most states, by far, establish limits that are periodically raised to reflect inflation. At the same time the rules are usually tightened around vendors making contributions / gifts, disclosure requirements, ethics investigations, etc. In 2013 both Florida and Maryland significantly tightened their campaign finance laws. In New Jersey a series of scandals brought about some of the most sweeping ethics laws in the country. In 2008 Governor Bobby Jindal drove sweeping ethics reform legislation to help rid Louisiana of its well earned reputation for corruption. Financial disclosure requirements were implemented for nearly every public official and caps were placed on how much lobbyists can spend on meals and drinks. Illinois passed campaign finance limits for the first time in 2009.

      An interactive assessment of the strength of the democratic process in each of the 50 states (and DC). Virginia? 50th out of 51.

      https://healthofstatedemocracies.org/

  14. This discussion has given me an insight I did not have.
    A society which values the rule of law should be zealous in removing obsolete laws.
    Should every law have a sunset?

    • It certainly seems like we need an effort to locate politcally incorrect, out-dated statutes and get rid of them before New York Times drags us over the coals.
      I’d bet dollars to donuts my New York marraige license asked me race some years ago, now they are sending social justice warrior mobs to southern states to scream bloody murder over states who may not have updated those old laws.

  15. Interestingly now race doesn’t have to be indicated on a marriage license. The bigger question is why do we need permission from the State to get married? Should we not abolish this licensing requirement. Just notify the State when two people are married.
    As far as I know marriage is the only decision we make in a life time requiring us to “be approved” by the government. We can choose to have kids, choose where we work, where we live, where we go to college, when and where we travel, what car to buy, etc. Why do we need the approval of the State prior to marrying?
    As long as the GA is looking at the law, how about just deleting the license requirement to marry?

  16. Does anyone know if there is or has even been a process for anyone — state or non-profits — to review and amend or void outdated or currently unwanted laws?

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