It was Bardwell's considered opinion that marriage is for raising children, and interracial married folks cause more trouble than they're worth. "There is a problem with both groups accepting a child from such a marriage," Bardwell said in October. "I think those children suffer, and I won't help put them through it."
As the Post reported, the issue arose when Beth Humphrey, who is white, and Terence McKay, who is black, "called Bardwell's office on Oct. 6 to ask" about getting a license, "Humphrey said Bardwell's wife told her that the justice wouldn't sign their marriage license because they were a 'mixed couple.' When questioned, Bardwell, who is white, acknowledged he routinely avoids marrying interracial couples because he believes children born to them end up suffering. In interviews, he said he refers the couples to other justices of the peace, who then perform the ceremony, which happened in this case."
What an outrage. A lone individual making such judgments--based on his own religious convictions and personal biases--and imposing them on others.
Not only was he imposing a morally reprehensible standard, he was acting in clear violation of the 14th Amendment, as well as Louisiana state law.
Aren't we past this kind of discrimination in our society? Individuals should not be denied access to marriage because some people consider their union to be problematic, unnatural, unhealthy for children, and violating public morality, right?
Well, this week Maine voters used a ballot initiative to narrowly (53%) overturn a law the Maine legislature passed last spring that would have legalized same-sex marriage.
Some can point out that racial discrimination is clearly unlawful, while statutes and ballot initiatives are part of the legislative process where the people can speak for their views and come to majority consensus. Some will protest that there is a world of difference between denying marriage to an interracial couple and denying marriage to a same-sex couple. Perhaps there are but is there a good argument for this?
Consider one version: there are no differences between races, but there are substantial differences between the sexes. Dennis Prager, writing at Townhall.com wrote last year: "Men and women are inherently different, but blacks and whites (and yellows and browns) are inherently the same. Therefore, any imposed separation by race can never be moral or even rational; on the other hand, separation by sex can be both morally desirable and rational."
Of course, that there is an inherent difference between the races is precisely the claim that scores of people--religious and non-religious--asserted for centuries. Judges in this country for many years emphatically stated that mixing races in marriage was an aberration, without blushing and with the force of proclaiming this fact as the gospel truth. Interracial marriage was considered to be an aberration precisely because it was unnatural and against God's designs.
For example, in 1878, the Supreme Court of Appeals of Virginia stated: "The public policy of this state, in preventing the intercommingling of the races by refusing to legitimate marriages between them has been illustrated by its legislature for more than a century...The purity of public morals, the moral and physical development of both races, and the highest advancement of our cherished southern civilization . . . all require that they should be kept distinct and separate, and that connections and alliances so unnatural that God and nature seem to forbid them, should be prohibited by positive law, and be subject to no evasion." Kinney v. Virginia, 71 Va. 858, 869 (1878).
In spite of the equal protection clause of the 14th Amendment, many challenges to miscegenation laws were not successful until Loving v. Virginia, 388 U.S. 1 (1967). The trial judge in the case below had upheld the law, asserting: "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."
A unanimous Court denied the legitimacy of this claim on the basis of equal protection and due process violations. Lower court judges can have their private biases, but the Fourteenth Amendment requires strict parity in treating persons the same under the law:
Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
We got past this notion that there are inherent differences between the races. (Or, most have--read the comments of many blogs and you can see this idea alive and well). Is it possible that our ideas of same-sex marriage are also changing? Are there ways to legally uphold the gender classifications that some would argue ground the institution of marriage?
People like Prager want to say that racial discrimination was a moral defect and indefensible: "The second reason the parallel between opposing same-sex marriage and opposing interracial marriage is invalid is that opposition to marriage between races is a moral aberration while opposition to marrying a person of the same sex is the moral norm." We overcame this moral aberration and now interracial marriage is accepted as morally normal--as it always was. Same-sex marriage, however, is the moral aberration. Marriage is built on the gender difference--leading to procreation. That is the moral norm.
But this has simply not been the case. Marriage divided along ethnic, social, and religious lines, particularly prohibition of marriage across those boundaries, was for wide segments of societies, the historical moral norm. Only more recently has this fact of intermingling become an accepted norm. Loving is a recent development that overturned centuries of discrimination.
Our moral, religious, and legal treatment of interracial marriage has progressed. Will similar changes occur in regard to same-sex marriage?
I am not here making a claim that same-sex marriage should become the moral and legal norm. I may believe that, but it's irrelevant for the question I pose: could someone offer up the best argument for treating same-sex marriage differently than interracial marriage. Anyone?
