I saw an AP story about this, but tracked down what seems to be a more complete local story (perhaps one on which the AP story was based). A snippet:
[Justice of the Peace Keith] Bardwell said he came to the conclusion that most black society does not readily accept offspring of such relationships, and neither does white society.“Yet, the children are innocent. They had nothing to do with that,” he said.
In many cases, he said, the grandparents or a relative ends up with the children.
“I don’t do interracial marriages because I don’t want to put children in a situation they didn’t bring on themselves,” Bardwell said. “In my heart, I feel the children will later suffer.”
He said if he does an interracial marriage for one couple, he must do the same for all.
“I try to treat everyone equally,” he said.
Yes, equality, that’s what it’s all about.
I should note that, as a practical matter, this isn’t much of a burden on the couples, since they can easily find a different Justice of the Peace to issue the license. (Apparently Bardwell’s wife, whom the couple had called about the license, even referred them to another Justice of the Peace.) But a Justice of the Peace who’s performing a governmental function should perform it without discrimination based on race — or religion or political ideology or some other constitutionally forbidden category — even if such discrimination wouldn’t create much of a practical burden on anyone. (It may well be that under Louisiana law Justices of the Peace must issue marriage licenses to all comers, in which case Bardwell’s action is doubly bad; but the federal constitutional objection would be to the race discrimination.)
Teh Anonymous says:
Boy, I wonder what he does if the child of a racially mixed marriage and the child of a racially homogenous marriage want to get married.
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October 15, 2009, 7:03 pmBruce Hayden says:
I don’t know how to tell Justice Bardwell this, but we fought a war over this issue some 145 years ago, a huge number of Americans died as a result, and his state lost.
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October 15, 2009, 7:05 pmBruce Hayden says:
I am also bothered because the only way that I can see to get to what I think the ideal out to be, a color blind society, is if there is more inter-marriage, esp. with the Black community.
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October 15, 2009, 7:06 pmDunstan says:
Society is pretty tough on mixed-race children. Why, last November, one of them got stuck with the toughest job in the country.
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October 15, 2009, 7:11 pmlucia says:
Would he rather the couple just bore children out of wedlock?
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October 15, 2009, 7:14 pmrichard says:
And, of course, this paragon of judicial wisdom is able to tell, by looking at the couple, who is black, white, mixed, etc. (I presume the marriage license doesn’t ask the couple to state their race). What a maroon
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October 15, 2009, 7:21 pmiconoclast says:
The real question would be would he allow liberals to marry? Two people from the shallow end of the gene pool–liberals–might not serve the common good if there were encouraged to procreate. And the common good is what it is all about anyway. Individual liberties matter little; only what serves the state (and those that run the state) should be considered.
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October 15, 2009, 7:23 pmLeo Marvin says:
He respects everyone’s right to marry someone of the
opposite gendersame race.Quote
October 15, 2009, 7:23 pmbyomtov says:
“black society does not readily accept offspring of such relationships, and neither does white society.”
Here’s one that some people do dislike, but he’s managed to be successful in spite of it.
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October 15, 2009, 7:24 pmSteve says:
Maybe this isn’t much of a burden “as a practical matter” because they can just go to someone else, but as a non-practical matter it seems like he kinda ruined their wedding.
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October 15, 2009, 7:26 pmAnderson says:
I don’t quite get the measured tone here. Is this guy, and by extension the government, not subject to the Easiest Discrimination Suit EVAH?
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October 15, 2009, 7:33 pmNeobuzz says:
Professor Volokh,
Government-employed social workers, as a matter of policy and accepted practice, routinely refuse to place black children in white households because of the hardship they believe it imposes on the child to be placed through adoption. How is this situation any different?
Yours truly,
Neobuzz
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October 15, 2009, 7:35 pmDavid Schwartz says:
Since his ‘rationale’ fails even to most basic logical tests, pretty much the only explanation is that he’s a racist. I suppose there’s always a possibility that he’s completely ignorant of any of the thousands of facts that rip his rationale to shreds, but it’s hard to imagine that’s possible unless he just woke out of a 40-year coma.
For those of a libertarian bent who believe in a private right to be a racist jackass if you insist on it, this is an interesting case because his function is borderline governmental. (A justice of the peace is not paid to do this, not required to do this, and one is not needed to solemnize a marriage.)
NeoBuzz: I agree. That’s a despicable practice.
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October 15, 2009, 7:42 pmsecond history says:
Well, for one thing it is in violation of Loving v. Virginia (1967), one of the most appropriately named Supreme Court cases. The Court in a 9–0 decision overturned Virginia’s anti-miscegenation statute, and ended all race-based legal restrictions on marriage in the United States.
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October 15, 2009, 7:42 pmPerseus says:
Do justices of the peace normally have any legal discretion in deciding whether to issue a marriage license?
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October 15, 2009, 7:42 pmMark Field says:
Main Entry: maroon mu-!rUn
Pronunciation: \ mə-ˈrün \
Function: noun
Etymology: probably from French maron, marron feral, fugitive, modification of American Spanish cimarrón wild, savage
Date: 1666
Results
1. capitalized a fugitive black slave of the West Indies and Guiana in the 17th and 18th centuries also a descendant of such a slave
You get extra credit if this was intentional.
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October 15, 2009, 7:56 pmMark Field says:
Main Entry: maroon mu-!rUn
Pronunciation: \ mə-ˈrün \
Function: noun
Etymology: probably from French maron, marron feral, fugitive, modification of American Spanish cimarrón wild, savage
Date: 1666
Results
1. capitalized a fugitive black slave of the West Indies and Guiana in the 17th and 18th centuries also a descendant of such a slave
You get extra credit if this was intentional.
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October 15, 2009, 7:58 pmSplunge says:
Well in fact he’s right. Whatever social good more intermarriage would produce — and I agree from the point of society as a whole it would be good — he’s 100% correct that the individuals, the children, will have a nontrivially rougher time because of their parents. That’s a fact. It may be regrettable, one may wish it were different, one might not want to base social policy on it, two people might not (and evidently do not) want to condition their marriage on it, but it is, nevertheless, and despite all one’s wishing and smoke ‘n’ mirrors about this or that extraordinary exception, true.
I think this illustrates the inanity of having the government in the marriage business at all. The prevailing opinion seems to be that this guy should not have exercised his individual judgment at all. If two people present themselves to be married, and are over 18 and not already married, he should give them a license, whatever their color, personality, sex, age, et cetera.
Well if this is so: what’s the point of the license? What’s his actual job? As far as I can see, from this point of view, all a “marriage license” is is a tiny stream of revenue and notification service for the state. More or less a “marriage stamp,” where you pay the state a small fee to go into their coffers, and register yourselves under their family law dominion, when it comes time to divorce. The whole silly game should be abolished. If the state is not competent to decide who should marry — and I agree it is not — then the pretence of it being a state-licensed activity should be abandoned as too cynical for even 21st century man.
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October 15, 2009, 8:04 pmDave N says:
I was a bit confused by the article. Perhaps Louisiana law is different from everywhere else (which it might be, given Louisiana’s code-based legal system), but I am a bit unclear as to how marriage licenses are issued.
My experience is that a couple gets a marriage license from the county clerk or the registrar of marriages or some such office. They pay a modest fee. The issuance of the license is purely ministerial.
Then they are on their own to find someone legally qualified to perform the ceremony (judges and clergy top the list). After the ceremony, the person performing the marriage attests it was done and it gets filed.
As far performing the actual ceremony, if it is something the judge is required to do as part of his or her official duties, then the judge should perform the ceremony for any couple capable of legal marriage in that jurisdiction. However, if it is something the judge does not get paid to do and is outside his or her official function, but something the law allows them to do, then the judge should be free to decline to marry a qualified couple for any reason or no reason at all.
Judge Bardwell is still an idiot for his position — but even idiots sometimes have a legal right to do what they do.
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October 15, 2009, 8:21 pmBlue Swan says:
Well, clearly an Imbecile can marry a Dimwit in Louisiana or else Judge Bardwell would never have been conceived.
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October 15, 2009, 8:23 pmDave N says:
Speaking of idiots, this line in the story caught my eye:
Um, 1963 was 46 years ago. Last time I looked, 46 is less than 50, not more.
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October 15, 2009, 8:25 pmEH says:
Would/could this decision provide the basis for a motion to recuse by future cases before his court that have a racial component to them?
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October 15, 2009, 8:31 pmfishbane says:
Legal issues aside, my favorite part was,
“I’m not a racist. I just don’t believe in mixing the races that way,” Bard well told the Asso ciated Press on Thursday. “I have piles and piles of black friends. They come to my home, I marry them, they use my bath room. I treat them just like every one else.”
Why, he *even let’s them use his bathroom*.
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October 15, 2009, 8:32 pmSuperSkeptic says:
im with splunge
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October 15, 2009, 8:44 pmBABH says:
Drat! fishbane beat me to it!
“I let them use my bathroom” has to be the best “I have black friends” defense ever.
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October 15, 2009, 8:46 pmPublius says:
The great moral courage exemplified by all who have written against this man is certainly to be praised. Your tones of moral and intellectual superiority are well earned. The greatest contemporary American problem is racism and ethnic separatism. Thank goodness for self-confident intellectuals who can speak up against these mental and moral inferiors despite the enormous social pressures to conform to the racist hegemony that this man represents.
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October 15, 2009, 8:47 pmPerseus says:
I tend to agree. If it’s fine for members of the clergy to refuse to marry a couple based on their faith or other considerations, then judges ought to have the same discretion. On the other hand, I suppose one could argue that a judge who discriminates on whatever basis would undermine the appearance of the his impartiality, something we don’t expect from members of the clergy. If it’s part of the judge’s official duties, however, then I don’t think that he should have such discretion (unless it’s legally allowed).
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October 15, 2009, 8:52 pmMark Field says:
Also, Loving was decided in 1967.
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October 15, 2009, 9:11 pmMCM says:
Would love to hear A. Zarkov’s opinion on this.
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October 15, 2009, 9:20 pmA. Zarkov says:
Last week I watched episode Scorched Feather from the 1950s TV series Have Gun, Will Travel. This story opens in the usual way with gun-fighter-for-hire Paladin (Richard Boone) interviewing a potential client who identities himself as Robert Ceilbleu (Mario Alcalde). Robert comes across as a highly educated and cultured young man, and Paladin enjoys his company. Robert hires Paladin to protect his father William (Lon Chaney) from the attacks of a Comanche warrior called “Hotanian.” Later Paladin meets William, and finds an ill-mannered Indian scout who is nothing like his son. After some diligent probing Paladin discovers the family secret–William took an Indian wife and Robert is a half breed. In fact Robert (who has hired Paladin) and Hotanian (who Robert said was threatening his father) are one and the same physical person! Paladin instantly recognizes something that has escaped father William about his son Robert: he suffers from what we now call disassociative identify disorder or multiple personality disorder. One son wants to kill his father while other wants to save him. It seems Robert was never able to form an integrated personality because he was torn between the world of his Indian mother and the world of his white father. Robert couldn’t choose sides so he became two people. We also find out at the end (here comes the spoiler) that Robert really wanted Paladin to kill him by killing Hotanian. In other words, Robert decided the only way to relieve the tension of his conflicted existence was self destruction with the aid of Paladin.
This story got me thinking about the children of mixed (both as to race and religion) marriages. The children of mixed marriages I know seem to be well adjusted (with one exception), so I never really considered the downside from the point of view of the children. In the one exception, the black children in school taunted her so badly that her parents put her in a private school. I don’t think we can just ignore the issue. Surely someone has studied this.
I
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October 15, 2009, 9:22 pmSandy MacHoots says:
Yeah, three generations of imbeciles are enough. :)
It appears that a J.P. in Tangipahoa Parish (whose only educational requirements appear to be a H.S. diploma or a G.E.D.) does not issue the license, which is obtained through the Marriage Department of the Clerk of Court’s office. A J.P., like a clergyman registered with the court, has authority to marry. The J.P. probably get a few bucks for officiating, but like any other judicial official I don’t think the law provides any general obligation to agree to solemnize any particular marriage. He’d probably be free to decline if it would interrupt a football game, or if he decided he didn’t like the couple.
Of course, anti-discrimination law often prohibits even private individuals from refusing to do things they have no general obligation to do if their refusal is based on race.
Striking thing for me is that 50 years ago this was the law of much of the land, and today one unknown dude in rural Louisiana can make headlines around the country just by saying the same thing that Robert Byrd used to say in his stump speeches to wild applause. The country has made a lot of progress in a half century.
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October 15, 2009, 9:24 pmegd says:
Holy cow, the Civil War was fought over the issue of interracial marriages? Strange, I thought slavery was the big, overarching issue. Liberal revisionist history is getting stranger all the time. Next you’ll tell me that we fought the Revolutionary War because we didn’t want to pay the VAT.
Unless Louisiana is very unusual, no. Especially given that they are elected officials. He should have issued the certificate.
Interestingly, and on a completely unrelated note, anyone over the age of 70 is ineligible to run for office as a justice of the peace. Age discrimination?
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October 15, 2009, 9:31 pmSandy MacHoots says:
Unrelated point:
I predict that this story gets much more prominent placement in the New York Times than any of the ACORN-related stories, or Van Jones, or the NEA troubles, or the safe schools czar or . . . .
Because what one crazy dude in the Louisiana backwoods does is, like, newsworthy.
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October 15, 2009, 9:38 pmTollhouse says:
Like many tv viewers, I am awaiting the twist ending to the story. Perhaps Keith Bardwell is himself of mixed race. That would be a boffo ratings play.
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October 15, 2009, 9:42 pmPersonFromPorlock says:
I wonder if Loving might be decided differently if it were heard now, though. Certainly there’s (now) a compelling government interest in maintaining the identity of the races in order to provide for diversity in society, especially in the education process!
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October 15, 2009, 9:52 pmJoe says:
When I hear “maroon,” I think Bugs Bunny cartoon.
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October 15, 2009, 9:53 pmTollhouse says:
Considering the recent study about college admittance and race, I would be interested in how a college would disprove my claim to being black. Or alternatively, would I have to prove I’m black. How would I go about doing that?
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October 15, 2009, 9:56 pmmatt c says:
there is no race discrimination here. he refuses to marry interracial couples–not just black man, white girl or white man, indian girl. this is the epitome of being race neutral. now is he racist? maybe, but is not practicing racial discrimination by any definition.
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October 15, 2009, 9:57 pmAngus says:
This type of racial attitude in the South? I am shocked, I tell you. SHOCKED!
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October 15, 2009, 10:12 pm4 ch DVR says:
Like many tv viewers, I am awaiting the twist ending to the story. Perhaps Keith Bardwell is himself of mixed race. That would be a boffo ratings play.
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October 15, 2009, 10:12 pmSara says:
What? If one couple can marry because of their race and the next couple cannot, that’s racial discrimination.
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October 15, 2009, 10:22 pmptt says:
Surely this case demonstrates the need for the same robust protections for individual and religious liberty that many insist must be provided if same-sex marriage is allowed.
(Bless the edit function!)
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October 15, 2009, 10:34 pmJasonF says:
This guy is right. Mixed race kids have so many cards stacked against them that I can’t imagine one of them achieving any kind of success. You’d never see a mixed-race child grow up to become, for example, a 10-time Major League Baseball All-Star or a 14-time golf Majors champion, let alone the President of the United States!
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October 15, 2009, 10:35 pmBama 1L says:
This sounds a lot like Palmore v. Sidoti, 466 U.S. 429 (1984). The ex-wife, who had been awarded custody of the children, moved in with a man of a different race. Her ex-husband was granted custody specifically because of the social prejudice likely to be directed at the children. SCOTUS unanimously held that the equal protection of the law cannot bow to even the most widespread racial bias. How on earth is this different?
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October 15, 2009, 10:47 pmRandy says:
Oh please now. These two people are not denied the right to get married. They can still go out and marry any person of the same race. So what’s the problem?
(Okay, that was snarky. but still the same argument that people make to say that gays aren’t denied the right to get married.)
Splunge: “As far as I can see, from this point of view, all a “marriage license” is is a tiny stream of revenue and notification service for the state. More or less a “marriage stamp,” where you pay the state a small fee to go into their coffers, and register yourselves under their family law dominion, when it comes time to divorce. The whole silly game should be abolished. If the state is not competent to decide who should marry — and I agree it is not — then the pretence of it being a state-licensed activity should be abandoned as too cynical for even 21st century man.”
You realize that this is the exact same argument for same sex marriage, right?
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October 15, 2009, 10:57 pmkazinski says:
Since I have 3 mixed race children I think I can honestly talk about the downside: I deeply resent that they are all better looking and smarter than I am.
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October 15, 2009, 11:04 pmjccamp says:
Mark Field @ 7:58
” ‘What a maroon’...You get extra credit if this was intentional.”
Most excellent. And I suspect it was not.
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October 15, 2009, 11:13 pmMark Field says:
Can’t say you didn’t ask for it.
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October 15, 2009, 11:26 pmbgates says:
I’m glad to see the outrage at a government official countenancing discrimination like this, even if it is largely from the same people who can’t find it in themselves to criticize racially segregated organizations like the Congressional Black Caucus. Way to take a stand on the cutting-edge sociopolitical issue dramatized in Spencer Tracy’s last movie, everybody.
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October 15, 2009, 11:46 pmNathanM says:
If only you had that power in real life, MCM, you would have no shortage of interesting stories involving bar fights.
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October 15, 2009, 11:48 pmKate1488 says:
How is that an ideal, to have everyone look and act the exact same way? “Color blind” completely erases the historical and cultural significance of any one group and creates a mass of people who all look the same and who have no real history. That’s absolutely horrible.
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October 16, 2009, 12:41 amKate1488 says:
What, so you can take advantage of all the racist “blacks only” scholarships?
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October 16, 2009, 12:57 amLeo Marvin says:
How did you do that?
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October 16, 2009, 1:06 amreadery says:
When one Justice of the Peace doesn’t do it, it doesn’t really hurt anyone. It’s easy to go to another. Those who dislike the behavior feel emotionally hurt by it, but the emotional hurt one feels from distaste for other people’s behavior might be regarded as caused by ones emotions rather than the behavior.
But when every Justice of the Peace does it, it’s a problem.
Somewhere in between, one has crossed the amorphous boundary between non-problem and problem.
As this case illustrates, the question of whether behavior hurts others usually depends not on the act itself in isolation but on its context, that is, on what other people are doing. Behavior that causes no harm in one context may do so in another. And our opinion of whether an act causes harm may reflect our opinion of the context.
If we’ve moved sufficiently away from our racial past, we might be able to see this sort of behavior as a mere harmless curiosity. But if our emotions are still affected by past norms, we instinctively perceive it as harmful.
State-actor racial discrimination doesn’t have a rational basis standard. But for behavior that does, such as private-actor racial discrimination laws or the Voting Rights Act, it is not for the judiciary to declare that racial discrimination problems are over and laws regarding them are irrational as no longer necessary. Nor is the judiciary permitted to see only the isolated behavior and pretend the context doesn’t exist. So long as we somewhere in the amorphous middle, the legislature gets to make the call as to whether or not we are still in a context where the threshold of harm has been met.
And so for other rational-basis legislation where, as is often the case, there is no harm if one person does a behavior in isolation but significant social consequences if everyone starts doing it or society starts becoming organized around it.
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October 16, 2009, 1:09 amCornellian says:
Well I guess by analogy to the arguments we always see here about same-sex marriage there should be no constitutional problem at all with the judge’s refusal to issue a marriage license to interracial couples. After all, there’s no right to get married in the text of the Constitution, and the rule applies equally to everyone. He’ll recognize anyone’s same-race marriage and refuse to recognize anyone’s interracial marriage, so where’s the discrimination?
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October 16, 2009, 1:11 amricky says:
Given the way Justice Sotomayor said that “empathy” and her “life experience” influenced her decisions, I don’t see how anyone can argue with a judge’s decision on mere legal grounds. After all, you haven’t “lived that life”.
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October 16, 2009, 2:53 amricky says:
“Holy cow, the Civil War was fought over the issue of interracial marriages? Strange, I thought slavery was the big, overarching issue. Liberal revisionist history is getting stranger all the time.”
If you think that the Civil War was about slavery, you have already accepted the liberal revisionist history.
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October 16, 2009, 2:58 amLaw Beats Analogies says:
Cornellian,
Actually, Louisiana has a DOMA that states marriage is the union of one man and one woman. So the analogy between interracial marriage and same-sex marriage under Louisiana law makes no sense.
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October 16, 2009, 3:10 amJ. Aldridge says:
This isn’t constitutional discrimination because such refusal by a judge or the organic law of a state has nothing to do with the administration of the protection of laws.
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October 16, 2009, 3:15 amAnatid says:
And if we lived in a world where everyone accepted and embraced outgroup members as readily as ingroup members, then this highly varied population would be ideal. But our species, like most, favors familiar faces over unfamiliar ones, and the cognitive methods that we use to evaluate available information will steer us towards forming generalizations and stereotypes.
We don’t have to wipe out the distinctions entirely, but giving everyone something they have in common can only do more good than harm.
And besides. Who doesn’t like bagels, tacos, and sushi?
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October 16, 2009, 3:26 amBruce Hayden says:
As Dr. Martin Luther King, Jr. so famously said:
I too am proud of my heritage — we have tracked my male line back to a knight who came over to England with Willie the Bastard some 942 years ago. But, intermarriage results in assimilation, one of the least assimilated group in our society are the Blacks, and the anti-miscegenation laws are one of the big reasons for that. I am not suggesting that everyone go out and cross racial lines when picking a marriage partner, but rather, that there be no barriers to it.
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October 16, 2009, 3:30 amBruce Hayden says:
Yes, but the interpretation of the 14th Amendment has changed over time. Heck, we had Separate but Equal for a long time. (Of course, there was nothing really “equal” about requiring that Blacks sit at the back of the bus, not marry Whites, or many of the other state enforced aspects of Jim Crow America).
I would suggest that Amendment is now more commonly defined to apply strict scrutiny to state actions that discriminate on the basis of race (and some other suspect classifications). And that is the problem here, that the Justice of the Peace is a state actor discriminating solely on the basis of race in his official capacity with a justification that will not survive strict scrutiny.
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October 16, 2009, 3:43 amJ. Aldridge says:
Your argument would be like interpreting the word “state” to also mean any “foreign country” under the excuse the constitution changes over time. Due process is the protection of laws in the proceedings of justice that must be equally administered. Whether you are sitting in the front or back of a bus has nothing to do with the protection of laws in the administration of justice.
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October 16, 2009, 3:53 amJustAStudent says:
Could someone do a 14th Amend. / Loving analysis? Is there any subtlety or distinction here? Or does Loving simply 100% control?
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October 16, 2009, 3:56 amWww.composition4u.info » "Louisiana JP Keith Bardwell Refuses To Marry Interracial Couple" and related posts says:
[...] Louisiana Justice of the Peace Refuses to Issue Marriage License for Interracial Couple: - The Volokh Conspiracy [...]
egd says:
To quote the Simpsons:
Proctor: All right, here’s your last question. What was the cause of the Civil War?
Apu: Actually, there were numerous causes. Aside from the obvious schism between the abolitionists and the anti-abolitionists, there were economic factors, both domestic and inter–
Proctor: Wait, wait… just say slavery.
Apu: Slavery it is, sir.
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October 16, 2009, 8:41 amNick says:
Kate1488:
“Color blind” completely erases the historical and cultural significance of any one group and creates a mass of people who all look the same and who have no real history.
BS, IMO. Unless your family reproduces by binary fission, we are all the products of mixing of different cultures and ethnicities, and that doesn’t prevent us taking an interest in our backgrounds. Why would children whose ancestry includes Africans and Europeans be divorced from their cultural heritage any more than a child whose ancestry includes Italians and Germans? If Bruce Hayden, whose ancestors surely include members of many cultures other than Normans, can take pride in his Norman knight of an ancestor, why can’t mixed race kids celebrate and identify with any or all of their ancestors?
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October 16, 2009, 8:57 amBenjamin Davis says:
I love you guys! Pretty tempered today when you get a racist act smack in the face. That’s progress.
On, if it is only one judge it is not a problem, dude, where did you leave your mind? You contact a judge and the judge who is in an official function refuses to do what he does for others because this is interracial! Brother that hurts that one time and there is no reason that the people who have that experience should have to take that crap.
I had an interracial marriage between a black guy who converted to Judaism and his Jewish bride. They wanted a rabbi to do the ceremony and they had a dickens of a time finding a rabbi who would accept to do the ceremony — even though both were Jewish. I remember the hurt in his voice as he talked about it. And the joy at their wedding with the rabbi there.
So, even if you give the religious pass for racist preachers, no justice of the peace should get a pass and he should be sanctioned and kicked out of his job with a finding by the judicial disciplinary board that what he was doing is racist and incompatible with his function. On paper in black and white that he can put up on his wall at home and show to his black friends — maybe next to the toilet when they are using it.
As to mixed race kids, dude! So many Americans are mixed race in some percentage this is a canard. The one drop rule on blackness makes a whole lot of people black who could be thought of as passing as white.
For myself, I am Cherokee, African, European (Irish), Chinese, Jewish and Hispanic, and never lost any sleep over it.
As to it being harder for mixed race kids, gee that sounds like an admission that racism still exists in this society from someone on the Volokh Conspiracy! WOW a red letter day! Just cause it is hard does not mean that the parents should not have the chance to have them and raise them.
As to social workers not placing black kids with white families, there have been law review articles on that issue. Another one is when adoption agencies of the state respect potential adoptive parents’ preferences to adopt a child of their same race. Should the state be in these spaces? I think not. The key would seem to me whether this particular family is the right person for this particular kid.
As a father of two adopted kids in France, the irony of course is that at the end of the day, it is the kid who adopts you — not the other way around.
Those who are looking for a principle in the judge’s position are just whistling Dixie!
Have fun today folks!
Best,
Ben
Best,
Ben
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October 16, 2009, 9:54 amMark Field says:
Ever see “Annie Hall”?
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October 16, 2009, 10:23 amBT says:
He has a point but ultimately he is wrong. I, too, am mixed race, the one thing that I cannot stress enough is that if the parents are aware that there may be problems for their kids being accepted by other kids then the kids have a good chance to grow up without too many problems. Interracial kids need parents that they can trust and be able to talk about the clown calling them “Half Breed”,etc., when they don’t really understand what that means. Just for the record, my parents never talked about it and it has taken me a long time to accept the fact that I am different. Now it is not really a big deal. When I was 9 it was.
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October 16, 2009, 10:34 amPintler says:
You might see if your library has a copy of William Safire’s “Lend Me Your Ears: Great Speeches in History”. One of the speeches included is the speech Jefferson Davis gave when he resigned from the senate prior to assuming the presidency of the Confederacy. Slavery is the only cause Davis mentions. ISTM that Davis was in a good position to speak authoritatively on the subject.
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October 16, 2009, 10:43 amRedman says:
I doubt there was a single soldier, North or South, who thought he was fighting for racially mixed marriages.
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October 16, 2009, 10:44 amRedman says:
In his first inaugural address, Lincoln said he had no power to, and had no intention of ending slavery where it already existed. In his second inaugural address he said that all he ever wanted to do was prohibit the expansion of slavery.
Lincoln was anti slavery, I don’t know if he was an abolitionist.
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October 16, 2009, 11:01 amJoseph Slater says:
The Civil War was primarily about the prospect of the expansion of slavery, and anyone who doubts that hasn’t spent any time with the primary sources.
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October 16, 2009, 11:06 amMark says:
Umm, how many of you have been to Louisiana? When it comes to race-mixing, it beats to hell the most liberal enclaves you can find in the US. But the devil is in the details.
I remember going to the Fair Grounds race track in New Orleans about 10 years ago. When I headed to the mutuel windows to place a bet, there was a row of about 10 of them, all of them staffed by woman, most of whom (8 or so) were nominally “black” or African-American. The latter term is really appropriate, since no one who has ever met anyone from “black” Africa could have confused them for African-Africans–they were all various shades of mocha. Now I know that the deep background stories about how some of these mixed raced pairings occurred may go back several generations, and, in all likelihood, frequently involve some pretty distressing details. But still, for some reason, I was heartened to see this diversity. I guess I come down where Podhoretz (the real one) concluded way back in 1963, that intermixing of the races, while it will take a long time, is really the only way to end the madness we inherited. Fortunately, now, such pairings are generated by feelings of love, and not coercion.
This anachronistic old coot justice of the peace is more to be pitied than anything else. I cannot defend him, of course, but the fullness of time will work its way regardless.
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October 16, 2009, 11:08 amNickM says:
FWIW, the underlying story was at the top of the page on MSN’s home page this morning.
Nick
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October 16, 2009, 11:38 amChris R says:
I suppose next he’s gonna suggest that Gay men and women can’t marry.
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October 16, 2009, 11:43 amtroll_dc2 says:
In Loving, the state argued that there was no discrimination because whites and blacks were equally restricted by the ban on miscengenation. That argument did not fly because there is a second concept of discrimination, which is that of classification and segregation. If race makes a difference in a particular decision (in that the outcome would be different if a person were of a different race), it does not matter that everyone is subject to the same constraint. Think in terms of a focus on the individual rather than on the group.
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October 16, 2009, 11:52 amJMA says:
“If you think that the Civil War was about slavery...”
Nice, ricky! I’m glad someone pointed that out. :)
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October 16, 2009, 12:03 pmzuch says:
iconoclast says:
Hate to have to point this out (but for some, it seems, pointing out the obvious is necessary if not always sufficient): This JotP wasn’t some liberal.
These people and these people and these people and these people and these people are not liberals. The “birthers” and “Tenthers” and so on are all yours....
Cheers,
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October 16, 2009, 12:08 pmchris brown says:
I think he should have his license taken away and the couple should go elsewhere to get married instead of being in that bootleg town.
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October 16, 2009, 12:19 pmVader says:
These kinds of arguments fail to impress me. The very fact that you are trying to shame someone by alleging unsavory associations is strong evidence that you know, in your heart, that the someone your are trying to shame finds these associations distasteful. Which kind of undercuts your point. And calls your fairness and honesty into question.
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October 16, 2009, 12:28 pmA.C. says:
What Mark said. Objecting to race mixing in Louisiana is definitely a case of shutting the barn door after the horse has run away.
My understanding is that the Louisiana Creole people have a long history of existing between black and white, the way mestizo and metis people have existed between Native American and white in various societies. It’s a history I would like to learn more about.
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October 16, 2009, 1:02 pmRyan Waxx says:
Yet another “public servant” who proposes to do evil... and he justifies it “for the children”. Why do we even give that justification the time of day in other contexts?
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October 16, 2009, 1:58 pmarbitraryaardvark says:
The judge says that these marriages, the ones he sees and objects to, are disproportionately between black males and white females. Is he right? Is he on to something? Are the outcomes different for black father-white mother families than for white father-black mother families? His perspective isn’t just about race, it’s about race and gender.
The case is different from Loving because of standing and mootness.
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October 16, 2009, 2:03 pmCJColucci says:
I am not suggesting that everyone go out and cross racial lines when picking a marriage partner, but rather, that there be no barriers to it.
Mighty white of you.
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October 16, 2009, 2:07 pmricky says:
“I had an interracial marriage between a black guy who converted to Judaism and his Jewish bride. They wanted a rabbi to do the ceremony and they had a dickens of a time finding a rabbi who would accept to do the ceremony – even though both were Jewish. I remember the hurt in his voice as he talked about it.”
Oh NO!!! Someone got their feelings hurt! THE GOVERNMENT MUST INTERVENE!
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October 16, 2009, 2:18 pmzuch says:
Vader:
Huh?!?!? What I was pointing out was that a dead-ender 28% or so of the population, the loony fringe, is on the RW (as is JotP Bardwell) .. and so to call the “shallow end of the gene pool” assertion of Iconoclast into question. I wasn’t trying to shame anyone (rather fruitless with today’s Republicans, I’d venture); just trying to let some reality shine in.
Cheers,
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October 16, 2009, 2:32 pmbartman says:
According to Jefferson Davis, it was.
According to Alexander Stephens, it was.
According to the secession documents of every rebel state, it was.
For all of the above, slavery was either the primary or the only reason cited for seceding.
And let me remind you, Lincoln’s aims are rather immaterial, given that it was the South who started the war.
I can understand why some southerners want to pretend that the Civil War wasn’t about slavery, put it’s kind of hard to do with a straight when all of the primary documents are so readily available and totally unambiguous in their content.
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October 16, 2009, 2:39 pmBrian G. says:
A story like this is a Godsend for the racial greivance lobby. If there’s money in it, Al and Jesse will be booking private jets down there.
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October 16, 2009, 2:45 pmJ. Aldridge says:
I think Thomas Cooley did:
And of course the the equal protection of the laws have nothing to do with local civil laws and contracts, see here.
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October 16, 2009, 2:52 pmJoseph Slater says:
Apparently, a story like this is annoying for the “racism doesn’t exist anymore” lobby.
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October 16, 2009, 2:54 pmtroll_dc2 says:
Is it fair to suggest that every commenter who defends the judge has a racism problem?
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October 16, 2009, 4:13 pmrarango says:
Apparently, a story like this is annoying for the “racism doesn’t exist anymore” lobby
I am not sure how exactly how big a lobby that is, but this dude certainly doesnt help their contention.
If you want to see some serious racism in action, come to Memphis and get a ringside seat for the upcomping Cohen–Herenton campaign. Its alive in well in Memhis politics.
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October 16, 2009, 4:21 pmtroll_dc2 says:
Yes, it works in both directions.
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October 16, 2009, 5:03 pmgirlyassmusic.com » “Louisiana JP Keith Bardwell Refuses To Marry Interracial Couple” and related posts - 229th Edition says:
[...] Louisiana Justice of the Peace Refuses to Issue Marriage License for Interracial Couple: - The Volokh Conspiracy [...]
Cato The Elder says:
I rather enjoyed that set of links, zuch. Honestly, I don’t feel in any way embarrassed to be lumped in with “those people.” I’m sure you could have found much better links to shock the conscience if you had really tried at it. Yeah, a couple of funny posters and a little bit of impassioned rhetoric — so what? What’s the alternative, to be a lefty protester, content to cause bodily injury and trash property when railing at their own injustices?
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October 16, 2009, 5:06 pmLaura(southernxyl) says:
“The judge says that these marriages, the ones he sees and objects to, are disproportionately between black males and white females. Is he right? Is he on to something?”
What he is on to is the travesty of sullying the pure flower of white womanhood. How icky that is to him.
I see more and more interracial families all the time. Further, an astounding number of kids nowadays are born out of wedlock. His reason is a very transparent excuse for his transparent racism. I’d like to ask him how many white couples, and how many black couples, he has refused to marry out of concern for their children.
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October 16, 2009, 5:53 pmRandy says:
lawbeats analogy: “Actually, Louisiana has a DOMA that states marriage is the union of one man and one woman. So the analogy between interracial marriage and same-sex marriage under Louisiana law makes no sense.”
No, it makes perfect sense. You see, people in LA will argue that gays are not discriminated against because they still have the right to marry. they can marry any old person of the opposite sex. Likewise, straights are burdened just as much as gay people are, in that they *cannot* marry anyone of the same gender.
Therefore, since gays and straights are treated the same, there is no discrimination. (Which, by the way, is used with a straight face by several commentators here at the VC)
In this case, the judge can easily make the exact same argument by denying these two people a marriage. He can say that the white person has exactly the same marriage rights as the black person — they can each marry a person of their same race. Likewise, they are each equally burdened — they cannot marry a person of a different race.
Therefore, since blacks and whites are treated the same, there is no discrimination.
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October 16, 2009, 6:19 pmSteve says:
Yes, it works in both directions.
Is Steve Cohen a racist campaigner? I’m not aware of that.
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October 16, 2009, 6:20 pmmikeyes says:
JPs in LA are elected officials so they don’t have a license. They do have a commission, however but I doubt that his commission will be taken away for something that seems to be a privilege and not a duty for JPs.
Is an elected official different than a preacher in this case?
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October 16, 2009, 6:32 pmzuch says:
Cato The Elder:
Couldn’t find the link I really wanted, where one person interviewed them and started asking them ... well, simple ... questions. It’s hilarious ... and appalling. Maybe I’ll look some more when I get a chance. They’re nitwits that need the GOP and its PR minions to print the instructions on the bottom of their shoe to know what to do.
Objection, assumes facts not in evidence, and a fallacy of bifurcation to boot.
Cheers,
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October 16, 2009, 6:36 pmThink Of The Children, They Can Only Grow Up A Future Hall Of Famer, An Oscar Winning Actress, The President Of The United States… « Around The Sphere says:
[...] UPDATE: Eugene Volokh [...]
B-Rob says:
Or as The Onion put it: “Black Man Given Sh*tty Job”.
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October 16, 2009, 6:52 pmWww.composition4u.info » “Louisiana JP Keith Bardwell Refuses To Marry Interracial Couple” and related posts - 33th Edition says:
[...] Louisiana Justice of the Peace Refuses to Issue Marriage License for Interracial Couple: - The Volokh Conspiracy [...]
Laura(southernxyl) says:
Zuch, funny like this?
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October 16, 2009, 6:59 pmB-Rob says:
Ok, you had the South versus the North. All were states and all had people in them. Now what is the ONE THING that distinguished the South from the North? Anyone want to guess?
C’mon! Don’t be dense. On course the war was “about” slavery. It was about abolishing WHAT peculiar institution? It was about preserving the Union that was riven over WHAT? Conservatives simply picked the wrong side in the race battles, both in 1860 and in 1965. You played the bad hand and the demographics are coming back on you guys like a mofo. But don’t be obtuse.
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October 16, 2009, 7:08 pmneurodoc says:
Bardwell is a justice of the peace in Louisiana, a state with much experience of racial classifications and a desire to be precise in such matters. Homer Plessy of Plessy v Ferguson fame, though of fair complexion, was officially an “octaroon” in the eyes of that state.
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October 16, 2009, 7:30 pmToby says:
And when I hear Maroon, I think of Marianis and other Italians in Chicago where the voice of Bugs Bunny came from, with their characteristic oath, calling on Mary, which sounds an awful lot like “Marroan!”
There are lots of derivation of similar words, but if one of them was ever tied to a slave rebellion, well, then you must be racist....
sheesh
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October 16, 2009, 7:48 pmneurodoc says:
If I am not allowed to marry a certain woman because she and I are of different racial backgrounds but there would be no bar to you marrying her because you and she were both of the same racial background, then there is race discrimination.
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October 16, 2009, 7:52 pmneurodoc says:
That should have been “octoroon,” but I guess I didn’t hit the save button after making the correction.
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October 16, 2009, 7:54 pmneurodoc says:
No, he isn’t, but then that I don’t think troll_dc2 was suggesting he is. Herenton is a racist campaigner, though. And I think it can be argued that politicians like Sharpe James have shown themselves to be racist campaigners when attacking opponents their own race (Corey Booker) as inauthentic.
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October 16, 2009, 8:03 pmPurple Koolaid says:
dude on Palmore, the scotus decided that it was wrong.“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” The Court thus held that the decision of the lower courts was an unconstitutional denial of rights under the Fourteenth Amendment.
http://www.oyez.org/cases/1980–1989/1983/1983_82_1734
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October 16, 2009, 8:04 pmNickM says:
zuch — “Tenthers”? Does your copy of the Constitution skip from Amendment IX to Amendment XI?
You sound kookier than the people in the posts you linked to.
Nick
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October 16, 2009, 8:47 pmSteve says:
And I think it can be argued that politicians like Sharpe James have shown themselves to be racist campaigners when attacking opponents their own race (Corey Booker) as inauthentic.
Growing up in Detroit I saw enough of that sort of politics to last a lifetime.
Cohen’s last primary was encouraging.
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October 16, 2009, 9:13 pmSandy MacHoots says:
You have this wrong. It was small-government, anti-FDR Republicans who worked to stop segregation. It was big-government, FDR-supporting Southern Democrats (like Fulbright) who fought to save it. Virtually the entire country was racist in 1860. But only some people thought government should have the power to enslave people. You need a powerful government to keep an entire race in bondage — few free market libertarians are likely to vote for it.
You may be confused by the fact that “conservative” is often simply a perjorative term applied to people. For example, if you read the New York Times, it’s the the hardline Marxist-Leninists who are described as “conservatives” in Russia, while the Reagan-loving free-market pro-democracy folks are “liberals.”
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October 16, 2009, 10:26 pmElais says:
I always find it strange when conservatives claim to be so high above their fellow conservatives who have wacky views like ‘birthers’, yet demand all ‘lefties’ be lumped together.
That sort of hypocrisy never ceases to amaze me.
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October 16, 2009, 11:02 pmHoward Bowman, MD says:
If gay men and women married, there wouldn’t be an issue .
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October 16, 2009, 11:29 pmWww.composition4u.info » “Say What? Louisiana Judge Won’t Marry Interracial Couples” and related posts - 43th Edition says:
[...] Louisiana Justice of the Peace Refuses to Issue Marriage License for Interracial Couple: - The Volokh Conspiracy [...]
Ricardo says:
Yes, small-government, anti-FDR Republicans like Martin Luther King, Jr., Bayard Rustin (a former member of CPUSA and labor organizer), A. Philip Randolph (Socialist and labor organizer) and John Lewis (a current Democratic House of Representatives member).
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October 17, 2009, 7:20 amRyan Waxx says:
You’re right! The existence of one nutcase proves the evil that lies in every white man’s heart.
I wonder if I get to paint All Blacks based on some random black rapist or carjacker, now...
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October 17, 2009, 8:47 amSeamus says:
Maybe this isn’t much of a burden “as a practical matter” because they can just go to someone else, but as a non-practical matter it seems like he kinda ruined their wedding.
I really doubt that. The JP they find to do the ceremony will probably do a fine job, and one of the joys of their golden years will be telling their half-incredulous (mixed-race) grandchildren once again the story about “how the justice of the peace tried to keep your grandma and granddaddy from getting married.”
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October 17, 2009, 9:26 amAlexandra Thayer says:
JustAStudent asks about the effect of a United States Supreme Court decision. Such decisions are “the law of the land.” The Supreme Court ruling in 1967 declared unconstitutional Virginia’s “Racial Integrity Act.” That law prohibited marriage between whites and blacks (also called an “anti-miscegenation statute”) and the United States’ Supreme Court decision overturned that law. The effect was to end all race-based legal restrictions on marriage in the United States.
Tne United States Supreme Court itself engaged in a Fourteenth Amendment analysis, stating “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”
Government officials, like justices of the peace, are required to follow the law of the land, even if they don’t like it. Thus, Justice of the Peace Bardwell, who has, according to his own account, been a justice of the peace for 34 years, started out as a justice of the peace ten years after the Loving v. Virginia case was decided. Any time he has treated the marriage of a couple where one is black and the other is white in a manner differently than marriage where both people are of the same race is a blatant violation of law.
It is inexcusable that Bardwell subjected this couple to his personal prejudices.
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October 17, 2009, 4:57 pmB-Rob says:
Wondering why you changed the subject from racism against an interracial couple.
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October 17, 2009, 5:44 pmB-Rob says:
I am not sure if this post is influenced by the writer’s ignorance or if she is simply being dishonest. At any rate, the fact that small government, anti-FDR Republicans like Barry Goldwater, Robert Bork, William Rhenquist, William F. Buckley and the National Review, etc., and the GOP 1964 all OPPOSED DESEGREGATION makes me wonder:
is Sandy just ignorant about history, or is he/she just so embarassed by the pro-segregation arguments of the conservatives that he/she would rather lie about what happened than deal with that unfortunate reality?
The GOPers who bucked their party and supported the Civil Rights Act were moderates and liberals, like Rockefeller and Chuck Percy. Indeed, I noticed that you did not identify a single supposed “small-government, anti-FDR Republican” who supported the anti-segregation efforts.
No no, Sandy, the facts are the facts. Conservatives from both parties fought, unsuccessfully, to permit the continued degradation of America’s minority citizens, and they did it using arguments about “freedom from government intrusion” and “state’s rights” and “custom and tradition.” Cons opposed Loving v. Virginia; they did not celebrate it. Cons picked the losing side back then and the present day Dem lock on minority voting is a natural consequence of past conservative opposition.
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October 17, 2009, 5:58 pmRandy says:
Dr. :f gay men and women married, there wouldn’t be an issue .”
Of course, they already do. In fact, Liza married two gay men. But I can’t marry one. Sad, isn’t it?
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October 17, 2009, 6:14 pmTully says:
Small point of fact — the reporting is WRONG in the claim that he denied the couple a marriage license. They had a legally-issued license. What the JP did was decline to personally perform the ceremony for them for his own reasons. And he referred them to another JP who would perform it.
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October 17, 2009, 10:14 pmChrisTS says:
Are we not allowed another option: ‘all of the above’?
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October 18, 2009, 8:15 pmRyan Waxx says:
That’s a rather ignorant criticism, don’t you think, given that my comment was a direct reply to:
A quote which you helpfully left out, because your complaint would look rather silly with it left in, on the grounds that one might think that if you were going to complain about thread derailment, you would criticize the person who started the derailment, not someone who replied to him.
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October 19, 2009, 9:39 amRyan Waxx says:
Oh, and for those of you in this thread who were using this incident to bash your political enemies? Bad news for you. It seems the Justice in question was Democrat up until last year.
...oops.
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October 19, 2009, 9:46 amOH YEAH… What about the children? « curlykidz says:
[...] Not Too Much of an Inconvenience Eugene Volokh, The Volokh Conspiracy [...]