| RICHMOND (January 13, 2022) – At the request of Senator Mamie Locke and Delegate Lamont Bagby, Attorney General Herring has issued an official opinion overturning Virginia’s historic racially discriminatory opinions, including opinions concerning the unconstitutional denial to election participation, the right to marry, and participation in society and education. Attorney General Herring concludes the opinion by saying, “[t]he opinions listed…are hereby overruled to the extent they apply or interpret racially discriminatory state laws.”
“For too long, many of the Commonwealth’s laws unconstitutionally discriminated against Black Virginians in an attempt to keep them down, and the unfortunate reality is that attorneys general employed these racist laws with that same goal in mind when issuing opinions,” said Attorney General Herring. “While these discriminatory and racists laws are no longer on the books in Virginia, the opinions still are, which is why I am proud to overrule them today. We are not the Virginia we used to be, and in order to truly be the Virginia that we want to be in the future we need to remove any last vestiges of these racist laws.”
“During the dark days of Jim Crow and Massive Resistance, the Attorney General was more often an opponent to be defeated rather than a friend to be counted on; a guardian of an inequitable status quo, rather than the rights of his constituents,” said Senator Mamie Locke. “We have come such a long way as a Commonwealth, and I believe we have been so lucky to have an attorney general for the last eight years who put the protection and expansion of Virginians’ civil rights at the center of his work and at the heart of his mission. By reversing and overruling these racist and discriminatory legal opinions, Attorney General Herring is correcting an historical injustice and showing the true character of our Commonwealth in the 21st century.”
“When an attorney general speaks, their words carry weight. They help shape and influence the law, and they send a message about who in Virginia gets to enjoy the protections of the law,” said Delegate Lamont Bagby, Chair of the Virginia Legislative Black Caucus. “Too often in the past, the power of the Office was wielded in support of unjust and unconstitutional laws that were racist and discriminatory. By taking this step, Attorney General Herring is truly closing that chapter in the history of our Commonwealth and helping us move forward as a more inclusive and just Commonwealth.”
“These opinions, unfortunately, shaped the laws, life, and culture of the Commonwealth for too long. And while many of those opinions have been legislatively changed, today’s ruling by the Attorney General is an important step towards true reconciliation,” said Virginia State Conference NAACP President Robert N. Barnette, Jr. “Thanks to the leadership of Attorney General Mark Herring with the support of Senator Mamie Locke and Delegate Lamont Bagby, Virginia’s Office of the Attorney General is moving in the right direction to finally overturn 58 historically discriminatory opinions of this office.”
“This is an historic achievement and an important step in acknowledging and growing beyond the injustices perpetrated by past attorneys general,” said Cynthia Hudson, former Chief Deputy Attorney General of Virginia from 2014-2020, and the chair of the Commission to Examine Racial Inequity in Virginia’s Law. “This move by Attorney General Herring is a perfect complement to our work on the Commission to Examine Racial Inequity in the Law. Just like Virginia wiped racist, outdated laws off its books in recent years, so too should it wipe away racist, outdated legal opinions that supported and helped to implement those laws. I was so proud to help get this project off the ground during my time in the AG’s Office, and I’m thrilled to see it come to fruition.”
Between 1904 and 1967, Virginia attorneys general issued at least 58 opinions that either applied or interpreted racially discriminatory state laws, including laws that imposed poll taxes and other racial restrictions on voting; prohibited interracial marriage; mandated segregation in public schools; and established Jim Crow-style segregation in public transportation, places of public accommodation, and other social spaces. Each of these opinions, “represent part of the long history of racial injustice in Virginia that disenfranchised Black citizens and stood as a bar to their political and social advancement…show support for racially discriminatory state laws…[and] in some way supported the continuation of a legal system that heavily discriminated against Black Virginians—and some actively championed it.”
As Attorney General Herring highlights in the opinion, “[t]he Commonwealth’s history is marred with the persistent legacy of slavery and racial injustice. Through the Civil Rights movement and the development of federal Equal Protection doctrine, Virginia has made important strides towards approaching racial equality. Sadly, past Virginia Attorneys General have often promoted racist policies, as when the Commonwealth opposed interracial marriage in Loving v. Virginia. But in recent years, the Office of Attorney General has become an active force for equality, among other actions, establishing Virginia’s first Office of Civil Rights, removing barriers to the removal of Richmond’s Robert E. Lee statue before the Supreme Court of Virginia and other symbols of Confederate propaganda, and opposing discrimination in housing, employment, and education.”
In his opinion, Attorney General Herring breaks down the 58 opinions that he has overruled into three categories:
Unconstitutional Hurdles to Election Participation: Poll Taxes, Literacy Tests, White-Only Primaries, and Segregated Voter Registration Lists
For decades, the Commonwealth placed enormous barriers on exercising the right to vote on the basis of race, through things like poll taxes, literacy tests, white-only primaries, and segregated voter registration lists. During this time, Virginia attorneys general issued many opinions either applying or interpreting these discriminatory laws to further help prevent Black Virginians from exercising their right to vote.
As Attorney General Herring says, “The historical usage of poll taxes, discriminatory literacy tests, white-only Democratic primaries, and the use of segregated voter registration lists to disenfranchise Black individuals was wrong and unconstitutional. Opinions tied to disenfranchisement must be acknowledged as bad precedent, like the statutes and constitutional provisions they interpreted. [These] prior opinions of the Office applying these racially discriminatory practices used in election laws are hereby overruled.”
Unconstitutional Denial of the Right to Marry: Anti-Miscegenation Laws
The Commonwealth’s prohibition of interracial marriage eventually led to the landmark decision in Loving v. Virginia in 1967. Prior to that ruling, Virginia attorneys general had used these anti-miscegenation laws to issue various opinions, including “advice to a clerk issuing marriage license on how to assure both applicants were ‘white,’ and advice to a requestor on how an interracial marriage could be recognized as dissolved.”
Attorney General Herring concludes this section by saying, “[t]he prior opinions of this Office applying or interpreting Virginia’s formerly-in-place anti-miscegenation laws are all hereby overruled.”
Unconstitutional Denial of Equal Participation in Society: Segregation in K-12 Schools, Higher Education, Jim Crow Laws
Unfortunately, for too long Virginia had laws on the books to make it harder for Black children and adults to have equal access to public education, including school segregation that went back to the establishment of public schools in the Commonwealth in 1870. Opinions issued during this time used these discriminatory laws to perpetuate the educational divide between Black Virginians and White Virginians, including one opinion “suggesting that school officials could be justified in considering integration to be exceedingly injurious.”
Other opinions used these discriminatory laws to help keep Black Virginians out of the Commonwealth’s institutions of higher learning, and even after the landmark Brown v. Board of Education decision, a Virginia attorneys general issued numerous opinions to either work around segregation in schools or even “advice on how to execute Massive Resistance on the state legislative level: stating that some solution must be found that would ‘save, as far as possible, the public school system from that serious impairment or destruction which mixing of the races would surely bring,’ and ‘[t]he defense to be conducted hereafter must be one against the crippling and disastrous effects of the decision of the Federal Supreme Court.’”
As Attorney General Herring states, “Virginia’s wrongheaded defiance of the law crippled the opportunities of a generation of students; the rationales underlying it were wrong and they are all hereby overruled.”
You can find a comprehensive list of Virginia Attorney General opinions that Attorney General Herring has hereby overruled with today’s official opinion here. |
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