Injustice of the Peace: the Louisiana interracial marriage story and why it matters

October 17, 1:39 PMWedding and Marriage ExaminerElizabeth Oakes

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It is unfortunate that children of interracial marriages do not gain acceptance
                                                 in our society.
  photo: Pete Souza, official White House photographer/free U.S. download

Surely you've heard by now about Keith Bardwell, the Louisiana Justice of the Peace who refuses to marry interracial couples because he doesn't believe in the mixing of races (and his claim that he isn't a racist because he lets his numerous black friends use his bathroom.)  Reactions have ranged from outrage at the existence of racism in 2009 and citations of Loving v. Virginia, to defense of Bardwell's stance and statements that no one should be forced to marry people if they don't want to.

But the Bardwell flap points up a very important issue, one that cuts to the heart of our current debate about same-sex marriage and one that most citizens don't seem to understand: the difference between a civil vs. a religious credential to marry people. 

In short, our Constitution protects discrimination in marriage services if they take place under the auspices of a religious institution. That's why religious organizations can refuse to marry gay couples or any couple they deem unfit for any reason (cohabitation, for example.)  However, that same Constitution is also supposed to provide equality in marriage and its attendant benefits under civil law (DOMA aside, and halevai it will be aside soon.)

Here's how it works: for the most part, the Feds can't interfere with policies concerning the marriage, employment, or faith practices of a religious institution AT ALL.  That's why your local Catholic diocese doesn't have to hire women as priests, why Mormon churches could not be forced to allow African-Americans to be part of their priesthood (they revised that policy on their own in 1978) and why any religious org that wants to can decline to marry same-sex couples without fear of retribution--though there were false claims to the contrary during CA's marriage equality battle, naughty naughty.

Religious orgs can also ordain anyone they like with or without any credentials, qualification, or background checks if they please, e.g. internet ordination sites do not vet their ministerial applicants, nor do many storefront religious non-profits. A willingness to do pastoral work is all that is required.  Due to our First Amendment and subsequent Supreme Court rulings about separation of church and state, these practices can't be questioned or changed by the government or via civil law.  They are what they are, and they are fully protected.  That's why gay rights groups aren't suing churches for not marrying them--it would be a pointless and fruitless exercise.

But Mr. Bardwell isn't a religious officiant, and that's why he's in a heap o' trouble.  Yes, he is entitled to his beliefs--he can even refuse to let black people use this bathroom, if he wishes--but not when he is providing wedding services as a public official of the fine State of Louisiana.  When one is an elected or appointed state official, one is usually required to render services on an equal basis.  At least, that's what most state laws require; we are talking about Louisiana here, not known as a hotbed of activism re: racial equality though this case might help change that.

So what will happen to Mr. Bardwell for violating his civil trust?  The LA Judicial Code of Ethics states that officials must "perform judicial duties without bias or prejudice"--but that code may or may not have force of law, as those rules are created by the LA Supreme Court, not through regular legislation.  If and how the rules will be enforced remains to be seen. The ACLU doesn't seem inclined to sue, but they have sent a letter to the Louisiana Judiciary Commission asking that Bardwell be investigated, and the NAACP and Center for Constitutional Rights and Justice have also called for Bardwell's dismissal from office.  Bardwell says "I stand by my decision, and it is my right not to marry an interracial couple."  Which is true--as long as his credential to perform marriages is religious, not civil.  Whether he will retain or lose his state credential is unclear.

But there's an easy fix for Mr. Bardwell if he wishes to provide weddings only to those he chooses: he can step down from his civil position and obtain a religious ordination. Then he can discriminate all he wishes on the basis of his beliefs, and the ACLU and LA Judicial Commission can't touch him.  Lousiana law requires him to register as a clergyperson with the local court clerk in order to perform weddings with a religious credential, and even if discrimination complaints come down it's unlikely they will be pursued.  In states that have wedding officiant registration, permits are usually only revoked for criminal acts like fraud, because government and the courts are reticent to involve themselves in judgments concerning faith practices.

After pondering this story for a while, I found myself feeling a little sorry for Mr. Bardwell.  He's old enough to remember Louisiana when it was much more segregated, and when (perhaps) friends and neighbors would say things like, "I wouldn't let a [racist epithet] into my house, much less let one of them use my bathroom."  So maybe Mr. Bardwell felt that letting black people use his bathroom was enough to ensure he wasn't being racist in his policies regarding interracial weddings.

But what Mr. Bardwell is learning now--and hopefully, taking to heart--is that it's not enough to just let them use your toilet.  To really not be a racist, he must accord them the same respect as anyone else, including the presumption that they know their own minds about getting married and that he should refrain from judgment about their choices to have children, divorce, or live a lifestyle of which he doesn't approve.  If Mr. Bardwell is concerned about high divorce rates for interracial couples (? and this is news to me) and the "lack of acceptance" of interracial children in society, what are he doing to make those circumstances better, to increase acceptance?  That would be what a truly non-racist man would do.

Refusing people who love each other wedding services isn't going to do it, Mr. Bardwell.  Putting more love in your heart for interracial couples and their kids--and yes, accepting them fully despite what the neighbors say--is how we'll improve the situation.  Are you man enough to do it?  The nation is watching.

Until next time, and sweet and long life to you all (including you, Mr. Bardwell.)

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