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A Matter of Conscience

So Louisiana Justice of the Peace Keith Bardwell has gained national notoriety for refusing to issue a marriage license to an interracial couple, referring them instead to another justice to have the marriage performed.  His action has, of course, provoked a great deal of condemnation.  Pretty much every elected Louisiana official above Mr. Bardwell (and plenty of them to either side) in the administrative hierarchy has called for his removal from his position.  That goes all the way up to Republican Governor Bobby Jindal, who said:

“This is a clear violation of constitutional rights and federal and state law. Mr. Bardwell’s actions should be fully reviewed by the Judiciary Commission and disciplinary action should be taken immediately – including the revoking of his license.”

As for Mr. Bardwell himself, he has claimed not to be racist, but instead concerned for the biracial children that result from mixed-race marriage.  Of all that he’s said, though, I was particularly interested by the following:

“I didn’t tell this couple they couldn’t get married. I just told them I wouldn’t do it.”

It interested me because it’s exactly the kind of reasoning that underlies “conscience protection” laws that exempt medical professionals who wish to refuse participation in abortion, or dispensation of contraception.

So now I’m very curious to know whether what pro-life groups have to say about what this man has done and how he’s done it.  Or, for that matter, what Governor Jindal himself now thinks of the bill he recently signed into law.

23 Responses»

    • #1
    • Comment
    • Sat 17 Oct 2009
    • 2231
    Greg Hacke wrote in to say...

    But is it really the same?

    As Justice of the Peace, he hold an elected position – one in which he upholds the law. Where he may have a personal moral issue with interracial couples, as said elected official he must act within the law. This would indicate issuing the Marriage License.

    Were he anything other than an elected official, I believe he would be within his rights to refuse service on whatever grounds he so desires.

    • #2
    • Comment
    • Sun 18 Oct 2009
    • 0150
    Jeff Geerling wrote in to say...

    I don’t really see how it’s the same. In one case, the justice (an elected official, as mentioned above) simply states that he doesn’t think it’s a good idea to have ‘mixed-race children.’ Of course, this is not any kind of moral imperative, and cannot be held to be objectively true for all people, no matter how far you stretch the bounds of logic.

    However, in the case of abortion, if one believes human life should not be taken intentionally, and that human life begins at the time of conception (even when the life is in the zygote and fetus stage), then it is logical to deduce that having an abortion would involve taking a human life. So, in that case, it’s not quite the same. In the judge’s case, it would definitely be personal opinion. In the ‘pro-life groups’ case, it would be seen as a moral imperative, applicable to all people, and not a matter of opinion.

    • #3
    • Comment
    • Sun 18 Oct 2009
    • 0223
    jeff wrote in to say...

    Wow…very provocative and insightful comment Eric. Whether he’s elected or not, I wonder if the law does say he legally has to marry any couple that comes before him with a license. I doubt it. There are other situations as well where elected officials are allowed to recuse themselves on personal grounds. What if it would have been a gay couple (in a state that allowed it)? Or a 80 year-old man and 17 year-old girl? Or anything else that one person might find morally incorrect for that matter?

    • #4
    • Comment
    • Sun 18 Oct 2009
    • 0620
    Chris Coppenbarger wrote in to say...

    What if gay marriage had been made legal in Louisiana and this man refused to marry them based on a view that gay marriage was immoral? What if doctors were elected to an office, but refused abortion on the principle that it was illegal?

    What you’re referring to Eric is something that is not quite there, but could be. If the government does issue a government-run healthcare, they might have more say in what hospitals and doctor’s offices could do, which will present a dilemma for those who feel that abortion is immoral and you have a government that says it’s not.

    One must ask, what law did the justice break? I don’t exactly see one, other than following his conscience. Do I agree with his decision? Not really. Had it been a doctor refusing an abortion or a justice refusing a gay marriage, I would have agreed with him, even if it meant breaking the law.

    In part, the justice is right, I’ve known many multi-ethnic people who have been ostracized by the black community, but more accepted by the white community. It’s surprising that Obama is accepted by the black community as he is since he is also multi-ethnic. But you go into those communities and they are very hesitant to accept someone who is not of their pure race. Maybe I just being anecdotal, but there are studies that have shown this to be true.

    In a day when we should be looking past race, we are still stuck on trying to ensure pure racial lines, on both sides of the coin. The justice was both right and wrong in his assessment.

    • #5
    • Comment
    • Sun 18 Oct 2009
    • 0659
    Chadwick wrote in to say...

    I would assume any knowledgable person holding the pro-life position would agree that this judge is in the wrong. However, attempting to compare someone refusing to marry two people (who are able to easily get married somewhere else) and terminating a human life is illogical. That is a huge category shift.

    • #6
    • Comment
    • Sun 18 Oct 2009
    • 1438
    Adam wrote in to say...

    This really demonstrates the power the government has over the lives of others. Some might see this as an outrage and say the ruler in a robe should be forced into marrying this couple. Some might disagree. The core of the issue here is that people will inevitably disagree on these kinds of things. The solution should not be some majority forcing some minority (no matter how despicable) to do something they would otherwise not do. The solution is to get government out of marriage altogether. George and Martha Washington did not have a marriage license issued by some man in a black robe, and I hear they turned out okay. The government has no right to tell two (or more) consenting people that they can or cannot get married. This is simply not the government’s business.

    • #7
    • Comment
    • Mon 19 Oct 2009
    • 0300
    Graeme wrote in to say...

    There is a huge difference between trying trying to tell other people what is good for them (and being racist with it), and trying to protect an innocent victim.

    Very few people would argue in favour of abortion if they could be convinced that the foetus was a human being. On the other hand, his justifications are irrelevant: what ever the disadvantages are, it is the couple’s own business.

    • #8
    • Comment
    • Mon 19 Oct 2009
    • 0950
    Johnny Appleseed wrote in to say...

    Wow, methinks you should stick to design ideas. You can not, in no way shape or form, compare these two things, and the fact that you even attempt it, makes me question how you actually analyze problems. Doctors take the Hippocratic Oath, which essentially states, do no harm. How is that the same as upholding the Constitution? It’s not, an any way, period.

    • #9
    • Comment
    • Mon 19 Oct 2009
    • 1029
    Eric Meyer wrote in to say...

    So most of you seem to feel that there’s no comparison between the two (marriage and abortion, which is a narrowing of what I wrote about, but more on that anon) because one is trivial and the other is not. So what we seem to be setting up here is a continuum where a person is right to act on their conscience in situations that are sufficiently serious, and wrong to do so when matters are not so serious. (I’m leaving aside the question of whether a marriage is more or less serious than a pregnancy.) In that case, at what point would we say Justice Bardwell was right to refuse to issue a marriage license? Because there must be a point along the continuum where he’s in the right. If not with regard to marriage, then, what about other functions—say, finalizing adoption?

    If the answer is “in any case where said marriage would be illegal”, that’s just a dodge, and furthermore equates legality and morality in a way I think very few people would find acceptable. I don’t think any of us would want the government dictating a moral code, and almost none of us would want someone else to dictate their morals as a legal code to the government.

    From a legal standpoint, both abortion and marriage are identical: they are legal, and have been ruled to be Constitutionally protected. Regardless of what any of us thinks of them, the rulings exist and continue to stand. Drawing a distinction between the two on Constitutional grounds is, at present, impossible. Drawing a moral distinction is, of course, quite possible. (I am not, by the way, seeking to equate the two morally.)

    Furthermore, and this was interesting to me as well, nobody took on the question of conscience protection laws related to contraception. And here I really do mean contraception, as in The Pill and related medications, which prevent fertilization. To return to the continuum of seriousness, is contraception more or less serious than marriage? If it’s less serious, then should we force all pharmacists and doctors to provide contraception to those who seek it, regardless of their personal beliefs? If it’s more serious, why so, and how does it meet the threshold test for permitting people to refuse participation even when their job would otherwise call for it?

    And finally, we might argue (as some have) that as a government employee, Justice Bardwell is obligated to conform to the law regardless of any personal feelings about it. Does that hold if marriage is ruled a Constitutionally protected right for all couples, regardless of gender? Does the same reasoning still hold in cases where medical providers are partially or wholly funded by taxpayers? Would doctors in a clinic that receives money from the government be then required to carry out any legally available procedure or dispense any legally available medicine, regardless of their own beliefs? At what point does one become a government employee? Is it a question of who issues the paycheck, or who supplies the funds that enable the paycheck?

    • #10
    • Comment
    • Mon 19 Oct 2009
    • 1800
    Keith Burgin wrote in to say...

    These issues, and the comparison, are more complicated than black and white. There’s an awful lot of gray here that depends greatly upon morality and responsibility… not only to your employer but to yourself.

    The Justice of the Peace followed his moral compass in denying these folks a marriage license. Whether that moral compass is off several degrees is another matter. In my opinion he’s a racist but that’s my opinion.

    The fact is that he broke the law by denying a public service to someone based upon the color of their skin. When it boils down, that’s what he did.

    A doctor, like any other service provider, can decline to provide any service. If they feel that abortion is murder, that’s their call to make because it’s their practice.

    Having said that, if they receive federal or state funds for services, they should follow the law of the land. If the law says “you will provide these services” and the doctor has a moral problem with it, he/she has the option of refusing public funds.

    I’m all for people making decisions based upon their own moral code. Sometimes the decisions are a bit dubious in their merit or acceptability but that’s very subjective.

    When you work for the people, accept payment from the public or administer the law, you must obey the rules of the road.

    This guy should be fired… period. There is nothing we can or should do beyond that because his morals are his own. I don’t buy into the idea that you can punish someone for what he thinks. He violated his employer’s policies and should be subject to the same rules as any other employee.

    In a loose sense, these issues are similar. When you get a bit tighter on focus, though, they’re very different and should be treated differently.

    Just my opinion.

    • #11
    • Comment
    • Mon 19 Oct 2009
    • 1956
    Lsams wrote in to say...

    I agree, I don’t think there is any correlation between marriage and abortion. Just another example of how Government power is misused….

    But Eric, I do enjoy blogs about design =)

    • #12
    • Comment
    • Mon 19 Oct 2009
    • 2031
    Richard Fink wrote in to say...

    Eric,
    Moral equivalence strikes me as irrelevant to the question. The question is, should an individual be allowed to invoke their beliefs to exempt themselves from punishment for not carrying out the duties they are expected and paid to perform.
    If the answer is “yes”, then there has to be a list of the kinds of duties and obligations one is entitled to ignore. As there seems to be in the Louisiana law Jindal just signed. It’s very targeted.
    Exempting from punishment those who refuse to carry out their duties and obligations because their thoughts are pure and righteous is a transparent attempt to water down legislation that those who voted for the “conscience protection” law don’t like. And you can be sure there will be a concerted effort to make sure those protected from punishment for disobedience will develop the right sort of “conscience” ASAP.
    Nice try, Bobby.
    I’m sure this law is being challenged in the courts as we write about it.
    I can see why it disturbs you. It disturbs me, too.

    • #13
    • Comment
    • Mon 19 Oct 2009
    • 2033
    Eric Meyer wrote in to say...

    Keith! Great to see you again, man! What the blinking font have you been up to these past couple of years?

    • #14
    • Comment
    • Tue 20 Oct 2009
    • 1121
    Jen wrote in to say...

    Chris said:

    In part, the justice is right, I’ve known many multi-ethnic people who have been ostracized by the black community, but more accepted by the white community. It’s surprising that Obama is accepted by the black community as he is since he is also multi-ethnic. But you go into those communities and they are very hesitant to accept someone who is not of their pure race. Maybe I just being anecdotal, but there are studies that have shown this to be true.

    Definitely anecdotal as are my comments. My kids are Korean/American, dad is full-on Korean and I’m full-on American mix of German/Irish. The Korean community loves the kids. We have lived all over the US and in South Korea and never had a problem from the Korean community. Whites are mostly clueless unless my husband is standing next to them. BTW, no Asian has failed to recognize the ethnicity of my kids. The only people that have harassed my kids (and it has been very few and dealt with immediately) are school kids. They will stoop to new lows to hurt other kids – remember?

    And, yes, I know that during the VietNam and Korean wars these mixed-race kids were ostracized as well. My experience of the last 18 years has been very different.

    For my anecdotal 2 cents on the black community ostracizing the mixed-raced, I have also heard that they ostracize light-skinned blacks who are not mixed race.

    Would the judge have denied my husband and I a marriage license? I don’t know. If you mean multi-ethnic or mixed-race refers only to black/white then we have a bigger issue here.

    Doctors and nurses have are free to choose as I am free to choose regarding abortion and contraception. Judges are NOT free to choose as they are elected to uphold the law.

    • #15
    • Comment
    • Wed 21 Oct 2009
    • 1409
    Jim Sewell wrote in to say...

    I see this as not denying service based on skin color, but denying service because you think it a bad idea. He didn’t say “I don’t like black people so no” but rather “your kids would suffer”. Right or wrong that’s up to the people to vote him in or out next time. I see it as similar to a doctor saying “I won’t inseminate you because your husband has AIDS and that would be a terrible thing to do to a kid” – which says nothing about how he feels about AIDS patients.

    The difference is in status – elected official versus service provider. I don’t know the requirements of a judge but if he can decide which he will and won’t marry I think to call this racial discrimination is an overreaction – he appears to honestly care about the kids being abused by society rather than refusing service to a racial group.

    A pharmacy tech that refused to give out birth control pills was fired – that’s the employer’s right I suppose – just as it is the right of the Judge’s employer (the people as such) to “fire” him next election.

    Conscience has no degrees – you either follow yours or you are without principle. Simple.

    • #16
    • Comment
    • Wed 21 Oct 2009
    • 1849
    Doug P wrote in to say...

    Oliver Wendell Holmes made the distinction that while a police officer has a right to free speech, he doesn’t have the right to be a police officer. Matters of conscience are just that, and we’re both entitled to them and responsible for them. But they don’t mean much if we expect to be rewarded for them.

    Plus, Justice Bardwell seems to have kind of a stupid conscience.

    • #17
    • Comment
    • Sat 24 Oct 2009
    • 1756
    Dustin Wilson wrote in to say...

    This story really disturbs me not because the man refused to offer a marriage license to an interracial couple, but the fact that it became first page news — especially since it became so after the issue had already been resolved. I live in Louisiana. It became first page news because it was a racial issue taking place in Louisiana where we are all stereotyped as being racist bigots when a much more disturbing story about a low income daycare composed of mostly black kids were denied access to a swimming pool in Philadelphia because they would “change the color” of the place. That was buried in pages and pages of links because it took place up North. There’s a double standard with this sort of reporting, and it’s disheartening to tell you the truth.

    Now since we’re talking about this I don’t see how it can be spun that the man isn’t racist because if he wasn’t he would have given them a marriage license because if the man was white or if both of them were of a single race he would have gladly given them one. Not believing that a white woman and a black man who love each other have the right to marry is racist — plain and simple. According to law he has a right to believe that himself as long as he doesn’t do bodily harm to an individual based upon their race. In Tangipahoa Parish the Justice of the Peace is an elected official, so when taking office he promised to uphold the law. Now according to law those two have the right to marry. He should lose his job on those grounds, and it was on those grounds that the governor acted. If he’s found to be wrong in his actions his license would be revoked and he would be out of office. All of this took place before any national media caught wind of the story.

    I don’t believe this bears any comparison to the Conscience Protection law aside from the simple refusal similarity. I can see how you’re trying to form a comparison, but it’s illogical because the reasoning behind the law isn’t stated in the Times-Picayune article you linked to. People on both sides of the issues all try to politically charge something that has nothing to do with political beliefs. The law is one in a series of legislations that were established to reduce healthcare costs in the state. One of these methods is to reduce frivolous lawsuits, and there were accounts where doctors were sued because they refused to give abortions. With a law stating that a doctor has the right to refuse to perform an abortion he/she cannot be sued for not performing one.

    A doctor’s not performing an abortion has nothing to do with pro life or pro choice; it has to do with a doctor’s comfort level with doing such. I’m personally pro choice, but I would be greatly uncomfortable with giving an abortion; if I was a doctor I wouldn’t do abortions. Now, a doctor doesn’t have a law stating he is required by law to perform an abortion on someone. A justice of the peace has a law stating that he is to issue marriage licenses to couples who meet the state’s requirements for marriage. Completely different.

    • #18
    • Comment
    • Sun 25 Oct 2009
    • 2241
    Eric Meyer wrote in to say...

    Actually, Dustin, the Philadelphia swimming pool story had at least as much visibility as did this latest story. At least it did in the news outlets I follow from my northward location.

    And I continue to be fascinated by how few of the commenters have even so much as glanced at the contraception side of all this, focusing instead exclusively on abortion.

    In fact, a lot of you seem to think I’m trying to trivialize abortion and contraception conscience protection laws. Guess what? I’m not. I’m prodding at a strange multi-way junction in our collective thinking. Furthermore, I’m pointing out how the forces that are shaping the controversy around Justice Bardwell may repeat themselves in other areas, given certain changes to society that are even now under discussion.

    On which point some of you will no doubt assume that I oppose those changes, when that isn’t necessarily the case either. But that’s normal for me, so it won’t bother me any more than I’ve been bothered by what’s gone before. (Disappointed by one comment, yes, but only for the odious impulse it betrayed.)

    • #19
    • Comment
    • Mon 2 Nov 2009
    • 2005
    Doug P wrote in to say...

    Eric, here’s an anecdatum that won’t answer but might approach the part of your question you feel is still unanswered: I work at a company that primarily contracts with non-profit agencies which are heavily regulated and state-funded. I consider part of doing my job to, first, try to influence the laws and regulations that will affect how I do my job downstream; and, second; comply with those laws and regulations (as an agent of an agent of the government.) When I provide input on what the laws and regulations ought to be, my conscience and perspective provide most of the content.

    Once the regulations are set, I feel my duty as a professional is to comply listlessly with the regulations I feel are wrong or dumb and those I agree with vigorously. But I comply with them all. If one of them were so malevolent or counter-productive that I couldn’t comply, then I need a new job or, at least, not to be surprised if I’m closed down.

    So, I would say this: As a citizen I have the right to support or oppose mixed-race marriages, abortions and contraception. If I am receiving public funds, I have the right to quit my job (or trade cases,) but I don’t see where I have the right to obstruct or divert public funds from the public purpose, as defined through the political process.

    This was an interesting post to revisit after hearing of the “oath-keepers,” by the way.

    • #20
    • Comment
    • Thu 5 Nov 2009
    • 0157
    Austin Cheney wrote in to say...

    Since this comes down to expectation of practice I don’t any difference here. If a judge is unable to do his job of making legal decisions objectively then that judge must be required to refer the particular case to somebody who can. I believe other practices should be required to operate in the same manner. Pharmacists, for example, must be allowed to object to certain practices they find disagreeable. But, if such an objection is to be allowed it must be imposed with certain rational constraints.

    There must be a level of expected transparency and equality, so that if a pharmacist refuses to dispense medication in one instance, aside from medical objections, it must refuse to dispense that medication in all instances and that objection must be posted and clearly stated. If the objection is clearly stated there should exist a professional courtesy where one objecting pharmacist refers patients to another pharmacy that does not object to the dispensation of that specific medication on grounds unrelated to medicine.

    If such constrains are not required then I find there are grounds for discrimination. As a result such a lawful requirement, or condition, must exist to protect such practitioners from discrimination law suits. I find anything less would allow a disgraceful level of bias that is both an embarrassment to the practitioner and the customer.

    The ability to object to a practice on personal qualifications is incredibly far reaching. Imposing a limitation on such is likely to inflict unforeseeable harms in completely unrelated fields. I believe such harms could like impose interference with many safety practices where objectivity is not a legally defined quality.

    • #21
    • Comment
    • Mon 16 Nov 2009
    • 1840
    belgium wrote in to say...

    It doesn’t matter what his morals are. He is employed by the government, so he is required by law to follow whatever laws are in place regardless of his personal moral stance.

    Were he a private company employee, this would be a completely different conversation. But he’s not – he works in the public sector.

    • #22
    • Comment
    • Mon 18 Jan 2010
    • 0529
    Claude Chaudron wrote in to say...

    Hi Eric, I am a french habitué of meyerweb.com, but I never left any comment here before today. I hope I will clearly and respectfully express myself in this one, despite of my english skill.

    I am very surprised to read some comments which are so little inclined to blame Justice Bardwell’s attitude. My parents contracted an interracial marriage long ago and here I am. Just to say I feel very concerned by such a subject.

    Your opinion about “kind of reasoning” sounded right to me, but it shifted in an inappropriate way to the question of abortion in itself, as abusively said in some comments.

    As we say in France: “Comparison is not reason”.

    Beyond design, I personnally appreciate reading topics from you about different things, not just container or design matters.

    • #23
    • Comment
    • Fri 19 Feb 2010
    • 1123
    nobody wrote in to say...

    As an elected official, the decision of whether he should lose his job is in the hands of voters. There are plenty of examples of elected officials and politicians that have weathered ‘irregularities’ and yet enjoyed multiple re-elections(Charles Wilson comes to mind), laws are only as relevant as peoples’ desire to have them enforced.

    Try not paying taxes due to reasons of conscience stemming from funding a war machine ;)

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