William & Mary Journal of Race, Gender, and Social Justice


This Note argues that mandatory disclosures of personal information—specifically race, sex, and gender—on a marriage license application constitute compelled speech under the First Amendment and should be subject to heightened scrutiny. Disclosing one’s race, sex, or gender on a marriage license application is an affirmative act, and individuals may wish to have their identity remain anonymous. These mandatory disclosures send a message that this information is still relevant to marriage regulation. Neither race nor gender is based in science; rather they are historical and social constructs created to uphold a system of white supremacy and heteronormativity. Thus, such statements are not facts which ought to be compelled by the government, particularly within the sphere of marriage, which falls within the penumbra of privacy under the Bill of Rights. These statutes should be struck down as unconstitutional. At a minimum, states should follow Hawaii’s lead to make these disclosures optional. Even better, similar to California, states can eventually explicitly forbid the government from collecting this information on marriage license applications at all.