the devils advocate checks in denying marriage services

The Devil’s Advocate Checks In: Denying Marriage Services

October 16th, 2009 | By: Michael Merritt

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Today, I was directed toward an article in the Hammond, Louisiana Daily Star about a justice of the peace who refuses to marry interracial couples (emph. mine):

A justice of the peace said he refused to issue a marriage license to an interracial couple last week because of concern for the children who might be born of that relationship.

Keith Bardwell, justice of the peace for Tangipahoa Parish’s 8th Ward, also said it is his experience that most interracial marriages do not last long.

I guess, as they say, anecdote doesn’t equal data.  I speak as someone with two adult cousins produced out of an interracial marriage, and yes, their parents are still together.

But this article isn’t about what might happen in an interracial marriage.  It’s about the decision of the Keith Bardwell, and for the sake of argument, I’ll take the unpopular position and say, “Why not?”

Besides the fact that it’s Louisiana state law that interracial couples cannot be denied a marriage, or “it’s wrong,” can someone actually give me a well thought-out reason as to why Bardwell must marry interracial couples?  He seems to make a good point, doesn’t he?  He believes children will be better off in a single-race relationship.  After all, he says himself that he marries black couples.  So, I’ll take him at his word that he’s not racist, even if a little old fashioned.

What I’m getting at, of course, is the relation of Bardwell’s argument to that of opponents of gay marriage.  Think about it.  Isn’t it conceivable that if Louisiana were to pass a law allowing gay marriage that people like JOTP Bardwell would possibly be granted an exemption based on religious belief?  His arguments about the best situation for children are nearly identical to those used by gay marriage opponents.  If a person can believe that a gay couple is the wrong match for raising a child, how is this different from believing that an interracial couple is also incompatible with proper parenting?

If we have to accept the argument that gay parents would be bad parents, why also not the argument that interracial parents would be bad parents?  I think that if we allow marriage officials to deny their services to gay couples, we must also do this for interracial couples, as well as white couples.  A JOTP or clergyman might determine that any of these pairings is incompatible for parenting, so it only seems fair in the eye of the law to make exemptions for all types of marriages.  To do so otherwise would be discrimination against marriage officials.

Am I right, or am I wrong?

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  1. Tedy

    October 16th, 2009 at 07:21

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    #1

    What is the purpose of having civil rights laws if people can choose to personally abide by them? How about I discriminate based on income? Or national origin? Maybe two Americans are going to create a more stable household than an American and a foreign-born person since they have more in common? Should we have some kind of official government matchmaker to ensure ideal parenting?

    The point is parenting is an enormous challenge for EVERYONE. One couple will have numerous advantages AND disadvantages over another. It’s impossible to accurately quantify the difference. The answer is to err on the side of freedom of choice. Those with good intentions will try their best to raise their children right. Many have, are, and will continue to have setbacks. This is life.


  2. Bonny

    October 16th, 2009 at 07:33

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    #2

    It’s funny ho the NAACP will jump in to fight for this, but they won’t jump in to fight for equal rights when it comes to gays. Blacks don’t deserve equal rights until they start to accept that others also deserve equal rights, blacks didn’t support gays in CA and they don’t support them in general.


  3. LV

    October 16th, 2009 at 08:35

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    #3

    First, Why does a marriage, any marriage, assume children? Why doesn’t the judge just ask if either party has a history of child abuse, and refuse to marry those couples that do? Statistics show that they’re more likely to continue the cycle.

    Second, This judges beliefs are irrelevant. There may be judges on the bench who believe that couples who marry young won’t last. There may be judges who believe that people who marry in their 40’s will give birth to children with birth defects. If judges were allowed to issue marriage licenses this way, no A-list celebrities would ever get married.


  4. ED

    October 16th, 2009 at 11:01

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    #4

    Keith Bardwell position is obviously not correct. He represents state law in his position.

    To add habits of homosexuals to this discussion is based on a logical flaw – “Argument from spurious similarity”.

    Positions towards homosexuality depend on worldviews. It is an entirely different topic.


  5. Mark Woods

    October 16th, 2009 at 11:30

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    #5

    To assert that this discussion is based on a logical flaw – “Argument from spurious similarity” is a misapplication of the rules of logic: The relationship between same-sex marriage and interracial marriage is neither spurious nor superficial, as it is applied to two human adults, and as a form of discrimination, both have the same effect, i.e., of preventing consenting adults from marrying the person of their choice. There are further relationships between the two that go beyond a superficial similarity, including the motivation for these forms of prejudice, which is often religious or cultural.

    I would assert that this assertion by ‘Ed’ is spurious, and intended to deflate any examination of the overlapping realities of these issues, which the log’s author has effectively done.


  6. Matthew in NYC

    October 16th, 2009 at 12:39

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    #6

    If Mr. Bardwell were a minister of religion, he might be able to decline to marry a state qualified couple because they don’t satisfy the requirements of his religion. For example, a Catholic priest can decline to marry a couple where one or both have been divorced, their ex is still alive, and they don’t have the benefit of a catholic annulment. Mr. Bardwell, however, is a justice of the peace, his role is purely civil, not religious. As a representative of the state, his role is to issue marriage licenses to those qualified couples who request it and are qualified to marry under Louisiana law. If he has moral objections to some couples, he should resign as a JOTP, as a civil servant, if you can’t do your job, you resign. The same would apply in Iowa, Massachusetts, Vermont etc., if a JOTP can’t marry all legally qualified couples, including same sex couples, s/he shouldn’t continue as a JOTP.


  7. tony smith

    October 16th, 2009 at 14:01

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    #7

    Um — in 1967 the Supreme Court held that prohibitions of interracial marriage violated two separate parts of the Constitution (the Due Process Clause and the Equal Protection Clause). So, I find your question bad on many levels. Aside from his racism (yeah — fearing “race mixing” is racist!), a judge is blatantly violating the Constitution 42 years after the fact. This is deplorable. Bringing same-sex marriage into this issue is a distraction. The SCT has not ruled on same-sex marriage yet. In those states where it is legal, however, judges must treat those couples like all others.


  8. Karen

    October 16th, 2009 at 14:27

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    #8

    You are intensely wrong.

    This man is paid to do a job, and if he refuses to fulfill his duties he should be sacked, just like pharmacists who don’t want to fill birth control or abortive medication prescriptions. Once you’ve chosen a career, you do the work involved.

    What if an EMT was called to help someone injured from doing something illegal or just stupid and refused to save that person’s life because the EMT believed the victim’s actions warrant death.

    It simple: if you don’t want to do a job, you don’t get to keep the job.


  9. yellowfish

    October 16th, 2009 at 14:42

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    #9

    Geez… should they go the judge in the first place? I really don’t know if anyone go to church any more. Church’s teaching is somewhat irrelevance to our modern time.


  10. WIDTAP

    October 16th, 2009 at 16:21

    @yellowfish Who says they did not want to get married in a Church? Read the article again. It says “he refused to issue a marriage license”.

    Remember Church also teaches “To Caesar what is Caesar’s and to God what is God’s.” Churches cannot issue marriage licenses. Judges cannot administer sacraments. They are two different things. To be married in the eyes of the law, you need a marriage license.

    The law of the United States, affirmed by the Supreme Court in Loving vs Virginia way back in 1967, is that no one can refuse to issue a marriage license because the couple is of different races.

    This judge is a racist. Multi-racial children can grow up to be happy and successful. They can even become President of the United States.

    Frankly, two people in their 30’s are better able to determine if they are ready to commit to a marriage and make it last than this judge is.


  11. Nick

    October 16th, 2009 at 16:27

    A beautiful country we live in. I find it amazing that you were somehow able to rationalize racism. What year is this again? Jumping to same-sex marriage was just the icing on the cake. Bravo Mr. Merritt, you make me proud to be human.


  12. CStanley

    October 16th, 2009 at 17:25

    Nick, I assume that the use of ‘devil’s advocate’ in the title and post indicates that Michael doesn’t actually believe the argument that the judge used is correct. Instead, I think what he’s trying to get readers to think through is how this argument might be the same as that used by some opponents of gay marriage.

    I think that line of thinking has some merit, although I think there’s a slight difference in the rationale between what this judge stated and what is said in opposition to gay couples raising children. In the case of the latter, some will argue that the gender roles of the parents is a legitimate factor in parenting which should be considered (while race of the parents is really not defensible along those lines.)

    IOW, those who oppose gay parenting have at least some principle to stand on which may or may not be supported by psychology and child development experts (and may or may not be moot if gay parents were to include other people in their community to provide male/female role models for their children.) Those people who take this position aren’t really relying on what this judge used as the rationale, which seems to be that the biracial family would face more pressure and stress from being ‘different’.


  13. Raquel

    October 16th, 2009 at 17:33

    Bonny your statement makes you appear under educated and like a bigot. First of all as a African-American woman I know that I deserve equal rights because my ancestors built this country while yours sat on their behinds and lived off the fruits of their slaves labor. Not to mention raping their house slaves and selling off thier husbands, so screw you. Secondly, apparently you have never been to the midwest because guess what some african americans are homosexuals too, my sister being one herself. And I love her dearly and my family treats her know different than before she expressed her decision to date women. So please do not insult my race with crude opinions. Everyone deserves equal rights because we are all human, no human is better than the next no matter what their skin looks like or what their preferences in life are. By the way we are in year 2009, get over yourself.


  14. bluprntguy

    October 16th, 2009 at 17:36

    Michael’s point was that this justice of the peace is refusing to issue a marriage license because he feels that the children will be harmed. Its the same argument currently being used succesfully in Maine (and other states) to eliminate the rights of same sex couples to wed. If we can currently make baseless distinctions on the ability of people to raise children based on their sexual orientation, we certainly must be able to do the same on a whole range of traits, including race.

    Freedom for ALL requires FREEDOM FOR ALL.


  15. Tully

    October 16th, 2009 at 17:37

    First off, Judges or JP’s don’t generally issue marriage licenses, nor do I believe that’s what LA law requires. What JP’s and judges may generally do is SIGN the already-issued license, acting as the officiant of the marriage in lieu of the traditional clergy. So I see a BIG problem with this story. It says in the first para that the JP refused to issue the marriage license. But licenses come from the parish/county clerks, NOT from the courts or JP’s. And voila! Digging deeper into the story…

    Humphrey said she called Bardwell on Oct. 6 to inquire about getting a marriage license signed. She says Bardwell’s wife told her that Bardwell will not sign marriage licenses for interracial couples.

    IOW, they already had a validly issued marriage license. Refusal to issue a license to them based on race would indeed be discrimination. There is no law against interracial marriage in Louisiana. But apparently that did NOT happen. (There is LA law against gay marriage, which makes that comparison facially spurious. A JP refusing to marry a gay couple would simply be refusing to violate the laws of the state — laws s/he is bound by oath to support. And any LA clerk issuing a gay couple a marriage license would likewise be violating the law, and any such marriage would be invalid in the state regardless of who officiated.)

    Now, to sign that already legally-issued license is to fulfill the role of officiant, which role is reserved in LA law for JP’s, judges, and clergy. Namely whoever administers the vows and qualifies in one of those three categories. But there is no law of I know of that REQUIRES a JP or judge to act as an officiant for anyone who asks.

    So, this story is being greatly misrepresented. A JP declined to officiate an interracial marriage for his own personal reasons. Just as any minister may decline to officiate at any marriage for whatever reason. Officiating at marriages is not a legally required duty of being a JP but an optional perogative of office (he doesn’t HAVE to sign a license for anyone if he doesn’t want to) and he’s well within his rights to decline to do so for whatever reason … or none. And that is NOT a violation of the rights of those for whom he refuses to sign.

    I have the legal capacity in my state to SIGN a marriage license as an officiant (assuming I actually officiate…) but that in NO way, shape, or form REQUIRES me to do so if I don’t want to, for just anyone who asks. Nor does my decision either way affect the validity of their license or its issuance. Get the distinction, folks?


  16. Jane

    October 16th, 2009 at 17:38

    He’s not a judge, he’s a justice of the peace which is like being a notary.

    His stance has nothing to do with religion and everything to do with his personal beliefs.

    The reason there are laws forbidding discrimination is to ensure people who sit in a position of power, which can mean what their title is, give up the opportunity to bring their personal beliefs into a situation. He can personally believe whatever he wants to, but when he refused to issue the license based on those beliefs he broke the law which was established under Loving vs Virginia.

    People can have children without being married. Married people may not have children – for a variety of reasons. There is no pre-marital “test” or requirement regarding children.

    It’s going to be very interesting to see how this plays out in the legal system and may end up being the 1 case that provides marriage equality to all gay American citizens.


  17. Nick

    October 16th, 2009 at 17:40

    “Besides the fact that it’s Louisiana state law that interracial couples cannot be denied a marriage, or “it’s wrong,” can someone actually give me a well thought-out reason as to why Bardwell must marry interracial couples? He seems to make a good point, doesn’t he? He believes children will be better off in a single-race relationship. After all, he says himself that he marries black couples. So, I’ll take him at his word that he’s not racist, even if a little old fashioned.”

    So, old fashioned is an excuse for blatant racism? The JOTP needs to speak of other reasons to not marry this couple besides thinking children could not be parented well solely based on the parent’s race.


  18. Tully

    October 16th, 2009 at 18:28

    I have checked local Louisiana news sources and confirmed that the story AS CITED is indeed factually FALSE. The JP did NOT “refuse to issue a license.” JP’s don’t issue marriage licenses, parish clerks do. The couple already had a legally-issued marriage license. The JP declined to officiate at their wedding ceremony, as I surmised above.

    There is no legal requirement that a JP must officiate for anyone. It’s completely the JP’s choice to do so (or not) for whatever reason or reasons.


  19. Nonyma

    October 16th, 2009 at 18:39

    The issue that I would see is that by saying that a representative of the American government can refuse to perform a designated duty based on personal preference and values that contradict the established law NEGATES the point of him being a government official.

    Regardless of the fact that having a justice of the peace preside over a civil marriage is an optional formality rather than a requirement for legal recognition, in my opinion, as a justice of the peace and as a legal representative, he is obligated to preside over a civil marriage that fulfills the legal requirements whether he likes it or not. To me, by choosing to be government representative, while working in official capacity, he has agreed to suspend his own views in favor of those of the law. In my mind, regarding officiating marriages, JoTP are supposed to be those that people turn to because societal institutions have denied them service.

    That said, I have to wonder if there are any cases where JoTP have turned away couples because they didn’t agree with say, two divorcees remarrying, or perhaps if they just didn’t like the way the couple looked. I certainly wouldn’t be happy if I were to find that such incidents have been occurring.


  20. Ashe

    October 16th, 2009 at 19:29

    It does not matter what his oppinion is. It his his duty to uphold the law, and that includes him marrying interacial couples, regardless of his oppinion. If gay marriage was the issue than all jop’s should marry gays. I would hate to be accused a crime and the judge decide on personal bias that I was a more likely candidate for having commited said crime. If he is not willing to preform aspects of his job he needs to find a new one.


  21. Roger

    October 16th, 2009 at 23:05

    “If we have to accept the argument that gay parents would be bad parents, why also not the argument that interracial parents would be bad parents?”

    Sure you could accept it, but that does not make it relevant to what Bardwell’s duties are. He is not granting this couple a license to bear children, he’s granting them a marriage license.

    In fact, one could make the argument that his “position” fails completely on several levels, unrelated to any racial issues: 1) he simply tells them the name of another justice who WILL issue the license, so his opposition ultimately has zero practical effect; and 2) if it DID have practical effect, and the couple could not get “officially” married, they would presumably still proceed to have children, they’d just be children out of wedlock, which would again have little effect since the couple would consider themselves “married” between themselves. So the opposition looks pointless except as an opportunity to grandstand and make the 5 o’clock news.


  22. alan

    October 17th, 2009 at 02:51

    So what if the Justices in that State or any State decided to pass a law that Says ONLY MARRIAGES BETWEEN SAME RACES IS LEGAL IN VALID? What would happen? IT would EXPLODE into a big deal for all the races. They could never get away with it. It is unconstitutional and wrong to tell any Adult what Adult they can marry. HELLO!!! This is why there should be a law that states all Adults should be able to any Adult they choose regardless of race, religion, color or SEXUAL ORIENTATION. COME ON PEOPLE WHEN ARE WE GONNA LEARN…ALL PEOPLE DESERVE THE RIGHT TO BE MISERABLE.


  23. Mike

    October 17th, 2009 at 06:23

    Michael,

    I think your mixing two different arguments together. On the one hand, representatives of the state have the legal obligation to perform their duty according to the law without discriminating. That includes performing interracial marriages or gay marriages, in states where gay marriage is legal. On the other hand, private ministers have no obligation to marry anyone they don’t want to, for whatever reason. Discrimination laws apply to the government and to certain entities explicitly defined (employers is the one that comes to mind). It is not against the law for a private citizen to discriminate against another. So I see no contradiction between those who argue that private religious authorities should be able to marry (or not) whomever they choose, and that this person clearly is neglecting his public duty.

    @Tully

    I admit that I’m not an expert on the obligations of a JotP. You must be right that they can’t be obligated to officiate in any wedding for whoever asks. Maybe he’s on vacation. Maybe he’s too busy. There’s lots of reasons he might say “No”. However, it seems to me those reasons must be applied equally without regard to personal preferences. I don’t know if discrimination is this case is illegal, but it certainly seems to be grounds to removal from his position. When someone is given a responsibility from the government to serve the public, it seems to me that it is the expectation that the service will be offered in a manner consistent with the laws governing the action that he is authorized to perform. I think it’s reasonable to say that if you will refuse to officiate for a category of marriages, on behalf of the government, that are legal, you should not be a JotP.


  24. Interested

    October 17th, 2009 at 06:33

    @Raquel

    Way to get people to think about your opinion – This never happened between my family and yours – get over yourself.

    Personally, as someone who will be part of an interracial marriage that will have children – I could care less if he wants to or not. I’d instead find another JP or find a Church that will. And I’d be active in having him lose the election to his office. Why they want to pursue getting married by someone who doesn’t want to perform the action is beyond me.


  25. JZ

    October 17th, 2009 at 13:18

    The author has placed TWO arguments above, one routed in the idea of “religious freedoms” as applied to ones duty in an employed position and the second in the idea of discrimination against marriage officials based on his beliefs. I’ll address the arguments from a Christian perspective and legally as well:

    “think that if we allow marriage officials to deny their services to gay couples, we must also do this for interracial couples, as well as white couples. A JOTP or clergyman might determine that any of these pairings is incompatible for parenting, so it only seems fair in the eye of the law to make exemptions for all types of marriages. To do so otherwise would be discrimination against marriage officials.”

    At the heart of religious controversies are the rights of employees to speak and act in conformity with their faith. However, for this case of Keith-the-bigot-Bardwell this argument is erroneous (see belows religious discussion)…but lets say the bigot wishes to push the issue FARTHER. The court has already covered this so-called defense and he has no legal standing. For example, in Pickering vs. Board of Education, Pickering held that when an employer burdens a constitutionally protected right of its employees, the law must balance employees wishes against the employer’s interests in providing for the efficient delivery of public services. With Keith-the-bigot-Bardwell, however, he did not provide delivery of the service for which he is employed. Let’s also site Rankin v. McPherson and consider the outcome of Keith-the-bigot-Bardwell actions. The outcome was that that he refused to do his job. In McPherson, the clerks views did not directly effect his work. In this case, it does. Lets also consider Brown v. Polk City, Iowa. Polk city stated that an employee,had his secretary type Bible notes, said prayers with employees during meetings, and frequently quoted biblical passages to his coworkers. In this case, the court ruled on the side of the Christian. Why? Because there was no real effect on the efficiency of his work. In this case, there is, the bigot simply didn’t DO his work. In summary, the law does not protect one from not doing his work based on religious beliefs.

    Lets also cover Tullys argument:

    First off, Judges or JP’s don’t generally issue marriage licenses, nor do I believe that’s what LA law requires…

    Any ordained or licensed clergymen who have registered with the clerk of the district court of the parish or with the health department if in New Orleans, and justices of the peace can issue a marriage license in LA. Even if it’s not “generally done” as you claim, the justices actions were in violation of LA law. A justice of the peace is legally obligated to serve the public, all of the public. Racial discrimination has been a violation of Louisiana and U.S. law since 2000. No public official has the right to pick and choose which laws they are going to follow.


  26. Interested

    October 17th, 2009 at 13:27

    Any ordained or licensed clergymen who have registered with the clerk of the district court of the parish or with the health department if in New Orleans, and justices of the peace can issue a marriage license in LA. Even if it’s not “generally done” as you claim, the justices actions were in violation of LA law. A justice of the peace is legally obligated to serve the public, all of the public. Racial discrimination has been a violation of Louisiana and U.S. law since 2000. No public official has the right to pick and choose which laws they are going to follow.

    The topic at hand isn’t if we like the guy or agree with what he’s doing / done – it’s – is he acting within his legal limits.

    You need to realize JZ that “can” does not equal “must”. Like him or not this particular JP does not have to perform any marriage at all.


  27. JZ

    October 17th, 2009 at 13:35

    What I?m getting at, of course, is the relation of Bardwell?s argument to that of opponents of gay marriage. Think about it. Isn?t it conceivable that if Louisiana were to pass a law allowing gay marriage that people like JOTP Bardwell would possibly be granted an exemption based on religious belief?

    I talked a bit about the legal aspects but lets think about it from a Christian perspective. Your statement actually, in all honesty, surprises me. It makes the assumption that this man was acting on “religious” belief, perhaps because you have (as many of us have) experienced prejudice from bigots who also claim to be “Christians.” However, this does the religion and those who are honestly good Christians a disservice. The bigot in this case did NOT site religion…he stated that he didn’t “believe” in it (which could mean anything) and then proceeded to site “The children” (another cop-out).

    “Bardwell would possibly be granted an exemption based on religious belief? ”

    In essence, there is no such allowance in the Christian faith. Find me scripture that states that is OK to be a bigot. This judge may try to site Deuteronomy 7:3-4, however, this piece of scripture was NOT racial in nature. Rather, it was religious. At the time, many people of other ethnic groups were not believers in one true God. As such, Deuteronomy laid out the idea of avoiding marriage with those who are of not of the same beliefs. This idea is expanded upon in 2 Corinthians 6:14. As followers of Christ, the idea of placing one race above the other is indeed a sin, James 2:1-10. According to the Bible, the number one priority when selecting a mate is that they believe in one God, John 3:3-5. In summary, let’s say this bigot refused to marry the couple and sited the fact that one was Muslim and one was Christian. He would still be at fault because the law has already covered the issue of faith and duties (see above post).

    “His arguments about the best situation for children..how is this different from believing that an interracial couple is also incompatible with proper parenting?”

    See above. To a Christian (if this man is claiming to be one) then the key to raising children is that they be followers of Christ, NOT that they be one race or the other.


  28. JZ

    October 17th, 2009 at 13:37

    @InterestedThe topic at hand isn’t if we like the guy or agree with what he’s doing / done – it’s – is he acting within his legal limits.

    You need to realize JZ that “can” does not equal “must”. Like him or not this particular JP does not have to perform any marriage at all.

    Please read the entire post. I have already covered the legal aspects of this at great lengths. I could go into more detail if you would like but, I believe it would be superfluous.


  29. Lawyer Lisa

    October 17th, 2009 at 15:23

    For a political blog, I’m really surprised everyone has missed the real argument here. Loving v. Virginia – decided over 40 years ago – says the government can’t prohibit interracial marriage (it’s deeper than that, but that’s a good nutshell synopsis). True, this JP isn’t making laws, but as a government official, hrs duty bound to uphold the laws – local, state and federal. That means his personal beliefs can’t come into play. The only inquiry is “Would this marriage be legal?”

    If he was a religious official, he could deny marriage to whomever he damn well pleases. But he’s not.


  30. Interested

    October 18th, 2009 at 02:38

    JZ :

    @InterestedThe topic at hand isn’t if we like the guy or agree with what he’s doing / done – it’s – is he acting within his legal limits.

    You need to realize JZ that “can” does not equal “must”. Like him or not this particular JP does not have to perform any marriage at all.

    Please read the entire post. I have already covered the legal aspects of this at great lengths. I could go into more detail if you would like but, I believe it would be superfluous.

    I did, and your thesis on the legal aspects are flawed.


  31. Mookie

    October 18th, 2009 at 04:29

    So what if a white straight couple adopts a black baby? How is it justified?


  32. Tully

    October 18th, 2009 at 05:26

    Yep, it is flawed. Like the initial reporting. The couple had a legally-issued license in hand. NO ONE denied them a marriage license, on grounds of race or anything else. And whatever JZ may imagine, a JP in LA does NOT have the authority to issue marriage licenses. (LA RS 9:221)

    While JP’s in LA have the authority to act as marriage officiants, marital law does NOT fall under the jurisdiction of JP’s in LA and is NOT part of their official duties. The statutory language employed in defining the officiant authority (LA RS 9:201-204) is clearly and consistently “may,” not “shall,” as relates to said authority for ALL authorized officiants, including JP’s and clergy. There is indeed a distinction between duty and authority. A JP has the authority to act as an officiant, but no duty to so act, just as with clergy.

    I think he’s an old-school old-fart “genteel” bigot, myself. Was raised that way and thinks he’s enlightened by the standards of his upbringing. (If he’s 70-ish he may be right about that, but it’s a low hurdle.) But he didn’t (couldn’t!) prevent them from getting married, only decline to be the officiant himself. NO ONE denied the couple the right and freedom to marry. Indeed, the JP even referred them to another JP who WOULD officiate for them, thereby both facilitating the union and negating any alleged harm, while simply and clearly recusing himself from doing it himself on grounds of personal conscience. However troglodytical we may find the basis of his conscientious objection, that’s exactly what it was, a conscientious objection on the JP’s part, for which he recused himself from being the agent of solemnization.

    There is NO right on the part of the couple to demand that a particular authorized officiant be THEIR officiant when said officiant does not want to be. (Nor IMHO do I think there should be, nor IMHO should any couple want an officiant that personally objects to their union for any reason.)

    Doesn’t mean the JP can’t be sued, of course. Anyone can sue anyone for anything, and given the right judge and jury, even win. Pettifoggers abound, as do the perpetually disgruntled.

    And no, Lawyer Lisa, Loving is not the “real argument” here. “The state” did not deny the couple the right to marry. An officiant declined to personally solemnize the union, and that’s all. The claim that he HAD to agree to be the officiant is roughly analogous to saying that someone seeking an abortion can DEMAND their doctor of choice even if the doctor is not willing to do the procedure.


  33. Mike

    October 18th, 2009 at 14:47

    @Tully

    “The claim that he HAD to agree to be the officiant is roughly analogous to saying that someone seeking an abortion can DEMAND their doctor of choice even if the doctor is not willing to do the procedure.”

    A doctor can refuse to perform a medical procedure. But if he or she refuses to do it because the woman is black, is that legitimate grounds for a law suit?


  34. Interested

    October 19th, 2009 at 04:28

    That’s not roughly analogous MM. As this JP never said no to a black couple.

    A more appropriate analogy would be the doctor refusing to perform an abortion on individuals who are age 20 to 25.


  35. Mike

    October 19th, 2009 at 14:30

    “As this JP never said no to a black couple.”

    Are you responding to me? He has said no to a black man wanting to marry a white woman. If the man had been white, he would have performed the marriage. Or if the woman was black, he would have performed the marriage. Even if he is not racist, his policy discriminates based on race. My question is if a doctor can be sued for refusing service based on race, can a JP be sued for the same reason?


  36. Interested

    October 22nd, 2009 at 05:01

    yes I was responding to you

    this JP has performed many marriages to black couples in his own home. Your analogy cannot possibly be close to accurate unless you think the person has one black leg and one white leg.


  37. Mike

    October 22nd, 2009 at 15:41

    Discrimination is treating someone different because of his or her race. If either individual in a partnership of a mix-raced relationship were a different race, the JP would perform the marriage. By definition, he is discriminating against each of them because of his and her race.

    But, if you insist, I’ll come up with a different example. Can a doctor by sued for refusing to perform a live-donor organ transplant between two family members of different races. Or can a lawyer be sued for refusing his or her services to two people that wish to engage in some contract because the two people are of different races. Of course, the parties in question are free to find a different doctor or a different lawyer. But, that doesn’t answer the question: do they have legitimate grounds to sue?


  38. Interested

    October 23rd, 2009 at 07:08

    The guy is obviously not a racist. He’s a world class A-hole and should be voted out of office, but he has a clear track record of performing marriages to blacks as well as whites within his own private home.

    Not to mention that nowhere in his job description does it say he must perform marriages or must issue marriage licenses to all eligible individuals.

    He could – at his own discretion – decide not to perform marriages to individuals who wear red shirts. (which isn’t nearly as fancy and flashy to the news as a possible racist allegation) – and he’d be within his legal limits.

    As such a lawsuit would go absolutely nowhere.


  39. Mike

    October 23rd, 2009 at 13:52

    You don’t have to be racist to discriminate based on race.

    I understand that he cannot be forced to perform a marriage, just as a doctor can opt-out of any particular procedure if he or she is uncomfortable with it, or a lawyer can refuse service. They just can’t make that decision based on race.

    The law forbids discrimination based on race. It is silent on discrimination based on t-shirt color.

    According to wikipedia (I’m not an expert on this, which is why I was asking a question, so forgive the mediocre source): http://en.wikipedia.org/wiki/Racial_Discrimination_Act_1975

    “It is against the law to discriminate in areas such as:



    Provision of goods and services (section 13) – eg when buying something, applying for credit, using banks, seeking assistance from government departments, lawyers, doctors and hospitals, or attending restaurants, pubs, entertainment venues;”

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