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Racist Judge Inadvertently Makes the Case for Gay Marriage

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Posted on Oct 29, 2009
AP

The Supreme Court in 1967 finally overturned state bans on interracial marriage, thanks to Mildred and Richard Loving.

By The Rev. Madison Shockley

Earlier this month it was reported that a justice of the peace in Louisiana refused to perform the wedding of an interracial couple. Justice Keith Bardwell claimed he was not a racist, having married black couples in his own home, but explained that he declined all interracial marriages out of concern for the children of such unions. He voiced the belief that the children of interracial couples have a difficult time in life. I guess he missed the last election, when an Ivy League-educated lawyer and senator was elected president of the United States. You don’t have to be perceptive to be a racist, just fundamentally irrational.

Bardwell’s ignorance and racism notwithstanding, there is a principle at work with this bigoted Louisiana judge that proves essential to the marriage equality movement. He claimed that he should not have to preside over a marriage that he found morally objectionable. With this I completely agree. All during the Proposition 8 campaign, which resulted in a constitutional ban on same-sex marriage in California, those opposed to marriage equality raised the straw-man that if same-sex marriage were allowed, clergy and others whose faith objected to such a practice would be forced to perform same-gender loving weddings. We who opposed Prop. 8 repeatedly made the case that no one would ever be forced to perform a wedding that was against their religious beliefs. We were only asking for the right to marry for same-gender loving couples. Clergy and persons who in good conscience could perform the weddings would be the only ones to perform same-sex ceremonies.

News reports about the Louisiana case consistently misreported that Bardwell refused to issue a marriage license. That was not accurate. The couple already had a marriage license in hand and went to Bardwell to have their ceremony. He refused and referred them to another justice of the peace nearby and the couple were married later that week.

In Louisiana, and most states in the union, a variety of individuals are or can be authorized by the state to perform a wedding. Judges, clergy and many elected officials are by statute generally able to perform weddings. However, temporary authorization is available in most jurisdictions. Here in San Diego, one can become a deputy marriage commissioner for a day by filing a form and paying a fee.

Being authorized to perform a wedding does not carry the burden of being required to marry any and every person who asks for a ceremony. There are practical reasons for that. Imagine that you became a deputy marriage commissioner for a day in order to perform your best friend’s wedding ceremony down at the beach. After the wedding, a couple from a hundred yards away comes up to you because the person scheduled to perform their wedding didn’t show up. You are on your way to the reception where you have emcee duties for the evening. Would you be legally bound to stay and perform the second couple’s wedding simply because on that day you held authorization to perform weddings? No, you would be free to decline them simply because you were busy or you just didn’t want to do it.

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Personally, I refuse to marry any couple in which one person is under 25. I think it’s simply too young. Could I be sued if I refused to perform a wedding for a couple that had come to me for a ceremony? No. I had not denied them the right to get married. I simply declined to participate in that wedding. They are free to get married by someone else.

Clearly, there is a difference between a clergy of a church and a justice of the peace for a county. One is authorized by a private entity (the religious denomination) and the other by a public agency. However stupid and insensitive, Judge Bardwell’s denial did not take away any right of the couple. It was an inconvenience.

The marriage equality movement is all about the right to marry.  As stated in Loving v. Virgina, “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.”

Similarly, one has a right to a speedy trial. That right is guaranteed by the state, not by any particular judge. If one judge recuses or is unavailable, your right is guaranteed by the state, which will provide another judge within the legally required time frame. The couple in Louisiana would have a case against the parish (that’s Louisiana for “county”) if they could not find anyone else authorized and willing to perform their wedding. But their case should not be against a particular justice.

The marriage equality movement has been severely damaged by the argument that those opposed to same-sex marriage would be forced to perform weddings by the demand of couples who (for no reason I can imagine) would ask someone absolutely opposed to same-sex marriage to perform their ceremony. As much as we have repeated our denial of such coercion in the past, a bigoted, racist justice of the peace in the backwoods of Louisiana may finally make the case for marriage equality most effectively.

Madison Shockley is minister of the Pilgrim United Church of Christ in Carlsbad, Calif., and a regular commentator on religion, race, politics and popular culture.


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By Revshock, November 4, 2009 at 3:52 pm Link to this comment

The Justice of the Peace Bardwell has resigned. The pressures brought to bear on him were ultimately political and not legal. Being an elected official that might be the only method to get satisfation in this case.

The greater tragedy is the loss in Maine where 53 % of the population voted against marriage equality. In California Prop 8 overturned a court decision. In Maine the voters overturned a legislative decision. This is indeed a battle for the hearts and minds of the people.  And boy, do we have work to do. My heart bleeds for all of the same gender loving couples who are prevented by law from having their loving relationships recognized and respected.

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By Arouete, November 3, 2009 at 4:42 pm Link to this comment

3ringquercus,

Again ignorance is easy but one must dig for Truth and have a brain to work with.
Three ring circus indeed! 

In the First Ring:

The presence of utter charlatans holding themselves out as authorities in civil rights and marriage law are a laughing stock deserving of contempt and ridicule. Sir, or madam, or whoever you are, think you are, or hope to be, I have practiced civil rights and First Amendment law for three decades and I assure you I know what I am talking about.  You obviously have not read my comments very thoroughly if at all (and you certainly have not refuted them) and your remarks utterly beg the question at the same time you display a frightening ignorance of the law you claim to be an authority on.

You wrote, “Bardwell’s case is interesting, since as an elected official he’s technically different from a civil employee (like someone who works in the Clerk’s office.) ... he may not have violated any specific law, but there’s probably not a specific law forbidding a Clerk’s employee from discriminating either—such conduct usually comes under agency policies based on state law, but not specific legislation. ... bla, bla, bla.  “
     
Rubbish, rubbish, rubbish.  Balderdash and claptrap!  Where do these people get their legal education?  From the graffiti spewed across the walls of public toilets?  It strains credulity that any person claiming to have even a thimble full of legal knowledge could make such a brain-dead statement.  These appeals to ignorance are beyond belief.  Who, in heaven’s name, wrote this?  A high school freshman? 

Justice Keith Bardwell is a justice of the peace. Elected official or otherwise 3ring too makes distinctions with no legal difference as s’he irresponsibly poisons minds with dangerous propaganda.  3ring, you claims, falsely, to be an authority on the law.  Really, well precisely what authority to you rely on for the proposition that it’s not illegal for any person (elected official or otherwise)  acting in an government capacity on behalf of the any government body, to deny ‘due process’ or ‘equal protection’ of law to any person based in their race?  The notion is utterly risible.

The very link you falsely rely on states that “[t]he U.S. Supreme Court has long recognized that interference with marriage rights solely upon the basis of race is a violation of constitutionally protected rights.”  That legal authority is Loving v.  Virginia a case anyone claiming knowledge of marriage law or civil rights should be intimately familiar with – unless, of course, they are utter charlatans and a complete frauds.  Every thing both 3ring and Shockley rely on is refuted by the very Supreme Court precedent Shockley plasters over his phoney and despicable legal arguments.  That Supreme Court case stands for precisely the opposite of everything both 3ring and Revshock argue and it utterly, and completely, refutes all they say. 

Loving is the same case Rev.  Shockley relied on at the same time he too posed the preposterous notion that Bardwell broke no law.  Loving was decided in 1967 and before the Civil Rights Act of 1968 and before the other litany of civil rights legislation enacted by the Johnson administration and which were also violated here.  That Bardwell broke the law is simply not an issue any credible legal authority would make and not expect to be greeted with ridicule - not to mention being laughed out of court.  Indeed, any lawyer making that statement in any court in America could be sanctioned for raising ‘bad faith’ frivolous denseness calculated to vex, harass, and annoy the court. They could also be dis-barred for misrepresenting the law to the court.

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By Arouete, November 3, 2009 at 4:41 pm Link to this comment

Second Ring in this circus:

Federal law aside even the Republican Governor of Louisiana admits state law was also violated. And yet we have these utter nincompoop charlatans holding themselves out as legal authorities citing a seminal Supreme Court case as they argue the opposite of what it held.  Amazing. These writers have the intellectual integrity of garden slugs.  That Bardwell violated the law (both state and federal) is a preposition that has not been open to challenge for almost 50 years.
     
3ringquercus’ comments also demonstrate shocking ignorance of the principle of federalism.  It is axiomatic that, while they have authority to legislate and govern in the marriage arena, states are not exempt from the U.S. Constitution.  Again, that’s Loving the holding of which stands for the proposition that no person acting in an official government capacity may violate any persons right to ‘due process’ and ‘equal protection’ of the law.  When any government official fails to respect the principal holding of Loving they ‘make a law’ in the technical, legal, practical, sense and they may be sanctioned and removed from office for violation of civil rights.    This goes for those with ‘ostensible authority’ like Bardwell’s wife who is also joined in the law suit because she injected herself into the controversy and acted as his agent. The law will nail her to the wall too.   
       
The news reports are in error, although the media alleged that Bardwell had refused to issue a marriage license, he has emphasized that he has no authority to “issue” a marriage license and that what he did was only to “recuse” himself from officiating the ceremony. So what?  It does not matter one iota whether Barwell is a judge, a justice of the peace, a county clerk, an elected official, an appointed official, or a none-to-five Dagwood Bumstead bureaucrat.  Nor does it matter whether he refused to perform a marriage ceremony or issue a licence.  Nor does it matter that Bardwell merely ‘recused’ himself for the simple reason that his oath of office requires that he fulfill his legal duty, DO his job, and not deny ‘due process’ and ‘equal protection’ on the basis of race.

These specious arguments all distinctions with absolutely no legal difference.  They are all red-herrings.  Public officials do not get to decide which class of persons legal rights they will respect and they do not get to decide that will deny ‘due process’ to anyone.  If they try it they will be removed from office and loose their personal assets in a civil suit.  If they have committed a felony (and this is a felony) they will not be permitted to hold public office in any jurisdiction in the U.S.

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By 3ringquercus, November 3, 2009 at 1:22 am Link to this comment
(Unregistered commenter)

I’m glad Arouette has had an opportunity to blow off steam, but to those who are interested in the real facts of this case, you can pretty much ignore A.‘s statements—s/he clearly doesn’t have any Constitutional law practice expertise, nor seems to have followed this story very closely. 

Bardwell doesn’t have the authority under Louisiana State law to issue marriage licenses—in Louisiana, only the Clerk of the Court’s office can do that.  Bardwell has only the authority to solemnize licenses.  The media, who, like Arouette, doesn’t understand marriage law or marriage licensing procedures, widely and incorrectly misreported that Bardwell had refused to issue a marriage license to Humphrey and McKay.  The couple in question themselves have refuted this: they obtained the license from the Clerk’s office and asked Bardwell to solemnize it: http://www.nola.com/newsflash/index.ssf?/base/national-74/1256079714104020.xml&storylist=louisiana

The rest of these rantings are similarly misinformed.  How do I know?  Because I happen to be authorized to issue marriage licenses in my state, and am both a sworn civil officiant for the State as well as an ordained minister.  As a result, I am intimately aware of how marriage laws work, and I can assure you: Arouette is not. 

I also have first-hand sources concerning lawsuits against religious organizations for federal civil rights violations like discrimination in employment practices, and Arouette doesn’t seem credible in that field either.  Capitalizing the word LAW doesn’t indicate any familiarity with how the law actually works, particularly federal civil rights law as it pertains to religious organizations—which happens to be far more complex than the first- and second-year law school premises that Arouette insists have sole bearing on this case.  Sadly mistaken.

Marriage laws vary from state to state, and sometimes from county to county within a state.  The roster of who is permitted to solemnize marriage licenses also varies, and not every state issues “licenses” or “permits” to those they authorize to solemnize licenses, or even registers them.  And sorry—clergypersons do not become an arm of the state when they sign a marriage license, no more than someone who gets a state contract to build a road suddenly becomes a peace officer.  Most states have a policy of non-interference with religious wedding ceremony requisites, no matter how many perceived civil rights violations occur, and that ‘s just how it is.  I’d like to see Arouette provide a modern day legal instance of a couple who successfully sued and had non-profit status revoked for an religious organization that refused solemnization of their marriage license on grounds that could be perceived as civil rights violations—that they were discriminated against because of their age, previous marriage history, or children.  It doesn’t happen.  Why?  No grounds.  It’s protected practice, even when it comes to signing civil documents.  Religious groups have wide discretion to discriminate as they see fit, protected by the LAW, and all of Arouette’s kicking and screaming doesn’t change that one whit. 

Bardwell’s case is interesting, since as an elected official he’s technically different from a civil employee (like someone who works in the Clerk’s office.)  This may work for or against him as far as censure is concerned; he may not have violated any specific law, but there’s probably not a specific law forbidding a Clerk’s employee from discriminating either—such conduct usually comes under agency policies based on state law, but not specific legislation.  If Bardwell is punished it will be interesting to see what authority will be invoked, but don’t hold your breath: judiciary commissions and legislatures are usually reluctant to eat their own.

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By Arouete, November 2, 2009 at 11:59 pm Link to this comment

Can this man get ANY of his facts straight? 

First, in direct contravention of Supreme Court rulings, Keith Bardwell, justice of the peace for Tangipahoa Parish’s 8th Ward, REFUSED TO ISSUE A MARRIAGE LICENSE to Beth Humphrey, 30, and her boyfriend, Terence McKay, 32.  Those are the indisputable facts as reported by all major media. The couple received their marriage license later, October 9 from another justice of the peace in the same parish.

Loving v. Virginia did not overturn a state law that “prohibited the ISSUING OF A LICENSE to an interracial couple.” That comment is yet more rubbish!  Loving struck down Virginia’s “Racial Integrity Act of 1924” which was one of two eugenics laws. The Racial Integrity Act did NOT “prohibit the issuing of a license” but made MARRIAGE between white persons and non-white persons a felony.

From making distinctions with no legal difference to failing to make distinctions with a very real legal difference his dishonesty and lack of intellectual integrity are shocking in light of the fact that he could vet such clap trap in five easy minutes.

Revshock just keeps digging himself in deeper and deeper.  He is adrift in a sea of red-herrings. Of course it’s discrimination if Mormon’s segregated their church seating!  BUT they were doing it LEGALLY right along with many other Christian denominations right up until 1954 when the Supreme Court struck down ‘separate but equal’ in 1954 at which point is was finally illegal.  Is it really possible that a black Harvard graduate does not know this essential history?

Cast no aspersions and point no accusatory fingers at other Christian brethren sir because many, if not most, Southern (and even Northern) churches, like so many other bigoted organizations in America, continued to do so for many years after Brown.  Indeed we are still cleansing ourselves of the taint of institutional racism that poisons America’s well.

He consistently misses the threshold questions. The question is always NOT whether one discriminates but whether the law permits it. The law does not outlaw all discrimination. Indeed, in some cases the law mandates it. Affirmative action is clearly racial discrimination.  Many of our laws discriminate without running afoul of the Constitution: we treat old people differently for some purposes, we discriminate against young people for other rational reasons. This is the very essence of the Equal Protection Doctrine.  It is always and only as means-ends analysis:  on what ‘rational basis’ do you justify treating this class of persons differently than all others?  What ‘compelling interest’ does it serve?  What ‘legitimate legislative objective’ is served?  Are there any ‘less restrictive alternatives’ to such disparate treatment?  What is the nature of the class discriminated against?  What is the real, actual, purpose of the legislative enactment? Depending on the nature of the class involved? The answers to those questions determine whether a law passes constitutional muster or is struck down as ‘invidious discrimination.’

These are the central, threshold, questions in any 14th amendment analysis. They are not difficult to understand and I have found elementary public school classrooms that grasp them quite well.  This takes no great intelligence.  The principals are easy to understand.

It does not take much education to comprehend the dynamic.  It is especially for this reason that anyone who does not come to the table equipped to discuss them with substantive credibility, anyone who has not even bothered to do their homework and made the effort to inform themselves of basic civil rights principals, has no business presuming to act as a civil rights advocate for others and no business pontificating on such issues.  ‘Advocates’ like this do more harm than good.  They are not part of the solution but part of the problem itself.

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By Arouete, November 2, 2009 at 11:52 pm Link to this comment

Second, the Fourteenth Amendment aside, yet again Revshock demonstrates a rather abysmal understanding of the First Amendment and a failure to comprehend the difference between a non-secular religious matters wherein government intrusion is forbidden (‘free exercise’) as opposed to clergyman operating as a deputized agent of the state with a specific secular function and civil duty- in which case the State may intervene under the ‘establishment clause.’

I can understand a clergyman not comprehending rather simple -  indeed, sophomoric -  Fourteenth Amendment dynamics (even though it’s easily within the intellectual reach of a sixth grader); but for a clergyman to not comprehend the essential bedrock dynamic of the First Amendment, the ‘establishment clause’ and the ‘free exercise clause,’ is nothing less than shocking.  Forget about LGBT rights, unless and until a minister can disabuse himself of his own ignorance as to First Amendment doctrines it is highly doubtful he can be an effective advocate for his own sheep.  One would think that a Harvard-educated black man would know at least the basics concerning the law that most impacts his own flock.  Of course, one would also think that a Harvard-educated man, who holds himself out as an authority on civil rights, would have the intellectual integrity and scholastic rigor expected as result of the privilege of a superior education.  In both regards one would be seriously mistaken.  Veritas!

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By Revshock, November 2, 2009 at 7:48 pm Link to this comment

By excluding blacks from temple services the Mormon temples were “white only”
without the triffle of a Negro balcony. If that’s not discrimination I don’t know what bis
yet no civil rights laws compelled the to change this policy.

Speaking of facts Arouete repeats the consistent but erroneously reported denial of a
marriage license by the justice of the peace. The parish issued the license. The license
is the document that confers the right to marry. Where and when the ceremony occurs
is at the discretion of the couple. They simply have to procure the services of
someone, anyone authorized and willing to perform the marriage. Loving V Virginia
overturned the state law that prohibited the issuing of a license to an interracial couple.
Louisiana has complied with that ruling.

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By FrancisD6, November 2, 2009 at 7:18 pm Link to this comment
(Unregistered commenter)

This minister’s comments are absurd. What do they smoke at Harvard? Perhaps we can ask Barack Obama for, in case you haven’t noticed, that so-called civil rights lawyer has never once - not even once - provided even one legal reason why gays must be relegated to ‘separate but equal’ second class citizenship. ‘The only ‘reasons’ Obama has ever given are religion, religion, and, oh yes, religion.

If you have any legal knowledge at all you know that is a promise to violate the 1st amendment for the nefarious purpose of denying a fundamental civil right guaranteed under the 14th amendment. Psst. That is at least TWO violations of the U.S. Constitution AND a promise to violate his oath of office.

But no need to single out Shockley or Obama though for the LGBT leadership has also swallowed this disgusting appeal to ignorance. Indeed, they have done the most to perpetuate ignorance. That gay ‘activists’ let him get away with such despicable appeals to religious bigotry only goes to show how utterly pathetic gay activism has become.

When appeals to ignorance are an advocate’s only defense they do a grave disservice to the people they claim to represent. When appeals to ignorance are an advocate’s only “strategy” we are all in deep *hit trouble.

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By Stephanie W, November 2, 2009 at 6:52 pm Link to this comment
(Unregistered commenter)

WOW!  LOL!  How can it possibly be that there is actually a black man in America (Rev. Shockley) who does not know it’s illegal to deny a marriage licence to an inter-racial couple?  This is not even a debatable issue!  Can anyone really be this ignorant in America? And he says this with such authority! He actually claims that he KNOWS that no lawyer could find and violation of the law here.  My God!  The very case he relies on, the very couple whose photo he uses to demonstrate his phoney knowledge, disproves his comments.  This, of course, is precisely how so many preachers exploit ignorance and abuse their trust for when you feed people unmitigated falsehood you betray that trust.  That you claim some noble purpose changes nothing. 

Truthdig, you gotta be kidding!  Give us a break! I am no lawyer but I am also no fool.  The comments of this preacher, so desperate to find reason to elevate Church above State, ARE the very essence of what this entire debate is really all about.  Wall?  What Wall?  The Rev. Shockley sees no wall.  He thinks that, as a men of the cloth, preachers may arrogate to themselves the right to decide to whom they will fulfill their civil and secular duties.  And for this he expects gays should thank him?  Unlike those with a” law degree” the Rev.  Shockley knows the “TRUTH” and his “TRUTH” trumps the law of course.  What unmitigated arrogance.  And he seem proud of the ignorance he defends as well as the false facts (lies) he publishes.  Roll over in your graves Thomas Jefferson and James Madison.

I must agree with most of the commentators here and its encouraging to see that preachers can’t so easily pull the wool over their eyes. When marriage equality advocates appeal to ignorance to secure our rights they are not much different than bigots who appeal to ignorance to deny our rights (and this goes for gay advocates just as much as preachers).  In degree they may be different but in kind they are the same.  Ignorance is ignorance and appealing to ignorance for some condescendingly noble reason is still ignorance and we should all deplore it.  Though there may be evidence to the contrary, people are not blind sheep to be sheparded by propaganda into whatever pasture certain preachers deem in the national best interest. Get these freaking preachers out of the public square!

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By Arouete, November 2, 2009 at 5:42 pm Link to this comment

Again, bald propaganda is easy.  It takes a bit more time to Digg for the Truth.

Revshock, I will begin with our most outlandish statement that, coming from a black man, is nothing less than shocking and proves my point: Prop 8 and your arguments are the result of legal ignorance and religious bigotry.  While your ‘good faith’ may mitigate that fact it is ‘bad faith’ to misrepresent the facts and the law when the means to vet ignorance are at your fingertips.

As to the Louisiana bigot you have made unconscionably false statements.  It is both irresponsible and bigoted to defend a false position and publish factual falsehoods that take no more education that 30 Google seconds to refute.  You wrote,

  “AND BY THE WAY, THOSE LAWYERS DOWN IN LOUISIANA HAVE YET TO FIND THE STATUTE, LAW, ORDINANCE OR ANY OTHER LEGAL AUTHORITY THAT THE JUSTICE OF THE PEACE VIOLATED. MAYBE YOU SHOULD LEND YOUR LEGAL EXPERTIXE (SIC) TO THEM, AROUETE “

What?! Amazing! That statement not only reveals the lack of a thimble full of legal knowledge but the willful, obstinate, and bigoted refusal to even inquire into the facts or the law (both of which you misrepresent) before you make such outlandish statements intended to prejudice the opinions of others. Where do you get your facts?  Really sir, exactly WHO are these shyster pettifogging lawyers whom you claim could find no legal violation.  Dis-barred I hope! Apparently you just make this up as you go along?  It is unfathomable that an African-American man could make such a statement or swallow such outlandish legal claptrap.  My authority?  Loving v. Virginia! 

For your information sir that Justice of the Peace violated plenty of state and federal laws and, in all likelihood, will be removed from office.  In fact, on state law grounds alone,  Bobby Jindal, the Republican (!) Governor of Louisiana has called for the dismissal of that justice of the peace who refused to issue a marriage license to an interracial couple. In fact, Beth Humphrey and Terence McKay, the inter-racial couple so denied their ‘fundamental’ civil right, are working the U.S. Justice Department in filing a federal discrimination complaint.

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By Arouete, November 2, 2009 at 5:41 pm Link to this comment

Part Two

Indeed Katie Schwartzmann and attorney with American Civil Liberties Union of Louisiana stated, “It is really astonishing and disappointing at any time, but especially in 2009 ... The Supreme Court ruled as far back as 1963 (sic) that THE GOVERNMENT CANNOT TELL PEOPLE WHO THEY CAN AND CANNOT MARRY ON THE BASIS OF RACE.” She was referring to Loving which was actually decided by the Supreme Court in 1967.  And that was before Lyndon Johnson’s Civil Rights Acts which provided even greater protections.  The ACLU recommended “the most severe sanctions available, because such blatant bigotry poses a substantial threat of serious harm to the administration of justice.” “HE KNEW HE WAS BREAKING THE LAW, BUT CONTINUED TO DO IT,” Schwartzmann said.

In falsely representing the opposite you tell on yourself sir. These facts could be discovered and your specious argument refuted with less than five minutes of inquiry.  But you are obviously not interested in DIGGing for the TRUTH.  When you demonstrate you are more interested in defending a spurious position by use of a outlandishly false statements in order to bolster false legal arguments then I can think of no better example of bigotry.

As to the remainder of your comments Revshock, please, you do a poor job of defending ignorance and only dig yourself in deeper.  While some people shoot themselves in the foot others put their foot in your mouth before they pull the trigger.  Legal ignorance does not serve this community. 3ringquercus refutes nothing.  This is the same rubbish of failing to make distinctions with a legal difference. 

In reference to my comment about Mormons and Negro water fountains or established segregated schools you wrote, this is “exactly what the Church of Latter Day Saints (Mormons) did until 1978.” Rubbish, balderdash, and claptrap. The Mormon Church NEVER put in Negro water fountains or established segregated schools!  How do people conjure such outlandishly remarks?  What is your authority for such absurd appeals to credulity?  These statements have no more credibility than graffiti spewed across the walls of the subway.  Again comparing apples to oranges. 

Until recently the clearly racist Mormon Church refused to admit blacks into the priesthood.  This they were legally permitted to do under the “FREE EXERCISE CLAUSE” because it was part of original religious doctrine - just like a male priesthood and a female nunnery; but even the Free Exercise Clause is insufficient to permit polygamy.  Why?  Simple!  Because marriage is a civil contract and a secular act regulated by the State and not the Church. 

The same example is seen in the Anglican Church that altered past doctrine (dogma) to install openly gay and sexually active clerics.  The Free Exercise clause permits it.  Distinctions with a difference! When a church does that (restricts its priesthood) they are not acting as public officials, they perform no secular act, they serve no secular purpose.  They are free to “exercise” whatever bigoted despicable, sexist, racist dogma they wish but NOT when it comes to their public duties and secular functions.

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By Arouete, November 2, 2009 at 5:41 pm Link to this comment

Part Three

As I have written here before, a church can not simply invent the excuse of ‘deeply held religious beliefs’ as an end-run around the law.  These are not my opinions sir but the LAW and they are not issues you or I get to vote on.  The law sees through such disingenuous bigotry. As, for instance, when Oral Roberts University lost it’s tax exempt status and federal funding and student loans.  A church can “EXERCISE” its bigotry, racism, or sexism, as they please and our Constitution tolerates it; but the State and the Constitution will not support it, underwrite it, or license it for that violates the ESTABLISHMENT clause.  In this regard our Constitution’s tolerance has its limits.  It is just that simple.

Before people presume to act as our self-anointed advocates and enter the public arena to argue on our behalf they have a duty to inform themselves of the bedrock principals at play. This kind of obstinate ignorance does not serve civil rights.  That such remarks come from a black man is nothing less than shocking.  In light of Loving (more than a half century ago!)  is it really possible that an ‘educated’ African-American man can actually say that no lawyers could find a legal violation where a public official denies a ‘fundamental’ right on the basis is race?  Sorry but this is dumbing stupid down.  Amazing.  Absolutely amazing.

What has become of America’s educational system.  The Reverend Jeremiah may have been a bit of a crack pot but he sure got one thing right, ‘If you want to control The People, if you want to keep your power over them, you gotta keep The People ignorant.  Oh yes, keep The People ignorant!!!” And he was spot-on!  He nailed it to the wall like a bug!

To stand by an erroneous legal argument after is it refuted (as a matter of law and fact and NOT mere opinion) is the very essence of bigotry.  Ignorance and vapid propaganda do not serve this community.  We do not need advocates who appeal to ignorance.  We need advocates who have some basic knowledge about the law they presume to pontificate upon.  We need advocates to will educate people to think for themselves and not swallow intellectual and legal rubbish no matter how well-intended the insults to intelligence are so cavalierly tossed over. They do us far more harm than good. 

Please educate yourself before you presume to advocate on our behalf and please cease the harm you do to others which you take for an exercise in virtue.

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By dihey, November 2, 2009 at 4:16 pm Link to this comment

Carl obviously does not understand the fundamental reason why polygamy is outlawed in our country. A marriage contract is, among others, a contract which protects the children. It was decided that monogamy gives better legal protection for children than polygamy. Monogamy has nothing to do with homosexuality. Carl’s admonishment of homosexuals is clearly a nonsensical non-starter from an apparent gay-basher.

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By Arouete, November 2, 2009 at 1:41 pm Link to this comment

Superbly writ Solange! “When it comes to matters of law it is best that some people remain silent and be thought a fool rather than open their mouth and remove all doubt.”

It is refreshing to see that some commentators have a grip on basic legal bedrock. If people are going to opine on matters of law the very least that can do is to disabuse themselves of their legal ignorance and make some attempt to come to the conversation with a basic understanding of the bedrock legal principals this nation is founded upon. This is especially true for those who claim to argue for marriage equality.

Nothing is more revolting than so called ‘civil rights’ advocates ill-equipped in the basic principals they claim to advocate for. Ignorance is our biggest enemy and gay activists have done a shamefully abysmal job of educating their own. This is where gay activism has failed miserably! Over two decades since the Hawaii case and gay advocates are still spewing out the most absurd and vapid legal rubbish imaginable. Propaganda and hyperbole have no legal authority. Shame on gay advocates. They have become toothless, pandering, sycophantic, lap dogs.

So far the best legal and historical analysis was laid out in a Salon.com article by John Mortimer and titled “Making Sense of Prop. H8 as Iowa Steals California’s Cool” And I also recommend his “Untangling Barack Obama’s audacious mumbo jumbo” at the Bay Area Reporter -both online just google it. These are not erudite legal doctrines but basic first year law stuff and basic legal bedrock every American should know in order to call themselves ‘educated.’

One of Mortimer’s quotes is very apt and fitting here:

“We can easily reduce our detractors to absurdity and show them their hostility is groundless. But what this prove? That their hatred is real. When every slander has been rebutted, every misconception cleared up, every false opinion about us overcome, intolerance itself will remain finally irrefutable.” (Moritz Goldstein, “Deutsch-judischer Parnass”)

Amazing! People can recite and fight about something so trivial as the Pledge of Allegiance but the vast majority of Americans are such ‘authorities’ on America that can’t recite the Bill of Rights.

It is utterly revolting that people presume to engage in legal arguments (this IS a question of LAW) but they do not comprehend what is first in the Bill of Rights, first in the First Amendment, and First in our Constitution, because it was first and foremost on our Founding Fathers minds: Separation of Church and State.

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By Revshock, November 2, 2009 at 1:28 pm Link to this comment

I thank 3ringquercus for the compelling refutation of Arouetes persistent argument. But persistence doesn’t make truth nor does a law degree. Most of the civil rights laws are binding on “public accomodations” like hotels, restaurants, public transit etc., not churches. Even the Mormon church whose polygamy you cited excluded blacks from a variety of services in the temple because they were black and according to their interpretation at that time (they have since recanted) that excluded them from the priesthood. So your assertion that “Do you really think that any church could install a Negro water fountain or that they could require Negroes to sit in the back of the church or be segregated into separate classrooms? ” is exactly what the Church of Latter Day Saints (Mormons)did until 1978. No “litigation” or law required them to change this practice only the new revelations of the church leaders had the authority to do so.

My position is that not everyone authorized or “permitted to solemnize” marriages (and their licenses’)is on call for any and every person who wishes to get married. A Wedding Chapel that advertises to the public for venue and ceremony would fall under the public accommodations part of the Civil Rights laws. I also agree that clerks of the court (employees) may be fired for not upholding the law should Marriage Equality become law. But it is clear that elected officials (that’s what a Justice of the Peace is in Louisiana) who are typically “permitted” to perform weddings, and certainly not clergy (Arouete’s law degree notwithstanding) cannot be compelled to perform the wedding of any particular couple, heterosexual or otherwise. And by the way, those lawyers down in Louisiana have yet to find the statute, law, ordinance or any other legal authority that the Justice of the Peace violated. Maybe you should lend your legal expertixe to them, Arouete?

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By Arouete, November 2, 2009 at 1:09 pm Link to this comment

3ringquercus, wrote,

“Um…how come women haven’t sued their way into being Catholic
priests, then?”

Again, the failure to make distinctions with a difference. In this case the writer demonstrates a total lack of understanding of the difference between the “free exercise clause’ and the “establishment clause”.

Make absolutely not mistake about it, when any minister performs a marriage ceremony they are licensed BY the state to do so. If they abuse their discretion that license and tax exempt status may be revoked. They may continue their religious practices but they have lost the authority to perform a legal act and that marriage, though recognized by the church will be legally invalid.

Again, the same ol, same ol, people come to this debate on LAW virtually ignorant of what they are talking about. These are not matters of opinion one can disagree with, this is the LAW and one’s mere opinion is irrelevant.

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By Arouete, November 1, 2009 at 5:54 pm Link to this comment

Again this will take 3 parts.  Legal rubbish and propaganda are easy but the Truth takes a bit more time.

Part one:

Sir, it is not you personally but your legal statements that I take to task.  You are wrong as a mater of law and my mere ‘opinion’ is irrelevant.  These arguments only defeat your credibility.  And here you go again mixing apples with oranges and failing to make distinctions with a real difference.

First of all a ‘prosecution’ is a legal term-of-art referring to actions taken by government in criminal actions and not civil suits. The violations of civil rights are generally not ‘prosecuted’ but simply litigated.  In any event, while churches are allowed a certain amount of ‘autonomy’ (such as exemptions from certain employment laws) a plaintiff litigates to recover ‘actual damages’ proximately ‘caused’ and may not to sue over a purportedly illegal ‘policy.’ Mere policy is not actionable because it is not ‘ripe’ not ‘justiciable.’ A church constitution of President Carter’s local congregation excluding membership by “Negroes” is not an actionable ‘act’ and, I assure you, if in their State function, they refused interracial marriages they could be successfully sued or lose their tax exempt status and their civil authority.  Taxpayer status will provide legal ‘standing.’ The 1st amendment gives them the shelter of ‘free exercise’ but they will loose civil authority and THAT is the issue. 
 
Anyone can call themselves a ‘church’ but that does not grant them tax exempt status or the civil authority to perform secular marriage.  THAT is the issue. The Creativity Movement (formerly known as World Church of the Creator) is not a ‘church’ but a hate group and it has been successfully sued and criminally prosecuted many times.  It’s members have been charged and convicted in over 17 acts of racial violence.  They have also gone by the name of “Skinheads of the Racial Holy War”.  So please do not tell me such an entity may not be sued for civil rights violations.  That notion is simply preposterous. It is a ‘church’ in name only and it’s ‘ministers’ have no civil authority to perform marriage and it does not retain tax-exempt status.  Your point is irrelevant.

I have practiced law, litigation, and First Amendment litigation, for decades before my retirement and I can assure you, if you actually think that an injured person can not only sue a church but recover significant damages for violation of one’s civil rights then you, sir, are delusional.  Indeed, the coast to coast law suits against the Catholic Church were for, inter alia, for Civil Rights violations and they were Civil Rights criminal prosecutions.

When a minister performs a civil ceremony they act as agents of the State and the law requires that they grant ‘due process’ and ‘equal protection’ to all ‘persons’.  While a certain amount of discretion is necessary purely as a practical matter (as you have point out), within that civil, secular, capacity, no minister may single out one suspect classification of persons for disparate treatment and deny them the secular service which that state agent (minister) is licenced, by the State, to perform.  Do so and you can keep on being a minister but you will loose your civil authority an probably your tax exempt status.  No one is trying to make a religion do anything but the State will not put its imprimatur to such actions, no cleric may abuse their State granted authority in an invidiously discriminatory manner.  Try it and you WILL see us in court.

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By Arouete, November 1, 2009 at 5:52 pm Link to this comment

Part Two:

Apples and oranges sir, apples and oranges.  The problem with this entire debate is that people do not come to the debate educated and equipped to deal with distinctions with a very real legal difference.  This is the fault of toothless gay advocates who do not want to take on the actual issue which is the First Amendment - Church and State - the Elephant in the room.

Marriage is, and always has been, a secular, civil contract.  (Unless, of course, Christians now seek refuge in Pagan rituals (LOL), or Jewish traditions that were always persecuted in the West).  Marriage was a secular, state authorized, action for epochs before any Christian ever walked this planet.  In fact the Church had absolutely nothing to do with marriage until the late 9th century when a couple married in civil ceremony began the custom of stopping by the Church to ask the priest to come out and bless their civil union on the church steps.  The Church did not make marriage a sacrament until the 11th century (it is only a ‘sacrament’ in he Catholic church)  when the Church started usurping all State power after he fall of the Roman empire.  Indeed, pope’s attempt to allow the church to regulate marriage in any manner was the subject of one of Martin Luther’s most infamous diatribes against the papacy.  Through the entirety of the history of civilization marriage has been a civil, secular, matter.  In measuring time the Church’s involvement in marriage is a mere few hundred years between the time the Church usurped the State and until Church and State were again separated by our U.S. Constitution. 

Again, marriage is a civil contract and a secular act and it was only when the Church intruded into State affairs that it became controlled by the Church. Even then is was a ceremony reserved for the rich who were concerned about money, their estates, etc.  The poor seldom troubled themselves with marriage ceremonies.  As Rev.  Peter Gomes has pointed out, when the Pilgrims landed at Plymouth the first thing they did was adopt Dutch custom of civil marriage because they felt marriage was not biblical based.  Clerics were FORBIDDEN BY LAW to perform the marriage ceremony from day one on American soil and this remained the law until Plymouth merged with the Commonwealth of Massachusetts.  Certain states (colonies) did have a state established Church until the Bill of Rights was enacted and incorporated by our early amendments at which point Church and State were required to disentangle.

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By Arouete, November 1, 2009 at 5:51 pm Link to this comment

Part Three

All this, of course, reflects the European custom in some countries (which you allude to) in which a church wedding has no validity unless and until the state civil action is first performed.  Marriage by tradition has always been a matter governed by the State.

All this you see is a perfect example of the Church intruding on the State - THAT is REALLY what this is all about sir.  This has little to do with gay marriage - it just looks that way because that disfavored minority is the easiest and most convenient way for the Church to get away with it. The Church NEVER had any participation in marriage until the 9th century (purely by way a quaint custom) and it never had any legal authority until the Church took over state functions in the 11th century. Once the State granted the Church civil authority to perform a State action it then decided it would keep that right all to itself.  That sir, is history, and that is what this is really all about.  ‘Traditional marriage’?  Rubbish!  There is not a sane person alive that would agree to anything like a ‘tradition marriage’ as it existed in America before 1970. 

As long as we have a First Amendment, when any cleric performs the marriage ceremony they act as State agents and must follow the law for all ‘persons.’ The Church is NOT a civil law unto itself.  Don’t like it?  Then fine.  The Right is right: you will have to amend the Constitution.  For reasons I’ll not discuss here Prop.  8 will fall as will all state gay Jim Crow laws.  People don’t not get to vote on fundamental civil rights.  What irony!  If African Americans were responsible for passage of the doomed Prop 8 we all know where THEY would be had their civil rights been put to the vote.  Winston Churchill was right, “The best argument against democracy is a five minute conversation with the average voter.”

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By 3ringquercus, November 1, 2009 at 12:28 pm Link to this comment
(Unregistered commenter)

Um…how come women haven’t sued their way into being Catholic
priests, then?  Despite Arouete’s optimistic fantasy about religions and
clerics being subject to civil rights laws, it’s not true.  And clerics are
NOT acting in a civil capacity when they sign a marriage license—they
do not suddenly become civil servants.  They are PERMITTED to
solemnize and sign marriage licenses, still retaining their religious
rights to refuse solemnization to anyone they wish, for any reason
including gender, sexual orientation, race, or religious belief (why many
clerics won’t even perform interfaith weddings.) 

However, it may be that someday clergy loses its permission to
solemnize marriage licenses, and that would be fine with me.  Part of
the problem with the same-sex marriage issue is people not
understanding the difference between civil, legal marriage and religious
sacramental rituals and beliefs about marriage.  Allowing only civil
authorities to solemnize a civil marriage license would help create a
clear, bright line between the two so marriage equality could be more
readily implemented.

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By Revshock, November 1, 2009 at 9:28 am Link to this comment

Being Sunday morning this comment will be brief. Yes, I am an advocate for LGBT rights including the right to marry. It is my intent to do all I can to secure this right for everyone.

Arouete is wrong again. Churches have a long history of racial segregation and many continue those policies to this day, ever heard of the World Church of the Creator? Or, the Southern Baptist Church? Jimmy Carter resigned as a deacon from the Southern Baptist Church in 1972 because the constitution of his local congregation excluded membership by “Negroes”. Yet no prosecution of any church for being racist has ever occured.

Finally, there is a growing movement among progressive clergy to decline acting as an agent of the state and not sign any civil documents ratifying a wedding. This is the European model. Everyone there gets married at the courthouse but many then have a religious ceremony at the Anglican Church (the established church of England).

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By Arouete, November 1, 2009 at 1:29 am Link to this comment

A colleague reminded me that, in the case of Reverend Shockley we in fact have a man arguing in ‘good faith’ that he is amongst those (“We”) who are “only asking for the right to marry for same-gender loving couples [and that the] Clergy and persons who in good conscience could perform the weddings would be the only ones to perform same-sex ceremonies.”

Point well taken & my abject apologies if I read him incorrectly; but it begs the question.  I appreciate that the reverend should toss over this rather tired red-herring for our benefit and it’s lovely propaganda if that’s his intent.  However it’s still legal rubbish. You simply can not have a law, especially one that impacts a ‘fundamental’ civil right, that certain public officials may disregard, disrespect, and deny to one entire class of citizens merely because that official, in his clerical and personal capacity, regards that class of persons as “morally objectionable.”  To allow that exception not only violates the Establishment Clause by favoring the State preference for religion over secular law but it’s tantamount to the State granting one kind of religion certain privileges and exemptions from the law.

In their capacity as clerics they may do as they darn well please; but when a cleric also acts as an agent of the State (as all clerics do in the marriage ceremony) they do not have the discretion to deny that civil right to one class of persons merely because that cleric has “moral objections” the class of persons he singles out for disparate treatment. That is an abuse of discretion.  When a cleric performs a civil function s/he is subject to civil law and must follow that law for ‘all persons’ or be stripped of their civil authority.  Sorry, they just can’t have it both ways.

Here we have a perfect, textbook, example of the danger religion too often posses in civil society.  It is a bit frightening when people openly elevate their religious dogma over their “Pledge of Allegiance” to their nation and “the Constitution for which it stands.”  Where clerics claim the right to operate as civil servants, administering a civic duty, performing civil, secular function (the civil marriage contract), they are not just clerics but public officials as well. If they can not serve these two masters with a clear conscience and in ‘good faith’ then they will have to forfeit one as a matter of law.  Our first duty as citizens is to our secular Constitution and not our religious dogma. 

Asking or even encouraging people to violate the First Amendment (Separation of Church and State) for the rather nefarious purpose of also violating the Fourteenth Amendment (‘due process’ and ‘equal protection’ of the law) as a means to further deny a ‘fundamental’ civil right (marriage) is, quite frankly, seditious for it preaches at least two violations of the U.S. Constitution.

No cleric also acting as a public official can have it both ways.  When the State grants them the authority to perform a civil function they are sworn under oath to first uphold the Constitution.  They don’t take their oath with their fingers crossed — ‘Oh ya, except for that class of persons.’  They may not both claim the legal right to perform secular marriage at the same time they retain the discretion to discriminate against one class of persons on whatever invidious and self-serving quasi-religious basis they please.  Our Constitution simply does not permit it.  And that is the central question you see. 

No one wishes to force any cleric to perform same sex-marriage if they find it morally repugnant. That is not the question. They are perfectly entitled to not do so but in making that choice they forfeit their civic, secular privilege to function as civil officials.

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By Solange, October 31, 2009 at 10:36 pm Link to this comment
(Unregistered commenter)

With all due respect for the reverend -stay within your discipline.  When it comes to matters of law it is best that some people remain silent and be thought a fool rather than open their mouth and remove all doubt.

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By Arouete, October 31, 2009 at 10:25 pm Link to this comment

djnoll, wrote,

“Rev. Shockley’s most valid argument is that if a couple knew that the JOP or minister they approached did not approve of their marriage, that they would probably be better of not using their services.”

In the context of law and civil rights there is nothing “valid” about this argument.  It was struck down over 50 years ago. This is exactly the same as saying, “If I don’t want to serve black people or the Irish they would probably be better of not using my services.”  It is the classic, 24 karat, segregationist argument for justifying separate but equal.  Indeed it was precisely the argument of the majority in the case of Plessey v.  Ferguson the most infamous case in civil rights history that was overturned by Brown v.  Board of Education.  How many children have been left behind?

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By Charlie, October 31, 2009 at 5:35 pm Link to this comment
(Unregistered commenter)

This is utter nonsense.  The Reverend wrote, “Personally, I refuse to marry any couple in which one person is under 25. I think it’s simply too young. Could I be sued if I refused to perform a wedding for a couple that had come to me for a ceremony? No. I had not denied them the right to get married. I simply declined to participate in that wedding. They are free to get married by someone else.”

Wow!  What an admission! How very, very telling!  “I, I, I, I, I.”  “I” get to decide what civil rights you have and what civil rights “I” will respect and honor.  Don’t like it?  Well go someplace else.  Rev. Shockley’s shocking written admission is that HE reserves for himself the right to decide whose legal civil, secular, rights he will grant or deny at his sole discretion.  It’s all about him you see and what HE thinks the law ought to allow?

Wrong Reverend.  Wrong.  You can be sued and they CAN win.  Your absurd rationale (for lack of a better term)  is no different than a Dixiecrat hotel manager saying “I did not deny them a room to sleep they can go stay somewhere else.  I did not deny them a meal.  They are free to eat at a different lunch counter. I simply declined to rent them a room in my hotel. They are free to stay somewhere else, eat somewhere else.” 

This rationale is what is has always been: a pigsty beneath a dull facade.

Amazing!  Totally amazing. It is one thing to do this with such disdain for legal rights.  It’s quite another to admit, in writing, that you place yourself above the law and that you intend to deny civil, secular, rights to others at your sole discretion.  ‘Go get your rights respected elsewhere’?  This is the very stuff of litigation and he invites it.  How shamelessly some people admit to their prejudice — and in writing no less!  With unmitigated arrogance he flaunts prejudice as he openly admits an intent to abuse his clerical cloth as a mean and petty device to deny civil, secular, ‘fundamental’ rights to others.

Sorry Reverend.  When the State authorizes you to perform a civil secular function you act not as a cleric but as an arm of the State and you are duty bound, as a public official, to respect everyone’s rights where the law protects that right and your cavalier refusal to do so invites litigation in which you will surely, deservedly, loose.  Your sacred cloth is not a license to trash the civil rights of others at your choosing.

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By Thomas, October 31, 2009 at 5:00 pm Link to this comment
(Unregistered commenter)

It is truly unfortunate that Truthdig publishes such outlandish articles like that of Rev. Madison Shockley without vetting such absurd statements for legal credibility.  While his intent is begin enough there is, unfortunately, not a scintilla of legal relevance in this article. It is food for the credulous. The clearly illegal tactics of one bigoted preacher who gets away with violating civil rights without being hailed into court is not credible evidence supporting Rev. Shockley’s preposterous thesis.

What part of the Truth did the editors not dig for?  Proof positive that there are actually two original sins? Gullibility and incredulity.  To those who swallow this absurd propaganda I might add, nincompoopery.

Isn’t it about time that we made an effort to educate people about the law of our land instead of publishing vapid propaganda - even if that propaganda is well intended?

I have faith in the American people and that they they will do the right thing. There is no need to lie and deceive people or to misrepresent the law. Educate. Educate. Educate!

If Truthdig has any genuine interest in actually engaging in this debate, any genuine interest in actually educating people about the law so many self-annointed pundits pontificate upon, I would hope they could find credible legal writers who might be happy to oblige; but the least you can do is to not publish such outlandish legal rubbish as that presented by Rev. Shockley. Just because Americans’ inteligence is so easy to insult and their ignorance so easy to exploit this is no reason for a reputable publisher to engage in it and perpetrate such cruel hoaxes. 

Shockley is wrong for all the reasons Arouete has laid out.  Yes, indeed, this is second year law school stuff.  The level of American’s ignorance when it comes to simple bedrock legal principals is deeply disturbing.  As Thomas Jefferson once wrote, “If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.”

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By Arouete, October 31, 2009 at 3:41 pm Link to this comment

No Revshock, sorry but you too are incorrect.  Because of the limitations I’ll do this in three parts.  PART ONE :

Your comment is legal rubbish and one’s opinion has nothing to do with it.  This legal claptrap demonstrates another example of people making legal statements with no legal authority to back them up. Please think about what you are saying and how absurd it is. Do you really think that any church could install a Negro water fountain or that they could require Negroes to sit in the back of the church or be segregated into separate classrooms?  Rubbish, balderdash and claptrap!  They would both loose their tax exempt status and be subject to civil suit.

There is only one reason faith-based initiatives are legal and its not because Churches are, per se, exempt from civil rights law.  As any legal scholar and all Supreme Court justices would agree, the White House faith-based initiative program would be illegal were it written by any legislature or made the subject of any law.  The reason is a clever loophole created by Bush II.   

Faith-based spending initiatives are permitted not because the Church is, in any way, exempt from civil rights law but solely as a result of the 5/4 U.S. Supreme Court case of Hein v. Freedom From Religion Foundation (2007) where all justices agreed that if any legislature passed such a law we taxpayers would have ‘standing’ to challenge that law as violating the First Amendment‘s ‘Establishment Clause’.  The only reason faith based initiatives escaped that certain fate is because they are not the result of any ‘law’ (legislative enactment) but the result of a White House ‘executive order’ and tax payers do not have legal ‘standing’ to challenge executive orders.  Think Separation of Powers: Legislative, Executive, Judicial.  The high court agreed, the initiative does violate the First Amendment but, “Catch 22” taxpayers lack legal ‘standing’ to challenge the executive order.

This has absolutely nothing to do with the Church being, per se, exempt from civil rights law but is strictly limited in that narrow context.  But even in this regard it is permissible ONLY if that money is spent on non-religious purposes (feeding the poor and performing purely secular functions) and may not be used to proselytize or promote religion in any manner.

Turning to the remainder of your legally muddled argument you fail to make distinctions with a very real legal difference between the ‘Establishment Clause’ and the ‘Free Exercise” clause.  In matters of dogma the State may not Intrude on religious mandates. The law permits people to divorce and remarry but the Catholic Church (as a matter of establishment dogma, religious mandate) does not permit either divorce or remarriage in the Catholic Church and no law may require the Church to perform such marriage on threat of losing it’s civil authority to perform a State sanctioned marriage nor loose its tax exempt status.  This is in respect not for one church’s or preacher’s invented excuse for invidious discrimination and violating civil right laws but because of a denominational religious mandate. 

But there are limits even on ‘free exercise’ for a Church or minister can’t simply go around disingenuously saying their deeply held religious beliefs permit this or that in violation of civil rights laws and expect to be exempt from the law.  That is utter and complete nonsense.  The scenario presented in this article would never survive a court challenge.

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By Arouete, October 31, 2009 at 3:40 pm Link to this comment

Part TWO

E.g., Mormons practiced polygamy for generations but Utah could not become a state unless it followed civil law.  Mormons are not exempt from such laws.  Likewise, one famous religious college lost it’s tax exempt status because it forbad inter-racial dating claiming it was their religious mandate.  Also, the use of the hallucinogen Peyote is clearly illegal but certain Native American tribes may legally use it in their religious ceremonies because it is part of their religion – a religious mandate not merely a religious belief.

Understand the distinctions with a real legal difference. The law does not allow churches and preachers to do a cynical end-run around the First Amendment or civil rights laws by simply saying that some act is part of their deeply held religious belief, nor can one simply invent a religion that mandates polygamy or prohibits inter-racial marriage merely as a device to get round violating people’s civil rights.

This, you see, is why the Right is right and the gutless Left won’t address the real Constitutional issues. The only way you can stop the Marriage Equality IS to Amend the U.S. Constitution.  That will never happen. Marriage equality will happen across the land because the First and Fourteenth Amendment say that they mean and mean what they say.  It’s no more a ‘states’ rights’ issue than is a Negro classroom and people who make such preposterous arguments only display their legal ignorance about bedrock constitutional principals. This absurd struggle will (just like inter-racial marriage) continue on a state by state basis until the U.S. Supreme Court steps in to enforce the plain language of the Constitution and strike down all these invidious and despicable gay Jim Crow laws.

Gay activists who peddle this States’ rights rubbish and who publish absurd and vapid propaganda about the Church being exempt form civil rights law appeal only to legal ignorance and do a disservice to their own community by feeding them legal claptrap rather than educating people to argue within clearly defined bedrock legal principals.  Sorry, but I do not believe in exploiting ignorance. 

This legal ignorance is the only reason we have a president who can actually get away with objecting to the legal ‘fundamental’ right of marriage for one class of citizens solely because of the “religious connotations to marriage.” Or perhaps gay activists have drunk so much Kool-Aid that they have never even noticed that this so-called ‘civil rights’ lawyer has never once - not even once! - provided them even one LEGAL reason why he’d relegate them to Jim Crow Separate but Equal second class citizenship solely for reasons of religion!  Can we ask this ‘civil rights’ lawyer for just one LEGAL reason why he would deny one class of citizens a ‘fundamental’ right?  Yes we can!  But no gay activists or propagandists have had the audacity to even ask the most important threshold legal question concerning their ‘fundamental’ legal civil rights.

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By Arouete, October 31, 2009 at 3:39 pm Link to this comment

Part Three


What has happened to gay activism?  Wake up.  Get a clue.  Region is never a ‘legitimate legislative objective’ for any law and it is never a “rational basis” for any law that abrogates any civil right.  This is second year law school stuff.  The gay watchdogs have become toothless pandering lap dogs.  Throw them a cocktail party and give them a photo op and they all scurry way with their tails between their legs.

The Church (religion) is tolerated in civil society only as long as it recognizes the equal civil rights and equal dignity of all citizens.  If any church fails to respect the law in this regard it will loose its tax exempt status, be stripped of its civil authority to perform the civil, secular, function of the marriage ceremony on behalf of the State, and it will be subject to civil suit for damages.  It’s the law.  Get over it.

As Gibbon so superbly pointed out in the Decline and Fall the primary reason the Christians suffered persecution in the Roman empire that tolerated all religions was because the Christians were intolerant of that State mandated tolerance and it was, therefore regarded as a very real threat to the State.  Christians, historically, have been far more persecuting than persecuted but caveat: backlash cuts both ways.  We in American all live by ‘the rule of law’ as laid down the plain language of our Constitution (‘No PERSON shall be denied….’) and not the blood-soaked Levitical law book of some Bronze Age nomadic tribe. Those who use and abuse religion as an excuse to deny ‘fundamental’ civil, secular, rights in America have no cause to complain if they suffer loss of respect in civil society.

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By Revshock, October 31, 2009 at 9:59 am Link to this comment

Sorry, but Arouete has it exactly wrong. Churches are exempt from Civil Rights laws. That’s why allowing churches to use federal money in “faith based” programs is problematic because they can exclude from employment in those programs non-church members and those who don’t adhere to that churches beliefs. Thus, discrimination is legal for churches.

A Roman Catholic priest cannot be required to perform a non-Catholic/ civil marriage just because someone asks them to do so. Churches are exempt from this part of civil law.

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By Arouete, October 31, 2009 at 2:40 am Link to this comment

Sorry but this writer gets the legal dynamic all wrong. The facts may be true but the analysis and conclusion are incorrect as a matter of law.  True, no one can force any minister to perform a marriage whether it be inter-racial or same-gendered.  However, that this anecdotal scenario never played out in the courts does not support the conclusion of the writer. 

Marriage, as we are concerned with it, is a civil contract, a secular function.  A minister performs a dual role.  First s/he acts as a minister preforming a religious ceremony.  But, as a matter of convenience, clerics are authorized by the State to perform a civil, secular, function as public officials.  In this capacity a cleric acts not as a cleric but a public official.  Public officials are required to follow the law and they are not permitted to improperly discriminate in their public duties by denying one class of citizens ‘due process’ or ‘equal protection’ of the law and thereby deny one class of citizens a ‘fundamental’ civil right. 

Any minister may perform or not perform their religious ceremony but they may stripped of their civil authority to act in that civil capacity.  As civil servants, acting in that capacity, they may not, on religious grounds, deny one class citizens, ‘persons’ their right to ‘due process’ and ‘equal protection’ of the law.

Yes, the State can not force the Church to perform a same sex marriage just as the law may not require it to perform an inter-racial marriage.  Any Church that refuses to perform interracial marriages based on their deeply held religions convictions may, of course do so, but the State will not validate religion that denies civil rights. In a civil action that cleric would loose their civil authority and that church may well loose it’s tax exempt status.  That’s what this is really all about: money and state police power, Church and State. 

The Church is not exempt from civil law.  Under the First Amendment the Church does not get to have it both ways.  If a minister, acting is such civil capacity wants to retain civil authority s/he must obey the law and may not abuse their public office by picking and choosing which class of citizens they grant or deny civil, secular rights to.  No, the Church does not have to do it but there is a civil price to pay.  The minister would be striped of that civil authority and the church loose it’s tax exempt status. 

So to the churches: Go enjoy your religion as you please but the State will to authorize your official denial of civil rights.  When you live and act within a civil society you must obey it’s laws or you loose certain privileges and immunities.  You loose the authority to act in a civil capacity and you forfeit tax exempt status.  It’s the law. Deal with it.

Deeply held religious beliefs do not entitle any cleric to abuse her civil authority by denying civil rights while acting in a civil capacity. Try it and you will see us in court.

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By Arouete, October 31, 2009 at 2:33 am Link to this comment
(Unregistered commenter)

Sorry but this writer gets the legal dynamic all wrong. The facts may be true but the analysis and conclusion are incorrect as a matter of law.  True, no one can force any minister to perform a marriage whether it be inter-racial or same-gendered.  However, that this anecdotal scenario never played out in the courts does not support the conclusion of the writer. 

Marriage, as we are concerned with it, is a civil contract, a secular function.  A minister performs a dual role.  First s/he acts as a minister preforming a religious ceremony.  But, as a matter of convenience, clerics are authorized by the State to perform a civil, secular, function as public officials.  In this capacity a cleric acts not as a cleric but a public official.  Public officials are required to follow the law and they are not permitted to improperly discriminate in their public duties by denying one class of citizens ‘due process’ or ‘equal protection’ of the law and thereby deny one class of citizens a ‘fundamental’ civil right. 

Any minister may perform or not perform their religious ceremony but they may stripped of their civil authority to act in that civil capacity.  As civil servants, acting in that capacity, they may not, on religious grounds, deny one class citizens, ‘persons’ their right to ‘due process’ and ‘equal protection’ of the law.

Yes, the State can not force the Church to perform a same sex marriage just as the law may not require it to perform an inter-racial marriage.  Any Church that refuses to perform interracial marriages based on their deeply held religions convictions may, of course do so, but the State will not validate religion that denies civil rights. In a civil action that cleric would loose their civil authority and that church may well loose it’s tax exempt status.  That’s what this is really all about: money and state police power, Church and State. 

The Church is not exempt from civil law.  Under the First Amendment the Church does not get to have it both ways.  If a minister, acting is such civil capacity wants to retain civil authority s/he must obey the law and may not abuse their public office by picking and choosing which class of citizens they grant or deny civil, secular rights to.  No, the Church does not have to do it but there is a civil price to pay.  The minister would be striped of that civil authority and the church loose it’s tax exempt status. 

So to the churches: Go enjoy your religion as you please but the State will to authorize your official denial of civil rights.  When you live and act within a civil society you must obey it’s laws or you loose certain privileges and immunities.  You loose the authority to act in a civil capacity and you forfeit tax exempt status.  It’s the law. Deal with it.

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By djnoll, October 30, 2009 at 11:01 am Link to this comment

Rev. Shockley’s most valid argument is that if a couple knew that the JOP or minister they approached did not approve of their marriage, that they would probably be better of not using their services. 

For some reason, which totally alludes me, homophobics in this nation seem to think that marriage being defined as something other than between a man and a woman will somehow endanger our children and our total social structure.  Gay couples have been living together for generations and have never once tried to change our schools, our government, or our business environment.  In fact, unless it is made blatantly obvious by their own actions, many of the doctors, teachers, lawyers, business people, neighbors, fellow church members that are in our social structure are LGBT. 

What I find offensive is the concern that is given to the children of such relationships - whether bi-racial or LGBT, and the affect that their relationship will have on other children.  Do those who object to same-sex marriage not realize that their children are quite capable of making their own judgments and are more tolerant than you are of the families of their friends?  Our children today know about same-sex couples, and they seem to have very little concern about them until your adult paranoia kicks in and teaches them to hate just like you do.

I recently was told by someone that civil unions were just fine for same-sex couples that they did not need to re-define marriage.  To the best of my knowledge, the only ones who want to define marriage are the heterosexual community.  All I can see is that the LGBT community wants the right to have a legally recognized marriage, which is nothing more that a societal more, with religious overtones in some cases, that insures legal protections under the law in matters of estates and families, not redefine what a marriage is between a man and a woman.  It is only within the bigoted community that this phobia seems to exist that the LGBT community wants to change society and the definition of marriage as it applies to them.  This is ridiculous.  Expansion of a definition does not negate the existing definition.  To give them a civil union in place of a marriage is just like giving second-class status to slaves in 1789. 

It is time for us as a society to recognize that members of LGBT community should have the estate and family protections that the heterosexual community enjoys. To force the religious arguments on those who do not embrace a religious doctrine, or to force someone to do something against their will, is in violation of our Constitution.  It is time that those who oppose same sex-marriage be stopped from trying to control our governance choices, the personal lives of others, and denying the reality of same-sex couples and LGBT members of our communities, by using imagined threats against our children, our government, our communities of neighbors, business people, schools, and our freedoms of choice. It is time for them to seek help for what is obviously a deep-seated paranoia without any basis in fact, and let the rest of us exercise our right to be open to others without judgment and fear. 

By the way, I am a happily married heterosexual woman, have no LGBT family members or friends (although that is only because I do not pry into their sex lives, so am not 100% sure about the friends), and am not a member of any LGBT advocacy group.  I am, however, an American who believes if one segment of our society is denied the rights of the rest of the nation’s citizens, then we are all diminished and are less free to be who we choose to be.  Please go to my website, and view the video from Salt Lake City for more of my views on this issue.

http://www.letfreedomring.community.officelive.com

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By Carl, October 30, 2009 at 10:48 am Link to this comment

Well I finally registered because even truthdig moderators will not post comments they do not like.

Yesterday, I posted a comment as to why homosexuals do not support the right of two women to marry the same man. They are adults, and so if the three are in love, why don’t they have the right to marry? Is it racist for the government to persecute Mormons for polygamy?

Do readers think that comment violates any of the following: Truthdig will not tolerate:

  * personal attacks on our writers or readers
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———————-
If not, will the editors remind the moderators that they are not censors.

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By KDelphi, October 29, 2009 at 10:05 pm Link to this comment

“I guess he missed the last election, when an Ivy League-educated lawyer and senator was elected president of the United States. You don’t have to be perceptive to be a racist, just fundamentally irrational. “

So when will said person come out for equality for all, glbtq included?

The reverand’s comments are of no consequence, as we dont have a political party with the balls to , even overturn dadt, out along DOMA!

My question is, who the hell wants to get married in a religious institution of any kind?

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By Carl, October 29, 2009 at 9:18 pm Link to this comment
(Unregistered commenter)

When will homosexuals come out in support of polygamy? If four adults want to marry, what is the problem with that? It’s clearly discrimination against their rights. Racism against Mormons.

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By Desert Climber, October 29, 2009 at 9:10 pm Link to this comment
(Unregistered commenter)

I have an African American friend whose his black mother tried to talk him out of
marrying an Asian woman for the same reason.  She thought it would hard on the
kids.

Thankfully, they ignored her admonition and got married anyway and now have
two beautiful children.

Of course, we live in California where mixed marriages are the norm.

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By Neurodog, October 29, 2009 at 5:44 pm Link to this comment

I appreciate the clarification, that the Louisiana JP just refused to perform the
wedding, rather than denying a license, and supposedly gave the couple a
referral. 

However,  the Reverend Shockley is dead wrong.  He (or she?) confuses three or
four possible reasons for refusing to perform a ceremony. 
1) Because you’re a racist and you’re opposed to interracial marriages.  That is
clearly illegal; it’s racial discrimination.  That clearly is the case with the
Louisiana JP.  The thing about the kids is a rationalization; we don’t need to
waste time on it.
2) Because it’s against your religion to marry, say, interracial couples, or a Jew
and a Christian, or a same sex couple where such marriages are legal;  or
whatever.  I’m not a lawyer, but it seems to me that is debatable. 

If you’re clergy, and you’re being asked to perform a religious ceremony, and
the marriage in question is actually against established tenets of your religion-
-not just your personal taste—well, maybe that’s OK.  They can go to another
church, or get a civil ceremony.  There is no real threat to their right to marry.

But it’s totally different if you’re a civil official such as a justice of the peace!
What if ALL the JP’s in Louisiana feel the same way?  A civil official has no right
to deny people their rights because of his personal prejudices or beliefs.

What the Louisiana judge is doing is illegal discrimination against interracial
couples, period.  Rev Shockley is similarly discriminating against young couples
by refusing to marry people under 25.  Maybe that’s OK, since he’s clergy;
maybe not, I don’t know. 

3) Logistical reasons like, I have to get back to my office, I don’t have time to it
now.  This is a flagrant red herring, nothing to do with the issue at hand, which
is systematic, illegal discrimination against interracial couples by a civil official.

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By Revshock, October 29, 2009 at 4:00 pm Link to this comment

I want to thank everyone that took the thought and time to comment. I appreciate and learn from each one. Obviously I am not a lawyer. But I feel confident in my position for two reasons. One, there are many lawyers and politicians trying to find a law or statute which the Louisiana Justice of the Peace violated and to date have failed to find one. Two, understand that the Justice of the Peace in Louisiana is a local elected official. Elected officials in most states are also authorized to perform weddings. Would we expect to be able to require our local city council member to perform our wedding simply because by law they are authorized to do so? Such occasions are usually reserved for close friends and family. The city council member (or any such elected official) can decline to perform a wedding if they choose without violating any law. On the otherhand, a county employee in the clerks office whose regular duty it is to also perform weddings in the county chapel (or more commonly, in front of the drop-down backdrop of a garden wedding) might be obligated to perform any wedding scheduled in the “chapel”. But I’m not sure that as long as there was “a” clerk in the office willing to perform the wedding that “every” clerk in the office would or should be required to perform such weddings. And I’m still waiting for someone to tell me why they would want someone performing their wedding that was opposed to it taking place?

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By 3ringquercus, October 29, 2009 at 2:39 pm Link to this comment
(Unregistered commenter)

There is a moral obligation to treat people equally and fairly in
addition to a legal one; there are also moral and specific legal obligations not to
discriminate on the basis of skin color.  However, the common citizen is
not required to live up to purely moral standards, since those are socially
subjective; however, state officials are obligated in every way to not
infringe on citizens’ civil rights, which is precisely what happened here.

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By dihey, October 29, 2009 at 2:34 pm Link to this comment

I am astonished that Rev. Shockley spouts so much nonsense in 2009. I quote: “We who opposed Prop. 8 repeatedly made the case that no one would ever be forced to perform a wedding that was against their religious beliefs”. That says all one needs to know about the Rev. Shockley. If a judge has religious beliefs which “prevent” him from performing a civil act he surely should resign, should he not? And if he does not resign he should be fired/recalled for derelict of duty and ignoring article 1 of the Bill of Rights. Bring back Thomas Jefferson. I am sure he would have written today much more scathingly than me about Rev. Shockley and the dinausorian Judge Bardwell.

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By thomasAlex, October 29, 2009 at 1:58 pm Link to this comment
(Unregistered commenter)

Since he was a State paid employee, his personal opinions and beliefs have no bearing on his job.  His job is to perform ceremony’s, and he refused.  He should be written up and/or terminated.  When you go to work, you are suppose to leave your beliefs and personal life at home.  There is no place for these such things in the Work Place.

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By John K., October 29, 2009 at 11:38 am Link to this comment
(Unregistered commenter)

Aaron:  Yes, by public officials.  However, again, clergy can discriminate against whomever they want.

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By Thomas C. Waters, October 29, 2009 at 11:11 am Link to this comment
(Unregistered commenter)

A very huge difference however, is that an inter-racial couple can receive a
marriage license, and a same-sex couple (generally speaking) can not. And
that is the basis of the Marriage Equality struggle. Additionally, their ability to
have a marriage license- imagine if that judge had been responsible for
handing out that license- what would he have done? Issue it but then refuse to
perform the marriage? Doubtful. Most likely he would have refused on both
counts.

Imagine a world in which anyone is permitted to discriminate based upon their
personal beliefs. What is a doctor or a nurse refuses to provide patient care for
a young pregnant woman, because the girl is unmarried and premarital sex is a
sin? The notion that the doctrinal restrictions of any particular faith
background should mandate what is and is not an acceptable way to treat
others is problematic.

I think Schockley’s main premise is interesting, but I believe, falters when
placed out in a larger context.

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By Aaron Ortiz, October 29, 2009 at 11:06 am Link to this comment

I am not very well informed, but wouldn’t existing anti-discrimination legislation in favor of LGBT people make it illegal to refuse to marry a same-sex or transgendered couple in states where it is legal?

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By 3ringquercus, October 29, 2009 at 9:54 am Link to this comment
(Unregistered commenter)

Keith Bardwell, as an official empowered by the State of Louisiana,
probably does not have the same discretion to refuse marriage services
as a clergyperson.  This isn’t the same as a judge recusing themselves
from a lawsuit either; there are specific parameters that prevent a judge
from recusing themselves just because they don’t like a particular case. 
They are charged with putting aside their personal beliefs in order to
make impartial judgments in the interest of justice.

State officials similarly have a duty to be impartial when rendering
services.  That means they are obligated to either provide services to
everybody equally, or recuse themselves from performing that service
at all.  That’s why many New Hampshire JOPs stopped performing
weddings once same-sex marriages became legal there; they knew they
would be censured if they performed ceremonies only for
heterosexuals. 

Keith Bardwell can never be forced to perform a wedding for an
interracial couple, though if he refuses to do so he might not be able
to continue performing marriages as a JOP.  He can obtain a religious
credential and discriminate all he likes however; discrimination against
others is protected by the Constitution as long as it is characterized as
part of a religious belief.

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By John K., October 29, 2009 at 9:45 am Link to this comment
(Unregistered commenter)

Rev. Shockley:

I’m not sure your assessment of the law is exactly correct.  Sure, there are perfectly good reasons why a justice of the peace or a deputy marriage commissioner could decline a ceremony, like the examples you gave.  They may even be able to decline to marry persons under 25 because age is generally not a protected class (and you certainly can decline to marry persons under 25 because you are a minister, not a public official).  However, while some reasons for declining are acceptable, racism is not generally a legally acceptable reason.  I don’t know what the law in LA is, if there are protected classes at all.  However, I believe that if a law against discrimination exists in LA that covers race, no public official could decline to perform the marriage.  The fact that the couple can go to another JOTP is irrelevant.  The law exists to prevent the humiliation and disrespect this couple undoubtedly had to endure from a public official.  That person should not be performing marriages at all, even if it turns out this couple is better off not being married by a racist.  Now, if this guy wanted to be a deputy marriage commissioner so he could marry his friends, I think that would be fine.  However, if I’m not mistaken, Justices of the Peace are paid public officials, and that means they must discharge their duties in accordance with anti-discrimination laws.  If they can’t do that in good conscience, then they are in the wrong line of work.

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earthwirehead's avatar

By earthwirehead, October 29, 2009 at 8:20 am Link to this comment

OMG…you might have to put someone else’s civil rights ahead of your own ignorance and bigotry…my heart (or some portion of my anatomy) just bleeds…

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By FlexSF, October 29, 2009 at 7:51 am Link to this comment
(Unregistered commenter)

This was a very helpful reason to give legal slack to a bigot,

“[c]ould I be sued if I refused to perform a wedding for a couple that had come
to me for a ceremony? No. I had not denied them the right to get married.”

I don’t know anyone who would want to be legally married by someone who
doesn’t want to marry them. However, if you’re employed by the state, like this
judge is, he doesn’t have the wiggle room to decide who he chooses to marry.
The state must treat everyone the same, and if state employed individual
impedes this basic job duty, they shouldn’t be allowed to work for the state.

Conversely, it is worth highlighting the bridge between racial, and sexual
orientation discrimination, through this situation. The judge has used children
as a shield to prevent himself from marrying this couple, and I understand that
they were already legally married. Right now, in the state of Maine, children are
the number one reason why the religious homophobes object to gay marriage
equality. They use the children as shields to mask their irrational fears.

I can’t wait for the Perry v. Schwarzenegger trial on 1-11-2009 @ 8:30 AM.
The plaintiffs will prove this point.

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By fwdpost, October 29, 2009 at 7:21 am Link to this comment

Your comments are excellent, but we are in a society that censors people who are not politically liberal in every way.

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