by Brian Mahany
Have we achieved racial equality? Hardly!
No matter what your personal politics may be, the election of Barack Obama was a watershed event in American history. Unfortunately, the election of an African American president was not the death knell of racism. Bigotry is alive and well in the United States. As a lawyer concentrating in discrimination law, nothing much surprises me but a recent story about Louisiana Justice of the Peace Keith Bardwell was shocking.
When Americans suffer from discrimination, they turn to the legal system for redress. We look to our courts and judicial officials to enforce anti-discrimination laws and assure racial equality. Just don’t look too hard in Tangipahoa Parish.
Bardwell, a justice of the peace in a rural parish (county) outside of New Orleans, refused to issue a marriage license to an interracial couple. According to an Associated Press story, Bardwell said, “I’m not a racist. I just don’t believe in mixing the races that way. I have piles and piles of black friends. They come to my home… they use my bathroom. I treat them just like everyone else.” Except, apparently if they choose to marry a white person.
There are many people who don’t believe in interracial marriages. It is still a controversial issue in many places throughout the country. But it’s obviously not illegal and judges can’t refuse to issue marriage licenses based on their personal beliefs.
Incredibly, Bardwell believes he treats everyone equally… as long they are of the same race. The whole concept of separate but equal was universally discarded by courts and legislatures back in the 50’s and 60’s. Not so in rural Louisiana.
For those not familiar with the law, our Supreme Court ruled back in the 60’s that society can’t tell people who they can and cannot marry. Unless, of course, you are trying to marry someone too young or mentally ill to consent.
What happens when a judicial official is the person at fault for discrimination?Unfortunately, in most jurisdictions judges and court officials are immune from suit. But that doesn’t prevent them from impeachment, recall or being removed for judicial misconduct.
In June of this year, U.S. District Court Judge Samuel Kent was sentenced to 33 months in prison after he lied about abusing two female employees. Judges may be immune from suit but they can be charged criminally, removed from office or stripped of their powers.
During the past week there has been movement to have the Louisiana Judiciary Committee remove Bardwell. And Bardwell continues to defend his position, now claiming that children of interracial couples suffer.
Perhaps he is right, sometimes those children grow up to be President of the United States. Or maybe that is what he is afraid of?
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Fortunately, very few people in our society are immune from suit. At MahanyLaw we concentrate in anti-discrimination law. From employment to housing to hate crimes, we protect the rights of those who suffer discrimination based on race, national origin, skin color, age, sex, sexual orientation, religion or handicap status. If you are the victim of discrimination, call us.
From our offices in Milwaukee, our lawyers handle discrimination and sexual harassment cases all over Wisconsin. In select cases, we will represent people anywhere in the United States. To contact us, visit our website, www.mahanyertl.com.
Could a judge be sued for discrimination for refusing to perform a marriage, based on race or other constitutionally protected status? If the judge discriminated in a JUDICIAL function — such as jailing blacks for minor traffic offenses, while only imposing fines on whites — they would probably be protected from civil lawsuit by judicial immunity.
I don’t think marriage would be considered a JUDICIAL function. Louisiana does allow judges to perform marriages, but also allows any religious clergy to do this, if their religious sect allows them to do this. Also, I think judges get paid by the parties to the marriage, and are not paid by the government for this. And I also think a given judge could simply refuse to perform any marriages at all, or limit the number of marriages performed (so long as they did not discriminate).
So maybe this Bardwell fellow could be sued without judicial immunity being an issue?
Sobering thought — Bardwell may be able to continue performing (or not performing) marriages after his resignation. Louisiana RS 9:203C seems to allow a former justice of the peace to continue performing marriages, so long as they have served at least 18 years (Bardwell was in office 34 years or so).
So maybe the Louisiana Judiciary Committee could still do some useful work here. Maybe if he is disqualified from further judicial office, his authority to perform marriages after retirement would also cease?