When is it Constitutionally Problematic for Government to Ask Questions about the Race of Individuals? A Dialogue Between Two Constitutional Law Scholars

Posted in: Constitutional Law

Jason: Vik, as you know, last month three Virginia couples sued their state in federal court challenging a law requiring them to identify and report their race on the state’s marriage license application form. The plaintiffs’ Complaint made four constitutional claims: (1) the disclosure requirement infringes their substantive due process right to marry under the Fourteenth Amendment; (2) it compels speech in violation of the First Amendment; (3) it works an unconstitutional invasion of privacy; and (4) it entails an imposition of “badges” and “incidents” of slavery in violation of the Thirteenth Amendment. The plaintiffs emphasize the long history of Virginia mandating disclosure of race as a means of enforcing the state’s anti-miscegenation laws prior to the Supreme Court’s 1967 decision in Loving v. Virginia. They also object to the particular racial categories that licensing clerks in various Virginia counties provided – in one county the list included “quadroon” and “octoroon” – on the ground that these categories are arbitrary, unscientific, and offensive. The plaintiffs also assert, more generally, that there is simply no reason for Virginia to demand a race designation in marriage licensing. Almost immediately after the lawsuit was filed, Virginia authorities abandoned the race-disclosure requirement; citing “serious constitutional concerns” over denying a marriage license because of an applicant’s refusal to state his or her race, Attorney General Mark Herring distributed a revised licensing application with a “decline to answer” option on the issue of race. The change means the plaintiffs can now obtain their licenses, and the state will likely argue that the case is now moot (though the plaintiffs have said they plan to press ahead with their lawsuit to obtain a ruling on the constitutional issues). In any event, several other states—including Delaware, Kentucky, Louisiana, and Minnesota—currently require individuals to provide their race on marriage license forms, so the questions presented by this episode are surely worth thinking about.

Let’s set aside for a moment the repeal of the Virginia requirement and ask whether the plaintiffs have (or had) a strong constitutional case challenging the unamended license form. I am skeptical. Although marriage is a fundamental right, this is not a case—like Loving or, more recently, Obergefell v. Hodges—where the state was denying demographic class of people the ability to marry. Virginia asks for the race of applicants, but the only consequence of supplying the information is that the marriage license issues. That is a far cry from Virginia’s pre-Loving regime, where answers to the racial identity question would determine whether a license would be available. As an administrative requirement—think of providing your name and address on the application form—the request for information about race should be valid unless it is irrational. Of course, there is a fair question as to why Virginia asks about the race of applicants. The litigation hasn’t proceeded far enough for Virginia to tell us (and perhaps it has no reason at all). But some permissible reasons are imaginable: Virginia might, for example, be collecting data on interracial marriages as part of a broader interest in assessing the character of race relations in the Commonwealth and tracking changes over time. That said, history matters: the reason Virginia offers for its racial disclosure requirement probably merits a closer look than we would give to a similar requirement from, say, Wisconsin.

The three other arguments the plaintiffs offer seem especially weak. Compelled speech generally occurs when the government forces individuals to express government-approved messages, such as by saluting the flag. Here, the plaintiffs are simply asked to disclose information, to the government, on a government form. We routinely do that, for example by filing taxes, getting hooked up to the electrical grid, or requesting a driver’s license. It is hard to see any of these things as unconstitutionally compelled speech. As to privacy, there are indeed provisions of the Constitution—such as the Fourth Amendment—that operate to protect certain forms of privacy; in the Griswold v. Connecticut line of cases the Supreme Court has inferred some particular rights grounded in privacy. However, there is no general right to keep information secret from the government that would allow for silence when seeking a governmental benefit like a marriage license. Indeed, even the Fifth Amendment’s Self-incrimination Clause—the strongest protection against forced disclosure—is not absolute: it does not protect a general right to refuse, under all circumstances, to respond to government questions. The plaintiffs’ Thirteenth Amendment argument is no better. The Supreme Court has long resisted efforts to expand the textually-specific prohibition on slavery to reach “badges,” “incidents,” and the like even if there is a plausible linkage that can be drawn to the historical institution of slavery itself.

Vik: Thanks, Jason, for teeing up such interesting questions and laying out a very plausible set of analyses. I guess I would concur in part with what you say, but not yet (given, as you point out, that Virginia still has not explained why it wants the information) concur in your (apparent) judgment that the lawsuit should have failed had Virginia not tweaked its form—and should certainly fail in light of Virginia’s decision to add a “decline to answer” option.

Let’s take the abridgement-of-the-right-to-marry claim. As you point out, while marriage is a fundamental right, not all regulations of marital procedures constitute an abridgment of the right. For example, a small license fee for marriage licenses might deter some folks from marrying but would ordinarily not require a compelling government justification to be upheld.

But as is also implicit in your remarks, when government involves itself in matters of race, judicial deference is reduced. As we both know well, whenever the government takes the race of individuals into account in allocating benefits or burdens, Fourteenth Amendment doctrine requires that the government satisfy so-called “strict scrutiny,” which means the law must be necessary to the accomplishment of a compelling governmental interest. To be sure (as you suggest) even before Virginia amended its form, there was no suggestion that Virginia would deny the benefit of a marriage license to anyone based on her race (or the race of her partner). In that sense, Virginia’s post-Loving regime did not embody a conventional racial classification. But Virginia’s (and the nation’s) former regime, in which the answers to racial-identity questions could affect marital eligibility, might still be relevant to how suspicious we are that Virginia may be trying to deter inter-racial marriage, even though it might not be attempting to prohibit it altogether. You yourself suggest that we might demand more of an explanation from Virginia, than say, Wisconsin. Right away that tells me you agree with me that we should not apply traditional “minimum rationality review” (which would ordinarily apply absent abridgement of a fundamental right or use of a suspect classification), since under minimum rationality review a court does not ask government actors to explain their genuine reasons at all, but rather hypothesizes potential legitimate reasons and stops once it finds one. As you say, it is possible Virginia is collecting data for its own internal research purposes (or perhaps facilitating outside scholars’ research), but even you would want to see a court insist that Virginia actually demonstrate this was the sincere purpose behind the racial question.

And this mid-level judicial scrutiny (perhaps aptly named “rational basis review with bite”) has some intuitive appeal. After all, one of the reasons courts are skeptical of formal racial classifications (as defined above) is that government in many settings (including marriage) has a poor track record in taking the race of individuals into account, and it seems to me government also has an uneven track record of dealing with racial data more generally. And mid-level scrutiny certainly wouldn’t invalidate genuinely well-intentioned, well-conceived collection of racial data. Indeed, because this somewhat heightened scrutiny makes sense, I think it would be appropriate to apply it to Wisconsin as well as Virginia, even though Wisconsin’s history with regard to race may not be as shameful.

On the privacy claim, I wonder how far your tolerance of probing government questions would go. For example, even if plausibly related to legitimate research, should a state on a marriage license application form be permitted to require (honest) disclosure of pre-marital sex frequency by the couple? Of course, a person’s race might be more publicly discernible than his sexual habits, but some people may not feel comfortable categorizing themselves in either domain.

On the First Amendment question, I tend to agree with you that the compelled speech claim seems like a stretch (although I would hasten to add that the Court’s cases go beyond simply banning “government-approved” messages—see the Janus public-sector labor union “fair share” fees case from a year ago). But even though the plaintiffs’ free speech claim may not be a winner on its own terms, there is an important speech angle to this case—namely, the message that the government may be sending in asking racial questions (and asking them in such an offensive way) on its forms. In Anderson v. Martin, the Supreme Court in 1964 invalidated a requirement that the racial identity of each candidate for elective office be placed next to the candidate’s name on the ballot. To be sure, there was no suggestion that people who self-identified as being of any particular race were excluded from the ballot, but the Court (rightly) invalidated the measure on the ground that the government was itself trying to send (or speak) an impermissible message—namely, that the race of the candidates should matter to the voters. As the Court put it, “by directing the citizen’s attention to the single consideration of race or color, the State indicates that a candidate’s race or color is an important—perhaps paramount—consideration in the citizen’s choice.” So too here, Virginia (especially in light of its past) could be understood as sending the message to would-be spouses that they should think about their respective races before marrying. And worse yet, that they should be thinking about their races in such crude, historically discredited ways. Government generally has a right to speak its own mind (without violating the First Amendment), but equal protection (and also Establishment Clause values) limits some kinds of government speech.

That brings me back to an issue you bracket—mootness. Undoubtedly, making optional the provision of racial information weakens plaintiffs’ compelled speech and abridgement-of-the-right-to-marry claims. But to the extent that the real problem with Virginia’s license form is that we don’t (without more explanation from the state) trust the reasons Virginia is seeking racial information or the message its racial-information requests communicate to the outside world, then there is still a case to be litigated.

Jason: These are interesting points, Vik. On the standard of review, I am sympathetic to your suggestion that something more than rational review should apply given the intersection of marriage and race and the history of Virginia’s laws and customs. But let’s zoom out for a moment. There is a temptation to spend a lot of time here trying to identify and label the precise standard a court should use in assessing the Virginia law. I think that effort is misguided. For one thing, the only constant I see in cases that adopt something other than rational review is that the government must then explain what it is doing. You can call that intermediate scrutiny or strict scrutiny; you can ask for an important government interest or a compelling interest; and you can insist on a substantial relationship or narrow fit between means and ends. I don’t think these choices matter too much. The Supreme Court itself often engages in a review that is stronger than rational deference without bothering to tell us what standard is in play. For example, in virtually all of the cases involving the criminal procedural protections of the Bill of Rights, the Court uses some kind of heightened scrutiny, but it doesn’t identify or set out the elements of the standard being deployed. Your comments are a useful reminder that the details of government action are far more important than discerning a standard of scrutiny.

A second wide-frame observation—as suggested by the hypothetical distinction between Virginia and Wisconsin—is that local factors matter a great deal to constitutional analysis and to determining whether the government has violated a constitutional right. As with Loving, Supreme Court decisions tend to adopt, and become understood as having adopted, rules that apply uniformly throughout the nation. That makes sense, but it’s also a bit misleading. Many constitutional disputes get resolved in the lower federal courts and the state courts with close attention to the particular localized circumstances in play, such that there exists variation in the application of constitutional provisions. And even if the Supreme Court rules that one state’s law violates the Constitution, there remains the possibility that a similar law in another state—supported by a stronger justification—would be valid. On occasion members of the Court (Justice Stevens for example, in his dissenting opinion in the Second Amendment case of McDonald v. Chicago) have cheered the possibility of such variation within our constitutional regime. What’s constitutional sauce for Virginia might not be so for every other state.

Let’s get back, then, to government inquiring about race. In his famous dissent in Plessy v. Ferguson, Justice Harlan thought that apart from racially segregated seating, it was unconstitutional for government officials (like the train conductor in that case) even to ask individuals their race. He wrote: “In respect of civil rights common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights.” Vik, you don’t argue that it is always impermissible for the government to ask individuals to state their race whether in exchange for a governmental benefit or for another reason. I believe that you see no particular constitutional problem, for example, with public law schools asking, as they do, candidates for admission to provide their race if they wish. After all, if a public law school can take account of an applicant’s race as one factor among many in assembling a diverse entering class, it would seem to follow that, at least as a federal constitutional matter (because state law might prohibit the practice), the school is entitled to ask candidates to state their race (at least if the question is voluntary).

Two points, though, for you to think about. One is that skepticism towards the categories Virginia makes available on its marriage form might justifiably carry over to the law admissions context. For most law schools, candidates submit their application materials through the Law School Admission Council (LSAC)’s system. When candidates sign up to create an online LSAC account, “ethnicity” is one of the required fields. Currently (for there has been considerable variation over the years), LSAC asks candidates to select, by checking a box, “one or more races/ethnicities.” LSAC offers nine broad categories, including “Asian” and “Hispanic/Latino.” Some of these categories are broken down into further sub-categories. For example, within “Hispanic/Latino,” the available choices are “Central American,” “Chicano-Mexican,” “Cuban,” “Other Hispanic/Latino,” and “South American.” A candidate cannot choose a general designation of “Hispanic” or “Latino.” By contrast, “Black or African American” exists as a single category.

Unlike the challenged Virginia marriage licensing form, LSAC permits applicants to indicate that they decline to select from the available racial and ethnic categories. (Separately, LSAC requires candidates to indicate whether they want LSAC to report the information they provide about race and ethnicity to law schools.) Nonetheless, the critic of Virginia’s marriage categories—as lacking precision and failing to capture the nuances of identity—might also take issue with LSAC’s approach. One point of criticism is that some groups have more options than do others. Within “Caucasian/White,” for instance, there is a single category for “European” that apparently encompasses Nordic and Greek heritage alike. Caribbean Americans or Nigerian Americans might think that “Black or African American” is too broad. Where LSAC does provide more particularized options, its choices are also questionable. Within “Asian,” for example, LSAC has nine sub-categories that match onto national identity—“Cambodian,” “Chinese,” “Filipino,” “Indian,” and so on—plus a tenth for “Other Asian.” But for the U.S. citizen candidate who identifies as “Chinese American,” neither “Asian” nor “Chinese” would be quite right. Within “Asian,” LSAC offers a choice for “Pakistani” but not for “Bangladeshi.” “Puerto Rican” is an entirely separate category from “Hispanic/Latino.” And within “Hispanic/Latino” there is the sub-category of “South American,” which could include indigenous Peruvians along with Argentinian Jews.

LSAC’s taxonomy is, of course, not leftover from a prior system of segregation (and law school candidates need not make any selection at all). Nonetheless, it is fair to ask whether the Virginia marriage license applicants, who take issue with claims to “uniform standards purporting to establish racial identity” and insist that “we are free to define ourselves as we wish,” would approve of the choices that LSAC offers. In sum, recognizing that Virginia’s taxonomy is crude and offensive might well lead us to ask about others in current use.

A second point, Vik, is that there might be a more positive account of race and marriage than the one you offer. You emphasize the discomfort of individuals in identifying their own race, compare disclosing race to disclosing one’s sexual practices, and see government inquiries about race as suggesting disapproval of interracial marriage. Law school candidates, though, are encouraged to describe their racial background and its significance (something they might not even have thought about before); admissions officers cultivate racial diversity for its broad social benefits; and law schools regularly report on the racial makeup of their classes. Might race also be a positive in marriage? Perhaps. Maybe a state, particularly one that once banned inter-racial marriages, now celebrates those marriages not just for the private benefits that come from a happy union but as evidence of increased cross-racial tolerance within the state. Perhaps there are already high numbers of interracial marriages occurring within the state, but large portions of the public view them as rare, there remain pockets of public opposition, or individuals who marry somebody of a different race fear or experience negative reactions. Asking about race and publicizing data can serve to correct misperceptions and thereby to send a positive message. Law schools are obviously different from marriages. But if we think it’s proper and beneficial to ask about race on the path to a law license then there might also be a good case to be made for doing so when it comes to marriage licenses. That case might not be Virginia’s. (And I adhere to my original view that now that the couples have received their licenses their lawsuit is moot.) But perhaps we’ll see a challenge to the laws of another state with a different history and its own goals.

Vik: Thanks, Jason. A ton there. Very briefly, I agree that standards of review are useful but overrated; as I frequently tell students, these standards of review are not self-executing. But the requirement of all heightened scrutiny that government show its genuine reasons is an important one. On the comparison of marriage to law school admissions, there is a lot to chew on, and I think there are many distinctions, but we’ll have to explore the admissions arena in another column. In the meantime, I’ll be very interested to see whether the marriage license application form question proceeds to be resolved on the merits in Virginia or elsewhere.

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