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Louisiana Justice of the Peace Violates the Constitution – and His Reasoning Strikes a Familiar Chord

by Professor Will Huhn on October 18, 2009

in Civil Rights,Constitutional Law,Wilson Huhn

     This much is obvious.  Keith Bardwell, an elected Justice of the Peace in Louisiana, violated the Constitution when he refused to marry an interracial couple.  People have not paid too much attention to the reason that he refuses to marry people of different races.  That reasoning is instructive.

     Keith Bardwell is Justice of the Peace for the 8th Ward of the Tangipahoa Parish in southeastern Louisiana.  Bardwell made national news when he refused to marry an interracial couple, Beth Humphrey and Terence McKay.  Here is a report from CNN on this matter and an AP report posted at ABC. 

     Bardwell's action was a clear violation of the Constitution.  In 1967 in the case of Loving v. Virginia the Supreme Court ruled that a state law prohibiting interracial marriage was unconstitutional – a violation of the Equal Protection Clause.  In this case, Bardwell was not enforcing a state law, but rather was breaking the law by refusing to marry this couple.  That does not make his act any less a violation of the Constitution.  Whenever public officials take action "under color of law" – that is, in their official capacity – it is state action and the Constitution governs their conduct, whether they are obeying or disobeying state and local laws.   This principle was established in 1879 in the case of Ex Parte Virginia, in which a judge, acting on his own inititive and without support under state law, had deprived blacks the right to sit on juries.  The Supreme Court ruled this act constituted "state action" which is prohibited by the Constitution – that the act was performed "under color of law" even though it was illegal.  The Court stated:

     A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning. Then the State has clothed one of its agents with power to annul or to evade it.

     Accordingly, Bradwell's refusal to marry Humphrey and McKay was a violation of the Constitution.

     What has not received as much attention are the reasons that Bardwell gave for refusing to marry interracial couples.  He claims that he is not a racist – he is just thinking of the children.  Here is the explanation that he gave to the Associated Press, according to this article by Mary Foster:

I'm not a racist. I just don't believe in mixing the races that way," Bardwell told the Associated Press on Thursday. "I have piles and piles of black friends. They come to my home, I marry them, they use my bathroom. I treat them just like everyone else."

Bardwell said he asks everyone who calls about marriage if they are a mixed race couple. If they are, he does not marry them, he said.

Bardwell said he has discussed the topic with blacks and whites, along with witnessing some interracial marriages. He came to the conclusion that most of black society does not readily accept offspring of such relationships, and neither does white society, he said.

"There is a problem with both groups accepting a child from such a marriage," Bardwell said. "I think those children suffer and I won't help put them through it."

If he did an interracial marriage for one couple, he must do the same for all, he said.

"I try to treat everyone equally," he said.

     To their credit, both Governor Bobby Jindal and Senator Mary Landrieu called for Bardwell to be removed from office, as well he should be.  But wouldn't it be nice if they and other elected officials were to realize that the very same argument that Bardwell levels against interracial marriage is being raised against same-sex marriage – that a common reason that is given for preventing gays and lesbians from marrying is to protect their children from mental confusion or social stigma.  See for example the interview by Larry King with James Dobson, founder of the organization Focus on the Family, on March 2, 2002, where Dobson says that a gay couple cannot be a family, and in which he explains that the principal reason that he believes that gays and lesbians should not be permitted to marry or adopt children is for the sake of the children. 

     It is indeed wonderful to listen to people who "care about the children" explain why the children's parents shouldn't be allowed to marry – how much better for children if their families are not recognized by the law, if the laws of marriage and divorce do not govern their parents' relationship, if the children themselves are regarded as "illegitimate" or without a second parent altogether rather than the lawful children of a committed couple.  What humanity, what compassion, what tender concern!  One also has to admire the mental gymnastics that, on the one hand, condemns a couple to hell and damnation (or at least legal limbo) for the kind of sexual relationship that they have, and on the other extends such tender mercy to that couple's children – even though by virtue of that "mercy" the children must suffer the denial of the rights and benefits of being part of a lawful family.

     The extent and scope of slavery and discrimination against blacks in this country far exceeds the nature of discrimination against gays and lesbians.  But in this instance, from the perspective of a little child whose parents are not allowed to marry, there is no difference whatsoever.


Dave October 18, 2009 at 5:54 pm

The Justice of the peace should be removed from the office.

Same sex marriage seeks to change marriage and should be held to a higher standard. As I have offered in the past, I think polygamy is a better example of the courts stopping people from redefining marriage. The courts have routinely fought back legal attempts to recognize multiple spouses.

Professor Will Huhn October 18, 2009 at 6:20 pm

The reason that I don't think that polygamy is analogous to same-sex marriage is that gays and lesbians who want to marry are willing to commit to one person – to be faithful to that person and to form a family with that person. Polygamous or polyandrous relationships by definition are promiscuous. in contrast to same-sex unions and traditional marriage unions, in a polygamous relationship, a man says that he will not be faithful to one person. Gay and lesbian couples have far more in common with heterosexual couples than they do with multiple-partner relationships.
I believe that the only common factor you can cite between same-sex couples and people in a polygamous relationship is that they have both traditionally been the subject of religious and moral disapproval. Times change – the scales fall from our eyes – but that doesn't mean that all religion and morality is at an end. If you believe that commitment to one person is the fundamental building block of marriage, then you might be willing to look beyond gender and sexual orientation in defining what marriage is.
And ask yourself – is "commitment to one person" more likely to be achieved by the position that you take, or the position that I take? As I see it, you are telling gay and lesbian couples that they are incapable of commitment, that it is better for them to live outside of marriage than within it. I don't think that is true. I think that marriage is the foundation of the family, that families are the foundation of the community, and that our families and our communities will be far stronger if we allow and encourage gay and lesbian couples to marry.

Dave October 18, 2009 at 10:58 pm

Welcome back, Professor Huhn. Isn't this 100x more intellectually stimulating than analyzing those awful health care bills?

I think it would be more consistent for you to come out for polygamy. Apparently, all of the scales don't fall from our eyes. This is the problem with stretching things, when do you stop? This echoes our conversation about the commerce clause.

I don't know where we should stop. Who gets to make these decisions? There are those who would suggest that polygamy is more moral than same-sex marriage.

A mother and a father were biological positions. It makes some sense to extend this to adoptive parents. But it is a change from the 'traditional' family. Now that we extend the idea of parenthood to adoptive parents. Then the door is open to the possibility of having two mothers. It is a little bit farther from the 'traditional' family. If two mothers is good, then why not three? or four? And then just because you have multiple mothers, why should you be denied a male role model in your life?

Other societies embrace polygamy, and the world has continued to turn.

Every time you make changes, it opens the doors to more changes. Visualize the branches of a tree.

However far you or I are willing to go, it will be too far for some and someone will always want to take it further.

larry d. October 19, 2009 at 6:59 am

If it's commitment to one person that is the defining characteristic of state-sanctioned marriage, marriages should be legally dissolved upon the arrival of a couple's first child, or that child should be given up to the state. You used to argue that polygamy was proven historically to be inherently abusive, but I guess that's fallen by the wayside.

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